Federal Court of Australia

BBK19 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1001

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court of Australia made on 12 September 2019 be set aside and in lieu thereof, the decision of the second respondent be quashed and the matter be remitted to the second respondent to rehear and re-determine according to law.

3.    The name of the first respondent be varied to the Minister for Immigration, Citizenship and Multicultural Affairs.

4.    The first respondent pay the costs of the appeal of the appellant and also pay the costs of the proceeding before the Federal Circuit Court of Australia.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SETTLED REASONS FOR JUDGMENT

EXTEMPORE

ALLSOP CJ

1    This is an appeal from orders made by a judge of the then Federal Circuit Court of Australia, dismissing the application for judicial review of a decision of the Immigration Assessment Authority (the Authority), made on 13 February 2019. The background to the appeal and the circumstances of the appellant are described in the helpful and clear written submissions of the appellant and of the first respondent. The appeal contains, on my understanding of the arguments and the way I propose to deal with it, no issue of principle or construction of the relevant provisions of the Migration Act 1958 (Cth) (the Act), being ss 473DC and 473DD.

2    Those provisions, of course, have given rise to a body of litigation in this Court and the High Court. Most relevantly for today is the binding guidance given by the High Court in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494, in particular, at paragraphs [11] to [12], which reveal the necessity for the Authority to examine and engage with mandatory considerations in paragraphs 473DD(b)(i) and (ii), before engaging with the question of exceptional circumstances in 473DD(a). The Authority undertook its task some months before that guidance was given. That is not an unimportant contextual matter.

3    The appellant, as a young man from Sri Lanka of Tamil ethnicity, came to this country in 2012. The events and his history are contained within the Authority’s decision and the submissions of the parties before me. Relevantly, for present purposes, there appears to be acceptance that in approximately 2008, he was questioned and beaten and otherwise degradingly treated by the CID in an episode that lasted some hours. The appellant’s father had died in 1994, after mistreatment by the authorities. There was some connection between the Tamil Tigers or LTTE and relations of the appellant, and also, the appellant had spent some time at an ashram which appears to have been run by a sympathiser of the then-active LTTE.

4    These are not necessarily precise descriptions of the background but it is sufficient for the purpose of my reasons today to indicate that there was some acceptance by the Authority of some degree of a basis for suspicion by the CID of the appellant being affiliated with the Tamil Tigers, at least in the past. The relevance, of course, however, of the past is only to the legitimacy of conclusions drawn in the reasons of the Authority about the real chance of persecution or harm under the Convention or otherwise, upon return to Sri Lanka now.

5    Part of the history and narrative claims of the appellant involve the period from 2008 to 2011 and the period after 2011. Broadly speaking, that claimed narrative was as to the continuing interest of the CID and the authorities in him and those in his family, their visiting his home, their engagement with his mother, his being concerned in 2011 as to their continuing interest in him, and his fleeing his home, which was in, if I may use the expression, LTTE country in Batticaloa, to Colombo, and what he said was the continuing interest of the CID in him reflected in regular contact with his mother, whether at the markets where she attended on a regular basis, or at her home. Ultimately, looking at country information, the Authority looked at the claims and was not persuaded that there was a real chance of persecution or harm for the purposes of paragraphs 36(2)(a) and (aa) of the Act.

6    The appeal was concentrated in its focus upon two grounds which I consider to be clearly interrelated. The first, ground 1, is whether or not the Authority’s reasons disclose an error in failing to address paragraph 473DD(b)(i) and (ii). The second error is as to whether – that is ground 3 – there was a failure to address what is often called the appropriate “what if I am wrong” question, discussed so lucidly by Sackville J on behalf of the Court in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; 56 ALD 43 (Rajalingam) so many years ago. For the reasons I will identify, I do not think that ground 3 has a separate life. Rather, it is relevant because of the treatment of the Authority of the new information to which I will come in a moment and, in my view, its apparent failure to engage with 473DD(b)(ii). Before going to those matters, I should deal with 473DD(b)(i). This requires the applicant, before the Authority, to persuade the Authority that the information could not have been provided to the Minister, that is, the delegate, before the delegate made the decision under section 65 of the Act.

7    The relevant information with which the appeal is concerned is a document and the information within it, being the so-called testimony of the appellant, provided by the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors, so-called STARTTS. The document reveals that the testimony of the appellant was obtained by a trained clinical psychologist in a group program designed for male survivors of trauma and rape. Trauma and rape, in some fashion, appropriately reflects the beating and degrading treatment that the appellant underwent at the hands of the CID in 2008. No suggestion was made that this group program of therapy was other than appropriate and sympathetic treatment, liable to bring forward, in a more open way, the discussion of past trauma and degrading treatment which might otherwise be difficult to discuss. It is unnecessary to set out the introduction which appears on AB284, together with a clinical prologue on AB283. Thus, it is uncontested, I would have thought, that the statement after a number of group sessions will generate memory and a willingness to discuss events that may not have come forward on earlier occasions to discuss the narrative concerned. The testimony was analysed and discussed by the Authority, in particular, in its reasons at paragraph [5], on AB621 to AB622. The Authority looked at the whole of the document as the new information.

8    The document was signed on 30 June 2016 and as I have already said, I think, there was no attempt before the Authority or before the previous Authority (which decision was also set aside) – there was no attempt by the appellant or his advisor to set out material that could persuade the Authority of the matters in 473DD(b)(i), and that is why I put (b)(i) to one side. The Authority dealt, however, with the substance of the testimony at paragraph [5] of its reasons in dot point on the two pages to which I refer. The early part of the testimony about the events of 2008, when the appellant was beaten and mistreated in a degrading fashion, were accepted by the Authority, implicitly, as credible. It is unnecessary to set out the whole of the paragraph, which is long, but there is no debate before me that the Authority accepted the recounting of the events of 2008 as credible.

9    Importantly, however, in that paragraph, the Authority did not use the language of section 473DD(b)(ii) and did not refer to the notion of credibility of the new information within the document. That 2008 information, though credible, was broadly repetitious in subject matter of what the appellant had said on earlier occasions, such as his claim for protection and the original interview. What is relevant, however, and central to this appeal is the treatment of the material in the testimony under the headings “I am under surveillance” and “I flee to Colombo”, on pages AB287 and AB288 of the appeal book. I will set out in full those matters which do not contain any identifying material:

I am under surveillance

I stayed at my home with my mother for a year and a half. I went to study for my A levels and my mother would accompany me to the school as the SLA were watching me all the time. When I left on my bicycle I would see them following and watching me from their motorbikes. There were usually four of them on two bikes and they would go round and round. Between 2009 and 2011 the SLA men always seemed to be wherever I went.

I flee to Colombo

In 2011 the same four people came to my home. I was home at the time but I ran away when I saw them coming. They told my mother that I had to come for questioning. That very night I left to go and stay with a friend in Colombo.

After that day they kept coming to my mother’s house once a week. My mother told them I had gone to a relatives’ [sic] place. I never returned to my home after that. I stayed with my friend in Colombo for a year and then he told me that people were going to Australia and asked whether I wanted to go….Only after I left Sri Lanka did I feel like I could breathe again. My shame of what happened to me prevents me from telling people what they did to me.

10    The three paragraphs deal with the period up to 2011 after 2008, and the period of and from 2011. The Authority identified one contradiction and two additions of new material. The contradiction was as to whether four people came to the home or two and the additions were what is contained under “I flee to Colombo”. Importantly, in the last paragraph, the paragraph commencing “After that day”, the appellant said in testimony that they kept coming to his mother’s house once a week and that she told them that the appellant had gone to a relative’s place and that he never returned home after that.

11    This information was in addition to but not inconsistent with, either in the particular or broadly, other information that the appellant had given in his original claim for protection and in his protection visa interview. That can be seen at AB150 at paragraph [28], and AB647 through to AB652. Nowhere in that part of paragraph [5], where the Authority is dealing with the testimony does the Authority engage with the question as to whether the information can be believed and is credible in the sense, not that it is to be believed but that it could be believed, as discussed by the Full Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; 171 ALD 477.

12    Mr Kay Hoyle, in a clear but narrow defence of the Authority’s reasoning, said the contradiction between the four and two people reflected the view of the Authority that there was a binary choice to be made about this document and that it was not credible because of that clarity of inconsistency. I do not see that in the reasons of the Authority. What I conclude is being dealt with are aspects of the testimony which may go to whether it should be accepted – a failure to engage with the relevant and mandatory question as to whether the document, and in particular, this part of the document, was credible, in an approach to the section in which the Authority was looking to relevant considerations that went to the matter in (a), that is, whether there were exceptional circumstances.

13    The relevance of this material can be seen when one goes to the reasons of the Authority for rejecting the claim. At paragraph [23] of the Authority’s reasons, one reason given for finding it hard to accept the “interest [of the CID] in the applicant in 2011, some years after his earlier interrogation”, was that it was “implausible that the CID would seek out the applicant in 2011, and yet when he failed to comply with their request or with his reporting requirements, apparently [made] no further visits or attempts to question his mother beyond harassing her at the market until 2016, some four years after having expressed their intention to find the applicant, and warned he could not escape.”

14    The difficulty here is that this particular reason for finding it hard to accept the appellant’s claim that there was interest in him after 2011 is informed by the last paragraph of the testimony, where the appellant says that the CID made regular visits to his mother’s home once a week. In my view, there is a demonstrated failure to engage with the content of paragraph 473DD(b)(ii). That feeds into ground 3 because with that new information in the testimony, there would be a need to assess the doubt expressed in paragraph [23], because there was evidence, if believed, that the CID made weekly visits to the mother’s home after 2011. That leads to the question of materiality in those circumstances. The very aspects of some of the reasoning that took place may not have been so expressed, and the whole question of belief of the claim narrative after 2011 would have been placed in a different context. The materiality of that is such that it could not be concluded that there was no reasonable possibility of the claim history of the appellant after 2011 being viewed differently.

15    Given that is the case, the later attention to the country information would have to be looked at on a different premise, not merely that this young man had been mistreated in 2008, but that he was a person who had been subject of interest in the years after that up to and after 2011. In my view, the Authority’s reasons disclose a failure to address s 473DD(b)(ii) adequately or at all, other than by generally dealing with aspects of a subject matter which could be relevant in an apparent addressing of 473DD(a). For the reasons I have identified, that error can be seen as material because there was a reasonable prospect – a realistic possibility that the whole of the evidence could have been looked at differently, and that has been demonstrated, in my view, by the appellant.

16    In those circumstances, it is unnecessary to deal with the Rajalingam point separately. As I have sought to indicate, it really is part of the question of materiality. For those reasons:

(1)    The appeal should be allowed.

(2)    The orders of the Federal Circuit Court of Australia made on 12 September 2019 should be set aside, and in lieu thereof, the decision of the second respondent should be quashed and the matter be remitted to the second respondent to rehear and re-determine according to law.

(3)    The name of the first respondent should be varied to reflect the current Minister, being the Minister for Immigration, Citizenship, and Multicultural Affairs.

(4)    The first respondent should pay the costs of the appeal of the appellant and also pay the costs of the proceeding before the Federal Circuit Court of Australia.

17    Before leaving the matter, it is appropriate that I remark upon one thing. The primary judge saw no error in the treatment of the material by the Authority. It is clear that I disagree with that view. His Honour heard this matter in September 2019 and delivered an extempore judgment, as have I. There is nothing wrong with the delivery of extempore judgments by busy trial courts and busy appeal courts. The proper use of extempore judgments is not to be discouraged, but they come with some responsibility.

18    People who come before the Court in cases such as this often do not speak English as their first language, often need a quiet time of reflection with the assistance of interpreters and translators to understand what has happened, both contemporaneously in court and after the event when they have either won or lost. It is particularly important that judges exercising the judicial power of the Commonwealth in these matters, that can be matters of life and death, are clear in their expression of reasons and attend to a proper record of their reasons. There is a transcription service provided under a contract with the Federal Court of Australia as the entity administering the infrastructure of this Court and the then-Federal Circuit Court.

19    The reasons that were provided were the, if I may use the expression, raw transcript of the day. There were gaps in that transcript. The transcript had not been corrected or settled. Those gaps did not in any way impinge upon the ability of Mr Zipser to propound the appeal on behalf of his client, nor did they impede Mr Kay Hoyle and those instructing him to propound the position of the Minister. In another case that may not be so.

20    It is not always necessary for a judge to use the transcript to create a formal document signed by his or her associate as reasons for judgment, but it is necessary for a judge, in any court, whether busy or not, to ensure that the transcript record is both substantially accurate and complete. It does not have to be perfect, but it should be substantially accurate and complete. No difficulty was caused in this case, but it is not difficult to envisage a case where an inadequate transcript or an incomplete transcript could lead to great difficulty and trouble and expense in obtaining the tape recording of the hearing and judgment (if it is available) and deciphering what was said. Seeing that the transcript of reasons for judgment is substantially accurate and complete is the responsibility of the judge delivering judgment, not the responsibility of the applicant, appellant, or Minister or the appeal court.

Associate:

Dated:    29 August 2022