Federal Court of Australia

AXQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 195

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an amended notice of appeal filed by the appellant on 12 October 2022. The appellant seeks to appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) in AXQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 39. The primary decision concerned an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (IAA), dated 12 August 2020, which affirmed a decision of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) to refuse an application for a protection visa under the Migration Act 1958 (Cth) (Migration Act).

DECISION OF THE IAA

2    The background to the present appeal was summarised by the primary Judge. As the primary Judge explained:

2    The way in which the Originating Application came before this Court, in respect of the applicant only, has been concisely set out in paragraphs [5] – [11] inclusive of the applicant’s consolidated submissions filed on 14 December 2021, which submissions were relevantly as follows:

“[5] In December 2016, the Applicant (and her two daughters), through her husband’s application for a safe haven enterprise visa, made a protection claim. In that application, the husband made claims on behalf of the Applicant and his two daughters as vulnerable females. This involved a claim, by the husband, of a fear that the Applicant (his wife) and his daughters, as Tamil women, would be at risk of sexual and physical assault by Sri Lankan authorities, if they were returned to Sri Lanka.

[6] On 24 October 2017, the delegate for the Minister for Immigration and Border Protection (“the Delegate”) refused the application for a protection visa.

[7] On 8 February 2018, the Authority affirmed the Delegate’s decision.

[8] The family sought judicial review of the Authority’s decision in this Court. This Court dismissed that judicial review application. The family then appealed to the Federal Court. On 29 May 2020, Justice Greenwood found that the Authority’s decision dated 8 February 2018 contained jurisdictional error and remitted the matter to the Authority to be determined according to law.

[9] Prior to the Authority reviewing the Delegate’s decision afresh, the Applicant provided a statement (dated 12 June 2020) to the Authority which included new information. In that statement, the Applicant disclosed that she had been raped in Sri Lanka on many occasions by different Sri Lankan army officers and feared she would be raped again if she returned to Sri Lanka and held a similar fear for her daughters (“the rape allegations”). The Applicant’s then solicitor requested the Authority to keep the Applicant’s statement confidential. Submissions were also provided to the Authority on behalf of the Applicant, her husband and their two daughters.

[10] On 12 August 2020, the Authority affirmed the Delegate’s decision not to grant the Applicant a protection visa. The Authority’s decision and reasons are found in the court book at pp. 428-450. That decision and reasons relate only to the Applicant not her husband and daughters. Given the Applicant’s solicitor’s request to keep the new information confidential, the reviewer proceeded to make three separate decisions with respect to the Applicant’s husband and her two daughters. Applicant’s husband and her two children have sought judicial review of those separate decisions in BRG514/2020.

[11] The Authority was obliged, pursuant to s. 473DD(b)(ii) of the Act, to decide whether it would consider the rape allegations as part of its review. The Authority decided that it was not obliged to consider those allegations as part of its review. The Applicant contends that it is that decision that is affected by jurisdictional error.”

3    The IAA referred to new information provided by the appellant and her family, to the effect that the army suspected the appellant’s husband of transporting weapons for the LTTE because he worked in LTTE areas. The IAA considered that information.

4    The IAA referred to new information provided by the appellant concerning the departure of the appellant and her family from Sri Lanka and harassment of her family following that time. The IAA found that the information was not reliable or credible, and that there were no exceptional circumstances to justify considering it.

5    The IAA referred, in detail, to new confidential claims of sexual assault by army personnel in Sri Lanka of the appellant. As the primary Judge subsequently observed (AXQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 39 at [17]) the IAA found the new claims to lack credibility for the following reasons:

(a) There was an absence of corroboration by the applicant’s lawyer of the applicant’s alleged making of the claims at an earlier time, as identified by the Authority at [31] of its reasons.

(b) The applicant’s expressed reason for making the new claims at the time she did, allegedly “for peace of mind” and with a view to protecting herself and her daughters, was implausible, in that the same purported considerations motivating the applicant to make the recent claims had existed in 2017, namely at the time of the delegate’s consideration of the matter. Had the claims been real, one would have expected that they would have been raised at the earlier time “for peace of mind”.

(c) There were internal inconsistencies in the applicant’s new claims as identified by the Authority at [34] – [39] inclusive of its reasons.

(d) The applicant failed to make the claims at an early time, as would have been expected, having regard to the seriousness of the allegations made by the applicant, and the dire consequences to both herself and her daughters should such claimed events be repeated.

(e) The Authority considered that the new claims had been fabricated. It was open for it to so find based upon its detailed assessment of the claims. Another differently constituted Authority could have reasonably so found.

(footnotes omitted)

6    Accordingly the IAA did not consider that information.

7    The IAA noted that new country information had been provided by the appellant and her family, however was not satisfied there were exceptional circumstances to justify considering that information as it could have been provided earlier, and the appellant’s representatives provided a significant amount of country information with the application and in post interview submissions, including concerning violence against women.

8    Originally only the appellant’s husband claimed protection although his claims were made on behalf of himself, the appellant and their daughters. The IAA had regard to s 5J of the Migration Act, and noted that the claims of the appellant’s husband revolved around his fear of harm from Sri Lankan authorities because of LTTE suspicions, and fears for the appellant and their daughters as vulnerable females in Sri Lanka. The IAA examined in detail the evidence and claims of the appellant. It concluded that, having regard to their circumstances as Tamils from Eastern province and the appellant’s husband being harassed or stopped at checkpoints during the conflict, none of the appellants faced a real chance of harm from the authorities, other groups or anyone else.

9    In relation to the appellant’s claims that the female members of the family were vulnerable and at risk of physical and sexual assault by authorities in Sri Lanka, the IAA had regard to submissions and country information concerning this issue. The IAA noted country information that the majority of documented cases involving sexual assault of women by the army were in respect of victims accused of LTTE connections, which the IAA considered the appellant and her family did not have. The IAA also noted that the female members of the family did not fit the profile of single female former LTTE members, or Tamil women who were in a female-headed household. The IAA continued:

97.    While I accept that the female applicants may fear sexual assault, and that applicant 1 may hold such fear on their behalf, particularly from the military or authorities, I am not satisfied that they face a real chance of harm in that regard. They will have the protection of applicant 1 upon return. The children will have the protection of their family. Further, I note the decreased military presence overall, since the end of the war and thereafter. I note the higher military presence is in the North (according to DFAT 2019 30,000 personnel in Jaffna), however the applicants are from the East. Although security forces had a heightened state of alert in the north and east in the aftermath of the April 2019 Easter Sunday attacks (as elsewhere), I note the perpetrators have been arrested or killed and were from an extremist Islamic group, not Tamil. Further, according to DFAT 2019 the heightened security since the April 2019 attack has eased.

98.    Further, I do not accept that the applicants would come to the attention of the military, police or authorities as I do not accept that applicant 1 or any of the applicants has been or will be of interest to them. Further, I note the applicants’ extended families (including females) continue to live and work in Sri Lanka without harm. Further, I do not accept they are vulnerable females as they have the protection of applicant 1 and their family group.

10    The IAA also accepted that the appellant and her family would be failed asylum seekers upon return, however considered that there were many thousands of failed asylum seekers who had returned to Sri Lanka without subsequently being harmed. While there were some reports of detention of returned failed asylum seekers in Sri Lanka, these detentions were due to suspected LTTE associations, and the appellant and her family did not have such associations. The IAA also considered the passport circumstances of the appellant and her family on their departure from Sri Lanka, however it did not consider that Sri Lankan legislative provisions dealing with unlawful departure from Sri Lanka were discriminatory.

11    The IAA found that the appellant and her family did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act. The IAA further examined whether the appellant and her family satisfied the criteria for complementary protection, and concluded that they did not.

PRIMARY DECISION

12    At the hearing before the primary Judge the appellant relied on a Further Amended Application for Review. His Honour observed that grounds pressed were as follows:

[2] The IAA misunderstood and misapplied its function in determining whether the allegations of rape were “credible”.

[2A] The IAA’s determinative finding, at the preliminary stage of its review, on the probative value of the rape allegations (that they were fabricated), gave rise to a reasonable apprehension of bias, on the IAA’s part, concerning the conduct of its review and its decision under Part 7AA of the Act.

[4] The IAA’s decision to not accept the allegations of rape as “credible personal information” was legally unreasonable.

13    The primary Judge considered the appellant’s claims as new information for the purposes of s 473DD of the Migration Act. His Honour found that the new information could have been provided to the Minister before the delegate made the decision, however the appellant chose not to do so, and accordingly s 473DD was not engaged (at [11]).

14    In relation to ground 2, the primary Judge noted that the appellant claimed the IAA had misunderstood or misapplied its function in determining whether the appellant’s allegations of rape were credible or not. The primary Judge further noted the submission of the appellant that the IAA’s function, when considering the new information in the context of s 473DD(b)(ii), was to consider, as a preliminary matter, and before reaching the determinative stage of its decision making process, whether the new allegations of rape were capable of being believed, as opposed to whether such allegations were true or not (at [12]).

15    The primary Judge noted that the IAA found the new information on which the appellant sought to rely lacked credibility. His Honour continued:

19.    … The Authority was doing no more than determining that it was satisfied that the information was “evidently not credible”, consistently with the reasoning of the Court in VEAL. It was part of the Authority’s preliminary decision making process for it to assess the new information, and then decide whether it was credible or not. The fact that there was an element of finality in relation to such finding was of no moment.

16    His Honour examined the issue of materiality, and found that there was no realistic prospect of the IAA arriving at a different decision even if it had considered all of the new information provided by the appellant. His Honour also found that the IAA did not err in the manner in which it approached the new information put before it by the appellant, and it could not be said that no other rational or logical decision-maker could not have made the same decision as the IAA in this case.

17    In relation to the appellant’s claim of a reasonable apprehension of bias on the part of the IAA by reason of the fact that the IAA had found that the new claims of the appellant lacked credibility, the Court found that there was no merit to that claim.

18    The primary Judge rejected the assertion that, in refusing to treat the appellant’s allegations of rape as credible personal information, the IAA’s decision was legally unreasonable.

19    In regard to claims of rape by the appellant, the primary Judge found as follows:

34.    As to the submission that the Authority erred by failing to acknowledge the seriousness of the applicant’s rape allegations, there is no merit to such claim. The Authority clearly considered the applicant’s claims of past rape cumulatively with all of the other evidence that was before it. The Authority’s bases for rejection of the applicant’s new claims were multifactorial. That the Authority did not accept the applicant’s claims does not render the process undertaken by the Authority as being an unreasonable one. An allegation of rape in itself is a serious allegation. The Authority acknowledged the “stigma, trauma, shame and fear of ostracism” associated with allegations of rape in [27] of its reasons. It had no need to further acknowledge the seriousness of what were, self-evidently, serious claims.

35.    The absence of evidence suggesting that the rapes did not occur as alleged by the applicant did not constitute a basis for a finding that the alleged rapes did occur. That the Authority found against the applicant was open on the evidence before the Authority. A differently constituted Authority could reasonably have made the same finding. The test for legal unreasonableness is necessarily stringent….

20    The primary Judge found that the appellant had failed to establish jurisdictional error on the part of the IAA, and dismissed the application.

APPEAL TO THIS COURT

21    In the notice of appeal the following grounds of appeal were set out:

1.    The learned judge erred in failing to conclude that the Immigration Assessment Authority (IAA) misunderstood and misapplied its function in determining whether the allegations of rape were “credible”.

2.    The learned judge erred in failing to conclude that the IAA’s decision to not accept the allegations of rape as “credible personal information” was legally unreasonable”.

3.    The learned primary judge erred in failing to conclude that there are exceptional circumstances which justified considering the new information.

(underlining and errors in original)

22    At the hearing however the following exchange took place:

HER HONOUR:     All right. But I need to know what you’re pressing in the Notice of Appeal. What grounds are you pressing? I just need - - -

MR JONES:         1 and 2.

HER HONOUR:     Just 1 and 2? You’re not pressing 3 anymore?

MR JONES:         Well - - -

HER HONOUR:     No, I need to know what you’re pressing.

MR JONES:     On the basis of – if I’m right about that proposition, your Honour, that we’re agreed at the bar table that if I succeed on grounds 1 or 2, I don’t need to advance ground 3, then I don’t press ground 3.

HER HONOUR:     Let me just check with Ms Hoiberg. Do you agree with that, Ms Hoiberg?

MS HOIBERG:     Yes, I do, your Honour.

HER HONOUR:     Right, that’s good.

MS HOIBERG:     Yes.

HER HONOUR:     That’s useful to know. All right, that – it seems then that ground 3 is out.

MR JONES:         Yes.

23    I understand that the appellant did not press ground of appeal 3, and accordingly I shall have not have regard to it.

24    Turning now to the remaining grounds of appeal, the appellant submitted, in summary:

    The primary Judge misapplied the principles relating to “credible personal information”. The IAA erred by combining the two-stage test for admission of “credible personal information” in s 473DD(b)(ii) into a single conclusion in para [39] of the IAA’s reasons;

    This error was material. The primary Judge erred at [24] in finding that there was no realistic prospect of the IAA arriving at a different conclusion, given the gravity of the new information. Further, the primary Judge did not provide any reasons as to why the new information could not have resulted in a different conclusion;

    The primary Judge erred by failing to find that the decision of the IAA was legally unreasonable.

25    I note that the appellant initially cavilled with para [97] of the IAA’s reasons however this was not pressed at the hearing of the appeal.

26    The Minister submitted, in summary:

    The approach taken by the appellant, by focusing on paras [39]-[40] of the IAA’s reasoning, was too narrow. A holistic view of the IAA’s reasons demonstrated the IAA’s compliance with the two-stage test, being the requirement to determine whether the new information was credible (that is, it was capable of being believed) before moving to a consideration of whether that information was true;

    It was open to the IAA to make the finding it did regarding whether the new information was credible;

    Further and in the alternative, if the IAA had erred, that error was not material. The primary Judge was correct to conclude that there was no realistic prospect that the IAA would have arrived at a different decision if the new information had been considered as part of the substantial review; and

    It was open to the IAA to make the findings that it did on the information before it.

CONSIDERATION

27    As became clear at the hearing, the crux of the appellant’s case was that the IAA erred in terms of s 473DD(b) of the Migration Act by its finding at [39] of its reasons (confirmed at [40] of its reasons) that the evidence of the appellant was fabricated. The appellant submitted, in summary, that all comments of the IAA in the course of its decision referable to credibility were findings towards its ultimate conclusion, namely that the evidence was untrue, and to that extent the IAA erred because it was required to make findings of credibility, not truth.

28    In my view, the Minister was correct in submitting that the IAA complied with the requirement to consider whether the new information was “credible” and that the approach of the appellant was too narrow.

29    As the High Court explained in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [34] in order to meet s 473DD the decision-maker must be satisfied that:

    the information is credible information about an identified individual, or an individual who is reasonably identifiable;

    the information was not previously known by either the Minister or the visa applicant; and

    had the information been known by either the Minister or the visa applicant, the information may have affected the consideration of the referred applicant's claims.

30    Subsequently in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 the High Court explained:

11.    Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.

12.    The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).

31    The meaning of s 473DD(b), para (i) is clear. In respect of para (ii) there has been some discussion in the cases concerning the meaning of “credible” for the purposes of the provision, however as is plain from Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 (applying Bromberg J in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [42]) “credible” in the context of s 473DD(b)(ii) requires that the IAA be satisfied that the “new information” is information which is open to be or capable of being accepted by the IAA as truthful (or accurate, or genuine).

32    Turning now to the reasons of the IAA in this case referrable to the new information, it can be seen that those reasons are primarily couched in terms of the credibility of that information. There are many observations by the IAA in relation to the credibility of that information. I note in particular:

    Paragraph [28] where the IAA said:

However, for reasons set out below I find the new claims in this case lacking in credibility, and the explanations unconvincing, and I am not satisfied there are exceptional circumstances that justify considering the new information

    Paragraph [32] where the IAA said:

…However, I consider it odd that applicant 2 should decide to disclose only now for ‘peace of mind’, and not earlier, given the delegate’s refusal was in 2017 and the applicant’s explanation that she did not want to return as she feared the same thing for her children. I find it difficult to reconcile her claims that she could disclose it now for peace of mind and to avoid harm for her and her daughters when this would have been the situation in 2017. Further, I find it difficult to believe that given the refusal at that time, and the availability of a counsellor and a lawyer, she would not have found a way to make these claims, if true.

    Paragraph [33] where the IAA said:

…That applicant 2 did not raise the claims, even in a general and confidential way that leads me to doubt the genuineness of the claims.

    Paragraph [34] the IAA observed:

Finally, even having regard to country information in the review material (and new country information considered below) about sexual violence in Sri Lanka and the reluctance to disclose it, the claims themselves lack credibility on their face. For instance, it is not credible that authorities would be looking for applicant 1’s husband at home, if as he claimed he travelled through checkpoints frequently and had to unload his goods each time he crossed from LTTE to army controlled area.

    Paragraph [35] where the IAA said:

That applicant 2 and her mother in law would continue to stay at home alone and say nothing or seek no assistance from her husband to move or some protection, or move to her parents’ home is not credible.

    Paragraph [36] the IAA continues:

Further, the frequency of the claimed assaults seems implausible and in particular, it is difficult to believe that no evasive action would be taken, or that it would not have been noticed or discovered or suspected by applicant 1 at the time. Further, it is not credible that applicant 1 or others did not know or suspect, particularly given claims that neighbours suspected…

    And for example paragraph [38]:

Further, it is difficult to believe that applicants 1, 2 and 3 would flee and hide at applicant 2’s parents’ house in 2013, if it was across the street or 5 minutes away from the army camp. Overall, I do not consider the information is reliable or credible.

33    In these comments the IAA was considering whether the new information sought to be advanced by the appellants was capable of being believed, and the IAA concluded that it was not.

34    Second, para [39] of the IAA’s reasons was as follows :

I consider applicant 2’s claims have been fabricated to overcome the delegate’s findings on applicant 1’s claims that as they would be returning as part of a family there was not a real risk (or chance) of the female applicants facing harm as vulnerable females.

35    This paragraph, while expressed in a conclusory manner, can properly be read as an additional comment following the extensive reasons of the IAA as to why the information sought to be advanced by the appellants was not credible. That it is additional can be seen from an examination of the reasons of the IAA as a whole – all of the IAA’s findings concerning credibility can stand properly on their own. I so observe, noting that, as always, the reasons of an administrative decision-maker ought not be read with an eye finely attuned to the perception of error.

36    It follows that I am not persuaded that the IAA conducted a final review based on its assessment of the credibility of that new information, or decided the appellant’s protection visa claim by reference to the new claim of sexual assault by the appellant.

37    The primary Judge in his consideration of the case plainly had close regard to relevant authorities on point. To the extent that his Honour at [16]-[17] assessed the IAA’s findings concerning the appellant’s new claims as “incredible”, or at [19] that the IAA was doing no more than determining that it was satisfied that the information was “evidently not credible”, I ascertain no error in his Honour’s reasoning.

38    Ground of appeal 1 is not substantiated.

39    In relation to ground of appeal 2, the required threshold of unreasonableness is high: Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46 at [26]. An administrative decision cannot be said to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131].

40    I note that, by the time of the hearing, the appellant’s claim of legal unreasonableness had substantially narrowed. The primary complaint of the appellant in this context was the finding of the IAA at [36] of its reasons that the frequency of the claimed assaults seemed implausible, and that it was difficult to believe that no evasive action would be taken, or that it would not have been noticed or discovered or suspected at that time by the appellant’s husband. The appellant contended that the IAA erred in failing to grapple with the issue of the alleged rapes, and that the IAA failed to deal in a meaningful way with the explanation that the appellant’s husband was absent at the time of the rapes. I agree however with the observation of the primary Judge that, in this ground, the appellant sought merits review, and to cavil with findings of the IAA. The IAA gave detailed consideration of evidence produced by the appellant. Before the IAA the appellant was legally represented, and relevant claims could have been put to the IAA. The IAA considered country information concerning sexual violence against women in Sri Lanka. I do not accept that the findings of the IAA in this regard could be characterised as being so unreasonable that no reasonable person could have reached them.

41    In my view ground of appeal 2 is not substantiated.

CONCLUSION

42    For the above reasons, the appeal should be dismissed.

43    Costs follow the event.

Associate:

Dated: 10 March 2023