Federal Court of Australia

CAF19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 937

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the First Respondent to be fixed by way of lump sum.

3.    On or before 22 August 2023, the parties file proposed agreed orders as to an appropriate lump sum for the First Respondent’s costs.

4.    In default of any agreement, the matter be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

Cheeseman J

INTRODUCTION

1    The appellant is a Sri Lankan citizen of Tamil ethnicity who arrived in Australia by boat with his sister in December 2012. He lodged an application for a Safe Haven Enterprise subclass 790 Visa (SHEV) that was refused by a Delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs. The Delegate’s decision was reviewable under Part 7AA of the Migration Act 1958 (Cth) as a decision to refuse to grant a protection visa to a fast track applicant. The second respondent, the Immigration Assessment Authority affirmed the decision of the Delegate and filed a submitting notice in these proceedings save as to costs. The application for judicial review of the Authority’s decision was dismissed by the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia).

2    The appellant appeals from the orders dismissing his application for judicial review. The appeal raises a single ground of appeal that was not raised in the Circuit Court. The Minister did not oppose the grant of leave to rely on the new ground of appeal. By the new ground, the appellant alleges that the Authority made a jurisdictional error of the type identified in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439, a decision delivered after the decision of the primary judge. Being satisfied that it was appropriate to do so, I granted leave to rely on the new ground at the hearing of the appeal.

3    By the new ground, the appellant contends that the Authority’s failure to exercise the discretion under s 473DC(3) of the Act to obtain new information in the particular circumstances of this case was legally unreasonable and constituted jurisdictional error.

BACKGROUND

4    The appellant claims to fear being killed by the Sri Lankan Army and the Criminal Investigation Division of the Sri Lankan Police Service (CID) because he is suspected to be a member of the Liberation Tigers of Tamil Eelam (LTTE) or because he is linked to the LTTE. Because he departed Sri Lanka illegally, the appellant also fears that if he is returned he will be imprisoned and harmed on the basis that he is a failed asylum seeker.

5    The appellant says that his village was in a former LTTE controlled area and, during the later stage of 2009, the LTTE forcibly recruited young people to join the LTTE. From 2008 to 2009, the appellant claims that he and his family “narrowly escaped death” many times before being detained at the Omanthai checkpoint, interrogated and thereafter interred with his family at Chettikulam camp. He and his family were released from the Chettikulam camp after about a year.

6    Relevantly, for the purpose of this appeal, there are two principal themes in the appellant’s protection claims that featured in the decision making of both the Delegate and the Authority.

7    The first relates to the appellant’s experience in and around being interred with his family at Chettikulam camp. The second relates to the appellant’s claim that he was pursued by the CID after he left the Chettikulam camp, continued to be harassed thereafter, causing him to go into hiding until he left the country. Relatedly, he claims that since he left Sri Lanka, the authorities have continued to visit his family home looking for him.

8    The appellant’s claims were made in an arrival interview conducted on 31 January 2013, a statutory declaration dated 24 April 2016, and a SHEV interview conducted on 27 September 2018.

9    In broad summary, the appellant’s claims are as follows.

10    In relation to the events surrounding the Chettikulam camp he says that in the course of navigating to an area controlled by the Army, he and his family were detained at the Omanthai checkpoint for approximately two days. They were interrogated by the CID and Army. He says he was interrogated in relation to his suspected membership of the LTTE. Following this, he and his family were transferred to the Chettikulam camp. They remained there for approximately one year before being released in about April 2010. While at the Chettikulam camp, the appellant says he was interrogated three times, and that the authorities repeatedly asked him whether he was a member of the LTTE. The appellant says that he was subjected to torture during the first two interrogations at the Chettikulam camp and that he has some scarring on his body as a result.

11    In relation to his experience post release from the Chettikulam camp, the appellant claims that the Army and the CID continued to look for him and, as a result, he hid in the jungle near his home. He says he was at home on a number of occasions when the authorities visited his home and was harmed by them. The appellant says he was asked by the authorities to report to Camp Joseph, an Army camp situated in Vavuniya. He says he did not do so because he was afraid the Army would harm him. During this time, the appellant says he hid in the jungle close to his house.

12    The appellant claims that his sister was also targeted by the CID and the Army. In his arrival interview, the appellant claimed that in October 2012, Sinhalese speaking people came to his sister’s shop and threatened and assaulted him and his sister. He says that he and his sister were questioned about his brother-in-law, his sister’s husband, who was suspected of being ‘in the movement’. The appellant’s brother-in-law then arranged for him and his sister to leave Sri Lanka in November 2012. The appellant also claims that since he left Sri Lanka the authorities have continued to visit his parents’ home searching for him.

13    The appellant reached Australia in December 2012.

THE DECISIONS OF THE DELEGATE AND THE AUTHORITY

14    The critical point of difference between the conclusions drawn by the Authority and those drawn by the Delegate related to the appellant’s claims in connection with the events surrounding the Omanthai checkpoint and the Chettikulam camp. Whereas the Delegate accepted the appellant’s claims in his written statement about detention and interrogation for two days at the Omanthai checkpoint and the torture claims at Chettikulam camp, the Authority did not. The claims made by the appellant in relation to his detention and interrogation at the checkpoint were made in his statutory declaration. Parts of those claims were subsequently expanded upon in the appellant’s SHEV interview. The Delegate and the Authority both rejected the appellant’s enlargement of these claims in the SHEV interview, and both found that he had exaggerated his account to strengthen his claims for protection.

The Delegate’s Decision

Omanthai checkpoint and Chettikulam camp

15    The Delegate’s findings in relation to the events surrounding the appellant’s internment at Chettikulam camp were as follows (as written):

Omanthai checkpoint and Chettikulam camp

I accept as plausible in April 2009, during the final stages of the civil war, the applicant and his family fled their home and headed towards the army controlled area. I accept the applicant was detained (for two days) and interrogated by the CID at the Omanthai check point. I accept his profile, as a young Tamil male from the North of Sri Lanka was during that time of interest to the Sri Lankan authorities. I also accept the applicant and his family were displaced and detained at the Chettikulam camp and were released in April 2010. I note the inconsistencies on the number of occasions the applicant claims he was interrogated by the Sri Lankan authorities. In his claims for protection, the applicant stated that he had been interrogated on three occasions, when detained at the Chettikulam camp. At the SHEV interview, in vast contrast, the applicant stated he was interrogated on a weekly basis. I do not accept the applicant would have been released from the camp, if he was of adverse interest to the authorities. I also do not accept the applicant was interrogated on a weekly basis. I accept that it was more likely he was interrogated and beaten on three occasions and had sustained injuries and scarring during the interrogation.

16    The Delegate accepted that the applicant was detained for two days and interrogated by the CID at the Omanthai checkpoint, and that as a young Tamil male from the North of Sri Lanka the appellant, during this time, was of interest to the Sri Lankan authorities.

17    The Delegate did not accept the appellant’s account that he was interrogated on a weekly basis as he had claimed in his SHEV interview. Rather, the Delegate accepted that the appellant was interrogated on three occasions, during which he was beaten and sustained injuries that caused scarring. This finding appears to be based on the appellant’s statutory declaration in which he states in paragraph 13:

13.     I was interrogated on three occasions while I was detained at the Chettikulam camp. The authorities who interrogated me repeatedly asked if I was a member of the LTTE and I was tortured (they struck me with cables/wire and coconut tree branches, there is some scarring on my body to this day) during the first two occasions I was interrogated. During the third occasion I was interrogated the authorities did not torture me. On each occasion I was interrogated 1 ½ - 2 hours.

18    It is evident that the Delegate’s findings on this issue were based on an acceptance of the account given by the appellant in his written statutory declaration and a rejection of the account given in his oral interview.

19    The Delegate did not identify any particular feature of the way in which the appellant gave his answers in the interview as a basis for rejecting the account given in the interview in relation to the Chettikulam camp. Rather, the Delegate concluded that the account by the appellant in his statutory declaration was “more likely” based on objective plausibility. For example, the Delegate concluded that his oral account of being interrogated on a weekly basis during his internment was inconsistent with his statutory declaration. Further, the Delegate also concluded that because the appellant was released from the camp, it was implausible that the appellant continued to be of adverse interest to the authorities. This aspect of the Delegate’s reasoning contributed to the Delegate rejecting the claim of weekly interrogation in the camp.

Post Chettikulam period

20    The Delegate’s rejection of the appellant’s oral evidence was not limited to the claims made in relation to the period in and around his detention at the Chettikulam camp. The Delegate also rejected the written and oral evidence given by the appellant in relation to the post Chettikulam period. Reading the whole of the Delegate’s decision, in accordance with the approach dictated by Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ), it is clear that the Delegate rejected a broad range of claims made by the appellant in his SHEV interview, which the Delegate regarded as embellishments or exaggerations directed to strengthening his claim for protection.

21    The appellant’s claims that he was targeted by the CID after leaving the Chettikulam camp were advanced by the appellant in his statutory declaration and in his SHEV interview. The Delegate rejected these claims in their entirety (as written):

CID

At the SHEV interview, the applicant claimed, after one month of his release from the Chettkulam camp, the CID came to his family home, to further interrogate him about his involvement with the LTTE. The applicant claims in October 2012, the CID attended his home and requested that he report to the CID office for further questioning. The applicant claims he did not report to the CID office and hid in the jungle. Since his departure from Sri Lanka the applicant claims, the visits have been frequent, despite his parents had informed the authorities (in 2013), the applicant was in Australia. The applicant claims the CID last attended his home in July 2018. Above in the assessment, I have not accepted the applicant was interrogated at the Chettikulam camp on a weekly basis. I have also not accepted he would have been released by the authorities had he been of adverse interest to the authorities. Therefore, I also do not accept the Sri Lankan authorities pursued the applicant after his release from Chettikulam camp, because of his perceived association with the LTTE.

Despite, given the opportunity to articulate his claims for protection further at the SHEV interview, his oral evidence was unconvincing, vague and lacked credibility. I do not accept the applicant was speaking from his own experience. I find the applicant has exaggerated his account of events to strengthen his claims for protection.

22    The Delegate again relies on the fact that the appellant was released from Chettikulam camp as a reason for concluding that he was no longer of adverse interest to the authorities.

23    The Delegate then outlined, as an additional reason for rejecting the appellant’s claims in respect of the post Chettikulam harassment, that his oral evidence was unconvincing, vague and lacked credibility. There may be an overlap between an assessment of the substance of what is said and the way in which it is said. For example, a finding that a person is vague or forgetful may at one level relate to the person’s demeanour, but it may also be a finding that is directed, either solely or in addition, to the content of the answers given: FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; 274 FCR 456 at [72]. Read fairly and in context, the Delegate’s critique of the appellant’s claims is directed primarily to the content of what he said. The critical point is that on this issue the Delegate did not accept the appellant’s written or oral accounts.

24    The Delegate rejected both the written and oral claims made by the appellant. The Delegate exposed his reasons for rejecting those claims, which included, but were not limited to, the Delegate’s assessment of the appellant’s oral evidence as “unconvincing, vague and [lacking] credibility”. The Delegate’s conclusion in reaching that conclusion was primarily as a result of the Delegate’s assessment of the content of the appellant’s evidence rather than the appellant’s demeanour.

Authority’s Decision

25    On 7 May 2019, the Authority affirmed the Delegate’s decision: Decision and reasons dated 7 May 2019 (A). In making its decision, the Authority had regard to the material provided to it under s 473CB of the Act and noted that no further information was received by it. The review by the Authority was a de novo consideration of the merits of the claim. The Authority did not exercise its discretion to get “any documents or information (new information)” under s 473DC(3) of the Act. The Authority made no explicit reference to having considered whether it should do so.

26    As mentioned, the point of departure in the findings of the Authority from the findings of the Delegate related to the appellant’s claims about his experience in and around the Omanthai checkpoint and Chettikulam camp.

27    The structure of the Authority’s reasons is as follows. The Authority accepted that the appellant was a Sri Lankan Tamil, and that he and his family were displaced by the civil war and held in the Chettikulam camp: A [9]. The Authority began by stating its conclusion compendiously in summary form in relation to the appellant’s claims about his treatment in and around the Chettikulam camp and subsequent visits by the CID post Chettikulam (A [10]):

10.     However, for the following reasons, I found the applicant's claims about his treatment in the camp and subsequent CID visits not credible. His claims were internally inconsistent in his protection interview and inconsistent with his statement. The applicant's account was confused, contradictory and internally inconsistent in his protection interview. His claim lacked details and was repetitive, despite being given many opportunities to provide more information. He continued to repeat he was under pressure from authorities. The applicant also changed his limited account in his protection interview.

28    The Authority did not accept that the appellant was “detained or tortured for two days prior to living at the [Chettikulam] camp”: A [27]. The Authority’s references to the “protection interview” are references to what I have referred to as the SHEV interview.

29    In relation to the appellant’s claims that the CID targeted him in the period post Chettikulam, the Authority’s conclusions were similar to those of the Delegate. Neither the Delegate nor the Authority found the appellant’s claims in relation to this period to be credible. The Authority’s reasons for rejecting the appellant’s post Chettikulam claims were based primarily on its assessment of the substance of what the appellant said, as opposed to the manner in which he expressed his claim. Read fairly and in context, the Authority’s critique of the appellant’s claims is directed to the content of what he said.

30    Here, it is tolerably clear that the Authority arrived at its conclusion based primarily on its analysis of the substance of what was said, as opposed to on the basis of demeanour. For example, the Authority found that the appellant’s account of how many CID officers came to his house and how often they came changed: A [19] to [20]. The Authority considered the appellant’s claim that, notwithstanding that his parents had told the CID in 2013 that he was in Australia, they continued to visit his parents every month or fortnight since 2013 looking for him to be implausible: A [21]. Similarly, the Authority was troubled by the inconsistency in the appellant’s claim in his 2016 statutory declaration that he was not targeted by the LTTE, whereas in his SHEV interview he claimed he was approached and pressured by the LTTE to join them three times but his parents did not allow him to go: A [24]. Finally, the Authority questioned the appellant’s claim in his statement that he hid in the jungle, whereas in the SHEV interview he initially claimed that following his release from the Chettikulam camp he lived at home until he departed Sri Lanka in 2012. The Authority noted that it was not until much later in his interview that he amended his account to say that he was in hiding in this period: A [25].

31    That the Authority also relied on the manner in which the appellant gave his account is evident from its description of the account as not being “free-flowing” and that the appellant requiring “significant prompting”: A [18]. After listening to the audio recording of the appellant’s interview the Authority said, at A [22]:

Having listened to the applicant's protection interview, I consider the applicant gave a poor, repetitive, vague unconvincing account such that I consider he was not recounting a lived experience but rather repeating a rehearsed few sentences.

32    The descriptors “poor”, “repetitive”, “vague” and “unconvincing” are capable of applying equally to the content of the appellant’s evidence as well as to the way in which he delivered it. The conclusion that he was not recounting a “lived experience but rather repeating rehearsed sentences” is a conclusion drawn by the Authority based on both what was said and how it was said. It is a conclusion as to why the content of the appellant’s evidence was deficient in detail. The Authority’s conclusion in this regard was ad idem with the Delegate’s conclusion that “given the opportunity to articulate his claims for protection further at the SHEV interview, his oral evidence was unconvincing, vague and lacked credibility. I do not accept the applicant was speaking from his own experience.”

33    The Authority’s findings in relation to whether the appellant had been pursued by the CID after he left the Chettikulam camp and whether members of his family had been harassed in this period were consistent with the findings made by the Delegate for reasons substantially similar to those expressed by the Delegate.

34    The Authority then drew together its findings in relation to both the events in and around Chettikulam and in relation to the post Chettikulam harassment, at A [27] to [29] (as written):

27.     While I accept the applicant may have been questioned at the [Chettikulam] camp about LTTE associations as this was not unusual and in the context of the end of civil conflict, I do not accept the applicant was tortured, threatened or severely beaten. I do not accept he was detained or tortured for two days prior to living at the [Chettikulam] camp. I do not accept that he was questioned weekly. I do not accept that CID visited him when he returned home, asked him to report to their office, camp or Joseph camp or that CID or anyone has visited his family fortnightly or monthly since the applicant left Sri Lanka in 2012. I do not accept he was assaulted or threatened or of any interest to authorities. I do not accept the applicant, his sister or family were assaulted or targeted as suspected LTTE.

28.     I do not accept the applicant was approached three times by the LTTE to join them. This claim was in complete contradiction to his statement that he was not targeted by them and managed to avoid being taken away. I do not accept he was asked to report to the CID (or any authorities') office or camp or was wanted by authorities.

29.     I do not accept the authorities believe he is LTTE or has LTTE links or that they are looking for him. I do not accept the applicant or any of his family was suspected LTTE or of any interest to authorities after his release from the [Chettikulam] camp. I consider the applicant is not a credible witness and has fabricated large parts of his account.

35    Having reached these conclusions in relation to the appellant’s protection claims, the Authority then considered whether the appellant had protection obligations arising in connection with his Tamil ethnicity. It found that whilst the country information suggested that people with “significant links” to the LTTE may still face a real chance of harm if returned to Sri Lanka, it found that there was no real chance of the appellant being suspected of having links to the LTTE or being an LTTE supporter: A [30] to [32]. The Authority was not satisfied the appellant was at risk due to his race, ethnicity, his past experiences, for having been displaced, or for having been in an internally displaced persons camp, or for having lived in a formerly LTTE controlled area: A [34] to [35].

36    Finally, the Authority considered, but rejected, the appellant’s claim that he was at risk for having claimed asylum in Australia. The Authority was not satisfied that merely seeking asylum in Australia ‘branded’ the appellant as an LTTE member: A [38]. The Authority did not accept the appellant would be considered to be, or suspected of being, an LTTE member. The Authority also did not accept that the appellant would face a real chance of “social stigma” as a returned failed asylum seeker, or that such stigma would in any event amount to serious harm: A [41]. Accordingly, the Authority was not satisfied the appellant would have a well-founded fear of persecution as defined in s 5J of the Act for having illegally departed Sri Lanka: A [46] to [52].

37    The Authority concluded that the appellant was not owed protection obligations under s 36(2)(a) of the Act: A [53]. The Authority was also not satisfied the appellant met the requirements of s 36(2)(aa) of the Act: A [61].

CIRCUIT COURT

38    Given that the appellant is raising a new appeal ground that was not advanced before the primary judge, it is not necessary to address the reasons of the primary judge.

GROUNDS OF APPEAL

39    In essence, the appellant’s complaint is that it was legally unreasonable for the Authority not to have exercised its power under s 473DC(3) of the Act to invite the appellant to give further information prior to making findings adverse to the appellant in respect of his credibility in circumstances where the Authority’s findings departed from the Delegate’s findings on the issue of persecution. The appellant relies on the decision of ABT17, which he submits is analogous.

RELEVANT PRINCIPLES

40    Part 7AA of the Act confers jurisdiction on the Authority to conduct a “limited form of review” of a “fast track reviewable decision” referred to it by the Minister, by which a delegate of the Minister has refused to grant a protection visa to the “referred applicant”: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [1]. The Part has been examined in detail by the High Court on several occasions, including in ABT17. The scheme of the Part was described in ABT17 as follows (at [2] (Kiefel CJ, Bell, Gageler and Keane JJ), footnotes omitted):

2.     The scheme of the Part is to impose a duty on the Authority to review the fast track reviewable decision referred to it by the Minister by “considering” the “review material” provided to it by the Secretary of the Department of Immigration and Border Protection at the time of referral, without accepting or requesting “new information” and without interviewing the referred applicant, subject to the Authority having specific powers to “get” and, in specified circumstances and on specified conditions, to “consider” new information. One way the Authority is empowered to get new information is by inviting a person, who can be the referred applicant, to give new information at an interview which the Authority can conduct in person or by telephone or in any other way.

See also M174 at [17].

41    The Authority, when conducting a review of a fast track reviewable decision, is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision referred to it: ABT17 at [5] citing M174 at [17].

42    Section 473DC of the Act provides:

473DC    Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)     Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

43    Section 473DA of the Act provides:

473DA    Exhaustive statement of natural justice hearing rule

(1)     This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

(2)     To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

44    The power of the Authority under s 473DC to invite a person to give new information is imposed on the implied condition that the power must be considered and, where appropriate, exercised within the bounds of reasonableness: ABT17 at [3] (Kiefel CJ, Bell, Gageler and Keane JJ).

45    In relation to when, if at all, compliance with the implied condition of reasonableness in the conduct of the review or in consideration and exercise of the power available under s 473DC might compel the Authority to avail itself of that power, the plurality in ABT17 observed that “answering that question is not assisted by seeking to infuse the implied condition of reasonableness with notions of procedural fairness, separate implication of which is expressly excluded from the scheme of Pt 7AA”: at [18]. The plurality observed at [20] to [21] (footnotes omitted):

20.     Compliance with the implied condition of reasonableness in the performance by the Authority of its duty to review the decision of the delegate necessitates not only that the decision to which the Authority comes on the review has an “intelligible justification” but also that the Authority comes to that decision through an intelligible decision-making process. Thus, as has been recognised, there can be circumstances in which the Authority can transgress the bounds of reasonableness by treating particular information as the reason or part of the reason for the decision to which it comes without first exercising its powers to get and if appropriate to consider, as new information, further information capable of being provided by the referred applicant.

21.     Answering the question therefore requires an examination of the decision-making pathways reasonably open to the Authority in reviewing the decision of a delegate to determine for itself whether the criteria for the grant of a protection visa have been met where the review material that it is obliged to consider in making that determination leaves out information that was available to and required to be considered by the delegate.

46    In outlining the Authority’s role when reviewing the delegate’s decision afresh on its merits, the plurality stated at [7], citing CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 at [7], that the Authority is required to “examine the review material … to form and act on its own assessment of the relevance of that material to the review of the referred decision”. Consistent with this task, where there is an informational gap, the Authority “will need to assess the likely importance of the missing material to its task, and what should be done about the fact of missing material. In some circumstances, it may not need to do anything”: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 [2021] FCAFC 58; 285 FCR 381 at 404 [79] (Kerr and Mortimer JJ), referring to EMS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 174; 280 FCR 381 at [67] to [70].

47    In ABT17, the appellant made a number of claims for protection in writing. When interviewed by the delegate, he claimed that in addition to his other claims, which had been made in writing, he had been sexually tortured in May 2011. The delegate found that the appellant’s claims made in the interview, including his claim to have been detained and sexually tortured, were plausible and broadly consistent with the relevant country information: ABT17 at [40]. What happened before the Authority was described by the plurality as follows (at [27]):

27.     The gist of what happened is that the Authority listened to an audio recording of an interview which the delegate who made the referred decision conducted in person with the appellant. Finding the appellant’s evidence in the interview “to be generally lacking in detail”, the appellant “appear[ing] unable to expand in any detail on a number of his written claims and at times sound[ing] vague and hesitant”, the Authority rejected a central part of the account given by the appellant in the interview which the delegate had accepted as plausible and generally consistent with country information. In particular, the Authority rejected the appellant’s account of having been detained and beaten and sexually tortured by the Sri Lankan Army on suspicion of having been an LTTE supporter to find that there was “no credible information” before it indicating that he was of any interest to Sri Lankan authorities and that it was not satisfied that he had a “profile” that would be of interest to those authorities at the time of its decision or in the foreseeable future.

48    The High Court unanimously held that the Authority’s decision to refuse the issue of a protection visa to the appellant was invalid.

49    For the plurality, the question of principle was whether compliance with the reasonableness condition can compel the Authority to exercise its powers to get and consider new information by inviting a referred applicant to an interview in order to assess and consider his or her demeanour in the conduct of a review: at [4]. The plurality found that it can, and in the circumstances in ABT17, it did.

50    The plurality held that it was legally unreasonable for the Authority to depart from a finding of a delegate, which was based on the credibility of the visa applicant, in circumstances where the Authority only had access to a recorded audio interview and did not invite the applicant to provide new information under s 473DC. The plurality concluded that if the Authority had doubts, it should have used the power to obtain ‘new information’, by inviting the applicant to a second face-to-face interview in which it could assess his credibility for itself: ABT17 [28] to [29]. At [30], the plurality said:

30.     To be clear, the breach of the reasonableness condition by the Authority lay not in evaluating the review material for itself to arrive at a different assessment of credibility than did the delegate, but in failing in the circumstances to use the powers at its disposal to get and consider new information in order to supplement the review material so as to place itself in as good a position to assess credibility as had been the delegate.

51    In reaching this conclusion, the plurality noted that the mere existence of an informational gap will not necessarily result in the Authority being disadvantaged in comparison with the Delegate. The critical passage of the plurality’s reasoning is as follows (footnotes omitted):

22.     The mere existence of an informational gap will not necessarily result in the Authority being “disadvantaged in comparison with the delegate”. That is because, having regard to country information and other information contained in the review material, the credibility of the referred applicant will not necessarily have a significant bearing on the Authority's determination of whether the criteria for the grant of a protection visa have been met. That is also because, having regard to country information and other information contained in the review material, how the referred applicant may have presented in the interview with the delegate will not necessarily have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake.

23.     To the extent that the credibility of the referred applicant might bear on whether the Authority is to be satisfied that the criteria for the grant of a protection visa have been met and to the extent that his or her appearance in an interview with the delegate might bear on his or her credibility, it would ordinarily be open to the Authority to form its own assessment of credibility taking into account such second-hand description or impression of his or her appearance as might be conveyed expressly or by implication in the statement forming part of the review material which sets out the delegate's findings of fact and refers to the evidence on which those findings were based. Taking into account any such description or impression of the referred applicant's appearance, it would ordinarily then be open to the Authority to reach an assessment of the referred applicant's credibility without any need for the Authority's assessment of credibility to coincide with the delegate's assessment of credibility.

24.     The Minister is therefore correct to say that the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate.

25.     However, the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given. That is what happened in this case.

52    Justices Nettle, Edelman and Gordon, writing separately, each found that it was unreasonable for the Authority to overturn the Delegate’s finding as to the applicant’s credibility but for the reason that the Delegate had been in a much better position than the Authority to assess the applicant’s credibility, having both heard and seen the applicant, and as matters stood there was no logical basis for the Authority to overturn the Delegate’s findings on this issue: ABT17 at [69], [87] and [112]. Legal unreasonableness arose from the Authority’s decision to depart from the Delegate’s finding of credibility without giving due weight to the advantage enjoyed by the Delegate in conducting the in person interview.

53    Justices Nettle, Edelman and Gordon did not think the error lay in failing to convene a second interview because they did not accept, (in Nettle J’s case, seriously doubted, but declined to decide) that the mechanism in s 473DC of the Act could be used for the purposes of reassessing the demeanour of the applicant on the basis that such an use would not constitute acquisition of ‘new information’ (at [64] to [65], [88] and [115]).

CONSIDERATION

54    The appellant relies on ABT17 as being analogous factually with his case. He seeks to have the decision of the Authority quashed on the basis that it is legally unreasonable. The appellant submits that (as written):

17.    The IAA relied heavily on the interview recording of the applicant to reject the "torture claim" obviously based on credibility. The IAA's decision not solely on the country information.

….

20.     The appellant's complaint is that, in the circumstances of this case, where the matter is critical to the appellant's claims and where IAA was concerned about a credibility based on delegate's interview recording, the IAA should have exercised its power under s 473DC(3) where it departs from the Delegate's finding in a crucial issue of persecution. We submit that the torture claim fulfills the serious and significant harm endured by Applicant was under various international Conventions and the Migration Act.

21.     The opportunity to give oral evidence before a decision maker presents the possibility that the decision maker will be influenced to accept favourable features of the case, or ameliorate adverse features of the case, by reference to factors including "Demeanour" and "Presentation": BON17 v Minister for Immigration & Anor [2019] FCCA 1456.

22.     We submit that the findings of fact of the crucial claim of the applicant's torture is very significant in this case and the [Authority] failed to use its power under s 473DC of the Migration Act 1958 to invite the applicant for interview.

23.     As noted above, the Delegate accepted that the applicant was subjected to torture which resulted in bodily scars. However, the Delegate refused the SHEV visa on another basis of country information on the assessment of objective foundation but not solely. [AB135]. However, IAA in paragraph 27 concluded that "I do not accept the applicant was tortured, threatened and severely beaten."

24.     Moreover, the [Authority]'s rejection of the claims surrounding the applicant hiding after his release sufficiently lacks "an evident or intelligible justification".

25.     It is highly unreasonable to expect the account of an asylum-seeker, who is unfamiliar with Australian migration procedures and is not fluent in the English language, to be free flowing, especially given the interpretation and communication difficulties that are characteristic of an interview. Consequently, using the applicant's hesitancy and lack of a free flowing account as a justification for rejecting claims pivotal to his protection visa application produces a result that is "plainly unjust", in the absent of interview.

55    The gravamen of the appellant’s submission is that the Authority should not have departed from the Delegate’s finding that the appellant was subjected to torture while at the Chettikulam camp without exercising the power available to it to obtain further information under s 473DC(3) of the Act. Further, that to do so was legally unreasonably such as to constitute jurisdictional error.

56    The necessary premise underpinning the appellant’s submission is that the “torture claim”, which had been accepted by the Delegate who had the advantage of seeing and hearing the appellant’s account, was rejected by the Authority on the basis of the Authority forming an adverse view of the appellant’s credibility based on listening to the audio recording. That premise is incorrect for a number of reasons.

57    First, although the Delegate had the advantage of seeing the appellant in the interview, the Delegate did not accept the torture claims put forward by the appellant in the interview because the Delegate found that his oral evidence was unconvincing, vague and lacked credibility. The Delegate did not accept that the appellant was “speaking from his own experience” but rather that he had exaggerated his account of events to strengthen his claims for protection. The correct position is that, notwithstanding that the Delegate did not accept the appellant’s oral account as credible, the Delegate accepted the more limited formulation of the appellant’s torture claim that had been advanced in his statutory declaration. The Delegate’s acceptance of the torture claim made in the statutory declaration was not based on the Delegate’s advantage in hearing the applicant’s account directly. To the contrary, the Delegate’s findings were made despite the Delegate’s view that the appellant’s oral evidence was “unconvincing, vague and lacked credibility”.

58    Secondly, the Authority’s rejection of the torture claim advanced by the appellant in his statutory declaration was not based on findings as to the appellant’s demeanour in respect of which the Authority was at an informational disadvantage by reason of its access to only the audio recording of the interview.

59    Unlike in ABT17, that informational gap was not relevant to the Authority rejecting the torture claim advanced in the appellant’s statutory declaration.

60    The Authority shared the Delegate’s concerns as to the appellant’s oral evidence. The Authority’s findings based on the audio recording were on all fours with the conclusions of the Delegate in respect of the in person interview. Both decision-makers described the appellant’s oral evidence in similar terms — repetitive, vague, unconvincing — and both reached similar conclusions in substance — that he was not recounting a lived experience but rather repeating a rehearsed few sentences for the purpose of enhancing his protection claims.

61    However, the Authority here (again, by contrast with the Authority in ABT17) expressed specific reasons for its rejection of the different claims advanced by the appellant which were not dependent on the manner of expression (ie demeanour) but with the content of the appellant’s claim. Specifically, in relation to the torture claim, the Authority appeared to have no particular concern as to the manner in which the appellant relayed the claim during the SHEV interview. Rather, the Authority focussed on the content of the claim as giving rise to concerns as to its veracity. The Authority found the appellant’s claims of what occurred to him at the Omanthai checkpoint to have been different between his written claims and his oral evidence at the SHEV interview: A [11] to [12]. Secondly, in respect of the torture claim at the Chettikulam camp, the Authority found the claim to have lacked details and to have been contradictory: A [13]. The Authority also found the account given by the appellant that his parents did not allow him to talk to the CID was “also not credible given the applicant would have been at least 20 years old”: A [13]. The Authority’s rejection of the claims which the Delegate had found to be plausible was not made “wholly or substantially on the basis of its own assessment of the manner in which that account was given”: ABT17 [25]. This was not a case “where a delegate's reasons for decision show that the delegate's assessment of an applicant's credibility is informed by the delegate's assessment of the applicant's demeanour in the course of interview [such that] the IAA should respect the attendant advantages of the delegate”: ABT17, [63] (Nettle J).

62    The plurality in ABT17 emphasised that the breach of the reasonableness condition by the Authority lay not in evaluating the review material for itself to arrive at a different assessment of credibility than did the delegate, but in failing in the circumstances to use the powers at its disposal to get and consider new information in order to supplement the review material so as to place itself in as good a position to assess credibility as had been the delegate (at [30]). In ABT17, the Authority was found to have acted unreasonably because, without good reason, it did not invite the applicant to an interview in order to gauge his demeanour for itself before it decided to reject an account given by the applicant, which the delegate had accepted in making the referred decision, wholly or substantially on the basis of its own assessment of the manner in which that account was given in an audio recorded interview: ABT17 at [25]. That is not what happened in this case.

63    Here the Delegate and the Authority both reached the same conclusion in relation to the appellant’s oral evidence, and in particular, in relation to his lack of credibility regarding the claims made in the interview and the motivation for exaggerating those claims. Where the Delegate and the Authority parted ways was in the evaluation of written claims which formed part of the review material. The Authority was not at a disadvantage in undertaking its own assessment of the appellant’s written claims such that its decision-making process was legally unreasonable for failure to exercise its discretion to obtain information under s 473DC(3) of the Act. The Authority and the Delegate shared a common view as to how the appellant presented in the interview. However, from that common base, taking into account matters of coherence, consistency and plausibility in the whole of the context, the Authority reached a different conclusion to the Delegate on the veracity of the written torture claim. To do so was not legally unreasonable but consistent with the de novo function required of the Authority under Part 7AA.

64    Unlike in ABT17, the Authority’s concerns as to the veracity of the appellant’s torture claim was the result of objective inconsistencies in the appellant’s account which the Authority relied upon in its reasons. The Authority identified the following inconsistencies between the appellant’s statutory declaration and his SHEV interview. In relation to his first encounter with the CID, the appellant said in his statutory declaration that he was held at the Omanthai checkpoint for two days and interrogated by CID whereas in his SHEV interview he made no mention of being detained for two days at the checkpoint and said he was first approached by authorities at the camp. In relation to the frequency of his interrogations while at the camp, in his statutory declaration he said he had been interrogated on three occasions whereas in his SHEV interview he claimed to have been interrogated weekly. The Authority also noted that in the SHEV interview the appellant’s answers were vague and lacked detail in respect of the torture and interrogation. The Authority did not reject the written account which had been accepted by the Delegate wholly or substantially on the basis of the manner in which the appellant gave his account when questioned orally.

65    In oral argument, the appellant advanced a submission to the effect that the Authority by its use of the word “questioning” impermissibly departed from the Delegate’s approach because the Delegate used the description “interrogation”. I do not accept that the difference in terminology supports the appellant’s argument that the decision of the Authority was legally unreasonable. The examples to which the appellant points occurred in the context of the appellant’s claim in the SHEV interview that he was interrogated on a weekly basis. This claim was rejected by both the Delegate and by the Authority. The difference in nomenclature used by the two decision makers was of no significance.

66    The appellant also notes in his submissions that the Delegate, having accepted that he experienced torture at Chettikulam camp, accepted that he had sustained injuries and scarring during the interrogation, while the Authority did not accept that the appellant had been tortured and made no finding in relation to scarring. The appellant submits that had the Authority exercised its discretion under s 473DC(3) to get new information and interview the appellant, it “may have been satisfied that the [appellant] was detained and tortured, and having scars.” Having listened only to an audio recording of the SHEV interview, there is potential that there could have been an informational gap between what the Delegate and the Authority knew of the appearance of any scarring the appellant suffered. However, the Delegate’s acceptance of the torture claims was not tethered to any reference to the Delegate having seen the scarring in the interview. Rather, the Delegate appears to be rely only on the statement about scarring in the appellant’s statutory declaration.

67    Furthermore, evidence of scarring, such as a visual confirmation by a delegate at an interview, might, in any case, serve only as evidence of the existence of scars, rather than as evidence of what caused them. In AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407, Allsop CJ considered whether photographs of a visa applicant’s scars would be considered ‘new information’ within the meaning of s 473DC(3) of the Act and whether the Authority’s failure to consider those photographs constituted jurisdictional error. His Honour noted that:

65.    The IAA accepted that the appellant had scarring, but it was not satisfied that the injury occurred in the circumstances claimed. The IAA concluded that the photographs were of little probative force because, although they were corroborative of an injury, they offered no assistance in identifying the cause of the injury; the IAA noted at [15] that there could be many explanations for the scars in the photographs. Indeed, without further explanation, the photographs were only capable of supporting a conclusion that the appellant had scarring to numerous parts of his body…

68    As such, inviting the appellant for an additional interview for the purposes of viewing the scarring would not have assisted in determining whether they were caused by torture as claimed. In any event, the adverse findings made by the Authority as to the torture claims were not related to any adverse finding about the applicant’s scars, but rather on his overall credibility, a finding with which the Delegate largely concurred.

69    The appellant also contends that the Authority’s rejection of the claims surrounding the appellant hiding after his release, by which I understand the appellant to be referring to his claims of being targeted by the authorities post Chettikulam camp, were rejected without an “evident or intelligible justification”.

70    It is not clear how this submission relates to the appeal ground. It will be recalled that the appeal ground is that it was legally unreasonable for the Authority not to have exercised its power under s 473DC(3) of the Act to invite the appellant to give further information prior to making findings adverse to the appellant in respect of his credibility in circumstances where the Authority’s findings departed from the Delegate’s findings on the issue of persecution. The difficulty with the appellant’s submission is that the Delegate did not make a finding in the appellant’s favour on this issue. The Delegate’s findings on this issue are extracted at paragraph 21 above. The Delegate did not accept that the appellant was pursued by the CID subsequent to his release from Chettikulam camp because of his perceived association with the LTTE. The Authority did not accept that the authorities believed that the appellant was LTTE or had LTTE links or that the authorities were looking for him, and did not accept that he or any of his family was of any interest to the authorities after his release from the camp. The Authority’s finding was consistent with those of the Delegate. Accordingly, the appellant’s reliance on ABT17, which concerns findings of adverse credit made by the Authority in a setting of informational disadvantage and contrary to findings made by a delegate with an advantage, is misplaced.

71    For completeness I note that particular (d) of the amended notice of appeal is as follows:

(d)    At paragraph 29 IAA concluded that "I do not accept the authorities believe he is LTTE or has LTTE links or that they are looking for him. I do not accept the applicant or any of his family was suspected LTTE or of any interest to authorities after his release from the IDP camp. I consider the applicant is not a credible witness and has fabricated large parts of his account". The delegate stated at AB 133 that the applicant's sister also travelled to Australia with the applicant. Her claims for protection have been considered separately; please refer to AB208, Para 36.

72    It may be accepted that the Delegate acknowledged that the appellant’s sister had also travelled to Australia and made claims for protection. However, this acknowledgement is not inconsistent with, and does not change, the findings of the Delegate and the Authority that they did not accept that the appellant was pursued by CID following his release from Chettikulam camp.

73    The appellant submitted that in the context of legal unreasonableness, materiality is “bound up” in the characterisation of an exercise of power as legally unreasonable and requires no separate consideration. I accept that submission on the basis of the analysis of Thawley J in DMO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 61 at [57] to [60], culminating in the following summary, with which I respectfully agree:

63.     It follows from what the majority of the High Court in MZAPC said at [33] and from what the Full Court said in Tsvetnenko, that:

(1)     the importance or “materiality” of the alleged defect in the reasoning or the decision or the process by which the decision was reached is relevant in determining whether legal unreasonableness has been established – legal unreasonableness will not be established where the defect is not material; and

(2)     questions of “materiality” therefore do not need to be addressed again if it is concluded that the failure to exercise, or consider the of, a power was legally unreasonable.

74    Here, I am not satisfied that the alleged defect in the Authority’s decision-making process was legally unreasonable. One of the reasons which informs my conclusion is that the defect, if there be a defect, was not material. The Authority departed from the Delegate in two specific respects (that the appellant had sustained injuries during interrogations at the Chettikulam camp and that the appellant had been detained and interrogated at the Omanthai checkpoint), but even if it arrived at the same conclusion as the Delegate in both these respects, the outcome reached would likely not have changed. That is demonstrated by the fact that even having drawn conclusions favourable to the appellant on these issues, the Delegate was not satisfied in relation to the relevant statutory criteria and accordingly refused the visa application.

75    The appellant has not established that, in the present circumstances, the Authority’s failure to get, or to consider whether to get, new information under s 473DC(3) of the Act in relation to the appellant’s claims was legally unreasonable.

CONCLUSION

76    The appeal must be dismissed. There is no reason why costs should not follow the event.

Associate:

Dated:    15 August 2023