Federal Court of Australia

EAT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1090

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant must pay the first respondent's costs of the appeal, fixed on a lump sum basis.

3.    On or before 4.00 pm AWST on 27 September 2023, the parties must file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent's costs.

4.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent's costs is 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

JACKSON J:

1    This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) dismissing an application for judicial review of a decision of the Immigration Assessment Authority. The appellant is a Tamil and a national of Sri Lanka. He came to Australia in 2012 and applied for a protection visa. Part of the basis of the application was a claim that he had been detained and tortured by the Sri Lankan authorities for 25 days in 2009. The delegate of the first respondent (Minister) accepted that claim, but the Authority did not. The issue in the appeal is whether the primary judge erred in failing to find that the Authority acted unreasonably in rejecting the claim without first inviting the appellant to an interview.

2    For the following reasons the appeal will be dismissed.

The visa application

3    The appellant applied for a form of protection visa called a Safe Haven Enterprise Visa (often called a SHEV), a form of protection visa, in May 2016. His claims to be entitled to protection were in a statement that accompanied the application. The primary judge summarised the presently relevant aspects of the claims as follows (primary judgment (PJ) [6], footnote removed):

… The applicant claimed to fear harm at the hands of the Criminal Investigation Department (CID) should he return to Sri Lanka due to his Tamil ethnicity and imputed connection to the Liberation Tigers of Tamil Eelam (LTTE). He relevantly claimed that he had, on multiple occasions, been harassed, threatened and interrogated by the CID. He also claimed that he had been detained, interrogated and beaten by the CID for two days in May 2009 and for 25 days in June 2009. It is the latter claim about the 25 day period of detention that is relevant to the application to this Court. The applicant provided the following information about that claim in his statement dated 23 May 2016:

19.    … Sometime in June [2009], the CID came to our home and arrested me again. I was taken into custody again under suspicion of being an LTTE member. I believe they did this because we could not give into their demands for money. This time I was detained for about twenty-five days at the local police station in Trincomalee.

20.    During this time the CID interrogated me every couple of days, asking me the same questions over and over again, and beating me when I would not admit I was involved with the LTTE. They told me if we didn't meet their demands for money that they would continue to arrest me and harass my aunt and her family.

21.    I was released from the police station approximately twenty-five days later and went back to my aunt's house. I had nowhere else to go. The CID continued to harass my aunt and I, even after being released for the second time.

4    In September 2016 the appellant attended an interview (SHEV interview) with the delegate of the Minister who was deciding his application for a protection visa. In his reasons for refusing the protection visa dated 8 December 2016, the delegate said:

… At his [SHEV] interview on 22 September 2016, the applicant expounded upon the details in regards to the instances of persecution, harm and/or discrimination that had allegedly occurred to himself and/or to other members of his family whilst previously in Sri Lanka, up until his departure from Sri Lanka on 7 August 2012.

Key matters central to his claims, including any adverse information, were put to the applicant to determine the relative credibility of his protection claims and in doing so, determine the factual basis of these claims.

5    The delegate then made the following findings of fact:

I found that the evidence provided at interview was generally consistent with the applicant's written statement of claims. During the course of the interview, some inconsistencies emerged in respect of exact dates, dates and years and the exact sequence of events. These inconsistencies were put to the applicant and further discussed.

Overall, despite what I believe to be some exaggeration in respect of the recounting of some incidents and events, there is no evidence to suggest that these claims have been fabricated. I therefore accept the applicant's claims in relation to specific incidents and events that had allegedly occurred to himself and/or to other members of his family whilst previously in Sri Lanka up until his departure from Sri Lanka on 7 August 2012.

6    However on the basis of country information about developments in Sri Lanka since the appellant's departure, the delegate found that the appellant's fear of harm on return to the country due to his Tamil ethnicity was not well founded. The delegate found that the appellant was 'not politically active in Sri Lanka and that he does not have a political profile of any kind' and that he would not be imputed with a connection to the LTTE for the sole reason that he was Tamil.

7    The delegate thus found that the appellant would not face a real chance of persecution on return to Sri Lanka and so did not meet the refugee criterion under s 36(2)(a) of the Migration Act 1958 (Cth) for the grant of a protection visa. For similar reasons, the delegate found that the appellant did not meet the complementary protection criterion under s 36(2)(aa).

The Authority's review

8    The delegate's decision was a 'fast track reviewable decision' within the meaning of the Migration Act and so was reviewed by the Authority. A decision the Authority made on 9 August 2017 was ultimately set aside by reason of an appeal to this Court and the matter was remitted to the Authority. It is the Authority's second decision of 14 April 2021, on remitter, that was under challenge in the decision presently on appeal.

9    The Authority correctly approached the second review on the basis that it was to be conducted afresh and that it was not bound by the findings of the delegate or by the previous decision of the Authority. As required under the statutory framework, the Authority conducted the review on the basis of material given to it by the Secretary of the Department which included an audio recording of the SHEV interview. The Authority dealt with (and rejected) new information the appellant sought to put before it.

10    The Authority then briefly summarised the appellant's protection claims in a manner consistent with the summary above. Then after a brief discussion of the applicable law, the Authority turned to assess the claims. It accepted the appellant's evidence about his nationality and background, including that at the times material to his claims, he lived with a maternal aunt. It considered and accepted a claim that the appellant's uncle had been missing since January 2009 as a result of being arrested and detained by the CID. In the course of assessing that claim, the Authority referred to the SHEV interview, noting that the appellant was not questioned in any detail about the uncle's disappearance.

11    The Authority also accepted a claim by the appellant that he began to be harassed by the CID in about May 2009 and that this included taking him to the police station to question him about involvement with the LTTE. Again, in the course of assessing these claims, the Authority referred to the SHEV interview, noting that at it, the appellant spoke briefly about these claims and stated that he was taken by the CID from his aunt's home and they harassed him. But despite accepting the claims, the Authority seemed to think that the CID concluded that the appellant had no involvement or association of any importance with the LTTE. The Authority noted that the appellant had not claimed at the SHEV interview that the CID questioned him about his uncle and his suspected LTTE involvement.

12    The Authority then turned to examine in detail the claim that is presently most relevant, that the CID detained the appellant a second time, for 25 days. According to the appellant's written claims, this commenced with demands by the CID for money from his aunt and threats that they would shoot him if she did not comply. Then in June 2009 the CID arrested him and took him into custody at the local police station, where he was detained for 25 days. He was questioned and threatened, and then released. He went back to his aunt's house. Harassment by the CID continued. He then visited India on a tourist visa, but he came back to Sri Lanka. The appellant (who had been 14 years old in 2009) managed to complete high school. He said he tried to get a job to meet the CID's financial demands, but he could not earn enough.

13    The Authority then gave what appears to be its summary of relevant aspects of the SHEV interview, and its assessment of the 25 day detention claim:

35.    At his SHEV interview discussing events following his release after his two-day detention, the applicant said that once every two days, or four days or once a week they came and harassed him, and it was like torture. They asked him the same questions, whether he was involved in the LTTE, why he came there and why he was staying. This continued until he went to India. He applied for a visa to India, the first time it was rejected and then after three months, he applied for a tourist visa and he got the visa to go to India. He went to India and extended his three-month visa by reporting to the police station and stayed there one year. He went back to Sri Lanka because the problem was over at the time, his parents had moved from the camp to his hometown and he wanted to study. He lived with his Aunt in Trincomalee. When he went to school the CID would harass him, and over the phone, they would ask his Aunt for money. The CID would harass him and his friends on the way to school at the army check point. He didn't know the reason his Aunt was being asked for money, but they told her if she did not pay, they would take him and shoot him.

36.    I consider it significant that in describing events at his SHEV interview after his release from his two day detention and his applying for his visa to India and eventually being granted the tourist visa, the applicant failed to recall his arrest and 25 day detention in June. In his written claims the applicant provided a relatively detailed account of his first two day detention and treatment but his evidence regarding his 25-day detention lacked similar substance despite it being for a more significant period of time. I also observe that according to his SHEV application his Sri Lankan passport was granted on 15 June 2009, the same month the applicant was purportedly detained for three and a half weeks. Given this and his failure to recall this event, I am not satisfied the applicant was detained for a 25-day period before he departed for India.

14    So, unlike the delegate, the Authority did not accept the claim that the appellant had been detained a second time for 25 days. That is the finding which the appellant impugned before the primary judge and impugns in this appeal.

15    The Authority went on to note another inconsistency between the SHEV interview and the appellant's written claims (in its view, a lesser one) before assessing the plausibility of his claims and the likelihood that he had been singled out from other schoolboys for harassment. The Authority found that after his initial two day detention in May 2009, the CID was satisfied with his responses that he had no LTTE involvement, and that this was further evidenced by his ability to obtain a Sri Lankan passport and depart for India without any problems. The Authority was thus satisfied that when the appellant left Sri Lanka in August 2012 on the journey that ended in Australia, he was of no interest to the Sri Lankan authorities, including the CID.

16    It is not necessary to describe the other findings and reasoning of the Authority. It concluded that the appellant did not have a well-founded fear of persecution and also that there were not substantial grounds for believing that he faced a real risk of significant harm if removed to Sri Lanka. Hence the Authority was not satisfied that he met either the refugee (s 36(2)(a)) or complementary protection (s 36(2)(aa)) criteria for the grant of a protection visa. The delegate's decision was affirmed.

The ground of review in the FCFCOA

17    There was one ground of review before the primary judge. In substance it was the same as the ground of appeal in this Court. It was (citations to application book removed):

The IAA's performance of its duty to review the decision of the delegate miscarried by reason of non-compliance with the implied condition of reasonableness.

PARTICULARS

a.    The applicant claimed that he feared harm, including being detained, beaten, tortured and possibly killed, by the Sri Lankan authorities, particularly the CID, on the basis of his Tamil ethnicity and his illegal departure from Sri Lanka.

b.    He claimed, inter alia, that he had previously been detained for about 25 days by the CID during which time he was interrogated continually and beaten.

c.    The delegate accepted the applicant's claims about the events in his life prior to his departure from Sri Lanka. This included acceptance of his detention for 25 days.

d.    The claim of having been detained for 25 days was squarely rejected by the IAA, in circumstances where the IAA failed to seek out new information from the applicant about the issue, and without taking account of the advantage that the delegate had over the IAA with an in person interview.

e.    By failing to invite the applicant to a further interview, the IAA transgressed the reasonableness condition implied into both the imposition of its duty to conduct a review under s 473CC of the Migration Act 1958 and the conferral of its powers to get and consider new information in conducting a review under s 473DC(3) of that Act.

18    In short, the appellant contended that the Authority fell into jurisdictional error because, in failing to interview him about his claim to have been detained for 25 days, and then rejecting that claim, the Authority acted unreasonably.

19    Specifically, the power that the Authority could have exercised, but did not, was the power under s 473DC(3)(b) to move beyond reviewing the matter solely on the papers, by inviting the appellant to give new information at an interview. The argument that the Authority acted unreasonably in failing to exercise that power relies on the decision of the High Court in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439. The decision in the FCFCOA turned on the primary judge's understanding of ABT17 and the outcome of this appeal likewise turns on that case, so it is convenient to consider it now before going any further. The content of the appellant's submissions makes it necessary to consider the case in some detail.

ABT17 v Minister for Immigration and Border Protection

20    ABT17, like the present appellant, was a Sri Lankan national of Tamil ethnicity who had applied for a protection visa which had been refused. He had made several written claims for protection, but relevant to the outcome was a further claim he made in his interview with the delegate who decided the application. In that interview, ABT17 said that in May 2011 he had been detained and sexually tortured by members of the Sri Lankan Army. The delegate found that this was plausible and broadly consistent with the country information. The protection visa application was refused, however, because the delegate considered based on country information that conditions had improved since ABT17's departure, so that the delegate was not satisfied that there was any longer a real chance that ABT17 would face serious or significant harm on return to Sri Lanka.

21    The refusal decision was a fast track reviewable decision which was accordingly reviewed by the Authority. The Authority was not satisfied that ABT17 had been sexually tortured in May 2011. There were two reasons why. One concerned the consistency of the claim with other claims that ABT17 had made, but the other concerned the manner in which ABT17 had given evidence about the claim at the interview. The Authority listened to an audio recording of the interview and found that the evidence ABT17 gave to the delegate was lacking in detail, ABT17 had been unable to expand in any detail on a number of his claims, and at times he sounded vague and hesitant.

22    The High Court held unanimously that the Authority had fallen into jurisdictional error, but their Honours' reasons for that conclusion varied. Most relevant to the current case are the reasons of the plurality of Kiefel CJ, Bell, Gageler and Keane JJ. Their Honours summarised the scheme of the Migration Act as to the Authority's review, noting that the Authority was required to review the fast track reviewable decision by considering the review material provided to it by the Secretary of the Department, without accepting or requesting new information and without interviewing the referred applicant, subject however to the Authority's powers to get new information and to consider it in certain circumstances and on certain conditions (ABT17 at [2]). One of the ways in which the Authority was empowered to get new information was by inviting a person, who could be the referred applicant, to an interview which the Authority could conduct in person or by telephone or in any other way (ABT17 at [2]). At [3] their Honours observed (footnote removed):

The duty of the Authority to review a referred decision is imposed on the implied condition that the duty must be performed within the bounds of reasonableness, and the powers of the Authority to get and consider new information are likewise conferred on the implied condition that those powers must be considered and where appropriate exercised within the bounds of reasonableness.

23    Their Honours then (ABT17 at [4]) expressed the question of principle in the appeal, and the answer to it, as follows:

… 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. The answer is that it can, and that in this case it did.

24    Their Honours then considered in some detail the provisions of the Migration Act that governed both the information that was to be the subject of the review by the Authority and the information that the Minister or their delegate would consider in making the decision under review. Their Honours noted (ABT17 at [8]) that:

The purpose of obliging the Secretary to provide the review material to the Authority and of obliging the Authority to consider the review material provided to it by the Secretary is evidently to ensure that the Authority, in conducting its de novo consideration of the merits of the referred decision, has and examines for itself the same information that was before the Minister and that was therefore available to be taken into account by the delegate when making the referred decision.

25    After considering how the Minister or the delegate may conduct an interview in person and how a recording of it may be provided to the Authority as part of the review materials, their Honours explained (ABT17 at [13]-[14], footnotes removed) that:

… the potential for a record of an interview conducted in accordance with the Code of Procedure [in Subdivision AB of Division 3 of Part 2] to take a variety of forms creates potential for an informational gap to arise in the review material where an interview with the referred applicant has been conducted by the delegate in person and has been audio recorded but not video recorded. Provision of the audio recording as part of the review material will then not put the Authority in the position of having and being able to examine for itself the totality of the information available to the delegate and required by the Code of Procedure to be considered by the delegate when making the referred decision. Missing from the review material will be a visual impression of how the referred applicant appeared during the interview - his or her demeanour.

An informational gap of that nature has potential to impact on the Authority's assessment of the credibility of the account given by the referred applicant during the audio recorded interview and in turn has potential to impact on the Authority's assessment of the referred applicant's overall credibility. 'Impressions formed by a decision-maker from the demeanour of an interviewee may be an important aspect of the information available to the decision-maker.' That has 'long been recognised' and continues to be appreciated despite awareness on the part of sophisticated decision-makers that 'an ounce of intrinsic merit or demerit' measured by reference to objectively established facts and the apparent logic of events 'is worth pounds of demeanour'.

26    Their Honours considered that, given the Authority's concerns with the manner in which ABT17 had given his evidence, as described at [21] above, conducting an interview with him was an 'obvious means by which the Authority might seek to resolve these matters of concern' (ABT17 at [15]):

… At an interview the Authority could seek answers in relation to those aspects of the appellant's evidence that troubled the Authority by raising questions which had not previously been raised with the appellant. The Authority could thus develop an informed impression of the credibility of the appellant based on his responses to such questions and an observation of his demeanour. The appellant's responses and the demeanour of the appellant inextricably associated with them would be new information relevant to his personal circumstances.

27    That was in a context where the Authority could only consider new information where it was satisfied that there were exceptional circumstances to justify doing so: s 473DD(a). At [16] the plurality considered that this condition could be satisfied (footnote removed):

… on the basis of the Authority's satisfaction that the existence of any informational gap is sufficiently aberrant within the scheme of de novo review for which Pt 7AA provides to make existence of the informational gap in the particular review alone enough to constitute 'exceptional circumstances' justifying its consideration irrespective of how frequently such an informational gap might arise in practice.

28    This was footnoted to a passage in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [30] in which Gageler, Keane and Nettle JJ said (footnote removed):

Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word 'exceptional', in such a context, is not a term of art but 'an ordinary, familiar English adjective': '[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered'.

29    Their Honours went on to examine the principles that applied to the question of when compliance with the implied condition of reasonableness might compel the Authority to interview the referred applicant. Relying on Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [105], their Honours noted that the implied condition of reasonableness necessitates that the Authority come to its decision through an intelligible decision-making process and that answering the question required an examination of the 'decision-making pathways reasonably open to the Authority' where the review material that it is obliged to consider leaves out information that was available to the delegate (ABT17 at [21]).

30    The plurality then made it clear that not every 'informational gap' would compel the Authority, acting reasonably, to interview the referred applicant. At [22]-[24] their Honours said (footnotes removed):

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.

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.

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.

31    The plurality then described the circumstances in which a requirement to interview the referred applicant nevertheless would arise, as follows (ABT17 at [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.

32    After considering the Authority's rejection of the claim of sexual torture which ABT17 had made in the protection visa interview, on the basis that the claim lacked detail, and that ABT17 had been unable to expand in any detail on a number of his written claims and sounded vague and hesitant, their Honours held (at [29]):

Had the Authority acted reasonably in performing its duty to review the decision of the delegate cognisant of its informational disadvantage in assessing the credibility of the appellant when compared with the delegate, the Authority would not have rejected the appellant's account of having been detained and beaten and sexually tortured on the basis of how he sounded on the audio recording without inviting him to a further interview so as to see him as well as hear him. By failing to invite the appellant to a further interview, the Authority transgressed the reasonableness condition implied into both the imposition of its duty to conduct a review and the conferral of its powers to get and consider new information in conducting a review.

33    Each of Nettle J, Gordon J and Edelman J also found that the Authority fell into error, but for different reasons than the plurality. Nettle J considered that the Authority acted unreasonably in departing from the delegate's assessment of the plausibility of ABT17's claims without sufficient reason (ABT17 at [69]). Gordon J considered that the Authority acted unreasonably in rejecting ABT17's account in the interview without sufficient reason (ABT17 at [87]). Edelman J essentially agreed with the reasoning of Nettle J (ABT17 at [112]) and also accepted a concession by the Minister that subject to materiality, if a delegate makes a decision substantially based on demeanour then the Authority will need an independent evidentiary basis to depart from that decision and that it would be legally unreasonable to reach a different view without forming its own view about demeanour (ABT17 at [123]). But in the present case the parties relied solely on the reasoning of the plurality.

The primary judge's reasoning and the appellant's criticisms of it

34    It is not necessary to set out the ground of appeal. In essence it contends that the primary judge erred by not accepting the ground of review set out above, and the particulars to that ground of review are the same as for the present ground of appeal.

35    The appellant's submissions criticised the primary judge's reasons in some detail so it is convenient to summarise the appellant's case in the course of describing her Honour's reasoning.

36    After giving the background, setting out the ground of review, describing the parties' submissions and reviewing the relevant law, focussing on ABT17, the primary judge said that for reasons she was to explain, her Honour was (PJ [45]):

… not satisfied in the present case that the applicant has established that the Authority acted unreasonably in failing to exercise its discretion in s 473DC(3)(b) of the Migration Act to invite the applicant to attend an interview. In summary, my reasons for this are as follows:

(a)    The applicant did not discuss at his protection visa interview his claim to have been detained for 25 days in June 2009 and, as a result, there was no opportunity for either the delegate or the Authority to assess his demeanour while giving evidence about that particular claim. There was no informational gap of the type described in ABT17 in relation to the applicant's demeanour in giving his account of his claim to have been detained for 25 days in June 2009, as no oral account was provided.

(b)    It may be accepted that the delegate otherwise had the opportunity to assess the applicant's demeanour throughout the interview generally and the Authority did not. To the extent that this gave rise to a type of informational gap, it did not place the Authority at a disadvantage compared to the delegate when assessing the applicant's specific claim to have been detained for 25 days in June 2009.

37    After recounting and considering the particular submissions counsel for the applicant made, the primary judge accepted that there may be some form of informational gap in circumstances where the delegate has been able to assess the applicant's demeanour generally based on his visual appearance at the interview, but the Authority could not, if all it had was an audio recording of that interview. But, her Honour held (PJ at [54]):

… This type of informational gap is far more general than the type of informational gap that arose in ABT17, where the delegate had the opportunity to assess the applicant's demeanour when discussing a specific claim and the Authority did not. I also accept that any assessment of the applicant's demeanour may include consideration of his non-verbal communication.

38    Her Honour also accepted (PJ at [55]) that 'a delegate's immediate impressions of an applicant's demeanour may, to a degree, influence the cut, thrust, parry, momentum or mood of an interview'.

39    The appellant submits, however, that her Honour was wrong to say that the informational gap is far more general in this case than in ABT17. That is said to be because it is 'exactly the same information gap - visual and presentation information'. To the extent that her Honour was saying that the evidence to which the information gap applied was different in this case to the evidence in ABT17, that is, according to the appellant's submissions, 'trite', because every case has its own facts (appellant's written submissions (AS), para 8).

40    In the circumstances of this case, her Honour could not conclude that an information gap required the Authority to invite the appellant to an interview before rejecting the claim that he had been detained by the CID for 25 days in June 2009. Here, any such gap was necessarily based on the appellant's demeanour in responding to questions that did not go to that claim. At PJ [57] her Honour held:

There is nothing in the Authority's reasons that would suggest that the applicant's demeanour in his interview as he answered questions about his other claims was relevant to the question of whether his claim to have been detained for 25 days in June 2009 should be accepted. This is not a matter where the Authority has made a general adverse credibility finding that has impacted its assessments of all of the applicant's claims. On the contrary, with the exception of the applicant's claim to have been detained for 25 days in June 2009, the Authority has generally accepted the applicant's credibility.

41    According to the appellant, it was 'misconceived' for her Honour to have said that there was nothing in the Authority's reasons that would suggest that his demeanour was relevant to his claim to have been detained for 25 days. According to the appellant, that is inconsistent with her Honour's earlier acceptance that the ability of the delegate, but not the Authority, to assess the appellant visually in the interview, may give rise to some sort of informational gap, and with her acceptance that the delegate's impressions may influence the cut, thrust, parry, momentum or mood of the interview. The appellant submitted (AS para 10):

Part of the importance of 'positive' demeanour is that a person might be so impressive on one topic that they are inherently more likely to be believed on other topics. In the Aristotelian elements of good advocacy, this kind of positive demeanour goes to the 'ethos' of the person. It can be important [to] their ability to persuade: a person accepted as credible on an important matter subject to scrutiny is more likely to be accepted as credible on a later occasion, even if on an unrelated topic.

42    The appellant further submitted that the fact that the Authority accepted his evidence on other matters makes it more likely to be legally unreasonable for the Authority not to interview him in relation to the claim which it did not accept. The appellant appeared to submit that this was because the Authority had found him credible in relation to other things, the delegate had also found his further claim to be credible when the delegate had seen him give evidence in relation to those other things, and that this gave the delegate an advantage which the Authority ignored. The appellant also pointed out that the primary judge found (at PJ [58]) that on every point on which the appellant had given evidence in the interview, the Authority agreed with the delegate's assessment.

43    According to the appellant's submissions, the 'real issue' in the primary judge's reasons seemed to be at PJ [61]-[63] where, referring to the Authority's expectation that if the claim to have been detained for 25 days had been true, the appellant would have mentioned it in the interview, her Honour said (citations removed):

[61]    I do not accept that it was the applicant's demeanour, or other non-verbal communication between the delegate and the applicant, that gave rise to the Authority's expectation in this case. It is reasonable to infer that any such expectation on the part of the Authority may have arisen from the questions asked by the delegate at the interview. For example, even if the applicant was not asked specifically about the 25 day period of detention in June 2009 referred to in his written claims, he may nevertheless have been invited to address the claim by the delegate asking him to explain, at an appropriate point, what happened next in his narrative. Any such questions would be evident to the Authority from listening to the audio recording, and they are not the subject of any informational gap. In circumstances where there is no evidence before the Court of the transcript or audio recording of the interview, I cannot positively conclude that it was the questions asked by the delegate that gave rise to the expectation. However, in the absence of any knowledge of the questions asked at the interview, I also cannot conclude that there was anything in the non-verbal aspects of the interview, including the applicant's demeanour, that gave rise to the Authority's expectation that the applicant would have mentioned the 25 day detention claim if it were true.

[62]    The applicant has the onus of proof to establish jurisdictional error. While I accept that a transcript or audio recording of the interview would not provide evidence of the applicant's demeanour, it would at least show the nature of the questions asked and allow an informed assessment to be made of the basis for the Authority's expectation that the applicant would have mentioned the 25 day detention claim, if it were true. If there was nothing in the questions that could reasonably have given rise to the Authority's expectation, it might (depending on other evidence) be open to the Court to attach greater significance to any informational gap that arose from the delegate's ability to assess the applicant's demeanour when discussing other claims. The transcript or audio recording would provide significant evidence of the manner in which that interview was conducted, including information about the ‘cut and thrust and parry and momentum of the interview' to the extent that it is evident from verbal communication. When I questioned Mr Aleksov about the lack of any transcript, he quite properly acknowledged that it would be open to me to infer that there was nothing in the transcript that would assist the applicant's case.

[63]    On the evidence before the Court, I cannot conclude that any informational gap based on the applicant's general demeanour throughout the interview, or any other non-verbal communication, put the Authority at a disadvantage, compared to the delegate, when assessing the applicant's specific claim to have been detained for 25 days in June 2009.

44    The appellant submits that he did not need to persuade the primary judge that demeanour was in fact relied on by the Authority; relying on ABT17 at [14]-[15], he says that the principle is directed to the possibility that demeanour 'bridged the gap' between the findings of the delegate and those of the Authority (AS para 15). The absence of any transcript or audio recording of the interview before the FCFCOA was neutral in terms of inferences it would support. The appellant also sought leave to rely on an affidavit attaching a transcript of the interview in this appeal. In any event, the appellant submits that the potential significance of the informational gap was plain from the difference between the findings of the delegate and those of the Authority concerning the 25 day detention claim.

45    The appellant also submitted that it was necessary to take account of the stakes in determining the minimum standard to be expected of the Authority as a public administrator. The decision was potentially life and death for the appellant, and the cost of the Authority acting by inviting him to an interview was low. According to the appellant, that 'had to be done' and it was not.

46    In oral submissions, counsel for the appellant acknowledged that in many cases it will be open to the Authority to find against the credit of the referred applicant's account for reasons that have nothing to do with demeanour: for example, significant differences between the content of the interview and the content of the written claims, or internal incoherence, or inconsistency with country information. But in this case, the appellant's claims had been wholly accepted by the delegate, after an interview which did not appear to raise any problems with what the appellant was saying, and yet the 25 day detention claim was rejected by the Authority on the basis of reasoning which, in counsel's submission, was very weak. He referred in that regard to the Authority's reasoning at paragraph 36 of its decision (set out at [13] above). Counsel submitted that since that resulted in the rejection of an important claim, it was legally unreasonable for the Authority not to have conducted its own interview.

47    Before considering the primary judge's decision and the appellant's submissions about it, it is necessary to determine the application to adduce fresh evidence in the appeal.

Application to adduce fresh evidence

48    As the primary judge's reasons reveal, neither the audio recording of the SHEV interview nor a transcript of it were before her Honour. The appellant applies for leave to adduce an affidavit of Alexia Avdoulas affirmed 16 November 2022, annexing a transcript of the interview as evidence in this appeal. The appellant's submissions as to why he should have leave were simply that the interests of justice would compel it if I were to determine that the transcript was useful or significant to his argument in this Court. Counsel for the appellant, who was counsel before the primary judge, frankly confessed that he had no good explanation for why it was not put before the primary judge other than that it did not seem to be important. The Minister opposed the application, but by consent, counsel was permitted to address the Court on the basis of the affidavit with the question of leave to be resolved in these reasons.

49    This Court has a discretion to receive further evidence in an appeal: s 27 of the Federal Court Act of Australia 1976 (Cth). In Sami v Minister for Immigration and Citizenship [2013] FCAFC 128 at [7] the Full Court said of questions of fresh evidence in appeals:

… Generally, if the evidence could have been adduced below by the exercise of reasonable diligence it will not be admitted on appeal … Further, unless the evidence is of such relevance and weight that its admission would be likely to lead to a different result it also will not usually be admitted on an appeal. In the present case, the potential relevance and weight of the proposed fresh evidence must be assessed having regard to the limits on the Court's jurisdiction to review the decision of the AAT - that is, for jurisdictional error only, no review of the merits of the AAT's decision being permissible by this Court either at first instance or on appeal.

That limitation on the jurisdiction of this Court to review decisions of the Tribunal obviously also applies to the jurisdiction of the FCFCOA to review the decision under challenge here.

50    In his written submissions, the appellant disavowed any reliance on the transcript. But in oral submissions his counsel relied on it as, he said, important context to take into account to counter a submission by the Minister that demeanour had nothing to do with the Authority's decision. He submitted that read as a whole it shows that, when asked, the delegate received a narrative broadly consistent with the appellant's written claims and did not interrogate the appellant in any depth or test or probe his claims. From that, it is submitted, I can infer that the appellant's demeanour or presentation was impressive, so that the informational gap between the delegate and the Authority was significant.

51    Counsel also pointed to a passage in which the delegate, after hearing the appellant's account of the detention for two days which took place in May 2009, asked what happened after the CID released him. The appellant said that they kept harassing and threatening him, coming back to see him every few days. The delegate asked 'how long did this continue for?' and the appellant said it was until he went to India, without mentioning the 25 day detention. Counsel for the appellant submitted that the emphasis the delegate put on that question, and the general 'vibe' or 'momentum' of the interview might be very important in assessing why the appellant did not specifically mention the 25 day detention claim. This is the passage from the interview mentioned in the Authority's reasons set out above.

52    I do not consider that the transcript of the SHEV interview is of such moment that it is in the interests of justice to admit it into evidence in the appeal, particularly in the absence of any good explanation as to why it was not adduced before the primary judge. The submissions of the appellant, about what could be inferred from the transcript about the delegate's assessment of the demeanour and presentation of the appellant, are speculative. It may readily be accepted that the delegate found nothing in the appellant's presentation at the interview to cast doubt on the veracity of his claims, because the delegate accepted those claims. The transcript does not add to that. It does not support any inference that the delegate found the appellant's visual presentation particularly impressive.

53    Similarly, the appellant's submissions about the possible significance of the way the delegate asked questions at the interview are also speculative, and the transcript does not shed any light on that possible significance. It must be recalled that the Authority had access to the audio recording, it being common ground that it listened to it, and did not have a transcript (the transcript sought to be adduced into evidence was made at the request of the appellant's solicitor in the course of preparation for the appeal). If the appellant wished to make a point based on the intonation of questions asked, he should have applied for leave to adduce the audio recording, rather than a transcript which only permits speculation about such matters.

54    Further, reading the transcript as a whole, I am far from convinced that it would advance the appellant's case if it were admitted into evidence. It shows that, throughout the interview, the delegate asked the appellant open ended questions such as 'can you tell me what happened' (albeit by reference to the May 2009 incident), 'What happened after they released you?', 'how long did this continue for' (in reference to questioning by the CID about the appellant's suspected LTTE involvement) and (later in the interview) 'what are you able to further say to convince the department that you still require protection from Australia'. It thus tends to support the inference at PJ [61], set out at [43] above. It also reveals that the appellant was accompanied by a migration agent who was also given an opportunity to raise further issues. All of this suggests that the Authority did have an intelligible basis to conclude that the appellant's omission to mention the 25 day detention claim at the interview was significant; counsel for the appellant properly accepted that it was an event one would ordinarily expect to loom large in the memory. The suggestion that the Authority nevertheless may have found the appellant's presentation in the audio recording to be significant, without any mention of that in its reasons is, once again, speculative.

55    Leave to adduce the affidavit of Alexia Avdoulas affirmed 16 November 2022 into evidence is refused.

Consideration

56    Turning, then, to consider the merits of the ground of appeal, in my view the facts of this case are quite different to those in ABT17, and the differences are material. Crucially, ABT17 was a case where the appellant had made an important claim in the protection visa interview and nowhere else. This case is the opposite; the appellant here made the claim in his written statement and did not make the claim in his SHEV interview. That difference is material because it changes the significance of the informational gap that formed the basis of the decision of the plurality in ABT17. The informational gap there was found in the inability of the Authority to assess the claim that was made in the interview by means of visual observation of the interviewee's demeanour when he was describing the events in question.

57    As the primary judge correctly observed, the informational gap here was much more general in nature. It was the inability of the Authority to see the appellant talking about other things, that is, things other than the claim that it rejected, and to enlist those visual impressions in its assessment of the appellant's overall reliability as a witness. The appellant criticises the primary judge's observation by submitting that the informational gap was the same: 'visual and presentation information'. But that meets the point that the informational gap here is general by describing the informational gap in ABT17 at a similarly high level of generality. When it is appreciated that in ABT17 the gap was, more specifically, the inability of the Authority to see ABT17's demeanour when he was giving the account that it rejected, the significance of the difference is readily apparent. Contrary to the appellant's submissions, there is nothing trite about it. The specific nature of the informational gap in ABT17 was fundamental to the High Court's determination that the Authority had acted unreasonably.

58    Another difference between the two cases is that the informational gap in ABT17 was crucial because the Authority's assessment of ABT17's claims was informed, to a significant extent, by its assessment of his demeanour. So the gap was inherent in the very matter which the Authority found to be important (along with inconsistency of the relevant claim with other claims). But in the present case, the Authority made no reference to the appellant's demeanour as apparent from the audio recording. It is not possible to discern from its decision that it found the manner in which his evidence presented in the audio recording to be important at all. It was rather the content of that evidence, or more to the point what it did not contain, that the Authority thought significant. Here, then, the Authority proceeded on a different basis to its approach in ABT17, where its concern had been that ABT17's evidence generally lacked detail and was at times vague and hesitant, a concern it formed solely by listening to the audio recording.

59    It follows that it was not misconceived for the primary judge to have said that there was nothing in the Authority's reasons that would suggest that the appellant's demeanour was relevant to the 25 day detention claim. Nor was that inconsistent with her Honour's acknowledgement that demeanour could have influenced the delegate's interview, and that there would be an informational gap arising from the delegate's ability to see the appellant during the interview and the Authority's inability to see him. The question is the importance of that informational gap in the context of this case. Since demeanour did not matter to the Authority's decision, the informational gap was not especially important here; certainly not as important as it was in ABT17.

60    It also follows that, contrary to the appellant's submission, the significance of the informational gap was not apparent from the difference between the findings of the Authority and those of the delegate. The reasoning of the Authority indicates that the informational gap was not significant, because it found against the appellant on different grounds. Its reasoning related to other information contained in the review material, such that the visual presentation including demeanour of the appellant did not have any or any significant bearing on its decision.

61    I also do not accept the appellant's submission that all he had to establish was a possibility that demeanour 'bridged the gap' between the findings of the delegate and the different findings of the Authority. That submission appeared to be based on the way that the plurality in ABT17 at [14]-[15] referred to the 'potential' significance of the informational gap and of demeanour. But the plurality was merely describing the issue there, not stating what it was that an applicant would have to establish in order to succeed in an argument of that kind. What an applicant would have to establish emerges, rather, from the statements in ABT17 at [25] and [29] (set out above at [31]-[32]), in which the plurality proceeds on the basis that the Authority did reject the relevant claim based on demeanour. So, where the delegate has accepted a claim wholly or substantially on the basis of its assessment of the applicant's demeanour, the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview to gauge his or her demeanour for itself before rejecting the claim the delegate accepted on the basis of its own assessment of the manner in which the account was given (ABT17 at [25]). That is not what occurred in this case.

62    As the plurality put it in ABT17 (at [15]), since the Authority's concern was about ABT17's demeanour, interviewing him itself was an obvious way of resolving that concern. Here it was not obvious that demeanour would make a difference, or was a matter of central importance. It was not the appellant's demeanour that caused the Authority to reject the claim and the Authority could not have formed any impression that he was hesitant in describing the claim in the interview, because he did not describe it at all. So to adapt the words of the plurality (at [22]) in describing reasons why not every informational gap requires the Authority to invite the referred applicant to an interview: how the appellant may have presented in the interview with the delegate did not have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake.

63    As such, I do not accept the submission that the Authority's acceptance of the appellant's evidence on other matters made it all the more unreasonable for it to reject the 25 day detention claim without conducting its own interview. The Authority rejected the claim because the appellant did not mention it in the interview and when he mentioned it in his written statement, he gave less detail than he did in relation to his other claims. Contrary to the appellant's submissions, that was not very weak reasoning. It was an intelligible basis for the Authority to have rejected the claim.

64    The significance of the differences between ABT17 and this case that are outlined above is reflected in the way the plurality described when the Authority would, and would not, be acting unreasonably in differing from the delegate as to the credibility of a referred applicant without interviewing that applicant. The plurality said explicitly (at [24]) that the Authority is not required to interview the referred applicant merely because credibility is in issue, or merely because the Authority comes to a different view as to credibility than the delegate. And it said that the Authority would be acting unreasonably if it does not interview the referred applicant (without good reason) before rejecting a claim 'wholly or substantially on the basis of its own assessment of the manner in which that account was given' (at [25]). Thus, in ABT17, what led the Authority into jurisdictional error was its determination to reject the appellant's account 'on the basis of how he sounded on the audio recording without inviting him to a further interview so as to see him as well as hear him' (at [29]).

65    Here, the appellant's case rises no higher than to say that credibility was in issue and the Authority came to different view than the delegate. The plurality in ABT17 made it clear that this is not enough: at [24]. The abstract possibility on which the appellant here relied, that if the Authority had interviewed him it might have formed a favourable view about his credibility, was insufficient to make it unreasonable for the Authority not to interview him.

66    Ultimately, the question is what the Authority, acting reasonably, should have done when it came to have concerns about the veracity of the 25 day detention claim. Its concerns had nothing to do with its assessment of the demeanour of the appellant in the SHEV interview. Its concerns arose out of the fact that the claim was not mentioned in that interview, and the fact that the claim was less detailed in the appellant's written statement than some of his other claims, and also arose out of the Authority's view of the significance of the fact that the appellant obtained a passport in the same month he was purportedly detained for three and a half weeks. That is an intelligible justification for not accepting the appellant's claim, reached through an intelligible decision-making process.

67    In those circumstances, the Authority was not acting unreasonably in failing to explore the conjectural possibility that the appellant's claim might have been improved by an interview. It was not rejecting the 25 day detention claim based on demeanour, and the information it had about demeanour in relation to that claim was not inferior to that possessed by the delegate, because the claim was not discussed with the delegate.

68    The primary judge was correct to conclude that it was not unreasonable for the Authority to proceed without interviewing the appellant. The appeal will be dismissed, with costs.

Associate:

Dated:    13 September 2023