ALD19 v Minister for Immigration, Citizenship and Multicultural Affairs

Reinstating the appeal 6 On 22 June 2022, for reasons published as ALD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 735, I dismissed the appeal on the basis that the appellant failed to appear at a case management hearing. However, I provided for service on the appellant of the orders dismissing the appeal and for him to have liberty to apply to vary or set aside the order dismissing the appeal for good cause. 7 The appellant then applied pursuant to r 39.05(a) of the Federal Court Rules 2011 for an order setting aside the dismissal. The interlocutory application was accompanied by an affidavit by the appellant in which he explained the circumstances in which he had not received notice of the case management hearing at which he failed to appear. Commendably, the Minister has not opposed the setting aside of the dismissal of the appeal, and I am satisfied with the appellant's explanation for his failure to appear on 23 June 2022. 8 In the circumstances, there should be an order setting aside order 1 made on 23 June 2022.

Relevant background 9 The appellant's central claim in his protection visa application is that he has a profile as someone associated with the Liberation Tigers of Tamil Eelam (LTTE), including because he worked in various non-combatant roles for the LTTE and he has family members who worked for and are associated with the LTTE, such that if he is returned to Sri Lanka there is a real chance that he will be persecuted. 10 Amongst the appellant's claims that were accepted as established, or as being at least "plausible", by the delegate are the following: (1) The appellant's first cousin, VU, fought in the LTTE as a Sea Tiger, was abducted by the Sri Lankan Army in 2009, was released in 2014 and thereafter fled to India. The appellant's cousin, B, who had connections with the LTTE, was taken in 2007 and has not been heard from since. His cousin, U, was a combatant in the LTTE and died in combat in 2008. (2) After the appellant left school, he got a job with the LTTE collecting taxes at checkpoints in LTTE-controlled provinces. He worked in this administrative role from 2000 until 2004. (3) The appellant worked for the LTTE as a truck driver in 2004-2005 distributing food and clothing for the LTTE. Also, the appellant worked as a bus driver for the LTTE from 2005 until 2007. 11 I will refer to these as the disputed claims. 12 The delegate nevertheless found that the appellant had not established his claim for protection principally on the basis that the non-uniformed support roles played by him for the LTTE would not have given him a sufficiently significant profile to cause him to have a real chance of being persecuted. The delegate found that that was demonstrated by the authorities' lack of interest in him in 2008 when he said they had come looking for him, in 2009 in a displaced persons (IDP) camp and when he was able to depart the country legally in 2012. The delegate was not satisfied that the cumulative factors of his family's connections with the LTTE and his own support for the LTTE gives rise to a real chance of being persecuted for this reason in the reasonably foreseeable future as required by s 5J(1)(b) of the Act. 13 When the delegate's decision was referred to the Authority for review under Pt 7AA of the Act, the appellant submitted additional information, or evidence, that had not been provided to the delegate. The "new" information was required to be dealt with by the Authority in the manner prescribed by s 473DD of the Act. 14 Relevantly for present purposes, an item of new information provided by the appellant was a letter ostensibly from a Member of Parliament (MP) from the appellant's village in Sri Lanka. The letter is dated shortly after the decision of the delegate. By its terms, the letter confirms various aspects of the appellant's claims underlying his claim for protection, including the disputed claims.

The Authority's decision 15 The Authority rejected the letter from the MP in the following terms: 13. The applicant also provided an MP letter that post-dated the delegate's decision. However, given the MP letter referred to the applicant's past claims, I consider the applicant could have sought and obtained this earlier. The applicant was informed and asked specifically to provide any further documentation in support of his claims and given an extension of time to provide post interview submissions. Further, neither the applicant nor his agent indicated that further documentation was being sought in the post interview submission in January 2017. Further, the MP's letter did not explain how the MP knew the information contained therein or whether he knew the applicant, but was an assertion of some of the applicant's claims. Further, there was no explanation of how the applicant obtained the letter or the applicant's connection to the MP, if any. Further, I consider it odd that the MP letter provided a gmail email contact address rather than a parliamentary email address. In the circumstances, I doubt the genuineness of the letter and consider it is of little corroborative weight. 14. I am not satisfied there are exceptional circumstances to justify considering the MP letter. 16 The Authority decided not to get any new information from the appellant, as it was empowered to do under s 472DC of the Act, on the basis that there was no need for an interview because the appellant had had plenty of opportunity to present his claims at two interviews, with lengthy post-interview submissions to the delegate and two submissions to the Authority. 17 As will be seen, the grounds of appeal focus on the Authority's decision not to accept the MP's letter and not to afford the appellant an interview. 18 The Authority had available to it, and stated that it listened to, a recording of the appellant's interview by the delegate. 19 The Authority did not accept that the appellant collected taxes or worked at checkpoints. The Authority considered that the appellant's account of his tax collector duties and what took place at the checkpoints was vague and lacked detail, and that the appellant's account was fabricated. 20 The Authority accepted that the appellant drove a bus, but did not accept that he transported goods to the frontline in 2004-2005 on the basis that his account was vague and, at interview, was inconsistent. The Authority considered that the appellant's account changed when doubts were expressed during the interview and that he was making it up as he went along. The Authority considered that the appellant added the claims that he drove to the frontline and provided food and uniforms, or was employed by the LTTE or drove LTTE fighters, to enhance his protection claims. The Authority did not accept that the appellant played a significant role or was employed by the LTTE. 21 With regard to the appellant's relatives whom he claimed had close links to the LTTE, the Authority found that the appellant's responses to a number of questions on this point in his protection interview were hesitant, not free-flowing, and lacked detail. The Authority found the appellant's account to be hesitant, piecemeal and not free-flowing such that it considered that he was making it up as he went along. The Authority did not accept the appellant's claims that he had relatives who had worked for the LTTE, other than that he may have had a cousin who worked for the LTTE and died in combat in 2008. 22 The Authority did not accept that the appellant is or will be suspected of being associated with the LTTE, a separatist or anti-government. It found that his limited assistance was in the context of living in an LTTE-controlled area during the conflict where almost everyone had contact with the LTTE and provided some assistance. It found that the assistance provided by him was incidental and low level. The Authority did not accept that the appellant's connection to his deceased cousin who worked for the LTTE puts him at risk of harm or that he will be imputed as associated with the LTTE or anti-government, as the cousin was killed many years ago and the appellant is not a direct relative. 23 The Authority did not accept that the appellant has an adverse profile or is of interest to the authorities. It found that the appellant does not face a real chance of suffering harm on account of his ethnicity or connection to his family, his cousin, his work for and incidental assistance to the LTTE, or as a young Tamil male from Northern Province. 24 On that basis, the Authority affirmed the decision of the delegate.

Appeal ground 1: the MP's letter 25 One of the appellant's grounds of review before the Circuit Court was that the Authority had adopted an erroneously narrow construction of s 473DD in considering whether to accept the MP's letter as new information. The primary judge held that there was no basis to make any such finding because the Authority's reasons clearly addressed both limbs of s 473DD and that there was no jurisdictional error in relation to the MP's letter. 26 Section 473DD of the Act provides as follows: Considering new information in exceptional circumstances For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. 27 By appeal ground 1, the appellant contends that the Authority fell into jurisdictional error in misapplying or misconstruing s 473DD. In particular, the appellant contends that the Authority erred in the application of s 473DD(b)(i) because the MP's letter post-dates the delegate's decision and therefore could not have been provided to the delegate. Also, the appellant contends that in relation to s 473DD(b)(ii), the Authority erred in its approach to whether the MP's letter constituted, or included, "credible" personal information because it did not ask whether the information is "capable of being believed" as explained in Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs [2005] HCA 72; 25 CLR 88 at [17]. The appellant also refers to CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [43] where that view of the meaning of "credible" in s 473DD(b)(ii) was adopted and applied. That construction has been adopted by the Full Court in Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 at [75]. 28 The appellant submits that the Authority's error is material in the sense required by the authorities because if the letter had been accepted then there is a realistic possibility that the Authority's decision could have been different. 29 As explained in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494 at [6], s 473DD imposes a duty on the Authority to assess new information that it has been given against the specified criteria. Having performed that duty, the Authority must take the new information into account in making its decision on the review if the criteria are met, and it must not take the new information into account in making its decision on the review if the criteria are not met. It was also held (at [11]) that the Authority must assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met. 30 In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 21 at [34], it was held that for the criterion in s 473DD(b)(ii) to be met all that needs to be satisfied is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant's claims. With reference to the authorities referred to above (at [27]), "credible" information in this context means information that is capable of being believed. 31 With reference to the reasons of the Authority (quoted at [15] above), in relation to s 473DD(b)(i), the Authority considered that the appellant could have sought and obtained the MP's letter earlier. The appellant did not explain how he had obtained the letter. Implicitly, the Authority did not accept that the criterion was satisfied. Although not referred to by the Authority, it can be observed that the appellant provided no explanation to the Authority about the circumstances in which the letter was obtained or why it was not obtained in time to be made available to the delegate. 32 In relation to s 473DD(b)(ii), the Authority observed that the MP's letter did not explain how the MP knew the information contained in the letter, or whether he knew the appellant, and there was no explanation of the appellant's connection to the MP, if any. The Authority considered it odd that the letter provided a Gmail email contact address rather than a parliamentary email address. The Authority concluded that in the circumstances it "doubted" the genuineness of the letter and considered it of little corroborative weight. 33 The Authority went on to consider whether there were exceptional circumstances to consider the new information, ie, as required by s 473DD(a), and concluded that there were not. 34 As explained by Markovic J in APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79], the reasoning in AUS17 does not require the Authority to "engage in any particular formulaic consideration". Although in the present case the Authority considered the criteria in sub-paragraphs (b)(i) and (b)(ii) together, it considered them before going on to consider any exceptional circumstances under paragraph (a). That meets the logical imperative referred to in AUS17 with regard to the order of considering the criteria. I consider that there was no error in the Authority's approach in that regard. 35 However, the Authority in effect rejected the MP's letter as lacking credibility in the sense of it not being genuine. That is to say, it did not approach the question of credibility as it was required to with reference to the information in the letter was capable of being believed. Rather, it considered the letter and decided that it did not believe, or at least doubted, the authenticity of the letter and hence the information in it. Such an approach is contrary to the authorities, and is in error. 36 For that error to be characterised as jurisdictional error it must be material to the outcome in the sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [27]ff. It was explained at [37], with reference to CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 at [47], that the determination of materiality by a court involves "a question of counterfactual analysis to be determined by the court as a matter of objective possibility as an aspect of determining whether an identified failure to comply with a statutory condition has resulted in a decision that has in fact been made being a decision that is wanting in statutory authorisation". Further (at [38]), it was explained that the counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. That falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts, which historical facts must be determined on the balance of probabilities. The standard of "reasonable conjecture" is "undemanding". See Nathanson v Minister for Home Affairs [2022] HCA 26 at [32]-[33]. 37 The difficulty for the appellant in the present instance is that the historical facts include that the Authority doubted the genuineness of the letter and considered it to be of little corroborative weight. At least insofar as there being a lack of explanation, either in the letter or extraneous to it, of the source of the information in the letter including on what basis it might be thought that the MP was in a position to positively confirm the facts stated in the letter, that conclusion cannot be faulted. In those circumstances, the appellant has failed to satisfy me that had the letter been accepted as new information under s 473DD there is a realistic possibility that a different decision on the SHEV application could have been made - the letter would have been considered to be of little corroborative weight and would almost certainly have made no difference at all to the ultimate decision. 38 As an aside, I mention that I consider the Authority's scepticism based on the MP's email address being a Gmail address rather than a parliamentary email address to be entirely speculative and without foundation. There is no explanation by the Authority as to what knowledge, experience or expertise it has with regard to the use of email addresses by Members of Parliament in Sri Lanka, and by the particular MP in question. The Authority cannot justifiably impose Australian experience and expectations on other countries without a proper basis for doing so. 39 In any event, for the reasons given, appeal ground 1 must fail.

Appeal ground 2: not inviting the appellant to an interview 40 By appeal ground 2, which coincides with review ground 2 below, the appellant contends that the Authority's decision was legally unreasonable in that it failed to use its discretionary power in s 473DC to invite the appellant to clarify in writing or at an interview certain points of fact that the delegate had accepted, but which the Authority rejected. The particular points of fact in issue are the disputed claims, namely: (1) The appellant's role as a tax collector at LTTE checkpoints; (2) The appellant's employment by the LTTE as a truck and bus driver; and (3) The appellant's cousins' roles with the LTTE. 41 The primary judge rejected the review ground essentially on the basis that it was open to, and not unreasonable of, the Authority to decide not to interview the appellant in circumstances where it considered that the appellant had had ample opportunity to make submissions. 42 The Minister rightly accepts that the Authority fell into error in failing to invite the appellant to interview, or to provide new information, about those three topics. That concession is made with reference to ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 at [25] where it was explained that the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge their demeanour for itself before it decides to reject an account given 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 the account was given. 43 However, the Minister submits that the Authority's error was not material in the sense identified above with reference to MZAPC. In that regard, the Minister submits in oral argument that the Authority itself decided the relevant counterfactual. That is with reference to the Authority's following reasoning (at [49]-[51] of its decision): (1) If the appellant had been a bus driver for the LTTE he would have also been highly visible and well-known. If that were the case, the authorities would have been aware either from him or others of such activities. If he had been employed by the LTTE as claimed, it is not credible that he could refuse to answer questions or that his activities were not known or discovered given his claimed visibility and questioning. Further, he was registered in the camp for many months and if he had been so highly LTTE-visible it is not credible that the authorities would not have known or been informed or found out. (2) If the appellant had been a well-known LTTE employee, and wanted by authorities as he claimed, it is not credible that he would not have been discovered at the IDP camp and sent to a rehabilitation camp. That he was not discovered and sent to a camp further reinforces the view that the appellant fabricated his LTTE involvement claims and that the authorities had come looking for him in June 2008. (3) If it were true that the appellant's cousins were well known to the authorities as being associated with the LTTE as he claimed, it is not credible that the appellant would not have been sent to a rehabilitation camp. Rather, the more likely explanation is that the appellant was questioned by authorities and they were satisfied that his LTTE connections were not more than an ordinary person from a LTTE-controlled area and therefore were not concerned about him and did not send them to a rehabilitation camp. 44 I consider that that reasoning does not satisfy the requirements of the requisite counterfactual and is contrived for the purpose at hand. The relevant counterfactual is that the appellant was interviewed by the Authority with the result, as the Minister accepts, he might realistically have been believed on the three points in issue. It is not appropriate reasoning from that counterfactual to conclude that if the appellant had been believed on those issues, he would not have been believed on other issues on which a lack of belief would logically assist the appellant. That is to say, if the appellant was disbelieved on the relative lack of interest that the authorities apparently had in him and on the relative ease with which he escaped custody and the country, then the truth would be that the authorities had more interest in him than what he said and that it was more difficult for him to escape and leave than what he said, meaning that he might be entitled to protection after all. That exposes that the reasoning on which the Minister relies as demonstrating the counterfactual is in truth merely another way of justifying a disbelief of the appellant on the three points in issue; it does not establish what would, or might, have occurred had the appellant been believed on those three points. 45 The Minister puts the argument slightly differently in writing. They submit that on a proper analysis of the Authority's reasons, had the error not been made it could not have made a difference to the outcome. In that regard, they identify three reasons. 46 First, the Minister submits that the Authority had reasons to conclude that the appellant lacked a profile of sufficient importance as to attract the adverse interest of those that the appellant claimed to fear if he returned to Sri Lanka that are independent of the three factual findings in issue. They were that the appellant was not sent to a rehabilitation camp when he was interrogated by authorities and he left Sri Lanka on his own passport which, so the Authority found, would not have been possible if he was of interest to the authorities. 47 Secondly, the Minister submits that even if the appellant had been believed with regard to his cousins' involvement with the LTTE, that would have been insufficient to give rise to a relevant risk profile having regard to the Authority's finding that the deceased cousin (in respect of whom the appellant was believed) would not provide the appellant with a necessary profile as he was not a "direct relative". The Minister submits that that reasoning would apply equally to the other cousins. 48 Thirdly, the Minister submits that there was no information before the Authority to indicate that the appellant, having been employed by the LTTE to drive a bus or a truck as he claimed, elevated his status as a person having current LTTE connections, or being anti-government. On that basis, the Minister submits that even if the appellant was believed on the question of his involvement with the LTTE with regard to driving a bus or a truck, it would have made no difference. 49 Although the onus is "unwaveringly" on the appellant on the question of materiality, all that he has to establish is "the realistic possibility that a different decision could have been made had there been compliance with [the relevant] condition" (MZAPC at [39] and [60]). As recently explained by the High Court in Nathanson, that is to be established by reasonable conjecture, which, correctly applied, "proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome" (at [33]). 50 It is very difficult to have much confidence as to what difference different findings on the disputed claims in the appellant's favour might have made on other aspects of the Authority's reasoning. That is because the manner in which the Authority approached its task resulted in highly interwoven findings of fact, and reasoning to those findings. I mean to imply no criticism at all in that regard; it is the nature of the task. It is also the case that the Authority made a general adverse credibility finding against the appellant, viz, "I consider the applicant is not a credible witness and he has added and fabricated his LTTE claims to enhance his protection claims" (at [77]). An interview and different findings on the disputed claims may realistically have resulted in a different general credibility assessment. 51 The following observations in Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; 268 FCR 379 at [39] by Yates, Murphy and Moshinsky JJ are apposite: We commence by noting that, in a case such as the present, where the Authority found that CPA16's documentary evidence relating to his employment at the TV station was not cogent and it made adverse credibility findings about CPA16's claims, the task of deciding whether an omitted document is material is not without difficulty. As Gleeson CJ said in [Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82] (at [4]) "[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive." Credibility findings are often non-linear in nature: VAAD v Minister for Immigration and Multicultural Affairs [2005] FCAFC 117 at [79] (Hill, Sundberg and Stone JJ); SZTFQ v Minister for Immigration & Border Protection [2017] FCA 562 at [44]-[45] (Lee J). We respectfully agree with Kirby J's observations in Applicant NAAF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62 at [81] where his Honour said: … decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker's disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person's credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person's entire evidence in a new light. 52 Returning to the Minister's submissions, the difficulty is that it is hard to know to what extent the following findings by the Authority were influenced by its findings against the appellant on the disputed claims, namely that: (1) the appellant is not a person of interest to the Sri Lankan authorities because if he was: (a) the authorities would have known or been informed or found out about his involvement (at [49]); (b) he would have been sent to a rehabilitation camp (at [51] and [83]); (c) he would not have been able to leave the country on his genuine passport (at [62]); and (2) the LTTE involvement of a cousin as someone who is not a "direct relative" is insufficient to excite the interest of the authorities (at [86]). 53 That is all the more so because the Authority cites no country information or other evidence in support of the conclusions of scepticism that it reached on those points; its conclusions are little more than conjecture. It is thus inevitable that had the Authority believed the appellant on the three disputed claims, there is a realistic possibility that it could have reached a different decision on whether the appellant is of interest to the authorities in Sri Lanka and accordingly whether he faces a real chance of harm if returned to Sri Lanka on account of his ethnicity or connection to his family and cousins, his work for and assistance to the LTTE, or as a young Tamil male from Northern Province. 54 For those reasons, the appellant has satisfied the materiality requirement and the decision of the Authority is infected by jurisdictional error. Appeal ground 2 must succeed.

Disposition 55 In the circumstances, there should be orders quashing the decision of the Authority, directing the Authority, differently constituted, to decide the matter again according to law, and that the Minister pay the appellant's costs. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.