Grounds 2A and 2
24 Originally three grounds of appeal were propounded in the notice of appeal. The appellant has not pursued ground 1. At the hearing, leave was granted to add ground 2A. Therefore, only grounds 2A, 2 and 3 are to be considered. Grounds 2A and 2 were considered together and are as follows:
2A. The trial judge erred in finding that the entry interview was before the delegate at the time of his decision.
2. The trial judge erred in failing to find that the IAA's consideration of the entry interview was done:
a. without the IAA first determining whether it was satisfied that there were exceptional circumstances justifying its consideration; and
b. without the IAA complying with its obligations under section 473DE of the Act.
25 In my view, the Bensted affidavit did not resolve the stated question. It did no more than attach the checklist, which is referred to more fully below. In any event, the primary judge should not have relied on an affidavit that was not read. In doing so he ignored the appellant's right to procedural fairness. Because it was not read or otherwise relied upon, the appellant was denied any opportunity to cross examine or make submissions about that affidavit. There was no suggestion that the primary judge considered or applied r 15.29A of the Federal Circuit Court Rules 2001 (Cth) as a basis to use the affidavit without cross-examination.
26 Counsel for the Minister submitted that the appellant's challenge to the primary judge's reliance on the Bensted affidavit should have been the subject of a specific ground of appeal. However, he conceded that the Minister would suffer no prejudice provided he was permitted to make submissions as to whether the primary judge's findings should be upheld on the basis of the Smith affidavit (which was in evidence before the primary judge). The hearing proceeded on that basis that both parties were able to address the Smith affidavit.
27 However, the factual question as to the entry interview falls for determination essentially de novo on this appeal, purely by reference to the documents that were in evidence. This is not a case where the primary judge was presented with witnesses adducing oral evidence. This is not an occasion where, with respect, it is necessary to defer to the finding of the learned primary judge on account of any perceived advantage in determining factual questions: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 552. In construing the proper inference to draw from the materials, this Court is in as good a position as the primary judge to determine whether the entry interview was before the delegate: see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25] quoting Warren v Coombes.
28 What is apparent from the delegate's reasons is that:
(a) there was a departmental file numbered CLF2015/76725 relating to the appellant (referred to by the delegate as the SHEV application file);
(b) the delegate made a list of materials that were before him and listed them in Attachment A to his reasons;
(c) the CLF2015/76725 file was listed in Attachment A and so was before the delegate;
(d) there is no reference to or suggestion in the delegate's reasons that the delegate had before him or accessed the relevant TRIM reference (see below) for the purpose of his decision;
(e) the delegate was alive to the need to put 'any adverse information' to the appellant;
(f) the delegate was alive to the need to consider inconsistencies in evidence from the appellant and expressly addressed inconsistencies; and
(g) the delegate referred to a statement - which in context must be the 'five page written statement' - but did not refer to the entry interview or the existence of any other interview.
29 The checklist is one of the annexures to the Smith affidavit. The checklist includes, relevantly, a general heading 'Review materials', and under that heading details such as the appellant's contact address are inserted. There is then a subheading which reads, 'the PDFP contains the following material', and beneath that heading are listed some 24 categories of documents. A second column is headed 'status', and it provides an indicator next to each document of 'yes', 'no' or 'N/A' for selection. A third column is headed 'Non-disclosure considerations' (and there is a reference to s 473GB next to some items). The fourth column is headed 'TRIM Reference (for records that are NOT contained in the TPV/SHEV client file)'. Importantly, one category of documents listed in the first column is 'Entry interview (transcript and audio file) + those of any dependant applicants'. The indicator 'yes' is selected, and those documents are given a particular number (ADD2013/179567) which is listed in the fourth column. In other words, those items have a 'TRIM' Reference ADD2013/179567 and are not within the SHEV application file CLF2015/76725.
30 What can be gleaned from the Smith affidavit is that:
(a) after the delegate's decision, a checklist was prepared: the checklist does not clearly state who prepared it but Mr Smith asserts it was the delegate (and I note that the person identified as the 'case officer' on the checklist appears to be the same person as the delegate);
(b) although Mr Smith attaches two screen shots which identify that the entry interview transcript and audio were accessible to 'everyone', it is unclear whether this was the case as at the time of the delegate's decision: the dates of the screen shots or dates of entries are not identified;
(c) the affidavit does not disclose whether the delegate in fact accessed the TRIM file containing the entry interview transcript and audio file or otherwise had the TRIM file before him;
(d) there is no suggestion Mr Smith checked the position with the delegate or any of the delegate's staff or colleagues, or ascertained if the delegate kept any other notes about materials to which he had regard, or was otherwise familiar with the manner in which the delegate kept records of documents before him or prepared any checklist; and
(e) the highest that the position as put by Mr Smith can be stated is that he believes the entry interview was 'available' to the delegate because it was uploaded to a separate TRIM file and that TRIM file was noted at some point in time as 'accessible' by everyone.
31 I note three other points about the Smith affidavit. First, Mr Smith described his role as managing an administrative team and overseeing review officers who transfer fast track applications to the Authority: he does not claim to have first-hand knowledge of the delegate's process for identifying the materials that were before him and listed in Attachment A to his reasons.
32 Second, the affidavit does not explain the absence of any reference to the TRIM reference documents from the list of materials in Attachment A to the delegate's reasons or elsewhere in the reasons.
33 Third, the affidavit twice refers to the TRIM reference documents being 'available' to the delegate. That appears to be a careful choice of words against a backdrop where the Minister was on notice of the appellant's argument that the entry interview was not before the delegate by way of the written submissions filed in the Federal Circuit Court; where the Minister then sought and obtained an adjournment; where the primary judge permitted the Minister to file further affidavit evidence deposing to information that was before the delegate; where s 473DC of the Act is concerned with documents or information that were not before the Minister or delegate (see s 473DC(1)); and where the Court has previously noted the distinction between documents being simply in the Department's control and documents being before the Minister (see DTK17 v Minister for Immigration and Border Protection [2018] FCAFC 170 at [37]-[38]).
34 The appellant invited the Court to draw an inference that the entry interview was not before the delegate. It was said that the Court could safely draw an inference that the entry interview was not before the delegate based on the delegate's reasons and the checklist. The Smith affidavit did not provide contradictory evidence that prevented such an inference being drawn.
35 Further, it was said that a Jones v Dunkel inference should be drawn from the failure of the Minister to adduce evidence of the delegate or someone from the Department who was able to give evidence as to the entry interview having been downloaded by the delegate or otherwise having been before the delegate. Jones v Dunkel reasoning would involve the drawing of an inference that any evidence given would not have assisted the Minister.
36 The Minister contended that the appellant had failed to meet his onus of establishing that the entry interview was not before the delegate, and that there is no basis for any Jones v Dunkel inference to be drawn taking into account both the rule in Browne v Dunn and the protected position of someone in the positon of a delegate.
37 In order to raise an inference of a negative proposition, sufficient evidence of the same needs to be adduced by the party carrying the onus. Evidence merely giving rise to speculation is not adequate: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at 616-617 [67]-[69]. That said, even somewhat slight evidence may be sufficient in circumstances where the opposing party which has all the knowledge of the relevant fact fails to adduce evidence to the contrary. This proposition is supported by the principle that 'all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted': Blatch v Archer (1774) 1 Cowp 63 at 65.
38 In this case, there was little more that the appellant could do in terms of meeting the onus of proof than refer to the delegate's reasons and the evidence evinced by the Minister and invite appropriate inferences to be drawn. It is important to bear in mind the peculiar circumstances of this case, that is, that the Minister had sought an adjournment and the primary judge had expressly granted the Minister the opportunity to put on evidence as to what was before the delegate. The Smith affidavit was filed pursuant to that order.
39 The checklist annexed to the Smith affidavit (and as described above) does not establish that the entry interview transcript and audio were before the delegate when he made his decision. It establishes that the producer of the document has marked the entry interview transcript and audio in the list of documents with the indicator 'yes'. Whether the indicator 'yes' under the heading 'status' records the existence or inclusion of the document for consideration by the Secretary or whether it has some other meaning is unclear. The checklist also establishes that the entry interview transcript and audio were not in the SHEV application file CLF2015/76725 but in a different location. On its face, the checklist is not a checklist of documents before the delegate but is a checklist prepared for the purpose of the review by the Authority.
40 Nor do I consider the Smith affidavit establishes that the entry interview transcript and audio were before the delegate. I have addressed the limitations of the Smith affidavit above.
41 In this context, given that the Minister has produced no evidence that squarely establishes that the entry interview was before the delegate, the question is whether there is some evidence, even if comparatively slight, that the delegate did not have the entry interview before him.
42 I am persuaded that I can safely draw an inference that the entry interview was not before the delegate when he made his decision. The delegate does not refer anywhere in his reasons to the entry interview. I have not overlooked that mere failure to refer to a document does not mean that a delegate has not had regard to it. However, in this case the delegate expressly refers to the appellant's five pages of written testimony; he refers in the singular to a 'statement' of the appellant's claims; he provides a list of materials before him in Attachment A; that list of materials does not refer to the entry interview; and the checklist indicates the entry interview was not in the SHEV application file. Moreover, the failure by the delegate to refer to the entry interview must be viewed against the fact that the delegate directed his attention both to putting 'any adverse information' to the appellant and to inconsistencies with respect to dates and sequences of events. As is clear from its terms and as the Authority found, the entry interview contained material that conflicted with the other claims made by the appellant and so was adverse to the appellant. It would be surprising that if the entry interview were before him the delegate would not have raised such inconsistencies with the appellant, as he raised other inconsistencies. In the absence of any contradictory evidence from the Minister, I infer that the entry interview was not before the delegate.
43 I do not consider it necessary to apply Jones v Dunkel reasoning to reach that conclusion. However, in this particular case, the inferences that I have drawn are reinforced by such reasoning, and in particular the absence of any evidence from the Minister, the delegate or a person with knowledge of the materials that were in fact before the delegate. That outcome arose in circumstances where the primary judge adjourned the hearing at the Minister's request and had expressly provided to the Minister the opportunity to put on any such evidence. The failure to provide such evidence does not provide positive evidence that the entry interview was not before the delegate but it leaves the Court in the position where the opposing inference can more confidently be drawn.
44 I do not consider the rule in Browne v Dunn operates to prevent the application of the rule in Jones v Dunkel. The Minister contends that Mr Smith should have been cross examined if the appellant wished to rely on any inference arising from what was or was not said by Mr Smith. The appellant does not challenge what is said by Mr Smith in his affidavit. No adverse inference is sought against Mr Smith. In fact, the appellant accepts Mr Smith's evidence as accurate. Regardless, the Minister knew before the hearing that the appellant sought to invite the Court to draw an inference that the entry interview was not before the delegate. Mr Smith was able to address that matter in his affidavit.
45 Nor do I accept the Minister's broad submission that the principle in Jones v Dunkel does not apply to the failure to call an administrative decision maker. That submission would only be relevant if the appellant argued that the delegate should have personally given evidence. The appellant did not put his submission so narrowly, suggesting rather that the delegate or someone in his office or its information technology support group could have given evidence as to whether the entry interview was in fact before the delegate.
46 In support of his submission, counsel for the Minister relied upon Muin v Refugee Review Tribunal [2002] HCA 30, where the Court refused to draw a Jones v Dunkel inference in the case of a Refugee Review Tribunal member, and Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, where no inference was drawn in the case of a Minister. However, neither of these cases assist the Minister in this case.
47 As Muin acknowledges, tribunal members have the same protection and immunities as a Justice of this Court: see Administrative Appeals Tribunal Act 1975 (Cth) s 60. Accordingly, it would be inconsistent with the protection and immunities of a tribunal member to draw inferences from the failure of the tribunal member to give evidence concerning the matters which he or she took into account: Muin at [118]. However, this matter concerns a delegate of the Minister, not a tribunal member. Counsel for the Minister argued that the delegate should be afforded the same protections. Such protections are not accorded the Minister and counsel did not point to any authority that explained a basis for extending them to a delegate of the Minister. As explained in Jia, the position of the Minister is substantially different from that of a judge or quasi-judicial officer and it would be wrong to apply to his or her conduct the standards of detachment which apply to judicial officers or jurors (at [102]).
48 There are other reasons why the principle in Jones v Dunkel inference may not, depending on the circumstances, be appropriately drawn in the case of the Minister, as explained in Jia:
[316] The Federal Court has held on a number of occasions that the principle laid down in Jones v Dunkel can be invoked against a Minister of the Crown. In Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs Pincus J with some apparent hesitation did so. His Honour said:
"The respondent did not give evidence. His senior counsel argued with, as it seems to me, some cogency that performance of his Ministerial duties would be impractical if he were to spend substantial amounts of time in courts being cross-examined about his decisions. It may be thought that the argument just mentioned justifies a departure from the ordinary principle laid down in Jones v Dunkel ... as to the results of failing to give evidence. On the other hand, in the absence of their author, it is hard to resist drawing from the notes just quoted two inferences which may assist the applicants ..."
[317] It is unnecessary to decide in this case whether the rule should have application to a Minister in modern times. But on any view it cannot be applied in any unqualified way to a modern Minister of State, and not just for the reasons that Pincus J described as cogent. Considerations of public interest immunity may loom large in some cases. A Minister is a policymaker and policy advocate as well as a decision-maker. Furthermore, the statement of principle in Jones v Dunkel is no more than a particular instance of the old rule stated by Lord Mansfield in Blatch v Archer and cited recently by this Court in Vetter v Lake Macquarie City Council, that evidence has to be weighed according to the circumstances of, as well as the capacity of a party to adduce it.
(footnotes omitted)
49 However, the Court will not hesitate to apply the principle in appropriate cases where the Minister does not give evidence: see, for example, Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [130]-[131].
50 It follows from the inference that the entry interview was not before the delegate at the time of his decision to refuse the protection visa that the entry interview was 'new information' before the Authority for the purpose of Part 7AA.
51 It is apparent from the Authority's reasons that the entry interview was relevant to various findings.
52 As appears from [9] of its reasons, the Authority rejected the appellant's claim made in his interview with the delegate that his brother was forcibly recruited by the LTTE. It noted that such a claim was not made in his entry interview and it did not consider it plausible that such a claim would not be mentioned.
53 As appears from [11], the Authority summarised the timeline of events based first on the appellant's visa application and interview with the delegate, and then on the entry interview. Under the first timeline, the appellant's uncle was arrested in 2008, the appellant was questioned and went to Jaffna from 2009 until 2012 and then returned and lived in hiding before departing Sri Lanka. In the second timeline, the appellant's uncle was detained and the appellant then went to Jaffna in 2006. He stayed there from 2006 until 2007 and then returned to Vavuniya, where he remained working and living until departing Sri Lanka. The Authority cited the significantly different timelines and found that the difference affected his claim to have been living in hiding because of adverse interest. The Authority preferred the timetable in the entry interview: it found that events involving his uncle took place in 2006 and that the appellant returned to Vavuniya in 2007 where he worked in a series of jobs before leaving Sri Lanka in 2012. The rejection of the appellant's claim that he was in hiding was relevant to the Authority's finding that if the authorities had maintained any interest in him he would have easily been found because he was living and working in his home area and relevant to the rejection of the claim that the authorities would have had any interest in him in that period.
54 The rejection of the claim that he was in hiding also appears relevant to the findings at [17] and [25] to the effect that after 2006 the authorities had no further interest in him. Each of the Authority's findings with respect to lack of imputed political opinion, absence of a real chance of serious harm upon return as an asylum seeker and the absence of a real risk of significant harm (for the purpose of the complementary protection assessment) refer to and take into account the findings to the effect that the appellant was not the subject of further interest from authorities (at [17], [21], [25] and [36] of the reasons).
55 Therefore, the inconsistency in the timeline disclosed by reference to the entry interview was on its face relevant to the Authority's reasoning that led to the rejection of claims made before the Authority and its finding that the appellant fabricated claims.
56 Counsel for the appellant submitted that alternative positions arise from the Authority's reasoning pathway once one accepts that the entry interview was new information. First, it cannot be assumed that the Authority necessarily would have been satisfied under s 473DD that there were exceptional circumstances to justify considering the new information. Had the Authority not considered it, the inconsistencies in the entry interview would not have been disclosed and there was at least the possibility that the adverse credibility findings might not have been made. There was at least the possibility that the Authority may have formed a different view as to whether the appellant had been in hiding and whether he had the requisite profile to be a person at risk of harm. Second, if the Authority did consider the entry interview to be new information then it was obliged to put the new information to the appellant for comment under s 473DE of the Act if it would be a reason or part of a reason to affirm the refusal of the visa (EEM17 v Minister for Immigration and Border Protection [2018] FCAFC 180 at [45]). That did not occur. Had it occurred, it is possible that the appellant could have explained the inconsistencies in his evidence and persuaded the Authority to accept his evidence despite those inconsistencies.
57 Both these scenarios are counterfactuals but they disclose, in my view, that the manner in which the entry interview was treated was material to the outcome, in the sense explained in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45]. The essential question is whether there is a realistic possibility that the Authority's decision could have been different had it appreciated that the entry interview was new information. The Court must be alive to the potential for information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal's failure to take it into account could not realistically have affected the result: SZMTA at [48].
58 More recently, the Full Court in EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 described the relevant threshold as whether the error 'could have affected the outcome of the review': at [42]. The Court said that whether that is so will normally turn on an analysis of the appellant's claims and the reasons given by the administrative decision-maker, in that case the Authority.
59 In DPI17 v Minister for Home Affairs [2019] FCAFC 43, where the Immigration Assessment Authority gave no reasons on the issue of whether it exercised its discretion under s 473DC of the Act, it was observed that a modified approach may be required in such a case. There Griffiths and Stewart JJ posed the question of whether, had the Authority turned its mind to the exercise of the relevant power and then invited the appellant to provide 'new information', the Authority might have assessed the significance of the relevant inconsistencies differently. In that case Griffiths and Stewart JJ considered the Authority's ultimate decision 'might have been different' and therefore the error was material.
60 Counsel for the Minister said that there appeared to be no issue in this case with satisfaction as to exceptional circumstances on any application of s 473DD, stating that the Authority on the basis of its reasons must have considered the information important. Counsel accepted that s 473DE was not complied with. However, the Minister submitted that grounds 2A and 2 should be disposed of on the basis of materiality. The Minister submitted that the credibility findings of the Authority, the finding that the appellant's timeline was not accepted and the finding that the appellant was not in hiding and was not the subject of further interest from authorities were not relevant to the outcome and so any error with respect to the entry interview and non-compliance with s 473DD or s 473DE was not material. It was said that regardless of the position for Tamils in the past, the Authority focussed on the risk upon return to Sri Lanka and rejected the appellant's submission that he has real or perceived links to the LTTE.
61 Counsel for the Minister submitted that the delegate, who had accepted the appellant's version of events, had nonetheless found that the appellant does not hold a well-founded fear of persecution, and invited the Court to draw the inference that even if the Authority had accepted the appellant's story, it would have reached the same ultimate conclusion.
62 However, as already noted, the conclusions of the Authority reveal a basis at least in part in the findings I have identified. There are also parts of the reasoning that acknowledge that arrivals who identified as having a connection with the LTTE may be treated differently (for example, they may be detained for extended periods - at [25] of reasons). Therefore, the findings are relevant to the Authority's reasoning and rejection of the appellant's claims. The Authority might have assessed the significance of the relevant inconsistencies differently had it received comments from the appellant. This Court is not to embark on merits review in order to assess whether or not a different result would or should have ensued. It is enough that the Court is satisfied (as I am) that it is realistically possible that the error in not appreciating that the entry interview was new information could have led to a different result.
63 It follows that grounds 2A and 2 of the appeal must be allowed. I accept the appellant's submissions that the matter should be reconsidered by the Authority.
64 Regardless, I will deal with ground 3.