Federal Court of Australia AHV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 6 Appeal from: AHV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2020] FCCA 378 File number: NSD 291 of 2020 Judgment of: MARKOVIC, THOMAS AND BANKS-SMITH JJ Date of judgment: 5 February 2021 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia dismissing an application for judicial review of a decision by the Immigration Assessment Authority (IAA) – whether primary judge erred in finding that IAA decision was not impugned by jurisdictional error – whether IAA failed to engage with evidence – whether failure of first respondent to provide audio recording of appellant's Refugee Status Determination interview to IAA resulted in jurisdictional error – appeal dismissed Legislation: Migration Act 1958 (Cth) s 473CB(1)(c) Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1 EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; (2019) 268 FCR 299 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 77 Date of hearing: 26 August 2020 Counsel for the Appellant: Mr D Taylor Solicitor for the Appellant: Sydney West Legal and Migration Counsel for the First Respondent: Mr G Kennett SC with Mr N Swan Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS NSD291 of 2020 BETWEEN: AHV19 Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent order made by: MARKOVIC, THOMAS AND BANKS-SMITH JJ DATE OF ORDER: 5 February 2021 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of appeal, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: Introduction 1 This is an appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the second respondent (the Authority) affirming a decision of a delegate of the first respondent (the Minister), who refused to grant the appellant a Safe Haven Enterprise Visa (SHEV). Background 2 So far as is relevant to the grounds of appeal, the background sequence of events follows. 3 The appellant is a citizen of Sri Lanka first arriving in Australia on 29 August 2012 as an unauthorised maritime arrival. He transferred to Nauru and, on 25 March 2013, applied in that country for a Refugee Status Determination (RSD), which was not finally determined. 4 As part of the RSD application, the appellant provided a statement (with a summary of claims) dated 25 March 2013. In that statement, the appellant claims that he would be persecuted or killed if he were to be sent back to Sri Lanka due to his connection with the Liberation Tigers of Tamil Eelam (LTTE). As part of the application process, an interview took place in Nauru and an audio recording was made of that interview. 5 The appellant returned to Australia in October 2013. On 18 August 2016, the appellant applied for the SHEV while in Australia. 6 For the purpose of the SHEV application, the appellant provided a supplementary statement which provided additions to his statement made on 25 March 2013. In addition, an interview took place on 7 May 2018 (the SHEV Interview). 7 On 22 August 2018, a delegate for the Minister refused to grant the SHEV. 8 On 27 August 2018, the delegate's decision was referred to the Authority for review. 9 On 22 January 2019, the Authority affirmed the delegate's decision. 10 It was common ground between the parties in the Court below and on appeal that the Secretary of the Department of Home Affairs did not search for and provide certain documents, which were part of the appellant's Nauru RSD application, to the Authority, and that such failure to provide was in breach of s 473CB(1)(c) of the Migration Act 1958 (Cth). Grounds of Appeal 11 There are four grounds of appeal, with two grounds having the same number (2). For ease of reference, these numbers will be used in these reasons. The grounds of appeal are substantially the same (if not identical, save for numbering) as the grounds of review contended in the Court below. 12 Grounds 1, 2 and 2 relate to a person, X, who is the uncle of the appellant's wife. 13 Ground 3 relates to the failure to provide certain documents (referred to in paragraph 10 above) to the Authority. Grounds 1, 2 and 2 14 In the appellant's submissions it was contended that Grounds 1 and 2 (both Grounds 2) "took issue with the [Authority]'s failure to intellectually engage with the appellant's evidence concerning the nature of his relationship with his uncle X, after his designation as a terrorist with 13 others by the Sri Lankan government in its published gazette". 15 The appellant asserted that the Authority did not deal with the appellant's claims that the relationship was more than familial and did not critically deal with the ongoing communications between the appellant and X necessary for the appellant to have obtained X's identity card, including the full implications of X being prepared to provide that personal identifier to the appellant. 16 Because of these issues, the appellant asserted that the Authority failed to deal with an integer of the appellant's claims that his relationship with his uncle was more than familial. 17 Similarly, the appellant asserted that the primary judge's reasons dealt only with the claimed familial relationship and not the grounds raised about the nature of the personal relationship. The appellant points particularly to the provision by X of his identity card to the appellant. 18 The appellant further asserted that the reasoning of the Authority was illogical, irrational and/or unreasonable. 19 The Minister submitted that the appellant has not identified any error in the primary judge's reasons or jurisdictional error in the Authority's reasons. Contrary to the appellant's submissions, the Minister submitted that the Authority had clearly considered the appellant's claim of fear of harm due to his relationship with X, but did not accept such claim due to the evidence before it. The Legal Framework 20 The evaluation of the material before the Authority is a matter within its jurisdiction. 21 It is well settled that an administrative decision, such as the Authority's, must be read as a whole and not be "construed with an eye keenly attuned to the perception of error"; it is not the role of this Court, when exercising judicial power, to review the merits of a matter: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Attorney-General (NSW) v Quin (1990) 170 CLR 1. 22 If logical or rational decision-makers could have come to the same conclusion as the Authority the complaint of illogicality or irrationality is not made out. 23 As Gray, Tamberlin and Lander JJ said in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, at [13]: … the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal. 24 In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, Crennan and Bell JJ discussed the issue of illogicality observing at [131]: …the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. The Authority's conclusions relevant to Appeal Grounds 1, 2 and 2 25 The Authority noted the evidence from the appellant relating to the provision by X of a Norwegian identity document and the relevant social media messages. 26 The Authority accepted that: (a) X was the appellant's wife's maternal uncle, and that X had attended the appellant's wedding some years ago as a member of his wife's extended family. (b) X had been banned from entering Sri Lanka on allegations of terrorist-related activities and funding for terrorism. (c) Former LTTE members may still attract adverse attention from the authorities, although the action against them would vary according to the extent of their involvement, but did not accept that those with lesser or no actual links to the LTTE would face harm for LTTE or separatist related reasons. 27 The Authority concluded that: (a) Apart from X having attended the appellant's wedding as a member of his wife's family, there was no credible evidence that the appellant had any ongoing relationship or involvement with X or had associated with him or communicated with him either whilst he was in Sri Lanka or since X moved abroad. (b) The purported screenshot of X's Facebook profile did not evidence any claimed social media friendship or provide evidence of any connection or relationship between the appellant and X. Screenshots of claimed Viber conversations provided no evidence of recent claimed conversations although the Authority did accept as plausible that some recent conversations had taken place particularly about the Norwegian identity card. (c) There was no evidence to indicate that X was a high-profile former LTTE member or supporter whilst he was in Sri Lanka, and although X had been banned from entering the country on terrorist funding allegations, the Authority was not satisfied, on the evidence, that the appellant faced a real chance of harm upon return to Sri Lanka on account of his family connections to X. (d) Based on the evidence before the Authority, the appellant did not have such a relationship with X that would bring him to the attention of Sri Lankan authorities, or that he would be perceived by the authorities to have information about X and any current LTTE and Tamil separatist finance operations that X was allegedly engaged in. (e) The appellant would not be imputed with high-level LTTE links as well as ongoing support to a Tamil separatist state due to his relationship or connection with X. 28 The Authority considered it remote that the appellant would be identified as a person of any adverse interest to authorities on account of his familial connection with X. The Authority noted that the appellant had not claimed, nor was there any evidence to indicate that, the appellant's wife or any of her remaining family members, including two younger brothers who live in Sri Lanka, have been subject to any adverse attention from Sri Lankan authorities or investigation on account of their more direct family connection to X. The primary judge's reasons with respect to Grounds 1, 2 and 2 29 The primary judge noted the primary submission from the appellant with respect to Ground 1 was that the Authority failed to consider or had misunderstood the appellant's evidence or claims regarding his relationship with X, with particular reference to X providing his identity card to the appellant. The primary judge noted that this ground of review was, in effect, asking the Court to engage in merits review. 30 With respect to the first Ground 2 contended on appeal to this Court, which was formulated in the Court below as part of Ground 1, the primary judge noted the appellant's submission that the Authority's adverse findings regarding the appellant's relationship with X being legally unreasonable was, again, inviting the Court to engage in merits review. The primary judge noted that the Authority had clearly and meaningfully engaged with the evidence and it was open to the Authority to make those findings. 31 In relation to the second Ground 2, the primary judge noted that the appellant's claims were, in essence, a reformulation of Ground 1. The primary judge noted that there was no inconsistency between the findings made by the Authority regarding the appellant's familial relationship with X and the provision of X's identity card to the appellant. The primary judge found that it was open to the Authority to make those findings, and the Authority had clearly considered the appellant's relationship with X. Discussion 32 In the previous section headed 'The Authority's conclusions relevant to the Appeal Grounds 1, 2 and 2' we have outlined the Authority's conclusions. From the Authority's reasons it is clear that the Authority understood the claim being asserted by the appellant and addressed the factual issues relevant to that claim. It is clear that the Authority correctly and clearly understood, and addressed, the claim which was made by the appellant regarding X. However, on the evidence, the Authority rejected that claim. 33 The Authority's reasoning is logical and well organised. The Authority makes the necessary findings which were clearly open to the Authority, acting reasonably and rationally, on the material available. 34 The Authority addressed the issue of the asserted relationship with X, including the basis of that relationship. The Authority considered all the evidence, including the evidence relating to X's Facebook profile, alleged Viber conversations and the supply of the Norwegian identity card. The Authority did not accept the extent of the relationship as asserted by the appellant. Based on the material before it, the Authority did not accept that the appellant had any ongoing relationship with X – specifically finding that the appellant did not have such a relationship with X which would bring him to the attention of Sri Lankan authorities. 35 The Authority also considered the status of X as a person banned from entering Sri Lanka, concluding that there was no evidence to indicate X was a high-profile former LTTE member nor that the appellant faced a real chance of harm on account of his connections with X. 36 Those conclusions that the Authority reached were reasonably open to it on the basis of the material available. Both the choice and the assessment of the weight of such material were matters for the Authority. 37 The primary judge was correct in concluding that the Authority had not misunderstood or otherwise made unreasonable findings about the appellant's relationship with his uncle X. His Honour was correct in concluding that the Authority's reasons demonstrated "real and meaningful engagement" with the appellant's claims as to X. These grounds of appeal should be dismissed. Ground 3 38 Ground 3 relates to the Secretary's failure to supply material to the Authority pursuant to s 473CB(1)(c) of the Migration Act. 39 The material which was not supplied was the audio recording of the RSD interview (referred to in paragraph 4). 40 Before the primary judge, it was accepted that there was a failure to supply the material. However, the primary judge found that the error was not material to the outcome of the review. 41 The appellant asserted that the failure to supply the audio recording of the RSD interview was material to the outcome of the Authority's review. The Legal Framework 42 Not every breach of s 473CB(1)(c) will result in jurisdictional error. That question turns upon the gravity of the breach. 43 The test identified in EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; (2019) 268 FCR 299 was that consideration is directed to whether the documents that were not provided by the Secretary could have resulted in the making of a different decision. As the Court put it "there will be jurisdictional error because the Authority was prevented from conducting the review contemplated by Part 7AA if the documents which the Secretary failed to provide to the Authority could have affected the outcome of the review". 44 The question of materiality was considered, at about the same time, by the High Court in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421. The question postulated by Bell, Gageler and Keane JJ at [45] was whether there is a realistic possibility that the Authority's decision could have been different if it had taken the document or information into account. 45 This question is considered, as a question of fact, by reference to the appellant's claims, the Authority's reasons and the content of the material not provided. In that process, this Court must be careful not to intrude into the fact-finding function of the Authority. The onus of proof is on the appellant. The Authority's findings as to Ground 3 46 The relevant finding of the Authority which, it was asserted, could have been different was identified by the appellant. That finding was: When questioned about having witnessed the shooting of M, he maintained that he was not there when it occurred, having been in the Temple at the time. He maintained that if he had been seen at the time of the shootings, he also would have been shot. I do not consider this to be a genuine explanation for the clear inconsistency in his written statement that M had been shot in front of him by a person wearing plain clothes. In my opinion it has been contrived to overcome the illogicality of his claim that he witnessed the shooting of M. 47 The appellant asserted that in 2006 he was forced to complete 15 days training for the LTTE and parts of the training appeared in a video in which his face was visible. The appellant further asserted that seven of the people in the training video were killed in 2007 and that Sri Lankan Army (SLA) and Criminal Investigation Department (CID) members were suspicious of the appellant and accused him of assisting the LTTE. 48 In a statement dated 23 March 2013, the appellant (with the assistance of an interpreter) outlined information regarding the training, video and the killing of the seven people. He said "one of these men, M, was shot dead in front of me; the person that shot him was wearing plain clothes; I suspect he was a member of the SLA or CID". 49 The interpreter declared at the end of the statement that they accurately and completely interpreted the contents of the statement from the English language to the Tamil language to the appellant. 50 For the purpose of the SHEV application the appellant prepared a supplementary statement. Whilst referring to the training and the video, the statement did not refer to the evidence regarding the killing of M. 51 At the SHEV Interview on 7 May 2018 (with the Australian delegate) the appellant was asked about being a witness to the death of M. He said "I couldn't able to be a witness for the shooting because if I was there means definitely they will shoot me as well so I'm the witness for them body, after they shoot them I saw the body". 52 The case officer responds "okay well then perhaps it's been mis-transcribed in your statement" and then continues with "okay, well then the statement is not accurate". 53 The relevant finding of the Authority identified by the appellant relates to inconsistency between what is said in the statement and what is later said at the SHEV Interview. The primary judge's reasons with respect to Ground 3 54 The primary judge noted the appellant's main submission with respect to Ground 3 was that the provision of the audio recording of the RSD interview could have materially changed the Authority's finding that the appellant's evidence regarding the shooting of M was not credible. The primary judge noted that the appellant was unable to identity how the audio recording could have materially changed the Authority's reasons and, based on the appellant's reliance on the written statement in both the SHEV Interview and the review process before the Authority, it was open to the Authority to find that the appellant's claim was inconsistent and not credible. The primary judge concluded that the failure to provide the RSD audio recording "could not realistically have given rise to any different outcome in the review". The appellant's submissions 55 The appellant's explanation was that the words in the statement which appeared to indicate that he personally witnessed the shooting of M was a "mis-transcription". 56 The appellant noted in his submissions that the "Authority and the primary judge both found that the [appellant] had knowingly made the statement that he witnessed the shooting however neither the Authority or the primary judge considered that it was a finding which required a rejection of the [d]elegate's acceptance of this explanation given during the Protection Visa interview that it was a mis-transcription. … The fact that at the SHEV interview the delegate accepted the explanation that the RSD statement was a mis-transcription adds to the materiality of the RSD interview as it shows that the Authority's rejection of the claims concerning the killing of the men in the training video was not based upon all the relevant material". 57 The appellant submitted that "[t]he fact that the Delegate accepted the appellant's explanation and proceeded on the basis that the appellant did not make the claim at all, but that rather, it was a mis-transcription shows that the Authority had to make the logical leap of faith to reject the finding of the Delegate that the appellant's explanation on this point was correct". 58 The appellant contended that: [t]his aspect of the statement was not discussed by the Delegate at the RSD interview so the appellant, not being able to read English, and having missed it in the translation when it was read back to him, did not know it was there. … The Authority had the duty to consider all the evidence including the RSD interview before coming to a finding that the appellant had fabricated a claim to have witnessed a shooting and then recanted it. 59 The appellant also submitted that whilst "reasonable minds could differ on the effect of the RSD interview, and whether it would have resulted in a different outcome, it necessarily could have resulted in a different outcome". 60 The appellant also contended that a critical question was "whether the appellant did in fact claim in his RSD application that he personally witnessed persons being shot or whether there was a mis-transcription error, an artefact of a communication error". 61 The appellant further submitted that the RSD interview clearly reveals that the appellant did not claim, and did not understand that it may appear from his statement that there was such a claim, to have personally witnessed the shooting of M. 62 The appellant further contended that "the error of the primary judge in assuming there was a recantation in the RSD interview focuses attention on the RSD interview. The assumption that the appellant must have discussed in the RSD interview the statement in the RSD statement of claims about the shooting serves to underline the point that the discovery that there was no discussion of it in that RSD interview evidences that his explanation that was given to the delegate, that it was a mis-transcription, was correct". The Minister's submissions 63 In response to the appellant's submissions, the Minister contended that, notwithstanding the breach of s 473CB(1)(c) of the Migration Act, this ground of appeal fails to establish how the outcome reached by the Authority could have been materially different. 64 The Minister submitted that the appellant has not identified how the audio recording of the RSD interview could have caused the Authority to reach a different conclusion with respect to the appellant's inconsistent statements about the shooting incident in circumstances where the inconsistency arose from the content of the appellant's statement, which was relied upon at the SHEV Interview and before the Authority, and what the appellant said at the SHEV Interview. Discussion 65 The Authority identified the inconsistency between what was said in the statement and what was said at the SHEV Interview. This inconsistency led the Authority to doubt this aspect of the appellant's claims. 66 On reviewing the contents of the statement and the contents of the SHEV Interview, it is clear that there is an inconsistency. That does not seem to be denied by the appellant. Therefore, the finding of the inconsistency was open to the Authority as was the assessment made by the Authority in relation to other aspects of the appellant's claims as a result of that inconsistency. 67 The issue properly arising out of Ground 3 is not, of course, whether the conclusions reached were open to the Authority. The question is whether there is a realistic possibility that the contents of the RSD interview could have caused the Authority to come to a different conclusion. 68 The appellant did not identify any particular aspect of the RSD interview which deals with the shooting of M, the subject of the inconsistency. Rather, the appellant asserted that the topic was not discussed at the RSD interview and submitted that the knowledge of this fact could have caused the Authority to come to a different view. 69 The fact that the topic was not touched upon at the RSD interview does not support the conclusion that there is a realistic possibility the contents of the interview could have caused the Authority to come to a different conclusion. It was irrelevant to that aspect of the Authority's reasoning. 70 Moreover, in relation to the question of whether there had been a mis-transcription, the RSD interview transcript contains the confirmation, at the outset, that the contents of the statement were, according to the appellant, true and correct. That confirmation would have fortified the conclusion reached by the Authority rather than potentially causing the Authority to come to a different conclusion. 71 The other issue raised by the appellant depends upon the assertion that the delegate accepted the appellant's explanation that it was a mis-transcription. Indeed, the appellant submitted that the delegate made a finding about the matter which meant that "the Authority had to make the logical leap of faith to reject the finding of the [d]elegate that the appellant's explanation on this point was correct". 72 The comments by the delegate did not occur at the RSD interview. These comments occurred at the SHEV Interview, which was before the Authority and would have been taken into account by the Authority. 73 The comments made by the delegate are neither an acceptance nor a finding. Use of a word such as "perhaps" is not consistent with, and does not support, the conclusion asserted by the appellant. 74 In any event, the Authority is not bound by findings made by the delegate. The Authority undertakes a de novo consideration. 75 We conclude that the provision of the RSD interview recording to the Authority could not realistically have caused the Authority to come to a different conclusion. 76 The primary judge was correct in concluding that the failure to provide the RSD interview recording could not have materially affected the outcome of the review process. This ground of appeal should also be dismissed. Conclusion 77 For these reasons, the appeal must be dismissed. The appellant must pay the Minister's costs, as agreed or taxed. I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Markovic, Thomas and Banks-Smith. Associate: Dated: 5 February 2021