Federal Court of Australia DEP18 v Minister for Home Affairs [2022] FCA 159 Appeal from: DEP18 v Minister for Home Affairs [2020] FCCA 2726 File number: SAD 159 of 2020 Judgment of: BURLEY J Date of judgment: 3 March 2022 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court of Australia dismissing judicial review application of Immigration Assessment Authority ("Authority") decision – where Authority rejected certain claims made by appellant as implausible – where Authority found that appellant had given inconsistent evidence throughout visa application process – where Authority did not accept that the appellant struggled with his memory due to mental illness – whether decision of Authority illogical or irrational – no jurisdictional error – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa) 473FA(2) and 476(1) Cases cited: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 246 CLR 421 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 NAKD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 321 Division: General Division Registry: South Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 22 Date of hearing: 22 July 2021 Counsel for the Appellant: Mr P Barnes Solicitor for the Appellant: MSM Legal Counsel for the First Respondent: Mr D F O'Leary Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS SAD 159 of 2020 BETWEEN: DEP18 Appellant AND: MINISTER FOR HOME AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent order made by: BURLEY J DATE OF ORDER: 3 March 2022 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT 1 INTRODUCTION [1] 2 THE DECISION OF THE AUTHORITY [5] 3 THE DECISION OF THE FCCA [6] 4 THE APPEAL [7] 4.1 The submissions [7] 4.2 Consideration [10] 5 DISPOSITION [22] BURLEY J: 1. INTRODUCTION 1 This is an appeal from a decision of the Federal Circuit Court of Australia (FCCA) dismissing an application for judicial review filed pursuant to s 476(1) of the Migration Act 1958 (Cth) of a decision of the Immigration Assessment Authority. 2 The appellant is a Sri Lankan citizen of Tamil ethnicity who lived in northern and eastern Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 10 October 2012. On 17 February 2016 he lodged an application for a Safe Haven Enterprise Visa (SHEV). His application was refused by a delegate of the Minister for Home Affairs on 27 September 2017. The Authority then conducted a review of his application pursuant to Part 7AA of the Act and on 23 May 2018 affirmed the decision of the delegate. The appellant then applied for judicial review of the decision of the Authority and, on 1 October 2020, the FCCA dismissed that application: DEP18 v Minister for Home Affairs [2020] FCCA 2726 (Judge Young). 3 The appellant now appeals to this court from the decision of the FCCA. He relies on the following ground: That the FCCA erred in holding that the decision of the [Authority] was not affected by jurisdictional error, and should have held that the finding that there was "no corroborative evidence" to support his contention that he struggled with his memory because of this mental health was illogical, irrational or unreasonable. 4 The appellant relies on two particulars in support of this ground: First, having accepted (at [23]) that in conducting the s 473CC review, the [Authority] was "not bound by technicalities, legal forms or the rules of evidence" (s 473FA(2)), the FCCA erred by adopting and applying a meaning of the word "corroborating" and the words "corroborating evidence" which limited it to evidence tending to "confirm or strengthen" the assertion of the appellant that [his] account of the events in his country of origin was negatively impacted by memory loss caused by past trauma (at [32]-[39]); Secondly, the FCCA erred in concluding (at [39]) that it was open to the Authority to conclude that the letter from the Association for Services to Torture and Trauma Survivors (ASeTTS) (the ASETTS letter) was not capable of amounting to "corroborating evidence" of the appellant's claim of memory loss because it only affirmed that the appellant displayed symptoms of PTSD and did not explicitly link those symptoms to memory loss, despite: (a) the acceptance by the Authority that the appellant had been tortured in his country of origin; and (b) the acknowledgment in guidelines linking the experience of such trauma with symptoms including memory loss (at [15], [16]). 2. THE DECISION OF THE AUTHORITY 5 The primary judge provided a following careful summary of the reasons of the Authority, which I adopt with gratitude: [2] …The Authority accepted a number of the claims made by the applicant, including that he was arrested and beaten by the Sri Lankan army ("SLA") in 1987, his father's cousin was shot by the SLA in 1987, the applicant fled to Northern Province until 1989 when he returned to his home in Eastern Province, in 1990 the SLA beat the applicant, and in December 1992 the applicant and his father were taken from their home by the police, SLA and militia, beaten, tortured and detained in a military camp, and then a military prison. The applicant was released in January 1993. His father was subsequently imprisoned. [3] The applicant made various other claims, including that his sister had been conscripted as a nurse for the Liberation Tigers of Tamil Eelam ("LTTE"). He said his sister had been released by the LTTE in 2008 because of poor health. He gave inconsistent evidence about these events. In his screening interview he said he travelled to India in 2008 with his sister to seek medical treatment for her. In his protection visa interview he said that he travelled to India with his uncle in 2008 to escape the war and was detained by the SLA on his return. He said he travelled to India with his sister in 2010. [4] He also said that after his sister left the LTTE in 2008 she was sought by the SLA and had gone into hiding for two years. However, according to the applicant's narrative, his sister applied for a passport in 2009 and, along with the applicant, departed for India officially through a Sri Lankan embarkation point in 2010. The Authority considered these claims implausible if the applicant's sister was in hiding from the authorities. The applicant also said at one point that he accompanied his sister to India to meet her fiancé. [5] The Authority highlighted the inconsistencies in the applicant's narrative. It did not accept as plausible the applicant's claim that his sister had been a member of or was conscripted by the LTTE and rejected the applicant's claims in this regard. The Authority was also not satisfied that a letter which purported to be the applicant's sister's letter to the LTTE seeking to be released in 2008 was genuine. [6] The applicant claimed in his oral evidence to have been detained, beaten and later released on his return from India in 2008. He said the same thing happened on his return from India in 2010. In his statutory declaration dated 6 September 2017 he claimed that he was detained on his return from India in 2008 because of his father's involvement with the LTTE. The Authority said this was the first time the applicant had claimed his father was involved with the LTTE. [7] Additionally, the applicant claimed to have worked with the Tamil National Alliance ("TNA") in 2012 during elections in Sri Lanka. He said he and his father had been kidnapped by the Karuna Group, which was a pro-government Tamil militia, beaten and later released. He said he later received threats from the Karuna Group and fled to another place. The Authority identified inconsistencies in the applicant's narrative about these events and the Authority was not satisfied that the applicant's knowledge about the TNA was consistent with his claimed level of political involvement. The applicant did not know, for example, that the TNA was an alliance of parties rather than a single party. The Authority was prepared to accept the applicant and his father had been harassed and threatened by the Karuna Group and the TMVP (another political party) because of his involvement in the 2012 elections but did not accept his claims of threats or harassment at that time from the SLA, police or other government authorities. [8] The applicant arrived in Australia in 2012. In July 2013 he consulted an organisation called Association for Services to Torture and Trauma Survivors Inc. which used the acronym ("ASETTS"). In his statutory declaration dated 6 September 2017, and provided to the delegate, the applicant stated that he struggled with his memory and said he believed the main reason was his mental health. In support of this claim the applicant provided an undated letter from a Ms Tate of ASETTS replying to a caseworker from Migration Support Programs in Perth who had evidently referred the applicant to ASETTS. Although the letter is undated it refers to an "assessment" of the applicant having been conducted on 24 July 2013 by ASSETS. The letter was probably written soon after that date. The letter does not mention Ms Tate's qualifications. [9] The letter briefly referred to the applicant's background. It referred to the applicant advising that he had trouble sleeping and had frequent nightmares. The letter did not mention memory loss. The letter refers to the applicant having completed a "Harvard Trauma Questionnaire" which, according to Ms Tate, indicated that the applicant displayed symptomology of post-traumatic stress disorder (PTSD). [10] The ground of review raised by the applicant relates to the observation of the Authority at paragraph 26 of its Decision and Reasons that: [26] The evidence before me is that Ms Tate believed the applicant had symptoms of post-traumatic stress disorder in 2013. There is no evidence before me to indicate that the applicant has undergone any mental health treatments or been given a mental health diagnosis. In the absence of corroborating evidence, I do not accept that the applicant struggles with his memory because of his mental health. 3. THE DECISION OF THE FCCA 6 The single ground of review before the FCCA raised that the rejection by the Authority (at [26]) of the appellant's assertion that he struggled with his memory because of his mental health was based on a finding that there was no corroborative evidence, and contended that this finding was illogical, irrational or unreasonable. After considering the competing submissions and authority relevant to the meaning of the word "corroboration", the primary judge found: [39] I am satisfied that the Authority's use of the phrase "in the absence of corroborating evidence" was consistent with an intention to convey the view that there was no independent evidence before it to confirm or strengthen the applicant's claim that the inconsistencies in his narrative were due to memory loss resulting from his earlier experiences of torture or trauma. The letter from Ms Tate made no such claim, directly or indirectly. The letter made no mention of memory loss and, accordingly, the letter did not and could not confirm such a claim. The letter may be interpreted as raising the possibility of the applicant suffering from PTSD. If that is accepted it might be thought that it is possible that the symptoms the applicant experienced might include memory loss, although the letter did not go so far. In my view, this does not amount to "corroboration" in the sense described by Kaye J. [40] I also have regard to the passage from Cross on Evidence at [15170] which, if translated into a non-criminal law context, suggests that if evidence is consistent with conflicting propositions then it is not corroboration. In the context of the issues in this case, if the letter of Ms Tate is consistent with the applicant suffering from memory loss because of his experience of torture or trauma and consistent with him not suffering from memory loss because of his experience of torture or trauma then it is not corroborative of either proposition. In my view, that is the case here. [41] I am not satisfied the Authority incorrectly described the evidence before it or misunderstood the significance of that evidence for the issues for determination. I am not satisfied that its conclusion that there was an "absence of corroborating evidence" of the applicant's claim to suffer memory loss affecting his capacity to provide a consistent and coherent narrative was unreasonable or, indeed, inaccurate. Accordingly, I am not satisfied that the Authority failed to give proper, genuine, or realistic consideration to the applicant's claim as alleged in the ground of review. The application is dismissed. 4. THE APPEAL 4.1 The submissions 7 In this appeal the appellant places emphasis on [26] of the decision of the Authority. He contends that the issue is whether the FCCA was correct to find that the conclusion of the Authority that the ASETTS letter could not constitute corroborating evidence was not unreasonable or inaccurate. He submits that in the course of reviewing a decision of the Minister's delegate, the Authority is not bound by technicalities, legal forms or rules of evidence, citing s 473FA(2) of the Act. He submits that this means that all of the evidence before the Authority must be considered, irrespective of whether it is corroborated, citing NAKD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 321 at [6] (Hill J). He submits that if the use of the words "corroborating evidence" by the Authority was in the sense ascribed to it by the primary judge (that is, "that there was no independent evidence before it to confirm or strengthen the applicant's claim that the inconsistencies in his narrative were due to memory loss resulting from his earlier experiences of torture or trauma") then this amounted to an impermissible importation and application by the Authority of a legal requirement for corroboration. He submits that the primary judge accepted at [27] that the ASETTS letter constituted evidence that his claim of memory loss and other presentational difficulties associated with his past torture may be true. He submits that this finding, combined with the Authority's acceptance that the appellant had been a victim of torture, was sufficient for the ASETTS letter to be considered by the Authority. He finds further support for this in the Refugee Law Guidelines, cited in the materials he put before the delegate, which he contends demonstrates that those suffering from PTSD may have difficulty recalling events consistently between interviews. 8 The appellant submits that the FCCA erred in failing to find that the Authority fell into error by not considering the ASETTS letter at all. He further submits that the Authority's rejection of the ASETTS letter was an irrational finding because the letter was corroborative in the sense that it supported the contention that the appellant's assertion that he had memory difficulties was not made without any basis. The result, he submits, is that by dismissing the ASETTS letter the Authority placed excessive emphasis on inconsistencies in the appellant's account of events, which led to error. In this context he submits that it is inevitable that there will be some inconsistencies where multiple versions of events have been given over a span of some years and, in the event that a decision-maker detects them, these inconsistencies must be scrutinised with great care to discern whether they are significant or should be ascribed little if any weight. In support he cites AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 at [28] (Kenny, Griffiths and Mortimer JJ). 9 The appellant further submits that the illogical or irrational approach taken by the Authority was material in that had appropriate consideration been given to the ASETTS letter, this could reasonably have resulted in a different decision, citing Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 246 CLR 421 at [45] (Bell, Gageler and Keane JJ). 4.2 Consideration 10 In order to amount to jurisdictional error, alleged "illogicality" or "irrationality" requires that the decision of the Authority is one at which no rational or logical decision-maker could arrive on the same evidence: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130] (Crennan and Bell JJ). Emphatic disagreement with the reasoning is not enough: SZMDS at [129] and [132]. The question is whether it was open to the Authority to engage in the process of reasoning in which it did engage and to make the findings that it did make on the material before it: SZMDS at [133]. As Crennan and Bell JJ observed at [135]: …a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. 11 The statutory context for the decision of the Authority includes s 473FA(2) of the Act which, as the primary judge noted, provides: The Immigration Assessment Authority, in reviewing a decision, is not bound by technicalities, legal forms or the rules of evidence. 12 The reasoning of the Authority included a summary of the several statements provided by the appellant during the course of the processing of his application for a SHEV. This involved consideration of the content of his arrival interview on 25 October 2012, an enhanced screening interview conducted on 28 November 2012, a SHEV interview on 17 June 2016, a statutory declaration dated 15 February 2015 and a statutory declaration dated 6 September 2017. 13 On 28 August 2017 the appellant received a letter from the Department of Immigration and Border Protection indicating that it had conducted checks to confirm the information that he had provided in the course of his application and that a delegate of the Minister considered that information given during his enhanced screening interview did not support his protection visa claims. The record of the enhanced screening interview was attached to this letter. 14 The appellant submits that the ASETTS letter was supplied to the delegate in response to that letter in order to support the appellant's claim, advanced in his statutory declaration of 6 September 2017, that he struggles to remember exact dates due to his mental health. In submissions before the Authority the appellant emphasised these difficulties. He submits that after the Authority had reviewed various inconsistencies and incongruities arising from his interviews and declarations, the Authority ought to have considered the chance that his account of events, and his ability to be consistent with dates between interviews conducted years apart, might have been adversely affected by his claimed post-traumatic mental condition. He submits that the dismissal by the Authority of the ASETTS letter, and its treatment of the letter as not being corroborative of his claim that he struggled with his memory, resulted in it placing excessive emphasis on those inconsistencies. 15 For the reasons that follow I do not accept that the Authority fell into jurisdictional error, or that the primary judge was wrong to reach that conclusion. 16 First, the Authority considered the appellant's claim that he struggled with his memory because of his mental health. In doing so it summarised the content of the ASETTS letter which had been provided by the appellant in support of this claim. Whilst the Authority reported that its author, Ms Tate, believed that the appellant had symptoms of post-traumatic stress disorder in 2013, it correctly noted that there was no evidence of any mental health diagnosis or that he had undergone any mental health treatment. The appellant freely accepts that the letter provided no information as to the qualifications of Ms Tate and that there was no medical diagnosis of the appellant as suffering from any mental illness, including post-traumatic stress disorder. 17 Secondly, the Authority gave consideration to the evidence provided by the appellant and concluded that his version of events had varied considerably during the course of his application process. That included making findings that documents that had been supplied by the appellant to the Authority were not authentic and that versions of particular events described were implausible. 18 Thirdly, the finding of the Authority at [26] that "[i]n the absence of corroborating evidence" it did not accept that the appellant suffered with his memory because of his mental health amounted to no more than a statement that the ASETTS letter offered by the appellant was not in its view adequate to support his claim. In so saying, the Authority was evaluating the strength of the evidence before it which amounted, first, to simple assertion from the appellant that he suffered with his memory due to his mental health and, secondly, a letter from a person who referred to an unsourced third party test (the Harvard Trauma Questionnaire) and did no more than report its result that the appellant "is symptomatic for Post-Traumatic Stress Disorder". The letter did not state the author's qualifications or indicate that the appellant had been diagnosed by a medical professional with any mental illness. The appellant accepts these deficiencies with the letter, but nonetheless contends that the Authority's treatment of it was irrational having regard to the fact that it had accepted that the appellant had in fact been the subject of traumatic events, including being tortured in 1992 (see [5] above). However, I do not accept that there is an inherent illogicality or irrationality in the Authority finding, on the one hand, that the appellant had been the subject of traumatic events and, on the other, not accepting that the appellant struggled with his memory because of his mental health. This is because it is tolerably clear that the Authority did not consider that the materials supported a finding that the appellant had ever received a mental health diagnosis. The finding at [26] that the appellant did not struggle with his memory was open to the Authority on the materials before it. 19 Further, I reject the contention that the Authority impermissibly imported into its reasoning, through the use of the phrase "corroborating evidence", a legal requirement that the appellant satisfy itself to the standard of the balance of probabilities. Rather, I consider that its use of such language was simply used to explain the evaluative process that it was undertaking as an administrative decision-maker. In so doing it did not fail to consider the ASETTS letter, but rather addressed its content and ascribed weight to it in a way which, having regard to the several deficiencies in its contents acknowledged by the appellants, cannot be described as either irrational or illogical. 20 Consequently, I also reject the contention that the decision of the Authority was illogical or irrational because it took into account the inconsistencies to which it referred in coming to its final decision. In my view, the Authority gave consideration to the material before it in accordance with its statutory task. Based on the findings it made, the Authority did not accept that the appellant met the requirements of ss 36(2)(a) and 36(2)(aa) of the Act. In the course of its reasons, it accepted aspects of the appellant's claims, including that he had been beaten, tortured and imprisoned in 1992. However, the Authority also observed that his version of events of what had happened in the time since then had varied considerably during the course of the application process for his visa. The Authority made findings that documents that had been supplied by the appellant to the Authority were not authentic and that versions of particular events described were implausible. It considered and rejected the appellant's claim that he struggled with his memory due to his mental health on the basis that the materials before it were insufficient to support such a claim. For the reasons stated above, I do not consider that in doing so the Authority acted illogically or irrationally. As a consequence, it was also not irrational or illogical for the Authority to reject certain of the claims made by the appellant on the basis of the inconsistencies in the versions of events he had given. 21 I detect no error in the approach of the Authority, nor in the conclusion reached by the primary judge. 5. DISPOSITION 22 The appeal must be dismissed. The appellant must pay the Ministers costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley. Associate: Dated: 3 March 2022