ABT17 confined to overt demeanour assessment?

Federal Court. Does the IAA need to "hold an interview merely because it was minded to reach a different credibility finding from a delegate"? Are the ratio of the FCAFC's decision in DPI17 and the High Court's decision in ABT17 "confined to an instance in which the delegate’s overturned finding had been overtly and significantly based on an express assessment by the delegate of the applicant’s demeanour"?

The Respondent arrived in Australia by boat in 2012 as an unauthorised maritime arrival and an arrival interview was conducted. Once the statutory bar was lifted, he applied for a protection visa in July 2016.

The Federal Circuit Court said as follows about what happened next:

4.    The claims of the applicant essentially revolve around his fear of harm due to his Tamil ethnicity and because of his imputed links to the Liberation Tigers of Tamil Eelam (‘LTTE’). In particular, his fear was based on the fact that he had been employed for a person who sold fuel to the LTTE in 2008 and 2009.

5.    In his original statement of claims [dated on 1 June 2016], the applicant identified a number of matters which he says caused him to depart from Sri Lanka. One of those claims was that in 2007 he worked for a company whose main business was the transportation of fish from fishing vessels to the marketplace in Colombo. He also claimed that he protested against the construction of a Buddhist temple on the island upon which he lived. The Sri Lankan police and the Sri Lankan Navy were both in favour of constructing the temple. Members of the Christian population on the island (such as himself) and of the Muslim population, lobbied against this. As a result, he was subjected to beatings and the holding up of the grant of his fishing permit. He also claims to fear harm as a failed asylum seeker returning to Sri Lanka.

6.    When the applicant was interviewed by the delegate for his Protection Visa Interview (‘PVI’) [in June 2017] he expanded his claims and provided further information which he says was the reason for his imputed association with the LTTE. It was in the process of doing this that he made the claims about making deliveries to the LTTE including fuel. He said that his employer was supplying fuel to the LTTE without his knowledge and that he was given directions to deliver fuel by boat but was unaware that was provided to the LTTE at a large profit.

The interview conducted in June 2017 was audio, but not video, recorded.

The Federal Court (FCA) described what happened next as follows:

63. ... As the transcript reveals (CB 423) the question asked of the Respondent about his prior non-disclosure was as follows:

In your arrival interview, you stated that you left Sri Lanka because you couldn’t get a job. Um you didn’t mention any of the claims you made, that you have in your application.

28. ... The Delegate, having first tested the Respondent’s credit by asking him about his claim having not been earlier advanced, recorded the following finding:

I accept that the applicant worked for a Singhalese (sic) employer in a fish transport business in Kalpitya Sri Lanka. I accept that his involvement in making [fuel] deliveries to the LTTE has imputed his involvement with the LTTE.

29    The sole foundation for that accepted claim was the Respondent’s assertion of it ....

31    It was not because of scepticism on the Delegate’s part as to the provenance of that claim that he notwithstanding rejected the Respondent having an entitlement to Australia’s protection.

32    Rather the Delegate’s reasons reveal that he was satisfied that a person who had conducted himself as the Respondent had, but who otherwise had not had any high level involvement with the LTTE and who did not claim to have been involved in any separatist activities,would be of limited interest to the Sri Lankan authorities.

33    It was that reasoning which led the Delegate, having regard to the country information before him, to conclude that the Respondent had a profile that would be of no interest to any Sri Lankan authorities such that “there is a negligible chance of [him] being detained under the PTA now or in the reasonably foreseeable future”.

34    The Delegate rejected the Respondent’s protection claims relating to the fuel supply issue solely on that basis.

The delegate's decision was referred to the Immigration Assessment Authority (IAA) for review pursuant to Part 7AA of the Migration Act 1958 (Cth). The IAA affirmed the delegate's decision, finding as follows:

25.    I note the applicant did not raise the claim regarding fuel deliveries to the LTTE during arrival processing or in his written statement of claim. The delegate asked him why he had not mentioned this claim earlier, and the applicant indicated he was very frightened when he first arrived in Australia that information would be given to Sri Lankan authorities, but now he feel confident to tell the truth. I accept an asylum seeker may be reluctant to disclose an association with an organisation such as the LTTE in their initial encounter with a foreign government, however I am not satisfied such fears prevented the applicant from providing those details in his statement of claims prepared a number of years later. I find the applicant’s failure to mention the claim regarding interactions with the LTTE in his statement of claims is extremely significant. In that document he provided a detailed description of events in 1997, and some detail about his work with ND Transport, issues regarding the Buddhist Temple, and trouble with the Navy, but fails to make any mention of any involvement with the LTTE, including delivering fuel to them. Taking into account the applicant’s escalating claims regarding the number of times he was beaten by Navy officers, and the recent disclosure of supplying fuel to the LTTE, I am of the opinion the claim has been recently fabricated to support his claim for protection. I do not accept the applicant transported fuel to the LTTE.

The Respondent then successfully applied to the FCCA for judicial review of the IAA's decision, after which the Minister appealed to the FCA from the FCCA's decision.

Some of the questions to the FCA were as follows:

Question 1: Was the Respondent's bare assertion of the claim relating to fuel the sole basis for its acceptance by the delegate?

Question 2: If the answer to Question 1 is 'yes', that that mean that such an acceptance "could not have been made without the Delegate having accepted that the Respondent was truthful in his account of having delivered fuel to the LTTE notwithstanding his not having earlier advanced it", with the result that the delegate made a "favourable, albeit implicit, finding with respect to the Respondent’s credit"?

Question 3: Does the IAA need to "hold an interview merely because it was minded to reach a different credibility finding from a delegate"?

Question 4: Is the ratio of the FCAFC's decision in DPI17 "confined to an instance in which the delegate’s overturned finding had been overtly and significantly based on an express assessment by the delegate of the applicant’s demeanour"?

Question 5: Is the ratio of the High Court's decision in ABT17 "confined to an instance in which the delegate’s overturned finding had been overtly and significantly based on an express assessment by the delegate of the applicant’s demeanour"?

Question 6: Is the reasoning of the plurality in ABT17 before [25] obiter dicta?

Question 7: Can it be said that, "particularly in the case of persons who are claiming to have fled persecution from civil and military authority in their home country in the absence of testing the want of a good reason for not speaking before is not open to be assumed"?

The FCA answered those questions as follows:

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