Acy16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1957
•26 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
ACY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1957
File number(s): SYG 74 of 2016 Judgment of: JUDGE HUMPHREYS Date of judgment: 26 August 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – whether the failure to disclose the existence of a certificate pursuant to s 438 of the Migration Act 1958 (Cth) amounted to a denial of procedural fairness and jurisdictional error – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed Legislation: Migration Act 1958 (Cth), ss 375, 422B, 424A, 424AA, 425, 438 Cases cited: AVO15 v Minister for Immigration and Border Protection [2017] FCA 566
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052
Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507
Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427
MZAZF v Minister for Immigration and Border Protection (2016) 243 FCR 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZNTL v Minister for Immigration and Border Protection [2015] FCA 463
Number of paragraphs: 62 Date of last submission/s: 10 August 2021 Date of hearing: 10 August 2021 Place: Parramatta Counsel for the Applicant: Mr Zipser Counsel for the Respondents: Mr Reilly ORDERS
SYG 74 of 2016 BETWEEN: ACY16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
26 AUGUST 2021
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The application is dismissed.
3.The Applicant to pay the First Respondent’s costs, fixed in the amount of $9,000.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of Sri Lanka. The applicant is of Tamil ethnicity and follows the Hindu religion. The applicant first arrived in Australia as an unauthorised maritime arrival on 20 June 2012.
On 14 November 2012, the applicant lodged an application for a protection visa. On 8 April 2014, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his visa.
The applicant sought merits review at the then Refugee Review Tribunal (“RRT”). This subsequently merged into the Administrative Appeals Tribunal (“the Tribunal”). Unbeknown to the applicant, the Secretary sent the Tribunal a certificate under s 438 of the Migration Act 1958 (Cth) (“the Act”), concerning some documents on the departmental file. In a decision dated 10 December 2015, the Tribunal affirmed the decision to refuse the applicant a protection visa.
The applicant sought judicial review from this Court. On 20 July 2016, there was a hearing before Judge Dowdy of this Court. In October 2016, at a time when His Honour’s judgement was reserved and in the light of the Federal Court’s decision in MZAZF v Minister for Immigration and Border Protection (2016) 243 FCR 1, the solicitor for the First Respondent advised the applicant of the existence of the s 438 certificate. A copy of the certificate was provided to the applicant in October 2016.
In June 2017, Judge Dowdy made Orders in regards to the filing and serving of further submissions addressing the issue of the certificate. On 13 February 2019, the High Court handed down its decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (“SZMTA”). Since then Judge Dowdy has retired and the matter has been listed before me for hearing.
THE EVIDENCE
In addition to the Court book, the applicant relies upon an Affidavit of Gananatha Minithantri, dated 1 July 2016, which annexes a copy of the transcript of the hearing before the Tribunal, as well as an Affidavit of Bernadette Rayment, dated 7 August 2017, which annexes documents associated with the s 438 certificate.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
Given the grounds of judicial review relied upon, it is not necessary to summarise in full the Tribunal’s decision.
The applicant’s claims are set out in paragraphs 4 through to 14 of the Tribunal decision. They have been summarised as follows:
•The applicant was born and raised in Sri Lanka’s Eastern province. The applicant’s father was a supporter of the Tamil National Alliance (TNA). The applicant’s father was sometimes taken away for interrogation.
•In 2005-6 following the formation of the Tamil Makal Viduthalai Pulika (“TVMP”) party by defectors from the Liberation Tigers of Tamil Elam (“LTTE”), the applicant was told by his father that he would be harmed and recommended that the applicant flee to Malaysia. The applicant did so and worked in Malaysia for 1 year, returning in 2007.
•The applicant stayed for only a short time (12 days) before his father arranged for the applicant to travel to Qatar. The applicant claims that his father told him that it was not safe for the applicant to stay in Sri Lanka.
•The applicant returned to Sri Lanka in May 2009, 3 days after the funeral of his mother. When the applicant’s father died in August 2009 he did not return for the funeral.
•The applicant returned to Sri Lanka in September 2010 as he said he wished to spend time with his recently widowed grandmother. The applicant’s Qatar visa also expired around the same time.
•The applicant worked in a restaurant in a village in Batticaloa from 2010 to 2012. The applicant claimed that two men came to interrogate him and accused him of being a TNA supporter. As a result, the applicant claims that he quit the restaurant and moved to a farm which his uncle owned. In May 2012, a white van came to the farm. The applicant fled and hid. The applicant then made arrangements to come to Australia by boat.
•The applicant claims that he fears being detained and tortured as a result of his father’s involvement with the TNA, as a failed asylum seeker and as a result of his Tamil ethnicity.
At paragraph 15 of its decision, the Tribunal found that it had considerable concerns regarding the applicant’s credibility. After setting out extensive country information at paragraphs 17 through to 25, the Tribunal then considered the applicant’s claims.
At paragraph 26 of its decision, the Tribunal notes that the applicant’s oral evidence at his protection visa interview on 5 February 2013 stated that his father had never been a member of the TNA. The applicant said that he was not aware of any details of any instances of his father being interrogated by authorities. The applicant claimed that his father repeatedly advised him to stay out of Sri Lanka for his own safety without once discussing any details of the background to this advice.
At paragraph 27 of its decision, the Tribunal noted that the applicant did not suggest to the delegate that he had any personal interest in the political party or politics at all. The only claims of being of interest to others was because of the alleged affiliations of his late father. The delegate found it implausible that the applicant would have known so little about what happened to his father, bearing in mind that he claimed to have been repeatedly sent abroad for his own safety. The delegate considered it implausible that the applicant narrowly avoided abduction by a white van in 2012.
At the hearing, the applicant told the Tribunal that his father was a government employee, and had remained so up until the time of his death. The Tribunal found it implausible that the father would have been allowed to remain in a government position right up until the time of the end of the civil war, if he was suspected of anti-government links.
The applicant also claimed that his father’s younger brother, M, had been an LTTE supporter and had been shot by the army during the civil war. The Tribunal gave this claim no weight, bearing in mind that the applicant’s father had continued to live at home and work in a government job during that period and that the applicant had been able to legally depart and return to Sri Lanka on three separate occasions.
The Tribunal concluded, at paragraphs 34 and 35 of its decision, that the applicant had never left Sri Lanka due to fears about his safety, rather, his overseas travel was economically motivated. The Tribunal was not satisfied that the applicant’s father was taken away for questioning or that the applicant avoided abduction by a white van.
During the course of the Tribunal hearing, the applicant made a new claim relating to his sister’s husband’s brother, K. That applicant said that K had joined and then later quit the LTTE. The applicant claimed that K went abroad legally but, 2 months prior to the Tribunal hearing, he returned to Sri Lanka and was arrested at the airport. The applicant provided a newspaper article talking about a returnee named K, who was arrested at the airport. The applicant claimed that a Tamil MP called on the government to crack down on returning Tamil youths.
At paragraphs 50 and 51 of its decision, the Tribunal noted that the applicant provided a document to the Tribunal purporting to be a Ministry of Defence pro forma acknowledgement of arrest of K. A second document, which was in English, purports to be an arrest and detention order dated June 2015, relating to K, signed by Maithrapala Sirisena, the then President of Sri Lanka. The Tribunal records in the decision that it raised with the applicant if the documents might be fraudulent, as the signature of President Sirisena on the document appeared to be substantially different from that appearing on the President’s website, which was footnoted. The applicant was recorded, at paragraph 53 of the Tribunal’s decision, as answering a question from the Tribunal to whether the documents might be fraudulent. In response, the applicant said that they were genuine.
The Tribunal, based on country information, was not satisfied that the applicant would be persecuted due to his Tamil ethnicity, nor would he be persecuted on the basis of his illegal departure from Sir Lanka. Accordingly the Tribunal was not satisfied that the applicant met the criteria for refugee protection or protection under the complementary protection criteria.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon are set out in a Further Amended Application filed with the Court on 19 July 2017.
They are as follows verbatim and as they appear:
Ground One
(a) The Tribunal breached s 425 of the Migration Act 1958 in that it did not accord procedural fairness in the conduct of the review and/or breached s 422B(3) in that it did not act in a way that is fair and just.
(b) Tribunal decision involved jurisdictional error of law in that the Tribunal failed to comply with the requirement of s 424A and 424AA of the Migration Act 1958.
Particulars
(j) The Tribunal relied upon information contained in the President’s own website, whether the signature on the order was even really the President’s as it appears substantially different from the sample provided on the President’s own website (paragraph 52).
Ground Two
The Tribunal proceeded or acted on an invalid certificate issued under s 438 of the Migration Act. Further, the Tribunal did not disclose the existence of the certificate to the applicant and give the applicant an opportunity to make submissions on the validity of the certificate. In the circumstances, the Tribunal’s conduct involved a denial of procedural fairness and jurisdictional error. One document the subject of the certificate issued under s438 (a Record of Interview between the applicant and the Minister’s delegate) contained information which was material to the Tribunal’s decision. The Tribunal’s jurisdictional error affected its decision.
THE APPLICANT’S SUBMISSIONS
In relation to ground one, the applicant relied upon two documents that related to K. The Tribunal concluded that the newspaper article relating to a person called K was reliable. However, the Tribunal found that the applicant had invented the link to the man identified as K in the newspaper article to help his own protection visa application. Hence, the Tribunal found the detention document was not reliable and used this as a steppingstone to find that the applicant had invented the claim and was therefore not a credible witness. Had the Tribunal accepted the detention order in relation to K as a reliable document, it may have accepted the new claim by the applicant concerning K.
In relation to the detention order, the Tribunal’s error was that, although it relied upon information from the President’s website, it did not tell the applicant that it had relied upon information from the website and failed to provide the applicant with an opportunity to comment. In this regard, the applicant relies on a transcript of the Tribunal hearing. The relevant exchanges appear at pages 14 and 15. The transcript indicates that the Tribunal member raised with the applicant the possibility of the purported signature of the President may be fake, however, it did not inform the applicant that the Tribunal had viewed a sample of the President’s signature on the President’s website and considered that the signature on the detention order “appears substantially different from the sample provided on the President’s own website”.
In these circumstances, it was submitted that the Tribunal contravened s 424A of the Act, as this was information that the Tribunal considered would be a part of the reason for affirming’s decision under review. The applicant submitted that the Tribunal did not give the applicant “clear particulars of the information”. Where the Tribunal does not give the applicant notice of an issue arising in relation to the decision under review, this is a jurisdictional error: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [44].
In relation to ground two, it was submitted on behalf of the applicant that the Tribunal’s decision is infected by two errors in relation to the s 438 certificate. First, the certificate is invalid. For the certificate to be valid, the precondition in s 438(1)(a) or s 438(1)(b) of the Act must be met: see SZMTA at [19]-[20]. The certificate purports to rely on s 438(1)(b) of the Act as it asserts that the information in the documents the subject of the certificate “was given to the Minister… In confidence”. However, the information that the applicant gave in his Record of Interview was not given to the Minister or his delegate “in confidence” within the meaning of s 438(1)(b) of the Act. It is conceded, however, that in order for there to be jurisdictional error, the breach must be material: see SZMTA at [44].
Second, the Tribunal failed to notify the applicant about the s 438 certificate, and denied the applicant the opportunity to make submissions on its possible invalidity. This involves a denial of procedural fairness: see SZMAT at [38]. Again, however, this must be material to the Tribunal’s decision.
The question of materiality involves a consideration of whether there was a realistic possibility that the Tribunal’s decision could have been different if it had taken the document or information into account: see SZMTA at [48]. In the case of the nondisclosure of the notification, the question for the Court is “whether there is a realistic possibility that the Tribunal’s decision could have been different if the notification had been disclosed so as to allow the applicant a full opportunity to make submissions”: see SZMTA at [49].
In terms of whether or not the Tribunal had regard to the Record of Interview, the applicant’s position is that the Tribunal did not have regard to it. Whether or not the Tribunal had regard to the Record of Interview is a question of fact which involves a consideration of all the circumstances of the case: see MZAOL v Ministerfor Immigration and Border Protection [2019] FCAFC 68 at [53]-[65] (“MZAOL”).
First, in MZAOL, it was stated at paragraph [56]:
It ought be assumed that the Tribunal proceeded on the basis that the certificate and the notification were valid and that it was constrained to deal with the impugned information in the manner required s 438(3).
Reliance is placed on paragraphs [75] to [76] of the same decision which stated that:
A Tribunal involved in the regular administration of the Act would, first, appreciate that absent an affirmative exercise of its discretion it cannot have regard to notified information and, second, would not, without good reason, make an affirmative decision to have regard to notified information which it has determined should not be disclosed to the applicant.
Second, the Record of Interview was clearly relevant and material to the Tribunal’s decision. The document sets out claims made by the applicant. The applicant’s interview with the delegate in February 2013 was notably closer in time to the events that were the subject of the applicant’s claims than the applicant’s interview with the Tribunal at the hearing in November 2015. The Tribunal did not refer in its decision to the Record of Interview, nor was any information contained in the Record of Interview disclosed in the delegate’s decision. Further, the Tribunal, at paragraphs 26 and 27 of its decision, expressly used the delegate’s decision dated 8 April 2014, to identify the claims made by the applicant to the delegate at the interview in February 2013. The fact that the Tribunal used the delegate’s decision for this purpose, rather than referring directly to the Record of Interview, supports an inferential conclusion that the Tribunal, acting on the s 438 certificate did not have regard to the Record of Interview. In MZAOL, at [59] and [61] the Full Court applied this principle in concluding at paragraph [76] that the Tribunal did not have regard to the information the subject of the s 438 certificate.
The applicant submitted that, had the Tribunal had regard to the Record of Interview, there was a realistic possibility that the Tribunal’s decision could have been different. The only circumstances in which the Minister can avoid a finding of jurisdictional error is if the information in the Record of Interview was irrelevant to the Tribunal’s decision. However, it was submitted on behalf of the applicant that it was clearly relevant and material.
First, the Record of Interview contains details of the applicant’s claims which were not recorded in the delegate’s decision. Specifically, the Record of Interview first included information provided by the applicant to the delegate about the applicant’s knowledge of his father’s political involvement with the TNA. Second, the Record of Interview also included information provided by the applicant to the delegate about why the TNA wanted to harm the applicant’s father, the nature of that harm, the father’s steps to avoid harm and the source of the applicant’s knowledge.
Secondly, the majority of the above information was not recorded in the delegate’s decision. Further, the delegate’s summary of the claims made by the applicant about his father was wrong in a critical aspect. Specifically, the delegate provided three propositions (CB 131) that the applicant has given evidence of that, first, during the war, his father was questioned as to his involvement with the TNA. Second, when asked about the nature and frequency of this questioning, the applicant stated that he was away from Sri Lanka at the time, and had no specific information about this. Third, the applicant could not supply any detail as to how often his father was directly questioned and harmed.
However, the Record of Interview indicates that the second proposition is not correct and the third proposition is misleading. Specifically, the applicant was not asked about “the nature of… this questioning”. Second, the applicant did not state that “he was away from Sri Lanka during this time” of questioning and that he has “no specific information about” any of the questioning. Instead, the applicant merely said that he did not know how many times his father was questioned and he “was in a foreign country” when the questioning ended. Third, the applicant was not asked to provide all the details that he could about how often his father was directly questioned and harmed. The applicant was merely asked “do you know how many times (your father was taken away and questioned)?
Third, the delegate’s summary of the claims made by the applicant contains opinions by the delegate concerning part of the applicant’s evidence in place of the evidence itself. For example, the delegate referred to “the vagueness of the applicant’s account of his father’s experiences” at CB 131. The applicant submitted that, even if the delegate had a reasonable basis on which to express this opinion, a different decision-maker may have considered that the applicant’s account given to the delegate was not “vague”. If the Tribunal had regard to the Record of Interview itself, rather than the delegate’s incomplete summary, and, the applicant submits that it is an opinionated summary of the applicant’s evidence, the Tribunal may have accepted that the applicant claims is true.
Fourth, if one compares the Tribunal summary of the delegate’s summary of the applicant’s claims to the delegate at interview with the applicant’s claims recorded at the Record of Interview, the above problem becomes even more obvious. For example, the Tribunal recorded at paragraph 26 of its decision: “at the interview (with the delegate)… He said he was not aware of any details of instances of his father being interrogated by the authorities”. However, as the Record of Interview indicates, the applicant did not say this. To the contrary, the applicant recalled occasions in which his father was not home in the afternoon and evening and his mother told the applicant that authorities “took (the father) for investigations”.
Further, the Tribunal recorded, at paragraph 27 of its decision that the applicant stated that he knew virtually nothing about his father’s situation back in Sri Lanka due to having spent so much time away from the country between 2007 and 2010. However, as the Record of Interview indicates, the applicant did not say this. To the contrary, the applicant provided to the delegate information about his father’s involvement with the TNA, occasions in which he was taken and questioned by the authorities, and the fact that he took a transfer to another town because of his problems.
THE FIRST RESPONDENT’S SUBMISSIONS.
The first claim is that the Tribunal breached s 425 of the Act, or failed to comply with s 424A of the Act giving two particulars. The first particular relates to a document at CB 171. The first respondent submitted that it is not clear from the application on what basis the complaint is, nor is this a matter addressed at all in the applicant’s submissions.
The second particular concerns a document at CB 170, being the Tribunal’s comment about the President’s sample signature on his website.
Counsel for the First Respondent submitted that there was no breach of s 424A(1) of the Act for two reasons. First, the Tribunal, at paragraph 54 of its decision, finds that “none of the evidence including the documents that linked K to the applicant or his father, sister or brother-in-law is reliable” and found that the applicant had invented K. The document at CB 170 does not purport to link K and the applicant. However, on a fair reading of the decision record, the Tribunal has not ultimately found that the document is unreliable as part of its reasons for affirming the delegates decision, rather, the Tribunal has not made any concluded findings on it. The sample signature from the President’s website, which is only relevant to the document at CB 170, is therefore not information the Tribunal “considers would be the reason, or part of the reason, for affirming the decision that is under review” within s 424A(1) of the Act. As stated in Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at [25], the section talks of information that “would”, not “could” or “might” form the reasons or part of the reason for the Tribunal’s decision.
Secondly, even if one assumes that the information on the President’s website was the reason, or part of the reason, for the Tribunal’s decision, it is not of a character that falls within s 424A(1) of the Act in that it did not constitute a rejection, denial of undermining of the applicant’s claims as required by SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17]. It simply contains an example of the President’s signature. The first respondent submitted that, the document says nothing about the applicant’s claims as to why he fears harm in Sri Lanka. The document was not of “dispositive relevance” to those claims, as required by SZNTL v Minister for Immigration and Border Protection [2015] FCA 463 at [52]. Even if the information from the President’s website could have the potential to question the reliability of the document submitted by the applicant, it does not “in its terms” constitute an undermining of the specific claim made by the applicant about his links to K and why he feared harm as a result.
The alleged breach of s 425 of the Act is not developed in the applicant’s submissions and must fail. The Tribunal made it clear at the hearing that it had doubts about the genuineness of the document at CB 170. Ultimately, however, this was not a matter that the Tribunal relied upon, so it could not be said to be an “issue” for the purposes of s 425 of the Act. Even if it was an “issue” the Tribunal plainly afforded the applicant the opportunity to be heard on it at the hearing. Further, s 425 of the Act cannot be used as a means to avoiding the limitations in s 424A of the Act, which is an exhaustive statement of the Tribunal’s obligation to give information to the applicant: see Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052 at [31].
Submissions also referred to s 422B(3) of the Act, on which the applicant asserted that the Tribunal breached their obligation to “act in a way that is fair and just” see Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427 at [15]-[18] (“SZMOK”). For the reasons already given, and even if contrary to SZMOK, the section can have some freestanding operation. The Tribunal did not fail to act in a way which was fair and just in conducting its review.
In relation to the second ground, which claims that the applicant was denied procedural fairness because the Tribunal did not disclose the existence of a purported certificate issued under s 438 of the Act, the first respondent noted that this relates to a Record of Interview with the applicant and a delegate on 5 February 2013.
The first respondent does not contend that the certificate was validly issued, nor that it was disclosed to the applicant. However, that by itself is not enough to demonstrate procedural unfairness; see AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 at [84]-[91] (“AVO15”). The applicant was clearly aware that he had an interview with the delegate. Moreover, the delegate’s decision contained a summary of his evidence at the interview and, as the Tribunal notes, the delegate’s decision was provided to the applicant by the Tribunal.
It is not clear what the Tribunal did or did not have regard to as regards to any component of the delegate’s summary of the applicant’s evidence. However, the first respondent submitted that, ultimately, this does not matter.
The applicant does not allege that the Record of Interview contained anything that engages the provision of s 424A of the Act. Pursuant to s 422B(1) of the Act, s 424A of the Act is an exhaustive statement of the Tribunal’s obligation to put information to the applicant and invite them comment upon them. Accordingly, the Tribunal did not have to put the information contained within the Record of Interview to the applicant to comply with its obligations of procedural fairness.
The suggestion that the Tribunal denied procedural fairness in circumstances where it did not inform the applicant of the certificate itself must fail. Given the certificate referred to a Record of Interview concerning an interview of which the applicant was aware, and which was summarised in the delegate’s decision and which is not suggested to engage s 424A of the Act, there can be no “practical injustice” merely in the Tribunal not disclosing the certificate see: AVO15 at [84]-[91]. The contrary view taken in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 (“Singh”) expressly turned on its own facts at [52], concerning a certificate issued under s 375A of the Act, is assumed to be valid, and referred to the material that was not in evidence but was assumed to be relevant to the review: see Singh at [16].
The first respondent does not suggested in this case, that the Record of Interview was irrelevant to the review, rather, it is not sufficient to establish “practical injustice” merely by the certificate itself not being disclosed, given that s 424A of the Act was not engaged by the Record of Interview and the applicant was aware of the interview and a summary of it by the delegate.
CONSIDERATION.
Ground one relates to the use by the Tribunal of the website of the president of Sri Lanka and a comparison of the President’s signature which appeared on the website as to that which was purported to be the President’s signature on an arrest warrant in relation to K that was provided to the Tribunal.
The Court was taken to the transcript of the hearing and, at page 15, the following exchange appears between the applicant and the Tribunal member;
Member: This-does this purportedly the President’s own signature on his letter?
Applicant: I do not know that.
Further down, the applicant clearly states that the documents provided, including the one with the President’s signature were genuine. At page 16 of the transcript, there is discussion between the Tribunal member and the applicant’s advocate about whether it may be possible to confirm the genuineness of the documents by the Australian High Commission in Colombo. The Tribunal member, on page 17 of the transcript, indicates that it is a matter for the applicant to produce such evidence as they think fit, it is not for the Tribunal to investigate. At approximately two-thirds down the page on page 17, the advocate agrees with the Tribunal that document forgery in Sri Lanka is a common phenomenon. At page 18 of the transcript, the applicant again affirms that the document is genuine.
At paragraph 52 of the Tribunal’s decision, the Tribunal notes that it questioned the applicant as to whether the signature on the order was even really the President’s “as it appears substantially different from the sample provided on the President’s own website”.
At paragraph 54 of its decision, having considered all of the evidence before it, the Tribunal was of the view that none of the evidence, including the documents linking K to the applicant, his father, sister or brother-in-law were reliable. The Tribunal found that the applicant had invented this link to the man identified as K in the newspaper article in order to help his own protection visa application. The Tribunal found that this went against the credibility of the applicant as a witness overall.
From the above, it is clear that the Tribunal never directly put to the applicant that the signature on the document purporting to be that of the President, was different to the signature that appeared on the President’s website. Counsel for the applicant submitted that this was a clear breach of s 424A of the Act. Counsel for the first respondent submitted that the document did not purport to link K and the applicant. The first respondent further submitted that the Tribunal did not make a concluded finding on it, rather, it was not information that the Tribunal “considered would be the reason, or part of the reason, for affirming the decision”. Even if the information from the President’s website could potentially be used to question the reliability of the document submitted by the applicant, it does not “in its terms” constitute an undermining of the specific claim made by the applicant about his links to K and why he feared harm as a result.
In this case, the Tribunal accepted the reliability of the newspaper article about the arrest of K on his return to Sri Lanka. What the Tribunal did not accept was that there was any link between K and the applicant or his family. Whilst it would have been preferable for the Tribunal to have put the discrepancy between the signature on the document and that on the President’s website to the applicant for comment, the Court is not of the view that the failure to do so is material to the overall outcome. The Tribunal, for the reasons it set out, simply did not accept the linkage between K and the applicant’s family. The Tribunal made findings about the applicant generally as to his credibility. In these circumstances, it is not necessary for the Court to rule specifically on whether or not there was a breach of s 424A of the Act, rather, the Court is satisfied that it was not material to the outcome and therefore, jurisdictional error does not arise. Accordingly ground one has no merit
In relation to ground two, it is a common ground between the parties that the s 438 certificate was invalid. The applicant was not made aware of the certificate and was not given an opportunity to comment on it. The Court is satisfied that the Tribunal did not have regard to the Record of Interview, rather it relied upon the delegate’s summary of it as the basis for considering the applicant’s claims.
On behalf of the applicant, it was submitted that the Tribunal was required to have regard to the Record of Interview. Had the Tribunal done so, there was a realistic possibility that it could have resulted in a different outcome for the applicant. That is, the failure to have regard to the Record of Interview was material to the outcome of the decision by the Tribunal.
The Court was taken to a number of parts of the Record of Interview and then the delegate’s summary of it. It was suggested that the misstatement by the delegate in his summary of the Record of Interview, that the applicant did not know the details of the applicant’s father being taken away and interrogated by Sri Lankan authorities because he was overseas, was incorrect. In fact, all the applicant stated was that he was not aware of the details of the last occasion his father was taken away because he was overseas at the time. As to any other occasions, the applicant was at home but he stated that he did not know any details because his father did not talk about it. All that the applicant knew was that his father was not home on occasions and that his mother told him that his father had been taken away by the authorities. It was put to the Court that there was an inconsistency in the applicant’s claims which may have impacted upon the overall assessment of the applicant’s credibility by the Tribunal.
At paragraph 34 of its decision, the Tribunal found that it did not believe the applicant’s father had ever had any designated role with the TNA, let alone that he would ever had been designated as a liaison with the LTTE. The Tribunal found that the applicant had fabricated the claim, and deemed the claim a significant one, given that it suggested a politically active link between the applicant’s father and the LTTE. The Tribunal found that, on the evidence, it was not satisfied that the applicant’s father undertook any activities for the TNA, other than perhaps by voting for the party. It gave the latter fact very little weight on the evidence before it.
Having said that, at paragraph 37 of its decision, after discussing country information, the Tribunal concluded that even if it were wrong as to its findings in relation to the applicant’s father and even if it were wrong as to its findings regarding attempts by persons to investigate the applicant himself before he left Sri Lanka, the Tribunal nevertheless found confidently that the conditions in which the applicant claimed to have fled changed significantly. The Tribunal was not satisfied that the applicant thus faced a real chance of persecution in Sri Lanka in the reasonably foreseeable future due to the fact that his father had “supported” the TNA in the past.
Given this finding by the Tribunal, even accepting that there were discrepancies between the delegate’s summary of the applicant’s Record of Interview, and the Record of Interview itself, the Court is not satisfied that the admitted error in relation to the s 438 certificate, and its non-disclosure to the applicant, in circumstances where the applicant had participated in the Record of Interview himself, were material to the outcome of the decision by the Tribunal. The Tribunal clearly considered the possibility that it was wrong in relation to the applicant’s claims as regards to the political activities of his father. The Tribunal found that conditions had changed by the time the applicant’s matter came on for hearing before the Tribunal. Based on that country information, the Tribunal was of the view that the applicant did not face a real chance of persecution were he to be returned to Sri Lanka. Thus, while there was an error in the way the Record of Interview was dealt with, the Court is not satisfied that it was material to the outcome. The Court is of the view that, even if the Tribunal had found in the way that the applicant submits it should have, it would have made no difference to the eventual outcome. Ground two reveals no error.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 26 August 2021
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