AKT16 v Minister for Immigration
[2018] FCCA 1004
•24 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKT16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1004 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – whether the inconsistencies in the applicant’s evidence were minor – whether the inconsistencies were adequately explained by the passage of time or the applicant’s medical issues – whether the Tribunal erred in giving little weight to letters of support. |
| Legislation: Federal Circuit Court Rules 2001, r.11.08(1) |
| Cases cited: CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413; [2016] FCAFC 146 |
| Applicant: | AKT16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 337 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 15 March 2018 |
| Date of last submission: | 15 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 24 April 2018 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Counsel for the first respondent: | Julia Lucas |
| Counsel for the second respondent: | None |
| Solicitors for the respondents: | Clayton Utz |
ORDERS
The application filed on 24 February 2016 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 337 of 2016
| AKT16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) not to grant the applicant a protection visa.
The applicant’s claims
The applicant is a Tamil, Hindu Sri Lankan who was born in June 1986. He is now 31 years old. In a statutory declaration attached to his protection visa application, he said that:
In 2004, two military personnel were found dead in front of my shop. The Sri Lankan Army (SLA) then came and took me and my cousin for interrogation. We were detained for approximately one week and tortured. During that week people for (sic) my village were fighting to get me out because I was underage and innocent. I was eventually released after one week of protests from my family and friends. Before they let me go they warned me saying if something like this is (sic) ever happened again I wouldn’t be alive.
In 2005, I witnessed an army truck explode in front of my shop. This was a big issue because an army commander was a victim of the bombing. It was all over the papers. Within minutes, the entire area was packed with military personnel who began firing randomly in the air. They then began pulling local shop owners out onto the street and started beating them with their batons and rifle butts. Fearing for my own safety, I fled the scene from the back door of my shop and went to Colombo. Unfortunately, my cousin wasn’t so lucky. He was arrested and detained for approximately seven months. During this time he was repeatedly beaten and tortured. Soon after his release, he fled to France when (sic) he remains today.
Whilst I was in Colombo, the SLA destroyed my shop and attended my home arresting both my parents. They took them to their camp and forced them to sign a document stating that I was an LTTE member. My parents however, refused to sign. Later that night they were released with the help of a lawyer and some village elders. Whilst all this was happening I was hiding at my grandmother’s house in Colombo. My parents told me that they attended our family home on numerous occasions threatening to kill them and me if I am ever found.
For the next 18 months I remained in hiding in Colombo. I couldn’t return home because I would endanger myself and my family. I was unable to work and earn a living. It was an extremely stressful time for me. I had to rely on my grandmother for everything. My shop was destroyed and I was left with nothing. I couldn’t even relocate and start afresh somewhere new because I feared being recognized by the authorities. My parents told me that up until the time I fled Sri Lanka, the SLA and CID were constantly attended (sic) our house and inquiring about me. In or about February 2007, I eventually fled Sri Lanka and have never returned.
…
I believe they will harm and mistreat me because I am a Tamil. They already blamed me for the death of the two army personnel in front of my shop and tried to get my parents to sign a document stating I was an (sic) Tiger. They will continue to suspect me of being associated with the LTTE. I also believe they will harm and mistreat me because I have been living outside of Sri Lanka for a very long time in seek (sic) of asylum.
The applicant gave a somewhat different account in his evidence in an interview with the delegate and in the hearing before the Tribunal.
The Tribunal’s reasons
The Tribunal rejected the applicant’s claims on the basis that it considered that the applicant’s evidence was inconsistent and implausible in a number of respects, and on the basis that the applicant introduced new claims in the course of the Tribunal hearing.
The hearing in this court
The applicant attended the hearing before this court without the benefit of legal representation. The applicant was accompanied at the hearing by Mr Pannirukaran Mylvaganam from the Tamil Refugee Council. The applicant asked the court to permit Mr Mylvaganam to speak on the applicant’s behalf. The applicant said that Mr Mylvaganam is not a lawyer. The application was refused.
The applicant then handed up a written submission dated 15 March 2018. It had not been filed 28 days prior to the final hearing contrary to directions made by the court. However, the Minister did not object to the written submissions being received and they were.
The applicant’s written submissions began with a request for an adjournment on the grounds that the applicant’s mental health had deteriorated. However, the applicant provided no medical, psychological or psychiatric evidence to that effect. Consequently, the application for an adjournment was refused.
The applicant’s written submissions then asked the court to appoint a litigation guardian on the applicant’s behalf because of the applicant’s deteriorating mental state and because of his lack of education. Rule 11.08(1) of the Federal Circuit Court Rules 2001 provides as follows:
For these Rules, a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
As previously noted, the applicant did not provide any expert evidence of his deteriorating mental health. The applicant did not provide any expert evidence that he did not understand the nature and possible consequences of the proceeding or that he was not capable of adequately conducting the proceeding. Nor did it appear to the court that the applicant did not understand the nature and possible consequences of the proceeding or that he was not capable of adequately conducting the proceeding. Consequently, the court refused the application for the appointment of a litigation guardian.
Nevertheless, the court invited Mr Mylvaganam to come to the bar table. He told the court that he was not a lawyer but that he had been able to get some legal assistance to put together the written submissions that the applicant had already provided to the court. Mr Mylvaganam said that his intention was simply to read the written submissions to the court and that he had nothing else to say. On that basis, there was no point in hearing from Mr Mylvaganam because the written submissions spoke for themselves.
After consultation with Mr Mylvaganam, the applicant told the court that he no longer relied on the grounds set out in his application or affidavit, but relied only on his written submissions. In any event, the grounds set out in the application and affidavit were not particularised, so could not realistically have advanced the matter.
The applicant’s submissions
The applicant’s written submissions were as follows:
3. Errors of Law
I would like to put forward the following points which have been suggested to me as errors of law in my case:
Per paragraph 26 of the Tribunal’s Decision Record, the Tribunal expressed its concern regarding the credibility of the applicant’s claims based on a number of inconsistencies in his evidence in relation to “quite significant facts, several implausibility’s (sic) in his evidence and the introduction of new claims during the hearing.” However, based on the analysis below, the inconsistencies are not significant, especially given the circumstances of the applicant in terms of the time that has passed since the events, the applicant’s deteriorating mental state and that such inconsistencies are in fact consistent with the suffering of a traumatic event. The Tribunal’s reliance on these immaterial inconsistencies to dismiss the applicant’s entire claims, including written supporting letters from a Minister and a Priest, is an error of law.
2004 Incident
In paragraph 32, the Tribunal states that given inconsistencies as to whether [the] applicant was arrested by himself or with Suresh, whether they were kept separately or together while in detention and whether they were detained for a few hours and released the same day or detained overnight or for a period of one week, the Tribunal did not accept that the incident occurred.
In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, (2013) 212 FCR 99 at 121, Robertson J pointed out that credibility findings are open to judicial review :
[78] It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.
Robertson J went on to the conclude that a finding on the intrinsic lack of credibility of the applicant’s evidence was flawed when the Tribunal did not consider corroborative written evidence.
Robertson J also concluded that the failure to consider a central issue in this case, being a university results transcript, meant that the considerations necessary to found or disprove a protection claim were not taken into account.
The inconsistencies by the applicant relate to minor details of the main incident, being the arrest of the applicant and subsequent torture. The applicant has never been inconsistent in relation to the overall incident, being his arrest and torture. The inconsistencies in the applicant’s assertions are not “significant facts” as asserted by the tribunal, and are understandable given the length of time that has passed, the applicant’s mental health (as corroborated by a letter from a doctor), and is actually consistent with the suffering of a traumatic experience.
In paragraph 32, the Tribunal further states that “he has provided varying evidence in relation to facts that are central to his claims and in light of the number of discrepancies in his account of this one particular significant event, the Tribunal does not accept that his claims are credible. As such, the Tribunal does not accept that following his release from detention, the army or the STF passed by the applicant’s shop every day in the morning and threatened him saying “if there were any future problems you people will not be alive.”
In SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198, Gordon J (then as a Federal Court Justice) concluded that if a tribunal is to find that an applicant’s evidence has been fabricated, the tribunal must make specific findings in that regard. Furthermore findings on the evidence have to be based on probative material and be logically based. Gordon J concluded :
24. And finally, even if the reasons for decision are to be read as making a finding or inferring that the failure to name a village in a statement provided in support of the application for a protection visa is a fabrication of a “fundamental aspect” of the first appellant’s claims or supports a finding or inference of fact that some other unidentified “fundamental aspect” of the first appellant’s claims has been fabricated, then I am of the view that those findings or inferences of fact are not grounded upon probative material and logical grounds. (emphasis in applicant’s submissions)
The rationale that as there are inconsistencies in the details of his arrest, that subsequent threats did not occur is not grounded upon probative material or logical grounds.
2005 Incident
The Tribunal did not accept the applicant’s claims in relation to the 2005 incident on the basis that in the interview with the delegate, the applicant mentioned that he ran away from the army when they “tried to hold him.” On escaping, the applicant claimed that he sat down first and after that he went home. In his hearing with the Tribunal, the applicant mentioned that he did not have any contact with the army on escaping the shop, and he went to a friend’s place and stayed there until evening and then he went home. There was also an inconsistency in whether the cousin was detained for 3 to 4 months as mentioned to the Tribunal or 7 months as mentioned in the advisor’s submission. We note that there is no significant difference in the two versions of the stories as the Tribunal alleges, so as to entirely dismiss the applicant’s evidence. The discrepancies are minor in nature, especially given the time that has passed, the applicant’s deteriorating mental condition, and corroborating written letters from a Member of Parliament in Sri Lanka and a Priest. The Tribunal also placed little weight on these letters based on its adverse finding of credibility.
As stated by Robertson J in Minister for Immigration and Citizenship v SZRKT, such a finding on the intrinsic lack of credibility of the applicant’s evidence was flawed when the Tribunal did not consider corroborative written evidence.
Similar to the above, the discrepancies raised by the tribunal with respect to the length of time the applicant’s cousin was detained or the treatment of the applicant’s parents, which led the Tribunal to not accept the claims, are again immaterial given the consistency of the overall event - that the applicant’s cousin was detained or the applicant’s parents were harassed. This is especially so given the length of time that has passed, the applicant’s mental health (as corroborated by a letter from a doctor), and that such inconsistencies in minor details are actually consistent with the suffering of a traumatic experience. Given these circumstances of the applicant, the dismissal of the applicant’s claims based on such minor inconsistencies is an error of law.
The Minister’s submissions
The Minister submitted that credibility findings are essentially matters of fact for the tribunal to determine, although they are not immune from judicial review. The Minister relied on CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413; [2016] FCAFC 146, where the Full Court of the Federal Court said:
36. Before considering the arguments in detail, there is one topic which this appeal usefully highlights. That credibility is a matter par excellence for the Tribunal is an expression often used. It stems from Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405 per McHugh J. At [67]–[68] his Honour, sitting in the High Court’s original jurisdiction as a single judge, said (footnotes omitted):
67 In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were “utterly implausible”. However, this was essentially a finding as to whether the prosecutor should be believed in his claim — a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged. (emphasis in CQG15)
…
37.It is important to note that McHugh J’s observations and his Honour’s use of the phrase “par excellence” were made in the specific context of a claim that the Tribunal had not complied with its statutory obligation under s 430 of the Migration Act to give reasons for its decision. Nothing said by McHugh J suggests that the Tribunal’s adverse findings on credibility are not amenable to judicial review on jurisdictional error grounds. There is a risk that a mechanical use of the phrase “par excellence” as a formula fails sufficiently to appreciate this important reality. The fact that credibility is a matter for the Tribunal to determine as a question of fact does not mean that challenges to credibility are not open. This appeal illustrates three of a number of potential bases of challenge to credibility findings on well-established legal precedent. In the present appeal, the foundation for the challenge is on the basis of no logical or probative basis for the finding in relation to ground 1, illogicality and/or irrationality in relation to ground 2, and, in relation to ground 3, a lack of natural justice.
38.There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:
(a)failure to afford procedural fairness;
(b)reaching a finding without any logical or probative basis;
(c)unreasonableness; and/or
(d)jurisdictional error as discussed by Flick J in SZVAP.
The Minister submitted that, in the present matter, the Tribunal’s decision was not based on minor inconsistencies and it did not have any of the flaws mentioned in CQG15. The main matters identified by the Minister are discussed below.
The lateness of the claim about Suresh being in the LTTE
The Tribunal said at paragraph 27 of its reasons for the decision that:
… The Tribunal notes in the hearing the applicant raised for the first time that his cousin Suresh was a fighter with the LTTE. While the applicant claimed in the hearing, when asked to explain why he had told no-one in the course of his protection visa application that his cousin was a member of the LTTE, that no-one asked him and he was asked to provide information about his problems, the Tribunal does not accept that the applicant would have waited until this late stage in the process to raise what is a significant fact that is directly relevant to his own personal situation, even if he was not directly asked. The Tribunal also notes the applicant’s adviser’s submission made following the hearing that the applicant had instructed he was initially scared of disclosing his cousin’s involvement with the LTTE because he believed it would result in him being treated prejudicially. The Tribunal notes the applicant made no mention of this being a reason for his delay in raising this claim when asked specifically why he had told no-one about this during the course of his protection visa application. The Tribunal has taken into consideration the fact the applicant has had the assistance of a lawyer throughout the process and does not accept that in these circumstances he would not have disclosed this significant information sometime prior to his review hearing. Further, the Tribunal has taken into consideration the somewhat limited evidence provided by the applicant regarding his cousin’s alleged association with the LTTE. He did not know when his cousin joined the LTTE or what rank he was despite allegedly being in a fighting unit. Given the applicant’s evidence regarding his cousin’s alleged association with the LTTE and the lateness in which he raised this claim, in addition to other concerns the Tribunal has in relation to the applicant’s credibility generally, the Tribunal does not accept that the applicant’s cousin Suresh, and co-owner of the electrical store, was a member of the LTTE. The Tribunal finds the applicant has embellished this aspect of his claims in an effort to bolster his case.
The applicant did not particularly challenge this aspect of the Tribunal’s findings. It was reasonable and rational for the Tribunal to reject the applicant’s claim that his cousin Suresh was a member of the LTTE for the reasons which the Tribunal gave. It was also reasonable and rational for the Tribunal to consider that the applicant had embellished that aspect of his claims to bolster his case. It was then reasonable and rational for the Tribunal to rely on that conclusion in its consideration of other aspects of the case.
The 2004 incident
The Tribunal said at paragraph 28 of its reasons:
The applicant claimed that in 2004 two military personnel were found dead in front of his shop and that he and his cousin were taken for interrogation. While the Tribunal accepts as plausible that the bodies of two military personnel may have been discovered, according to the applicant in the hearing, some 200 metres from his shop, the Tribunal does not accept that the applicant or his cousin were taken into detention at the army camp and interrogated due to numerous inconsistencies and discrepancies in the applicant’s evidence as to how long he was allegedly detained for and what happened while he was in detention.
The Tribunal said at paragraph 32 of its reasons that there were inconsistencies in the applicant’s evidence in relation to:
a)whether he was arrested by himself or with Suresh;
b)whether they were kept separately or together while they were in detention; and
c)whether they were detained for a few hours and released the same day as opposed to being detained overnight or for a period of one week.
In relation to the point in paragraph 18(a) above, about whether the applicant was arrested by himself or with Suresh, the Tribunal noted that:
30.In the hearing the applicant claimed that … the army rounded everyone up. In response to the Tribunal’s question as to who was everyone, he stated they arrested the people running the shops. When asked where his cousin was, the applicant stated that he was not there at the time as he comes a bit late. He claimed that he and the other shop keepers, about 20 people, were taken to the … army point …
31. … according to the delegate’s decision, … the applicant had claimed that after he opened the shop and his cousin had also arrived there, the army came and arrested both of them …
In relation to the point in paragraph 18(b) above, in relation to whether the applicant and Suresh were kept separately or together while they were in detention, the Tribunal noted that:
30.In the hearing the applicant claimed that … [Suresh] was … kept in a different room to him at the same camp … .
31.However, according to the delegate’s decision, … it is recorded that the applicant stated that he was made to sit together with his cousin … [at the camp].
In relation to the point at paragraph 18(c) above, about whether the applicant and Suresh were detained for a few hours and released the same day as opposed to being detained overnight or for a period of one week, the Tribunal noted that:
29.… in the applicant’s statutory declaration …, the applicant claimed that both he and his cousin were detained for approximately one week …
30.… The applicant’s evidence in the hearing was that he was detained overnight … and he was released in the morning. …
31.However, according to the delegate’s decision, … [the] applicant stated that he was in the camp from the morning until about 3:00 or 4:00pm on the same day and that Suresh was released at the same time.
The 2005 incident
In relation to the 2005 incident, the Tribunal said at paragraph 33 of its reasons for decision:
The applicant claimed … in 2005 he witnessed an army truck explode in front of his shop, killing 4 or 5 senior officers including an army commander.
The Tribunal said at paragraph 35 of its reasons for decision:
… based on the inconsistencies in the applicant’s evidence regarding what transpired after this particular event, the Tribunal does not accept the applicant’s claim that the army subsequently began pulling shop owners out on the street and beat them or that his cousin was arrested and detained but the applicant managed to escape are credible. …
The inconsistencies identified by the Tribunal regarding what transpired after the 2005 incident were that:
a)in relation to whether the applicant was captured by the army after the explosion:
33.… The applicant’s evidence in the hearing was that he did not have any contact with the army between witnessing the explosion and leaving the shop through the rear and running away. …
34.… according to the delegate’s decision, … the applicant had claimed that … the army … caught him but he managed to escape. …;
b)in relation to the length of Suresh’s detention:
35.… the applicant claimed in the hearing that his cousin was held for 3 or 4 months, however in the submission from his adviser received on 12 December 2013, it was stated that the applicant’s cousin was detained for 7 months; and
c)in relation to the applicant’s movements after he ran away:
33.… In the hearing, the applicant claimed that … he went to a friend’s place about 1.5 to 2 km from his shop and stayed there until evening and the problems had subsided and then he went home. …
34.… according to the [delegate’s] decision, … [the] applicant also claimed, when asked where he went after he escaped from the army, that he sat down first and after that he went home. The Tribunal notes that there was no mention made that he had gone and stayed with a friend for some time, until problems subsided, before going to his home.
The Tribunal also noted in relation to the 2005 incident that:
36. The Tribunal therefore does not accept that the applicant’s shop was destroyed the same night as the explosion. The Tribunal has also taken into consideration the applicant’s evidence in his protection visa application regarding his employment history, that he worked at Suresh Electrical Store from 2004 to 2007. The Tribunal finds it implausible that if the applicant had run away to Colombo in the 6th or 7th month of 2005 when this incident occurred, as he claimed in the hearing, and his shop had been destroyed around that time, that he would state that he was employed in that shop for another year and a half after it allegedly no longer existed. (emphasis added)
37. As the Tribunal does not accept that the applicant ran away from his shop following the explosion in 2005, it follows that the Tribunal does not accept that the applicant went to Colombo and stayed with his grandmother for a period of time prior to departing the country. The Tribunal notes the applicant provided inconsistent evidence regarding the length of time he allegedly spent living in Colombo. According to the delegate’s decision, a copy of which was provided to the Tribunal, the applicant had claimed in the entry interview that he was in Colombo for two months. In his statutory declaration attached to his protection visa application he claimed that he remained in hiding in Colombo for a period of 18 months. However in the hearing he claimed he was in Colombo for a period of 8 to 9 months or thereabout. As the Tribunal does not accept that the applicant went to Colombo and stayed with his grandmother, it does not accept that he was unable to work and earn a living while he was allegedly there. (emphasis added)
The applicant’s explanation for the inconsistencies
The applicant gave evidence to the Tribunal to explain the discrepancies in his evidence. The explanations concerned a claim that the applicant’s memory was affected by him having been hit on the head, by him having diabetes and by the amount of time that had passed. The Tribunal dealt with those explanations as follows:
40. The Tribunal has taken into consideration the applicant’s evidence in the hearing that he was hit in the head and has a sugar problem so he is unable to recollect. When asked who hit him in the head and when, the applicant stated that he was hit all over the place by the army. The applicant claimed that he had been beaten up quite intensely and did not remember until now but after being questioned it was all coming back to him. As was put to the applicant in the hearing, the Tribunal has difficulty accepting that he would only remember well into his review hearing that he had been beaten intensely and not during any of the previous interviews he had or discussions with his lawyers. Given the Tribunal’s concern regarding the applicant’s credibility generally and his delay in raising this claim regarding the hit to his head, it does not accept that the applicant has any problems recollecting as a result of any beatings he received from the army to his head.
41. In relation to his sugar problem, the Tribunal notes that following the hearing it received a letter from Dr Nagendran dated 12 May 2015 in which it was stated that the applicant is suffering from poorly controlled diabetes and is suffering from depression and anxiety related to emotional trauma and physical violence he had been subjected to in Sri Lanka and has exhibited suicidal ideation in the past. The Tribunal notes that there is nothing in this document to indicate when the applicant first consulted Dr Nagendran or how many times the applicant has seen the doctor, when the applicant was diagnosed with anxiety and depression or [on] what basis this diagnosis was made or when in the past the applicant exhibited suicidal ideation. Further, in relation to the applicant’s diabetes, there is no information provided by Dr Nagendran to indicate when the applicant was diagnosed with this condition, why the applicant’s diabetes is “currently not controlled well” despite being under regular review or on what basis the doctor worries that the applicant’s diabetes would deteriorate further if he was returned to Sri Lanka. While it was submitted by the applicant’s adviser that this would impeded the applicant’s ability to concentrate during long hearings, the Tribunal is not satisfied on the somewhat limited medical evidence before it, which post-dates the hearing, that the applicant’s evidence was affected by his medical condition. Nor does the Tribunal accept the applicant’s adviser’s contention that the doctor’s statement in his letter that the applicant suffers from depression and anxiety as a result of past trauma experienced, is evidence that the applicant has been subjected to trauma in the past or that it substantiates the applicant’s claims regarding his past experiences as submitted given that the doctor’s opinion is based on the applicant’s own self reporting. The Tribunal also does not accept on the limited medical evidence provided in the letter from the applicant’s doctor that the applicant’s depression and anxiety makes it difficult for him to recount precise details of his past, as submitted by the applicant’s adviser.
42. The Tribunal has also taken into consideration the applicant’s evidence that a lot of time has passed since these events took place and he has forgotten many things, however the Tribunal does not accept that this adequately explains the numerous discrepancies in the applicant’s evidence. While the Tribunal accepts these events happened a number of years ago and that this may, in some circumstances, make recalling aspects of what occurred challenging, the Tribunal has had regard to the significance of these events to the applicant’s claim for protection. Although a passage of time may explain a few trivial inconsistencies and discrepancies, the Tribunal finds that the number of differences in the applicant’s evidence, sometimes of quite significance, undermines the credibility of the applicant’s claims.
In my view, the Tribunal’s consideration of and conclusions in relation to the applicant’s claims about the inconsistencies in his evidence was reasonable and rational.
Conclusions on the 2004 and 2005 incidents
The applicant’s evidence in relation to the 2004 and 2005 incidents was inconsistent, as the applicant apparently conceded. However, contrary to the applicant’s submissions, the inconsistencies were not minor in the context of this case. Nor can those inconsistencies be adequately explained on the basis of the passage of time, or the applicant’s claimed memory problems. It was open to the Tribunal to rely on those inconsistencies in forming its view about the truthfulness of the applicant’s claims.
The letters of support
The applicant took issue with the Tribunal giving little weight to two letters of support provided by the applicant. The Tribunal dealt with the letters of support as follows:
44. The Tribunal has also taken into consideration the letters from N. Sivasakythy Ananthan, Member of Parliament, Vanni district dated 27 May 2013 and Father Rajanikanth, Parish Priest of St Joseph’s Church, Veppankulam dated 4 June 2013 which both refer to the “Claymore” attack that took place in 2005 outside the applicant’s shop and state that the applicant’s shop was burnt and the applicant was being sought. Given the Tribunal’s concern regarding the credibility of the applicant’s claims, for the reasons discussed above, the Tribunal places little weight on them.
The Minister relied on Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 1; (2003) 198 ALR 59; (2003) 77 ALJR 1165; (2003) 24 (11) Leg Rep 10; [2003] HCA 30, where McHugh and Gummow JJ said:
49. In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant’s argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.
In view of Applicant S20, and in view of the strength of the Tribunal’s credibility findings in this matter, I do not consider that the Tribunal made a jurisdictional error by giving little weight to the letters of support.
Other possible jurisdictional errors
I have read the Tribunal’s reasons for decision and parts of the court book. I have been unable to discern any arguable jurisdictional error.
Conclusion
As no jurisdictional error has been identified in this matter, the application must be dismissed with costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 24 April 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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Standing
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