BEA15 v Minister for Immigration and Anor (No.2)
[2019] FCCA 717
•7 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEA15 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2019] FCCA 717 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – adverse credibility findings made by the Tribunal – whether the Tribunal made erroneous findings or misunderstood evidence or whether the Tribunal breached s.424A or s.425 of the Migration Act 1958 (Cth) considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5, 91R, 424A, 424AA, 425 |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 BEA15 v Minister for Immigration & Anor [2017] FCCA 289 BEA15 v Minister for immigration [2018] FCA 639 CQG15 v Minister for Immigration [2016] FCAFC 146 City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Minister for Immigration v SZIAI (2009) 259 ALR 429 Minister for Immigration v SZMDS (2010) 240 CLR 611 Minister for Immigration v SZNSP (2010) 184 FCR 485 Minister or Immigration v SZRKT (2013) 212 FCR 99 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Selvadurai v Minister for Immigration (1994) 34 ALD 347 SZBEL v Minister for Immigration (2006) 228 CLR 152 SZBYR v Minister for Immigration (2007) 235 ALR 609 SZTAL v Minister for Immigration (2016) 243 FCR 556 SZTAL v Minister for Immigration (2017) 91 ALJR 936 SZVHP v Minister for Immigration [2016] FCA 270 Waterford v Commonwealth (1987) 163 CLR 54 |
| Applicant: | BEA15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1747 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 21 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 7 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Foster |
| Solicitors for the Applicant: | Sentil Solicitor & Barrister |
| Counsel for the Respondents: | Ms R Francois |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application filed on 26 June 2015 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1747 of 2015
| BEA15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Refugee Review Tribunal[1] (Tribunal) made on 28 May 2015. The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant the applicant a protection visa.
[1] now the Administrative Appeals Tribunal
This matter has regrettably had a lengthy procedural history.
At the time the application was filed on 26 June 2015, the applicant was represented by Douglas McDonald of Craddock Murray Neumann Lawyers.
On 21 February 2017 the application was heard by the primary judge.[2] Ms Baw of counsel appeared for the applicant and his Honour dismissed the application.[3]
[2] who was not the docket judge
[3] BEA15 v Minister for Immigration & Anor [2017] FCCA 289
On 14 March 2017 the applicant appealed that judgment to the Federal Court and was represented by Mr Varess of Fragomen. The appellant relied on a single ground not argued before the primary judge; being, in effect, a challenge to the correctness of the decision of the Full Federal Court in SZTAL v Minister for Immigration.[4]
[4] (2016) 243 FCR 556
On 10 January 2018, and following the decision of the High Court in SZTAL v Minister for Immigration,[5] the appellant amended the notice of appeal to abandon the new ground and re-agitate the grounds as raised before the primary judge.
[5] (2017) 91 ALJR 936
On 22 February 2018 the appellant further amended the notice of appeal to argue that the primary judge had failed to consider the applicant's evidence properly, and had failed to give adequate reasons for his findings.
On 11 May 2018 the Federal Court (Burley J) allowed the appeal on the basis that the primary judge had failed to consider the applicant's evidence properly, and had failed to give adequate reasons for his findings, and remitted the application to this Court for reconsideration by a different judge.[6]
[6] BEA15 v Minister for Immigration [2018] FCA 639
On remittal, the applicant was initially represented by Kajaliny Ranjithkumar of Kajaliny Ranjith Legal.
On 7 August 2018 I made procedural orders which, among other things, allowed the applicant to file an amended application by 4 September 2018.
The applicant did not file an amended application by that date, or at all, and on 27 February 2019 Ms Ranjithkumar filed a Notice of Intention to Withdraw as Lawyer. On 6 March 2019 Ms Ranjithkumar filed a Notice of Withdrawal of Lawyer.
On 15 March 2019 Senthil Rajan Sinnarajah of Sentil Solicitor & Barrister filed (but did not serve) a notice of appearance.
At the trial of this matter on 21 March 2019, counsel was instructed to appear for the applicant and he handed up the Notice of Appearance by his instructing solicitor, an outline of written submissions and a list of authorities, which traverse two of the three grounds in the original application.[7] I received those documents, subject to the stipulation that the instructing solicitor file the submissions electronically in the court registry.[8]
[7] as noted at [29] below, Ground 3 was not pressed
[8] the Notice of Appearance had in fact been filed on 15 March 2019 and the submissions and list of authorities were filed on 21 March 2019 following the trial
The representatives augmented their written submissions with oral submissions at the trial.
The background to this matter is otherwise set out in initial written submissions filed by the Minister on 14 February 2017.
The applicant is a citizen of Sri Lanka who arrived in Australia as an irregular maritime arrival.[9] He applied for a protection visa by application dated 14 December 2012.[10]
[9] Court Book (CB) 4–20
[10] CB 21–120
The applicant claimed that he feared harm in Sri Lanka on the basis of his race (Tamil ethnicity), religion (Hindu), imputed political opinion (pro-Liberation Tigers of Tamil Eelam (LTTE) and/or anti-Sri Lankan government) and particular social group (a Tamil, a Hindu Tamil, a person from a particular region, a person who left Sri Lanka illegally, a failed asylum seeker, a person who was displaced in internally displaced person (IDP) camps, a person whose uncle was abducted).
On 3 January 2014 the delegate refused to grant the applicant a protection visa.[11] The applicant sought review of the delegate's decision before the Tribunal by application dated 7 January 2014.[12] The applicant made further claims in submissions made to the Tribunal dated 30 April 2015.[13] Together with those submissions, the applicant provided the Tribunal with a number of purportedly corroborative documents.[14] The applicant appeared at a hearing before the Tribunal on 7 May 2015.[15]
[11] CB 185–217
[12] CB 219–225
[13] CB 257–330
[14] CB 331–334
[15] CB 336–339
Tribunal decision
The Tribunal accepted certain of the applicant's claims relating to past incidents in Sri Lanka. However, it found that these incidents occurred in the context of the civil conflict that ended in 2009. The Tribunal found that the situation in Sri Lanka has improved significantly since then and the past harm did not raise the applicant's profile or mean that he faces a real chance of harm in the future.[16]
[16] CB 363 at [13]
The Tribunal also accepted that rocks were thrown at the applicant's home in 2008 and 2011, but did not accept that this amounts to serious or significant harm.[17]
[17] CB 363 at [14]
The Tribunal did not accept that the applicant had been questioned in relation to a grenade blast at a sentry post or army camp in February 2011, as it could find no reports about this incident and the applicant's purportedly corroborative document was general in nature and inconsistent with the applicant's account. In any event, on the applicant's account he was allowed to go home and was never questioned again, suggesting the authorities did not have any further interest in him.[18]
[18] CB 363–364 at [15]–[16]
The Tribunal also considered a new claim made at the hearing that the applicant had received a threatening phone call the day after his uncle was abducted (in 2008). The Tribunal did not accept that this had occurred, noting that the applicant had not mentioned this incident earlier despite having had many opportunities to do so. It also found that the applicant's purportedly corroborative document was general in nature and inconsistent with the applicant's account. Finally the applicant lived in the same area for three and a half years after the claimed phone call and was not threatened or harmed, suggesting he was not of interest to anyone.[19]
[19] CB 364–365 at [17]–[25]
The Tribunal considered a 2015 letter provided by the applicant requiring a third party to inform the applicant to attend the Terrorist Investigation Division at a named police station to give evidence (the letter), but found the applicant's account of how his family got the document and informed him about it lacked credibility. It also found the applicant's explanations offered in answer to the Tribunal's concerns to be inconsistent and unpersuasive. The Tribunal also had concerns about the document itself. Having regard to those concerns, and country information as to the prevalence of document fraud in Sri Lanka, the Tribunal found the document not to be genuine, and placed no weight on it. It also found that the applicant's other purportedly corroborative documents to be general in nature and inconsistent with the applicant's account. Again, it noted the prevalence of document fraud in Sri Lanka and placed no weight on them.[20]
[20] CB 365–367 at [26]–[36]
The Tribunal considered the applicant's claims, the submissions made by the applicant's representative and the country information provided to the Tribunal by the representative. It also considered its own country information which it discussed with the applicant at the hearing.[21]
[21] CB 368 at [43]
The Tribunal noted that the applicant's claimed Refugees Convention grounds were interrelated, but considered them each in turn.[22] The Tribunal did not accept any of the applicant's claims under the refugee criterion.
[22] CB 367 at [41] and ff
With respect to the applicant's claims to have departed Sri Lanka illegally, the Tribunal found that the applicant would be charged under the Immigrants and Emigrants Act (Immigrants and Emigrants Act) and may be held in remand for up to two weeks. It did not accept that this would amount to serious harm, and further found that the Immigrants and Emigrants Act was a law of general application and did not amount to systematic and discriminatory conduct as required by s.91R(1)(c) of the Migration Act 1958 (Cth) (Migration Act).[23]
[23] CB 372–374 at [62]–[73] at the time of decision the relevant provision was in fact s.5J(4)(c)
The Tribunal also considered and rejected the applicant's claims under the complementary protection criterion. Among other things, the Tribunal did not consider that any overcrowding or other problems in Sri Lanka's prisons would be “intentionally inflicted” on the applicant as required for the definition of “cruel or inhuman treatment or punishment” in s.5(1) of the Migration Act, nor would they be “intended to cause” extreme humiliation as required for the definition of “degrading treatment or punishment”.[24]
[24] CB 375–376 at [81]–[88]; esp. CB 375 at [85]
The present proceedings
These proceedings began with a show cause application filed on 26 June 2015. The applicant continues to rely upon that application. The grounds in that application are:
1. The second respondent (the “Tribunal”) failed to comply with its obligation under the Migration Act 1958 to review the decision of first respondent by making erroneous findings or omissions based on a misstatement or miscomprehension of the evidence and/or failing to consider the evidence. The Tribunal expressly relied on those errors to place no weight on a letter that showed the Sri Lankan authorities had summoned the applicant or that they were looking for him, and to make an adverse credibility finding against the applicant (at D[26]).
Particulars
a. The Tribunal's conclusion (at D[27]) that the applicant gave inconsistent evidence about whether his family had moved addresses does not reflect the evidence as the applicant's evidence was consistent.
b. The Tribunal stated (at D[28]) that it had expressed doubt to the applicant that the letter would be addressed to him in English and written in Sinhalese and the applicant is alleged to have said that he did not know the reasons why, but that does not reflect the evidence. In fact, there was never such a question put to the applicant and thus no such response was ever given by the applicant.
c. The Tribunal erroneously stated (at D[29]) that the "only" way that his family would have known that the letter was in Sinhalese would have been to open it, but the Tribunal failed to consider that the front of the envelope may have been in Sinhalese, except for the applicant's name, which is consistent with the applicant's evidence. Further, that conclusion was never put to the applicant.
d. The Tribunal expressed the concerns it had about the authenticity of the document itself (at D[33]). However, those concerns were never put to the applicant at the hearing.
e. The Tribunal did not give consideration to the applicant's evidence that these kinds of messages from the authorities were the norm in the North and East of the country.
f. The Tribunal did not give consideration to the applicant's insistence that if the Tribunal thought the document was fraudulent he gave his permission to check with the Sri Lankan authorities, when drawing its conclusion on his credibility and the authenticity of the letter.
2. The Tribunal failed to comply with s.424A and/or s.424AA of the Migration Act (1958) and/or a denial of procedural fairness in the way the Tribunal dealt with the letter; and further or in the alternative, the applicant did not have a meaningful opportunity to participate in the hearing as required by s.425 of the Migration Act (1958) Cth.
Particulars
Repeat particulars 1.b to f. above.
3. The Tribunal relied substantially on DFAT country information about the treatment of failed asylum seekers and returnees who had illegally departed Sri Lanka. However, the Tribunal fell into jurisdictional error by failing to consider the other sources of country information contrary to the DFAT information provided by the applicant in written submissions, and/or the Tribunal failed to provide reasons for rejecting the applicant's contrary evidence and to justify the selective use of the country information that it had before it.
Ground 3 was not pressed in the proceedings before me.
In addition to the court book filed on 13 August 2015, I have before me as evidence the affidavit by Mr McDonald made on 3 July 2015, to which is annexed a transcript of the hearing conducted by the Tribunal on 7 May 2015.
Consideration
Did the Tribunal misunderstand the applicant’s evidence?
Applicant’s contentions
The applicant contends that the Tribunal misunderstood the evidence given during the hearing on several occasions, such misunderstanding leading the Tribunal to conclude incorrectly that “the applicant was not telling the truth and making up his story as he went along”,[25] such that it did not place any weight on a relevant document from the police.
[25] CB 366 at [31]
The Tribunal hearing transcript at pages 6, 15 and 16 relevantly records as follows: [26]
[26] page 16
[MEMBER]:Okay. So how long has your mum and siblings been living in Trincomalee?
[APPLICANT]: About 5 years. They are living in ... for about 5 years now.
[MEMBER]:Can you spell the name of the town?
[APPLICANT]: …
[MEMBER]: And so you said that it came to that house that your parents were no longer - that your family was no longer living in?
[APPLICANT]: The place we have been living in before.
[MEMBER]: So when were you living in that place?
[APPLICANT]: About 2 years we were living in that house. Okay. So when I was there I - we lived there about 2 years in that house, but after I left how long they were staying I didn't know.
[MEMBER]: Didn't you say early in the hearing that your family had been in the same place for 5 years?
[APPLICANT]: Okay. I told before that we were living in my uncle's house … .
[MEMBER]: No, I asked you at the beginning how long - where your family were living and how long they had been living there, and you said 5 years.[27]
[27] page 15
[APPLICANT]: Okay. Okay. So I was telling that I was -we were living in my uncle's house - still we are living in … since we came there we are living about seven, eight years now.
[MEMBER]: So where have you been living seven or eight years?
[APPLICANT]: …
[MEMBER]: Okay. And so what are the street addresses that you've been living?
[APPLICANT]: In the beginning … . After that we moved to … . Okay. And then recently my family had shifted and I don't know the address.
[MEMBER]: So they haven't told you the address even though you're in contact every day?
[APPLICANT]: Okay. I don't know the number, but I can say the street where they are living on. The name of the street … .
[MEMBER]: So when did they move?
[APPLICANT]: About six, seven months now.
[MEMBER]: Okay. So why did you say earlier that you didn't know when they moved?
[APPLICANT]: Okay. I cannot say exact date, but I can see how long they - shifted.
The Tribunal reviewed the evidence at [27] of its reasons and stated:
a)initially he claimed the letter was sent to their old home;
b)at the outset he claimed they had been living in the same place for the last five years;
c)the applicant said they were in the house two years before he left Sri Lanka but he did not know their address;
d)the Tribunal considered the applicant had given inconsistent evidence about whether his family had moved; and
e)the Tribunal considered he was being evasive and making up answers to coincide with trying to explain the delay in receiving the police letter and his inconsistent evidence about whether the family had moved address.
The applicant submits that there was no inconsistency and the Tribunal had misunderstood what the applicant had said: they had lived in the same town, not the same house. In this respect, the applicant gave three addresses; the first, being his uncle's address (two years); then a second address (five years); then a third address (address not known) six to seven months after; totalling seven to eight years as stated.
Accordingly, the Tribunal is said to have been incorrect to consider "he was being evasive and making up answers to coincide with trying to explain the delay in receiving the police letter and his inconsistent evidence about whether the family had moved address."[28] This conclusion is said to have lacked an evident and intelligible justification.
[28] CB 365 at [27]
The Tribunal hearing transcript also relevantly records:[29]
[29] page 15
[APPLICANT]: Okay. So I was not there, so when I was calling home, they said "There was a letter for you in Sinhalese," so then I told them to get it translated from someone who can speak - read - Sinhalese.
[MEMBER]: So they can read your name in Sinhalese?
[APPLICANT]: No.
[MEMBER]: But isn't the whole document written in Sinhalese including your name, so how would they know it's got to do with you?
[APPLICANT]: Okay. So on the- envelope of the letter the name was written in English, so my sister had read it and through that only they knew that it was my name.
[MEMBER]: So your name was written in English on the envelope?
[APPLICANT]: Yes.
[MEMBER]: So why would that- why would they do that when the document itself seems – says "you are to inform one [applicant’s name]", and it sounds like the actual message is not for you but for someone else in the house to pass it on?
[APPLICANT]: Okay. The letter was posted to my name. That's why they told me that it was in my name, for reasons I don't know what's the reason like that it be in the letter.
At [28] of the decision, the Tribunal stated:
When the tribunal expressed doubt that it would be addressed to him in English and written in Sinhalese, the applicant did not know the reasons why.
A fair reading of the above section of transcript is said to reveal that the actual question is unclear, being:
[MEMBER]: So your name was written in English on the envelope?
[APPLICANT]: Yes.
[MEMBER]: Why would they do that when the document itself says "you are to inform one [applicant’s name]" and it sounds like the actual message is not for you but for someone else in the house to pass it on to you?
Perhaps the question is merely:
[MEMBER]:“It sounds like the actual message is not for you but for someone else in the house to pass it on to you?”
Accordingly, the applicant submits that he was not asked the question as put,[30] and so the following conclusion of the Tribunal was not based upon the evidence and is unreasonable:[31]
The tribunal does not accept the police message, written in Sinhalese, would be addressed to him in his name in English on the envelope. Given many Tamils do not read Sinhalese or English that it would be addressed to him in English is not credible.
[30] as per [28]
[31] [28]
This conclusion is said also to have lacked an evident and intelligible justification.
Page 14 of the Tribunal hearing transcript states:
[APPLICANT]: Okay. Recently only I got this document because about two months ago - okay. So because - about living in another house before in … and the – for this house there - this - that had come. The address … . So we had shifted from that house to another house, so the neighbour of that house had given this letter to my mum, then my mum said "In your name there is a letter in Sinhalese. We don't know what it is written there." So I asked them to read it to a person who can read Sinhalese and get it translated through him.
[MEMBER]:So they had called you before they knew what was the letter said. They didn't?
[APPLICANT]: Yes. They told me there was a letter for me in the Sinhalese so I told them to read it to someone who can read Sinhalese.
As reproduced at [36] above, the transcript at page 15 states:
[APPLICANT]: Okay. So I was not there, so when I was calling home, they said "There was a letter for you in Sinhalese," so then I told them to get it translated from someone who can speak - read - Sinhalese.
[MEMBER]: So they can read your name in Sinhalese?
[APPLICANT]: No.
[MEMBER]: But isn't the whole document written in Sinhalese including your name, so how would they know it's got to do with you?
[APPLICANT]: Okay. So on the - envelope of the letter the name was written in English, so my sister had read it and through that only they knew that it was my name.
[MEMBER]: So your name was written in English on the envelope?
[APPLICANT]: Yes.
[MEMBER]: So why would that - why would they do that when the document itself seems – says "you are to inform one [applicant’s name]", and it sounds like the actual message is not for you but for someone else in the house to pass it on?
[APPLICANT]: Okay. The letter was posted to my name. That's why they told me that it was in my, name, for reasons I don't know what's the reason like that it be in the letter.
The transcript at page 17 states:
[MEMBER]: So you received a- this - well, sorry. You spoke to your mother who said she has got this document from the police but it's in Sinhalese and she can't read it.
[APPLICANT]: Okay. I told her to get it read by someone who can read Sinhalese.
[MEMBER]: Okay.
[APPLICANT]: Then only she came to know about it.
The transcript at page 18 continues:
[MEMBER]:Okay. So when did she tell you about it?
[APPLICANT]: About two, three weeks ago, she has told me.
…
[MEMBER]: So they’ve got a letter – they hold onto a letter that they’ve received for two months that they can’t read that’s in your name that appears to be from the police.
[APPLICANT]: They didn't know it was from the police. After getting it read by the person who knows how to read Sinhalese, they got to know it was from the police.
[MEMBER]: But it says in English, Sri Lanka Police message form and your sister reads English.
[APPLICANT]: Okay. Okay. It was - the letter was in an envelope and they didn't open the envelope, so the name was written on the envelope so they knew it was for me so they kept it like that.
[MEMBER]: So they’ve received something for you. It’s got your name on the front and they hold onto it for two months. You talk to them everyday and they don’t tell you about it.
[APPLICANT]: Okay. So then the - from the old house, someone had returned that letter to my home. Someone had kept it in the cupboard and it's – it was lying there since – and when I was asking them about the ID card of my uncle, only they have found about this letter and they told me there's a letter for you and then I told them to better read about it and find what this is written there.
As reproduced as [39] above, the Tribunal stated in its decision at [28], among other things:
The tribunal does not accept the police message, written in Sinhalese, would be addressed to him in his name in English on the envelope. Given many Tamils do not read Sinhalese or English that it would be addressed to him in English is not credible.
At [29] the Tribunal stated:
Further, while he said his family received the message two months ago, they did not tell him until two or three weeks ago. That his family would not tell him about it, given they are in contact daily lacks credibility.
This statement did not refer to the explanation that, “They didn't know it was from the police. After getting it read by the person who knows how to read Sinhalese, they got to know it was from the police”.[32] Such an explanation perhaps answers the Tribunal's point.
[32] transcript, page 18, lines 20-22
At [29] the Tribunal continued:
The applicant initially claimed when he called about sending his uncle's ID card they told him about the letter for him. When the tribunal expressed concern that his family would hold onto a police document for two months and not tell him about it, he said they did not know it was from the police as it was in Sinhalese. When the tribunal noted the document said Sri Lanka police in English and his sister read English, the applicant said they did not open the letter but it had his name on it. However, this was inconsistent with the applicant's earlier evidence that his parents had told him there was a letter in his name and it was in Sinhalese. The only way they would have known it was in Sinhalese would have been to open it. The message headings of Sri Lanka police were written in Sinhalese and English and on the applicant's evidence his sister reads English.
This finding is said to misunderstand the evidence in the following respects:
a)the evidence was clearly that the letter was not opened, so the point made by the Tribunal about English headings cannot be relevant;
b)at no point did the applicant state his sister read the letter. The evidence was that she merely read the envelope: "Okay. So on the - envelope of the letter the name was written in English, so my sister had read it and through that only they knew that it was my name”.[33] The letter was read by someone else: "After getting it read by the person who knows how to read Sinhalese, they got to know it was from the police”;
c)the envelope had Sinhalese writing on it. The Tribunal too strictly interpreted or inferred that the applicant's evidence, “Okay. So I was not there, so when I was calling home, they said, ‘there was a letter for you in Sinhalese’” could only mean the letter was read. This is to ignore the equally consistent interpretation that the person, having seen the Sinhalese writings on the envelope, assumed the remainder of the correspondence would be in Sinhalese;
d)further, the Tribunal did not give the applicant any notice that opening the envelope would be the only way they would have known the letter was in Sinhalese for comment;
e)further, the Tribunal put too much emphasis on the interpretation it was placing on the evidence that the evidence, “Okay. So I was not there, so when I was calling home, they said, ‘There was a letter for you in Sinhalese.’”;[34] and
f)this conclusion lacked an evident and intelligible justification.
[33] transcript, page 15, lines 12-14
[34] transcript, page 15, lines 1-2
The applicant submits that the matters raised at [33] of the Tribunal’s decision were not raised by the Tribunal at the hearing. Further, the conclusions that the timing of “about 10am” “lacks credibility” and the message was inconsistent rely upon whether the author wrote the words in Sinhalese, about which there is no evidence other than the letter itself. Accordingly the conclusions are said to have been unreasonable and lacked an evident and intelligible justification.
The applicant also submits that the Tribunal did not give consideration to the applicant's evidence that these kinds of messages were the norm in the North and East of the country.[35] There was no evidence to the contrary. The Tribunal had no evidence before it to suggest “you don't get a message left in your letterbox” were the police to seek a person's attendance at the station, and the evidence is said to have been to the contrary.[36]
[35] transcript, page 16
[36] “The letter was posted to my name”, transcript, page 15
The applicant further submits that, when drawing its conclusion on his credibility and the authenticity of the letter, the Tribunal did not give consideration to the applicant's insistence that if the Tribunal thought the document was fraudulent he gave permission for the Tribunal to check with the Sri Lankan authorities.
Minister’s contentions
Misstatement or miscomprehension of evidence - the town in which the applicant's family lives
This complaint takes issue with [27] of the Tribunal's reasons for decision.[37] This transcript corresponds to the following exchanges set out in the transcript: page 6, lines 16–27; page 14, lines 29–32; page 15, lines 29–47; and page 16, lines 1–29. Some, but not all, of these exchanges are set out in the applicant's submissions and reproduced above.
[37] CB 365
Paragraph [27] contains six sentences. The first four sentences summarise the discussion that occurred between the applicant and the Tribunal at the hearing. The fifth and sixth sentences set out the Tribunal's evaluation of the applicant's evidence in light of that discussion. The Minister submits that [27] accurately reflects the discussion that occurred between the applicant and the Tribunal, and that the Tribunal's conclusions in respect of that discussion were logically open to the Tribunal on the evidence before it.[38]
[38] cf. Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 30 and Minister for Immigration v SZMDS (2010) 240 CLR 611 at [40] per Gummow ACJ and Kiefel J; at [130] per Crennan and Bell JJ
The first sentence at [27] states:
Initially, [the applicant] claimed the letter was sent to their old home address and a neighbour gave it to his mother.
This statement accurately reflects the applicant's evidence as set out in the transcript:[39]
Recently only I got this document because about two months ago - okay. So because - about living in another house before in … and the - for this house there – this - had come. The address … . So we had shifted from that house to another house, so the neighbour of that house had given this letter to my mum, then my mum said, "in your name there is a letter in Sinhalese. …".
[39] page 14, lines 29–34
The second sentence at [27] states:
The Tribunal expressed concerns about inconsistent evidence that his family had moved address as at the outset he claimed they had been living in the same place for the last 5 years.
This statement reflects the Tribunal's question to the applicant as set out in the transcript:[40]
[40] page 15, lines 40–41
Didn't you say early in the hearing that your family had been in the same place for five years?
The applicant's earlier evidence had been that his mother, brothers and sisters had been living in … for “[a]bout five years. They are living in […] for about five years now”.[41]
[41] transcript at page 6, lines 16–27
The third sentence at [27] states:
The applicant said they [being the applicant's family] were in the house two years before he left [Sri Lanka] but he didn't know when they moved.
This statement accurately reflects the applicant's evidence arising from the following exchange between the Tribunal and the applicant as set out in the transcript:[42]
[MEMBER]:And so you said that it came to the house that your parents were no longer - that your family was no longer living in?
[APPLICANT]: The place we have been living before.
[MEMBER]:So when were you living in that place?
[APPLICANT]: About two years we were living in that house. Okay. So when I was there I - we lived there about two years in that house, but after I left how long they were staying I didn't know.
[42] at page 15, lines 29–38
The fourth sentence at [27] states:
Later he added they moved 6 or 7 months ago but he did not know their address.
This statement accurately reflects the applicant's evidence arising from the following exchange between the Tribunal and the applicant as set out in the transcript:[43]
[APPLICANT]: … Okay. And then recently my family had shifted and I don't know the address.
[MEMBER]:So they haven't told you the address even though you're in contact every day?
[APPLICANT]: Okay, I don't know the number, but I can say the street where they are living on. The name of the street … .
[MEMBER]:So when did they move?
[APPLICANT]: About six, seven months now.
[MEMBER]:Okay. So why did you say earlier that you didn't know when they moved?
[APPLICANT]: Okay. I cannot say exact date, but I can see how long they - shifted.
[43] at page 16, lines 12–29
The fifth sentence at [27] states:
The Tribunal considers the applicant had gave [sic] inconsistent evidence about whether his family had moved.
The Minister submits that this finding was logically open to the Tribunal on the evidence before it, because the applicant did give inconsistent evidence on that issue. That inconsistency is set out in the preceding two sentences, which accurately reflect the applicant's evidence as set out in the transcript at page 15[44] and page 16.[45] That is, the applicant first stated that he did not know when his family moved, and then stated that it was six or seven months ago. The fact that the Tribunal drew this inconsistency to the applicant’s attention for comment at page 16[46] strengthens the inference that the Tribunal considered this inconsistency to be material.
[44] lines 38–39
[45] lines 21–23
[46] lines 25–26
The Minister submits that, while the applicant's submissions contend that the applicant's evidence was not inconsistent insofar as the applicant's evidence that his family had lived in the same place for five years could mean that they lived in the same village (rather than the same house) for five years, the applicant's submissions fail to acknowledge or contend with the clear inconsistency in the applicant's evidence about when his family moved, which immediately preceded (in the Tribunal's reasons) the Tribunal's finding that the applicant had given inconsistent evidence.
The sixth sentence at [27] states:
The tribunal considers he was being evasive and making up answers to coincide with trying to explain the delay in receiving the police letter and his inconsistent evidence about whether the family moved address.
This evaluation of the applicant's evidence flows from the inconsistency identified in the previous sentence at [27], and in the Minister’s submission was logically open to the Tribunal on the evidence before it.
Misstatement or miscomprehension of evidence—the envelope and the enclosed letter
This complaint takes issue with [28] of the Tribunal's reasons for decision.[47] This paragraph corresponds to the following exchanges set out in the transcript.[48] Some, but not all, of these exchanges are set out in the applicant's submissions.
[47] CB 365–366
[48] page 14, lines 29–44; and page 15, lines 1–27
Paragraph [28] contains six sentences. The first four sentences summarise the discussion that occurred between the applicant and the Tribunal at the hearing. The fifth and sixth sentences set out the Tribunal's evaluation of the applicant's evidence in light of that discussion. The Minister submits that [28] accurately reflects the discussion that occurred between the applicant and the Tribunal, and that the Tribunal's conclusions in respect of that discussion were logically open to the Tribunal on the evidence before it.
The first sentence at [28] states:
The applicant claimed his mother called the applicant and told him there was a letter in his name but it was in Sinhalese.
This statement accurately reflects the applicant's evidence as set out in the transcript at pages 14[49] and 15:[50]
[49] lines 34-35
[50] lines 32–34; see also the transcript at page 14, lines 41–42; page 15, lines 1–3
… then my mum said, "In your name there is a letter in Sinhalese."
The second sentence at [28] states:
He told them to get it read by someone who could read Sinhalese.
This statement accurately reflects the applicant's evidence as set out in the transcript at page 14[51] and page 15:[52]
[51] lines 34–35
[52] lines 2–3; see also the transcript at page 14, lines 41–42
…so I asked them to read it to a person who can read Sinhalese and get it translated through him.
…
…so then I told them to get it translated from someone who can speak – read - read Sinhalese.
The third sentence at [28] states:
When the tribunal expressed doubt how they knew it was for him if they did not read Sinhalese, he said his name was in English on the envelope and his sister can read English.
This statement accurately reflects the applicant's evidence arising from the following exchange between the Tribunal and the applicant as set out in the transcript at page 15:[53]
[MEMBER]:So can they read your name in Sinhalese?
[APPLICANT]: No.
[MEMBER]:But isn't the whole document written in Sinhalese including your name, so how would they know it's got to do with you?
[APPLICANT]: Okay. So on the - envelope of the letter the name was written in English, so my sister had read it and through that only they knew that it was my name.
[MEMBER]:So your name was written in English on the envelope?
[APPLICANT]: Yes.
[53] lines 5–18
The fourth sentence at [28] states:
When the tribunal expressed doubt that it would be addressed to him in English and written in Sinhalese, the applicant did not know the reasons why.
This statement is said to reflect the applicant's evidence arising from the following exchange between the Tribunal and the applicant as set out in the transcript at page 15:[54]
[MEMBER]:So why would that - why would they do that when the document itself seems - says "you are to inform one [applicant's name]", and it sounds like the actual message is not for you but for someone else in the house to pass it on to you?
[APPLICANT]: Okay. The letter was posted to my name. That's why they told me that it was in my name, for reasons I don't know what's the reason like that it be in the letter.
[54] lines 20-27
The Minister submits that, contrary to the applicant's submissions, the Tribunal's question, “why would they do that”, clearly picks up the immediately previous exchange,[55] with “that” being that the applicant's name was written on the envelope in English while the letter itself was written in Sinhalese. The language element was clearly part of the Tribunal's question when that question is contextualised within the full exchange between the applicant and the Tribunal member. The balance of the question adds another element of the Tribunal's concern: that the envelope would be addressed to him, but the letter would be addressed to a third party asking him or her to refer the letter to the applicant. Both of these elements therefore formed part of the Tribunal's question.
[55] ie, transcript at page 15, lines 5–18; Minister’s emphasis retained
The fifth and sixth sentences at [28] state:
The tribunal does not accept the police message, written in Sinhalese, would be addressed to him in his name in English on the envelope. Given many Tamils do not read Sinhalese or English that it would be addressed to him in English is not credible.
The Minister submits that this conclusion was logically open to the Tribunal on the evidence before it. Effectively, the Tribunal considered the applicant's evidence that the envelope was addressed to him in English, but did not accept that evidence as credible because it was implausible that the police would write to the applicant (a Tamil) in Sinhalese and yet address the envelope in English (not an official language of Sri Lanka), when many Tamils do not read Sinhalese or English. That conclusion was, incidentally, also consistent with the applicant's evidence that his family did not read Sinhalese, and that only his sister read English.
The Minister submits that, properly understood, the only evidence relevant to the finding at [28] was that the envelope was addressed to the applicant in English. That was unambiguously the applicant's evidence. The Tribunal found it to be implausible for logical reasons. But even if the Tribunal's question were ambiguous (which the Minister denies) the answer is said not to have been germane to the Tribunal's finding such that it could be said that the Tribunal misunderstood his evidence.
Misstatement or miscomprehension of evidence - the discovery and opening of the letter
This complaint takes issue with [29] and [32] of the Tribunal's reasons for decision.[56] These paragraphs correspond to the following exchanges set out in the transcript.[57] These exchanges are set out in the applicant's submissions.
[56] CB 366
[57] page 18, lines 1–39
Paragraph [29] contains eight sentences. The first sentence summarises evidence given by the applicant to the Tribunal at the hearing. The second sentence sets out the Tribunal's evaluation of that evidence. The third, fourth and fifth sentences set out a further discussion that occurred between the applicant and the Tribunal at the hearing. The sixth, seventh and eighth sentences set out the Tribunal's evaluation of the applicant's evidence in light of that discussion. The Minister submits that [29] accurately reflects the discussion that occurred between the applicant and the Tribunal, and that the Tribunal's conclusions in respect of that discussion were logically open to the Tribunal on the evidence before it.
The first sentence at [29] states:
Further, while he said his family received the message two months ago, they did not tell him until two or three weeks ago.
This statement accurately reflects the applicant's evidence as set out in the transcript at page 18:[58]
[MEMBER]:Okay. So when did she tell you about it?
[APPLICANT]: About two, three weeks ago, she has told me.
[MEMBER]:So why did it take her so long to tell you about it?
[APPLICANT]: Okay. So when I called them and told them about, to send the ID card of my uncle, then they said there's a - there was a letter for you in your name. The I said … then I told them to better read about it and see what is in this letter. Then only they told this had happened.
[MEMBER]:So how long have they had the letter?
[APPLICANT]: I think about two months.
[58] lines 1–14
The second sentence at [29] states:
That his family would not tell him about it, given they are in contact daily lacks credibility.
The Minister submits that it was logically open to the Tribunal to find that it was implausible that the applicant's mother would not tell him about an important-looking letter for two months, when they had spoken on a daily basis during this time. The applicant's evidence that he speaks to his family “every day” is set out in the transcript at page 7.[59]
[59] lines 20–27
The third sentence at [29] states:
The applicant initially claimed when he called about sending his uncle's ID card they told him about the letter for him.
This statement accurately reflects the applicant's evidence as set out in the transcript at page 18.[60]
[60] lines 7–10 (extracted above)
The fourth and fifth sentences at [29] state:
When the tribunal expressed concern that his family would hold onto a police document for two months and not tell him about it, he said they did not know it was from the police as it was in Sinhalese. When the tribunal noted the document said Sri Lanka police in English and his sister reads English, the applicant said they did not open the letter but it had his name on it.
The Minister submits that these statements accurately reflect the applicant's evidence arising from the following exchange between the Tribunal and the applicant as set out in the transcript at page 18:[61]
[MEMBER]:So they've got a letter - they hold onto a letter that they've received for two months that they can't read that's in your name that appears to be from the police.
[APPLICANT]: They didn't know it was from the police. After getting it read by the person who knows to read how Sinhalese, they got to know it was from the police.
[MEMBER]:But it says in English, Sri Lanka Police message form and your sister reads English.
[APPLICANT]: Okay. Okay. It was - the letter was in an envelope and they didn't open the envelope, so the name was written on the envelope so they knew it was for me so they kept it like that.
[MEMBER]:So they received something for you. It's got your name on the front and they hold onto it for two months. You talk to them everyday (sic) and they don't tell you about it.
[61] lines 16–33
The sixth sentence at [29] states:
However, this was inconsistent with the applicant's earlier evidence that his parents had told him there was a letter in his name and it was in Sinhalese.
The Minister submits that this finding was logically open to the Tribunal on the evidence before it, because the applicant did give inconsistent evidence on that issue. The applicant's evidence in this exchange was that his family did not open the envelope before speaking to him. However, he had earlier given the evidence that his mother had told him “in your name there is a letter in Sinhalese”,[62] and “there was a letter for you in Sinhalese”.[63] To know what language the letter was written in, his mother would needed to have opened the envelope already, given that the letter was written in a different language to the envelope.
[62] transcript at page 14, lines 33–34
[63] transcript at page 15, line 2
The seventh sentence at [29] states:
The only way they would have known it was in Sinhalese would have been to open it.
The Minister submits that this finding was logically open to the Tribunal on the evidence before it, for the reasons given in the previous paragraph.
The eighth sentence at [29] states:
The message headings of Sri Lanka police were written in Sinhalese and English and on the applicant's evidence his sister reads English.
This statement accurately reflects the applicant's documentary and oral evidence.
Paragraph [32] contains three sentences. The first sentence summarises evidence given by the applicant to the Tribunal at the hearing. The second and third sentences set out the Tribunal's evaluation of the applicant's evidence in light of that discussion. The Minister submits that [32] accurately reflects the discussion that occurred between the applicant and the Tribunal, and that the Tribunal's conclusions in respect of that discussion were logically open to the Tribunal on the evidence before it.
The first sentence at [32] states:
When the tribunal expressed doubt that his family would hold a letter with his name on it for two months and not discuss or tell him about it, the applicant said someone had kept it in the cupboard.
This statement accurately reflects the applicant's evidence arising from the following exchange between the Tribunal and the applicant as set out in the transcript at page 18:[64]
[MEMBER]:So they received something for you. It's got your name on the front and they hold onto it for two months. You talk to them everyday (sic) and they don't tell you about it.
[APPLICANT]: Okay. So then the - from the old house, someone had returned that letter to my home. Someone had kept it in the cupboard and it's - it was lying there since - and when I was asking them about the ID card of my uncle, only they have found about this letter and they told me there's a letter for you and then I told them to better read about it and find what this is written there.
[64] lines 31–39
The second and third sentences at [32] state:
The tribunal does not accept his explanations and find (sic) they lack credibility and that he was making up responses to the tribunal (sic) concerns as he went along. The tribunal does not accept that his family would receive correspondence with his name on it and put it in the cupboard or not mention it for two months.
The Minister submits that this finding was logically open to the Tribunal on the evidence before it, as it was logically open to the Tribunal to find it implausible that the applicant's family would not mention to the applicant for two months that there was a letter in his name, despite being in daily contact with him.
The Minister submits that, contrary to the applicant's initial written submissions at [13], the Tribunal's findings do not “confuse” the applicant's evidence. The Tribunal does not make any assumption that the applicant's family had opened the letter. The implausibility identified by the Tribunal was that his family would hold onto a letter with his name on it for two months. According to the applicant's evidence, his name was on the envelope. Further, the applicant clearly gave inconsistent evidence about whether his family had opened the letter prior to speaking with him about it. As noted above, his mother could not have known the letter (which on the applicant's evidence was addressed to the applicant on the envelope in English) was written in Sinhalese without having opened it.
Finally, contrary to the applicant's submissions, the Minister submits that the Tribunal was entitled to find that the letter was not credible because of its informality and imprecision. The Tribunal was not required to put its thought processes and evaluations of his evidence to him for comment, in circumstances where the Tribunal had raised the letter with the applicant as a dispositive issue, and had enabled him to give detailed evidence in respect of it.
Misunderstanding or misstating evidence does not rise to jurisdictional error
If, contrary to the Minister’s submissions, the Court were to find that the Tribunal misunderstood or misstated any of the applicant's evidence, the Minister would submit that any such misunderstanding or misstatement did not rise to the level of a jurisdictional error.
Where a Tribunal makes a finding that a person's evidence is not credible for a number of reasons that it states, one of which is shown to be erroneous, a court must consider whether the erroneous finding was a matter of central logical importance to the overall finding about credibility or whether it merely provided additional support for a conclusion as to credibility that had been reached on other grounds. Where the error is not one about some fact vital to the resolution of the case or is not of such a nature as to have a cascading effect on the resolution of the larger issues in the case, the error will not undermine the overall finding.[65]
[65] SZVHP v Minister for Immigration [2016] FCA 270 at [38] per Rares J, citing Cordelia Holdings Pty Limited v Newkey Investments Pty Limited [2004] FCAFC 48 at [60]–[61] per Black CJ, and French and Tamberlin JJ
In SZVHP, Rares J found that the Tribunal had made an erroneous factual finding in relation to one aspect of the appellant's evidence, and also “loosely expressed” its findings with respect to another.[66] However, his Honour found there to be no jurisdictional error because the Tribunal made an “alternate, or perhaps more accurate, finding” that undermined the appellant's credibility[67] which was open to the Tribunal on the material before it, as well as another adverse finding as to credibility that was also open to it.[68] The two factually erroneous findings therefore only provided additional support to the overall credibility finding.[69] Those errors were therefore errors within jurisdiction and did not go to the Tribunal's jurisdiction.[70]
[66] see [40]
[67] at [40]
[68] at [40]
[69] at [42]
[70] citing City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 154 at [44] per Gleeson CJ, and Gummow, Kirby and Hayne JJ, in turn citing Waterford v Commonwealth (1987) 163 CLR 54 at 77 at [12] per Brennan J
Justice Rares also observed[71] that a court reviewing an administrative decision must not construe the reasons of that decision minutely and finely with an eye keenly focused on the perception of error.[72]
[71] at [35]
[72] citing Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272 at [30] per Brennan CJ and Toohey, McHugh and Gummow JJ
The Minister submits that Rares J's observations are apposite to the present matter, and their application would lead to a finding that, even if the Tribunal's findings were erroneous or its expression infelicitous, it did not commit a jurisdictional error.
First, even if the Tribunal did record the applicant's evidence in a way that was not completely accurate (which is denied), the Tribunal nonetheless clearly identified deficiencies in the applicant's evidence capable of founding a logical inference that the applicant's evidence was not credible on each of the bases set out above.
Secondly, the Tribunal provided numerous alternative reasons for its finding that the applicant's claims in the letter were not credible.[73]
Failure to consider evidence
[73] see CB 366–367 at [35]
The last element of the first ground is styled as an allegation that the Tribunal failed to consider the applicant's evidence in response to the authenticity of the letter in two respects:
a)first, the applicant said that these kinds of messages are commonly received by people in the North and East of Sri Lanka; and
b)secondly, the applicant requested that the Tribunal check with the authorities to verify that the letter was authentic.
While the applicant did give evidence that “the normal things happening in north and east of the county. These kind of messages are received on—by people sent by CID”,[74] the Minister submits that there is no jurisdictional error in the Tribunal not recording that evidence in its decision record. The Tribunal is not required to have regard to every piece of oral or written evidence put before it.[75] This situation is unlike that in Minister or Immigration v SZRKT[76] in three respects: first, in SZRKT, there was no reference made to a particular document, whereas in this case the Tribunal cited the relevant aspects of the applicant's oral evidence in detail; secondly, in SZKRT Robertson J found that the document in question was cogent and significant in the context of the applicants claims, whereas in this case the Tribunal's findings at [33][77] set out its concerns with the letter itself and the applicant's evidence the subject of this complaint was not relevant to those findings; and, thirdly, in SZRKT the document in question was evidence from a third party, the credibility of which the Tribunal did not assess, whereas in this case the evidence in question was an unverified assertion from the applicant, whom the Tribunal had separately assessed not to be credible.
[74] transcript, page 16, lines 36–38
[75] Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ
[76] (2013) 212 FCR 99
[77] CB 366
The applicant's submissions contend that the Tribunal had no evidentiary basis for its concern that the letter was in the form of a “message” rather than a “summons”. However, the Tribunal never made a finding that the letter was not genuine because it was in the form of a “message” rather than a “summons”. Rather, the Tribunal provided four completely different reasons for its finding that the letter was not genuine:[78]
a)that the envelope would be addressed to the applicant in person, but the letter would be addressed to a third party;
b)that the letter would state an imprecise time at which he was required to attend and give evidence;
c)that there were inconsistencies and problems in the oral evidence given by the applicant as set out in the paragraphs discussed above; and
d)that there was evidence relating to the prevalence of document fraud in Sri Lanka.
[78] CB 366 at [32]-[33]
If the Tribunal did not make a finding of the kind contended by the applicant, it cannot have erred in the making of that finding.
As to the applicant's request that the Tribunal check with the authorities to verify that the letter was authentic,[79] the applicant appears to contend that his suggestion that the Tribunal verify the documents in Sri Lanka was somehow probative of their authenticity.
[79] see transcript, page 17, lines 7–15
However, the Minister submits that the Tribunal is not required to find that a document is authentic simply because an applicant asserts forcefully or confidently that it is, particularly when it has identified clear problems with the document that the applicant has failed to answer to the Tribunal's satisfaction. That the applicant suggested that the Tribunal verify the document is in no way probative of the genuineness of the document. The applicant could have simply been bluffing, and hoping that the Tribunal would be unwilling or unable to falsify the document itself. Moreover, if a suggestion that a document be verified were to be sufficient to verify the document, there would be no need for any verification process. The authenticity of the document would effectively be determined by the credit of the one making the suggestion. But here the Tribunal had already found the applicant not to be a credible witness, so it was entitled not to find the document to be credible.[80] It follows that the applicant's request that the Tribunal verify the letter was not cogent and significant evidence of its authenticity, such that the Tribunal was required to have regard to that evidence pursuant to the principle in SZRKT.
[80] cf. Minister for Immigration v SZNSP (2010) 184 FCR 485
Further, and ultimately, the Minister submits that it is for an applicant to satisfy the Tribunal that his or her claims were made out.[81] The Tribunal is required to consider the available evidence including the evidence provided by the applicant, to the extent that it is cogent and significant, and evaluate its credibility. Those credibility findings are a matter for the Tribunal, and are only capable of challenge in limited circumstances.[82] The Tribunal is not required to possess rebutting evidence[83] or to make enquiries.[84]
[81] Abebe v Commonwealth (1999) 197 CLR 510 at 576 at [187] per Gummow and Hayne JJ
[82] cf. CQG15 v Minister for Immigration [2016] FCAFC 146 at [38] per McKerracher, Griffiths and Rangiah JJ
[83] Selvadurai v Minister for Immigration (1994) 34 ALD 347 at 348 per Heerey J
[84] except in limited circumstances: Minister for Immigration v SZIAI (2009) 259 ALR 429
In the present case the Tribunal is said to have given logical reasons why it could not make the enquiries suggested by the applicant,[85] and in evaluating the evidence that was before it, the Tribunal made findings that were logically open to it for the reasons that it gave. None of the circumstances identified in CQG15 are present.
[85] see the transcript at page 17, lines 10–11
Resolution
The first ground alleges that the Tribunal made erroneous findings or omissions based on a misstatement or miscomprehension of the applicant’s evidence (in three different respects), or that it failed to consider the evidence given by the applicant in response to the Tribunal’s concerns about the letter and its authenticity.
For the reasons set out below, I find that the Tribunal did not misstate or misunderstand the applicant’s evidence. Further, the Tribunal’s decision record clearly demonstrates that the Tribunal properly considered the applicant’s evidence and made findings in respect of that evidence which were logically open to it.
In relation to the first ground, insofar as it relates to the applicant’s evidence about the town in which his family lives, I agree with the submissions of the Minister. The Tribunal’s finding at [27] was logically open to it on the material before it. The Tribunal was entitled to find, as it did, that the applicant’s evidence was inconsistent. The Tribunal drew the inconsistency to the applicant’s attention for comment[86] but the Tribunal was not satisfied with his response.
[86] see the transcript at page 16
In my view, the applicant’s assertions in relation to this issue amount to an attempt to reconstruct, after the event, a logical consistency of evidence which appeared to the Tribunal to be inconsistent and was inconsistent. Even if I were to accept the applicant’s submissions, they do not explain the inconsistency in the applicant’s evidence about when his family moved, which appears to have been what was in the forefront of the Tribunal’s mind when it found he had given inconsistent evidence.
Secondly, in relation to the envelope and the enclosed letter, I take judicial notice of the facts that the script in which the Tamil language is written is different from the script in which the Sinhalese language is written and further, that both of those scripts are distinctly different from the Roman script in which the English language (and many other Western European languages) are written. Before the Tribunal, the applicant sought to explain the lengthy delay between the delivery of the letter and him being informed of it. He claimed that the letter was forwarded to his relatives from a previous address and they recognised that the letter was for the applicant because his name was written “in English” on the envelope. The other details on the envelope were apparently written in the Sinhalese script, which the applicant’s relatives could not read. The proposition which the applicant was inviting the Tribunal to accept was that the Sri Lankan authorities would address an envelope in the Sinhalese script, with the exception of the name of the applicant, which was written in the Roman script. It is the script which is important here, rather than the language. If the Roman script were used, the applicant’s name would appear the same in any language in which the Roman script is used. The applicant claimed that his relatives recognised his name because they could “read English”. I assume by that that he meant that his relatives’ knowledge of English enabled them to recognise his name in the Roman script.
It was, in my view, inherently improbable that an envelope would be written entirely in the Sinhalese script but for the name of the addressee which would be rendered in the Roman script. In my view, the Tribunal was entitled to take the view that this evidence was a device to explain how the applicant’s relatives knew that the letter was for him or about him without opening it and, further, how they knew that it was for him or about him when they could not read the Sinhalese script. This implausibility is heightened by the fact that the untranslated Sinhalese letter enclosed in the envelope is, apart from the pro forma printed sections, written in the Sinhalese script, including the applicant’s name. It is inherently improbable that the applicant’s name would be written in the Sinhalese script in the body of the letter but rendered in the Roman script on the envelope.
In my view, there was no misunderstanding by the Tribunal of the applicant’s evidence and the Tribunal was entitled to reject it.
I accept the Minister’s submissions concerning the assertions relating to the discovery and opening of the letter. As I have already noted, it was improbable that the applicant’s family would fail to mention to him the existence of a letter directed to him, despite being in daily contact with him. There was no necessary assumption by the Tribunal that his family had opened the letter. Rather, the Tribunal was entitled to conclude from the applicant’s evidence that, either the applicant was lying and the letter had been opened, or, if the letter had not been opened, his family had not drawn a letter to his attention which was curiously addressed to him in the Sinhalese script but with his name rendered in the Roman script. That fact alone, if true, would have been worthy of mention to the applicant by his family.
As I have not found that the Tribunal misunderstood or misstated the evidence, it is not necessary to rule on the Minister’s contentions concerning the legal consequence of a misunderstanding or misstatement.
Lastly, I reject the applicant’s contentions concerning the Tribunal’s alleged failure to consider evidence.
The applicant contended that it was common in his part of Sri Lanka for the authorities to send messages directing a person to inform another person of the need to report for interrogation. As the Minister points out in his submissions, while the Tribunal did not specifically record that evidence, it is not required to have regard to every piece of oral or written evidence put before it. The Tribunal was entitled to reject the proposition that the letter would be directed to someone other than the applicant when the envelope was directed to him. Likewise the Tribunal was entitled to reject the claim that the letter would be imprecise as to the time at which attendance was required, as well as to refer to inconsistencies in the applicant’s evidence specified by the Tribunal, and the known prevalence of document fraud in Sri Lanka.
The reality is that the document in issue was on its face dubious and the applicant’s own evidence as to the envelope in which it was enclosed and what his family did with it was highly problematic.
There was no obligation on the Tribunal to seek to verify the authenticity of the letter with the Sri Lankan authorities.
Ground 2 – did the Tribunal breach s.424A or s.425 of the Migration Act?
I reject the breaches alleged by the applicant. I agree with the submissions of the Minister.
The second ground alleges that the Tribunal breached s.424A (or s.424AA) of the Migration Act with respect to its treatment of the letter. It also makes an allegation about breach of s.425. The applicant's submissions appear to raise these alleged breaches in the alternative, relating to two “examples”:
a)first, that the applicant was not given an opportunity to “correct the record” or respond to the Tribunal's erroneous finding that his evidence was that he lived in the same house for five years, when in fact his evidence was that it as in the same “town”; and
b)secondly, that the transcript shows that the Tribunal did not put to the appellant anything contrary to his evidence that in the north and east, it was normal for the police/Criminal Investigation Department (CID) to send such messages, rather than by summons as assumed by the Tribunal.
With respect to the first “example”, for the reasons set out above, the Tribunal's credibility findings were not based on an erroneous finding that his evidence was that he lived in the same house for five years, when in fact his evidence was that it as in the same “town”, but rather on a correct finding that the applicant gave inconsistent evidence about when his parents moved. Further, and in any event, neither s.424A nor s.425 require the Tribunal to provide a draft of its reasons, a transcript of the hearing, or any other form of “the record” for the applicant to comment on or correct.[87]
[87] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18] per Gleeson CJ, and Gummow, Callinan, Heydon and Crennan JJ; SZBEL v Minister for Immigration (2006) 228 CLR 152 at [48] per Gleeson CJ, and Kirby, Hayne, Callinan and Heydon JJ
With respect to the second “example”, for the reasons set out above, the Tribunal's credibility findings were not based on a finding about whether it was normal for the police or CID to send a message rather than to issue a summons. Further, and in any event, there is nothing in this “example” that would (were it true) attract obligations under ss.424A or 425. Independent country information is exempt from the requirements of s.424A(1) of the Migration Act;[88] and with respect to s.425, the Tribunal is not required to possess rebutting evidence.
[88] section 424A(3)(a)
Conclusion
The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 7 May 2019
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