BED15 v Minister for Immigration

[2016] FCCA 1103

FEDERAL CIRCUIT COURT OF AUSTRALIA

BED15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1103

Catchwords:
MIGRATION – Visa – protection visa – failure to take into account a relevant matter – adverse credit finding – error affecting outcome.

Legislation:

Migration Act 1958 (Cth), ss.36(2A), 65, 91R(1) & (2), 424(a), 424(2), 425(1), 425A(1) & 476

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Re: Minister for Immigration and Multicultural Affairs; Ex-parte Durairajasingham (2000) 58 ALD 609
AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193
Shrestha v Minister for Immigration and Border Protection [2015] FCCA 2262
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Re Refugee Review Tribunal & Anor; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2004] HCA 62; (2004) 221 CLR 1
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167

Applicant: BED15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 231 of 2015

Judgment of: Judge Heffernan

Hearing date: 19 April 2016

Date of Last Submission: 19 April 2016

Delivered at: Adelaide

Delivered on: 25 May 2016

REPRESENTATION

Counsel for the Applicant: Mr R Gordon of Vimla Chambers

Solicitors for the Respondents: Ms C Stokes for the Australian Government Solicitors

THE COURT ORDERS THAT:

1. There be an order in the nature of certiorari that the decision of the Refugee Review Tribunal (as it then was) dated 15 June 2015 affirming the decision of the delegate of the first respondent made on 20 March 2014 rejecting the applicant’s application for a Protection (Class XA) visa is quashed.

2. There be an order in the nature of mandamus that the Administrative Appeals Tribunal review according to law the decision of a delegate of the first respondent dated 20 March 2014 rejecting the applicant’s application for a Protection (Class XA) visa.

3. The first respondent do pay the applicant’s costs fixed in the amount of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 231 of 2015

BED15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review made pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’). The applicant seeks review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 15 June 2015 which affirmed a decision of a delegate of the Minister for Immigration and Border Protection refusing to grant the applicant a protection visa under s.65 of the Act.

2. The applicant is a male and a citizen of Sri Lanka.  He came to Australia in June 2012 as an unauthorised maritime arrival.  The Tribunal hearing took place on 25 February 2015 by telephone.  The applicant gave evidence on that occasion.  Following that hearing, detailed written submissions were made on his behalf by his representative.  The manner of the Tribunal hearing forms one of the grounds of this application and I will deal with that later in these reasons.

3. When the application in this matter was originally filed, the applicant was self-represented.  He has since obtained representation by Mr Gordon.  On 7 March 2016, this matter was adjourned to 19 April 2016 on the application of Mr Gordon who had recently been instructed.  I gave leave on that occasion for him to file and serve an Amended Application by the close of business on 1 April 2016.  An Amended Application was filed on 1 April 2016, and a Further Amended Application was filed on 12 April 2016.  Mr Gordon has indicated that it is the Further Amended Application on which his client seeks to be heard in these proceedings.  No objection was taken by the representative for the Minister as to the filing of the Further Amended Application.  I am prepared to receive that application and proceed on the grounds set out in it.  The Further Amended Application raises six grounds as follows:

   “1.    That the then Refugee Review Tribunal erred in law and/or in fact and thereby fell into jurisdictional error when it acted unfairly and/or unjustly and/or unreasonably when it refused and/or failed to adjourn the hearing on 15 June 2015 when there was evidence before the Tribunal that the Applicant was confused about the time of the hearing and through no deliberate fault on his part was unable to be at the hearing venue at the prescribed time to participate in the hearing via video link;

   2.  That the then Refugee Review Tribunal erred in law and/or in fact and thereby fell into jurisdictional ·error when it acted unfairly and/or unjustly and/or unreasonably when it proceeded to conduct the hearing on 15 June 2015 via a telephone (rather than adjourn the hearing to another date for the Applicant to participate via a video link conference) in circumstances where the Applicant was a person whose first language was not English and was a person with limited education and was a person with limited and/or no litigation experience and thereby was unfairly disadvantaged by a telephone hearing as the Applicant was thereby denied a reasonable and fair and just opportunity to put his case to the Tribunal;

   3.  The Tribunal erred in law by making the following findings that were not open on the evidence before the Tribunal;

   a.  that the Applicant’s father was not gaoled as claimed by the Applicant on the basis that the Applicant raised this at the Tribunal hearing for the first time and that the Applicant's father could not have been gaoled and thereafter continued his government employment when there was no evidence before the Tribunal to that effect and there was evidence before the Tribunal which supported the claims of the Applicant and the Tribunal thereby took into account irrelevant evidence and/or failed to take into account relevant evidence;

   b.  that the Applicant had given little information about Sami when the evidence before the Tribunal was that the Applicant had from his initial entry interview and at subsequent interviews given information about Sami and the Tribunal thereby took into account irrelevant evidence and/or failed to take into account relevant evidence. The Tribunal misinformed itself and proceeded to assess the Applicant's claim based on this misinformation.  The Tribunal made an incorrect finding of fact based on this misinformation;

   c.  that there was no link or perception of a link of the Applicant to the LTTE when such finding(s) were not open on the evidence before the Tribunal;

   4.  The Tribunal relied on information, evidence and facts which it obtained from the Applicant's file, such as the ·Protection visa (PV) interview of the Applicant conducted on 8 May 2013 but the Tribunal failed to afford the Applicant any or any reasonable opportunity to comment on such information, evidence and facts and as such erred in law and/or in fact and thereby fell into jurisdictional error,

   5.  The Tribunal misconstrued or misapplied the applicable law, or otherwise failed to ask itself the right question;

   6. The Tribunal failed to comply with s 425(1) of the Migration Act 1958.”

4. Grounds one and two complain of the fact that, the applicant failing to attend at the video facility, the Tribunal decided to telephone him and proceeded to conduct the hearing by way of telephone link. 

5. The third ground makes complaints about certain findings of fact, which the applicant says were directly relevant to findings of credit.  The applicant complains that the Tribunal made an error in concluding that the applicant had not raised a particular matter until the time of hearing and that this led to a finding of credit against him which had an impact on the way it approached the assessment of credit in relation to other matters of which he gave evidence.

6. The fourth ground complains that the Tribunal did not afford the applicant procedural fairness and in submission counsel referred to the requirement of s.425(1) of the Act.

7. The fifth ground was particularised in submissions to be a complaint that the Tribunal failed to consider the potential risks to the applicant in the foreseeable future should he be returned to Sri Lanka.

8. The sixth ground is a general complaint which counsel submitted affected a number of the other grounds.

Tribunal hearing

1. The applicant applied on 26 March 2014 to the Tribunal for a merits review of the delegate’s decision.

2. On 28 January 2015, the Tribunal wrote to the applicant extending an invitation to him to attend before it to give evidence and present arguments relating to his case.[1]  That invitation informed the applicant that the hearing would take place at Darwin Campus of Charles Darwin University and told him where at the University he was invited to attend.  The invitation informed the applicant that the hearing would be by video conference but advised the applicant that if he had a preference to attend in person, he should notify the Tribunal as soon as possible.  It also asked him to notify the Tribunal as soon as possible if he was not able to attend.  The response to hearing invitation is not included in the Court Book, but it has not been suggested to me that the applicant made any other proposals relating to the arrangements for the hearing.

   [1]     Court Book (‘CB’) p 123.

3. The Tribunal hearing record indicates that the applicant was represented at the hearing but that the applicant did not attend and so the Tribunal elected to proceed by way of telephone evidence. The applicant gave evidence to the Tribunal on that day. It is not apparent from any of the materials that an application for adjournment was made by either the applicant or the applicant’s representative due to the fact that the hearing was being conducted by way of telephone. Pursuant to s.424(a) it was open to the Tribunal to allow appearance by the applicant by telephone. In other words, if it had seemed to the Tribunal that the appropriate way of conducting the hearing was by a telephone link, then it could have invited the applicant to appear by telephone from the outset.

4. The applicant made claims to the Tribunal in effect that he had a well-founded fear of serious harm that amounted to persecution for reasons of a convention ground.  He claimed to have been at risk from the Sri Lankan authorities because of his Tamil ethnicity, because of his political opinions, or imputed political opinions suggesting that he supported the Liberation Tigers of Tamil Elan (‘LTTE’).  He also made a claim based on his membership of a social group, namely persons suspected of being active with the LTTE and as a failed asylum seeker.  These claims were noted at paragraph 49 of the Decision Record.

5. A significant aspect of the applicant’s claim was that in 2008 his father had been persuaded to be bail guarantor for a man called Samiapann Paul (‘Paul’), an LTTE member who had been charged with murder.  Paul absconded whilst on bail and the authorities enforced the guarantee, imprisoning his father for one or two months and fining him 100,000 rupees.  He was released in January 2009.[2]

   [2]     CB pp 154-155.

6. The Tribunal considered the evidence and claims made by the applicant and gave comprehensive reasons detailing that consideration.  It accepted many of the background claims made by the applicant. 

7. The Tribunal accepted that the applicant grew up in Sri Lanka and that his father worked as a government employee.  The applicant gave evidence, which was accepted, to the effect that he and his family had not experienced any problems with the authorities until 2008.  The Tribunal accepted that in that year the applicant’s father had shown some implicit support for the LTTE by agreeing to post bail for a member of that group. 

8. In 2011, the applicant’s house was visited by four men who were probably police officers from the CID.  They were looking for the applicant’s father.  He was not at home.

9. These people questioned the family about the applicant’s father’s possible involvement with the LTTE.

10. This was accepted by the Tribunal to relate back to the 2008 provision of bail and the persons wanted to ascertain the extent of the applicant’s father’s involvement with that person.  As a result of this visit, the applicant’s father fled the family home and hid from the authorities in another part of the country where he stayed.

11. Shortly after this first visit, the men returned to the applicant’s house looking for his father.  The Tribunal accepted that the applicant was threatened with a gun by the men and that they also threatened to take him away.

12. The Tribunal accepted that it was for this reason that the applicant and his family made plans for him to flee Sri Lanka.  The Tribunal found and placed weight on the fact that the authorities made no further visits to the applicant’s house for eight to nine months after the applicant was threatened.

13. The applicant claimed, and the Tribunal specifically did not accept, that the authorities have been making enquiries about him in Sri Lanka.  This evidence was found to be vague and unconvincing evidence.[3]

    [3]     CB p 158 at [47]-[48].

14. The Tribunal gave detailed consideration to country information at paragraphs 50 to 63 inclusive of the Decision Record, including a country report from the Department of Foreign Affairs and Trade (DFAT), the UNHCR Guidelines of December 2012, and Thematic Report from DFAT dated October 2014 ‘People with Links to the Liberation Tigers of Tamil Eelam’.  Having considered that information, it concluded that the applicant did not have a well-founded fear of harm for reasons of Tamil ethnicity.[4]  In considering the link claims to pro LTTE political opinion, the Tribunal considered a report of the United Kingdom Upper Tribunal (Immigration and Asylum Chamber) and noted that the applicant did not fall into any of the categories identified as persons currently at real risk of persecution on return to Sri Lanka.  For that reason, it found that there was not a real chance that he would be harmed for this reason now or in the foreseeable future if he was returned.

    [4] CB p 159 at [52].

15. In making this finding, the Tribunal found that neither the applicant or his father had links to the LTTE and that no links or sympathetic opinions would be imputed to them. 

16. The Tribunal considered the question of the applicant’s status as a failed asylum seeker, but found that any penalty imposed or investigation conducted by the Sri Lankan authorities would not amount to serious harm and would not satisfy the requirements of s.91R(1) and (2) of the Act, and nor would it would give rise to a real risk of significant harm pursuant to s.36(2A) of the Act.

17. The Tribunal considered whether, but did not accept, that Australian complementary protection obligations were engaged by the applicant’s circumstances.

18. The Tribunal did not accept some significant aspects of the applicant’s evidence, namely:

    a)That his father had been gaoled for posting bail for an LTTE member in 2008; and

    b)That he would be at risk of any harm because of his association with his father.

Submissions

Applicant’s submissions

1. Counsel for the applicant submitted with respect to grounds one and two, that it was relevant to the decision made by the Tribunal that the applicant was non-English speaking, disadvantaged and unfamiliar with the Australian legal system.  For that reason, he says that a video conference was the least that was required.  He submitted that the applicant’s previous experiences of having to talk about his circumstances were face to face with immigration authorities and the delegate, and that it was irregular and unfair that he was thrust into a situation where he was required to tell his story over the telephone.  It was submitted that the complexity of the events which the applicant was required to describe would have been difficult to convey over the telephone.  It was submitted that given the Tribunal was ultimately in a position of potentially having to make significant findings of credit, that it required at the least to see the applicant.

2. With respect to ground three, the applicant submitted that the Tribunal erred in finding that the applicant had not mentioned his father having been gaoled prior to the Tribunal hearing.  This had been raised by the applicant at the very first opportunity in his entry interview.[5]  It was submitted that it would not be possible to know if the assessment of credit of the applicant would be the same, if it had not made that error.  Given that an assessment of credit is often an impressionistic matter, it was likely that this error had an impact on the Tribunal’s assessment of the applicant’s credit in relation to all other matters where it doubted him.

   [5]     CB p 19.

3. It was further submitted that the Tribunal made an irrational finding based on no evidence that the fact that the applicant’s father had been able to continue in his government job made it less likely that the applicant’s claim that his father had been imprisoned was true.  The applicant submits that it is impossible to know to what extent that finding was influenced by the erroneous finding that the applicant had not mentioned before the Tribunal hearing that his father had been gaoled.  It submits that the erroneous finding about that matter not having been previously mentioned, must have been a significant finding of credit against the applicant.  In rejecting the claim that the applicant’s father had been gaoled, it rejected a matter which ultimately affected its assessment of the level of risk to which the applicant may or may not have been subjected by virtue of imputed political opinions.  In that way, the erroneous finding as to credit permeated the entire decision making process.

4. With respect to ground four, the applicant simply submits that in failing to direct the attention of the applicant specifically to the entry interview and inviting him to comment on that, the Tribunal had failed to comply with s.425(1) of the Act.

5. With respect to ground five, it was submitted that the Tribunal had failed to consider whether or not the applicant was likely to be at risk of serious harm or significant harm in the foreseeable future if he were to return to Sri Lanka.

6. As to ground six, it was submitted that the Tribunal had an obligation to direct the attention of the applicant to all potential categories of persons at real risk of persecution and invite him to comment on it.  As this was a “crucial plank” of their reasoning, namely that he did not fall within one of the categories, it is submitted that the Tribunal was required to specifically address this. It was submitted that the failure to do so was a breach of s.425(1) of the Act. This was particularly the case, it was submitted, because even though the applicant was represented at the hearing, the representative could not take part in that hearing in the same way as if it was an adversarial hearing before a Court.

First Respondent’s submissions

1. In respect of grounds one and two, it was submitted on behalf of the Minister that pursuant to s.424(a) of the Act, it was within the discretion of the Tribunal to conduct a hearing by way of telephone. Given that the applicant had been properly invited to attend, and given an option to express a preference for the type of hearing, which appears not to have been taken up, it cannot be said that there was any procedural unfairness in taking his evidence over the phone. Further, it submitted that the applicant’s representative acknowledged in his written submissions that the member had offered him an opportunity for a further hearing but that the applicant had decided this was not required.[6]  This was confirmed at paragraph 19 of the Decision Record of the Tribunal.  Finally, the respondent submitted that there is no evidence that there was an application for an adjournment at the time of the decision to proceed by way of telephone.

   [6]     CB p 129.

1. With respect to ground three, the first respondent submits that whilst there was an error in the finding of the Tribunal that the question of the gaoling of the father had not been raised until the Tribunal hearing, that was not an error that could be said to have affected the decision making process in the manner claimed.  It points to the fact there was a second reason on which the Tribunal based its finding that the father had not been gaoled and that was the inherent unlikelihood of the ongoing employment of the father with the government.

2. That argument is strengthened, so the first respondent says, by the fact that the Tribunal went on to consider whether or not the father was the subject of enquiry by the CID after he had been gaoled and it did accept this claim.

3. It says that the Tribunal made a finding about the CID attending at the family home on two occasions in 2011.  For this reason, the finding that the applicant was not pursued by the authorities was open and not affected by the error as to gaol.

4. The first respondent submits that findings of fact are uniquely within the jurisdiction of the Tribunal and it is not an error of law to make a wrong finding of fact.  Ultimately, it says the Tribunal found that the accounts given by the applicant were reasonably consistent but that it was still not able to find that he came within the convention criteria.

5. It was submitted that the Tribunal found that there was no risk of a link to the LTTE being imputed to the applicant, that this question was thoroughly considered and rejected, and it cannot be said that there was no evidence upon which to make that finding.

6. As to ground four, the Minister submitted that s.424(a) did not require the Tribunal to invite the applicant to respond or comment on information that he had himself given to the Department in the entry interview.

7. Ground five is unfounded, it submitted, because the Tribunal did in fact consider whether or not the applicant would be at risk of any harm in the reasonably foreseeable future, contrary to the claims of the applicant and simply did not accept that he was at risk of harm.  This amounts to no more than an argument about the finding of the Tribunal rather than the basis of that finding.

8. With respect to ground six, and the application of s.425(1), it is submitted that the Tribunal cites an Upper Chamber decision of the United Kingdom and that this was referred to by the applicant in his own submission so it is clear that the applicant was cognisant of the categories which were relevant to his situation. As the transcript is not before the Court on this argument, it cannot be said that there is any evidence that it failed to do so but in any event the applicant was aware of it.

Consideration

Ground one

1. The applicant was represented and there is no evidence that the applicant at any time, either personally or through his representative, requested an adjournment. The applicant was invited to attend the hearing and to give evidence and present arguments. That invitation put him on notice of the time and location of the video conference facility that was being made available for the hearing. The Tribunal complied with subss.425(1) and 425A(1) of the Act. It appears that the applicant simply did not turn up, one assumes because he overlooked the appointment. It is not apparent from the Tribunal Decision Record that the applicant said anything or acted in a way that suggested to it that he was not able to meaningfully participate in the proceedings by telephone. The Tribunal had power to invite the applicant to give oral information by telephone.[7]  It was not an error for the Tribunal to conduct the hearing over the telephone, particularly in circumstances where the applicant was represented and no application was made for an adjournment.  There was no procedural unfairness occasioned to the applicant on account of the Tribunal’s decision to proceed in this way.  I dismiss ground one.

   [7] Subsection 424(2) of the Act.

Ground two

1. The applicant has not identified any way in which he was prejudiced by giving his evidence by telephone.  He has not shown that there were matters of detail or emphasis that he was not able to sufficiently explain to the Tribunal because he was giving evidence in that way.  The transcript of the hearing has not been presented by the applicant for the purpose of these proceedings.  There is simply no evidence before this Court that demonstrates a deficiency in the mode of receiving his evidence amounting to a denial of procedural fairness. 

2. The submission by counsel for the applicant, that the applicant’s evidence would have been materially harder to explain over the telephone than it would by videolink, is speculative and not reflected in the Decision Record.  There does not appear to have been any submission from his representative that the quality of the hearing had been compromised.  The applicant had an opportunity to put his claims to the Tribunal by giving evidence.  As I have said, counsel for the applicant was not able to identify an example of a claim that was not able to be properly advanced.  Further, as the first respondent properly submits, at the conclusion of the hearing, the Tribunal invited the applicant to make written submissions and provide further materials.  It also extended an opportunity to the applicant for a further short hearing if he felt that that was necessary.[8]  The applicant through his solicitor specifically rejected the invitation to attend a further hearing.[9]  He chose instead to rely on an extensive post-hearing written submission.  That also suggests that there was nothing in the manner in which the hearing was conducted that caused prejudice to the applicant. 

   [8] CB p 154 at [19].

   [9]     CB p 129.

3. In his written outline of submissions, the solicitor for the applicant contended that during the course of the hearing, the applicant had difficulty understanding the Tribunal member, the interpreter, and his own representative because of the telephone link up.  It is not clear from the outline of submissions if it is contended that the difficulty was caused by the quality of the telephone link or a problem with the interpreter.  In any event, there is no evidence before the Court to support this proposition.  I note that this aspect of the ground was not pressed in oral argument.  I dismiss ground two.

Ground three

1. It is accepted by the Minister that the Tribunal was in error in finding that the applicant had mentioned at the hearing for the first time that his father had been gaoled.[10]  It had been mentioned by the applicant in his entry interview.[11]

   [10] CB p 157 at [41].

   [11]    CB p 19.

2. This was a significant credit finding against the applicant.  Firstly, a rejection of that evidence on the basis that it had not previously been raised, was clearly a finding that he was fabricating his version of events with a view to influencing the outcome of proceedings.  On the Tribunal’s finding the claim that the father had been gaoled was not simply a case of the applicant exaggerating or enhancing (consciously or otherwise) a version of events previously given.  The Tribunal specifically found that the claim as to ‘gaol’ had not been made at all in the application, the entry interview, or before the delegate.

3. The second reason for rejecting the ‘gaol’ evidence was that the Tribunal found it “surprising” that the father was able to maintain his employment with the government given that he was said to have spent that time in gaol.[12]  It is difficult to know what to make of that second reason.  It is not an outright rejection of the proposition that the father continued to work for the government after a period of incarceration.  It appears to be on its own simply an expression of incredulity that this could be the case.  Expressed in those terms, the second reason standing alone did not cause the Tribunal to reject the evidence that the father had been gaoled.  Notwithstanding the use of the phrase “this is for two reasons …” it is clear that those reasons appear to have operated on the mind of the Tribunal cumulatively and not independently.  It cannot be excluded as a possibility that the erroneous finding as to the fabrication had an impact on the Tribunal’s assessment of the likelihood or otherwise of the proposition that the father might, in the claimed circumstances, have been able to continue in his government employment.

   [12] CB p 157 at [41].

4. It is well established that matters of credit are an essential part of the fact finding function of a Tribunal.  Findings as to credit are findings of fact.  In the ordinary course, they are entirely a matter for the Tribunal.[13]  However, the finding that the applicant had not mentioned the gaol issue previously was an important factual finding which was plainly wrong.  The finding of the Tribunal that it had not been mentioned before was a failure to take into account relevant material.  The relevant material was that portion of the entry interview where the applicant (referring to his father) stated:

   “Because he had vouched for him on the bail hearing, he was put in jail (sic) because he signed the bail bond for this person …”[14]

   [13]    NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; Re: Minister for Immigration and Multicultural Affairs; Ex-parte Durairajasingham (2000) 58 ALD 609; AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193.

   [14]    CB p 19.

5. Counsel for the applicant helpfully referred me to a decision of Judge Manousaridis of this Court in the matter of Shrestha v Minister for Immigration and Border Protection[15] which in turn refers to a number of authorities from the High Court and Full Federal Court of direct relevance to this case.

   [15] [2015] FCCA 2262.

6. In VAAD v Minister for Immigration & Multicultural & Indigenous Affairs[16] the Tribunal was found to have fallen into jurisdictional error because it failed to consider relevant material.  The Tribunal drew an incorrect conclusion about when a document had been produced.  That finding was used with other factors to support an adverse finding on credit, namely that the appellant had fabricated evidence.  The adverse credit finding affected the Tribunal’s decision not to grant protection visas.

   [16] [2005] FCAFC 117.

7. The relevant discussion of the law in VAAD has been summarised helpfully by Judge Manousaridis in Shrestha and I respectfully refer to these passages of his judgment:

   “Although the Full Federal Court in VAAD accepted the Tribunal may still have rejected the appellants’ claims if it did not make the error, it was “impossible to know whether the Tribunal’s assessment of the appellants’ credibility would have been different” had the Tribunal not made the erroneous assumption.[17] That was so because “an assessment of credibility is not necessarily linear”.[18] By the expression “not necessarily linear”, it appears the Full Federal Court meant that an adverse assessment of credibility on a particular matter may extend to other matters in a manner or by a process that is not proportional to the particular matter’s apparent significance. In that regard, the Full Court referred[19] to the following passage from the judgment of Gleeson CJ in Re Refugee Review Tribunal & Anor; Ex parte Aala:[20] 

   ‘Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.’

   The Full Federal Court also referred[21] to the following passage from the judgment of Kirby J in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor:[22]

   ‘[D]ecision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.’”

   [17] [2005] FCAFC 117 at [79].

   [18] [2005] FCAFC 117 at [79].

   [19] [2005] FCAFC 117 at [79].

   [20] [2000] HCA 57; (2000) 204 CLR 82 at [4].

   [21] [2005] FCAFC 117 at [79].

   [22] [2004] HCA 62; (2004) 221 CLR 1 at [81].

8. Counsel for the Minister referred me to the authority of NADR v Minister for Immigration & Multicultural & Indigenous Affairs[23] where the Full Court of the Federal Court stated:

   “The second ground of appeal was that the primary judge erred in not finding an error of law in the credibility finding of the Tribunal. The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 for the Court to have engaged in merits review. Furthermore, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [137].”

   However, that was a case where the credit findings were based on a straight forward rejection of the applicant’s evidence.  The evidence was rejected because there were inconsistencies in his account, matters that were not explained, and a lack of supporting evidence.[24]

   [23] [2003] FCAFC 167 at [9].

   [24]    NADR op cit at [5].

9. The distinction between those cases establishing the well settled principle that the assessment of credit is “par excellence” a matter for the Tribunal and cases such as this and VAAD is that the credit finding here, as in VAAD, was based on a failure to take into account relevant material.

10. The conclusion reached by the Tribunal that the ‘gaol’ issue was mentioned for the first time at the Tribunal hearing, was incorrect.  It was a failure to take into account the relevant information I have identified above.  The question then becomes, did the Tribunal rely on that error, and if so, can I be confident that reliance on the error could not have affected the outcome?[25]

    [25]    Re Refugee Review Tribunal; ex parte Aola (2000) 204 CLR 82 at [104].

11. The finding as to fabrication affected the finding as to the father never having been imprisoned.  Did that finding have a cascading effect on the issue of credit, such as to affect the outcome of the proceedings?  The Minister submits that it did not have such an effect and notes that the majority of the applicant’s evidence was accepted by the Tribunal.

12. The Tribunal did not accept the applicant’s evidence in three important respects.  First, it did not accept that the CID or other Sri Lankan authorities had been asking about him since his departure.  Secondly, it did not accept that the authorities had his records and were looking for him.[26]  Thirdly, it rejected his evidence that the CID had attended at the family house on one occasion in the eight or nine months before the applicant left Sri Lanka.[27]  These were matters referred to in the oral evidence of the applicant.[28]  His evidence was that when visiting his house since his departure from Sri Lanka, the authorities had said they wanted to know when he returned and that “he and his mother would have problems”.[29]  The reason for the Tribunal rejecting his evidence on these matters, was that it found it vague and unconvincing.  That finding is an example of the impressionistic process of reasoning identified by Gleeson CJ in Aola.

    [26] CB p 158 at [48].

    [27] CB p 158 at [47].

    [28] CB p 155 at [28].

    [29] Ibid.

13. It is not possible to say that the failure to take into account the claim of the father having been gaoled and the consequent credit finding did not permeate the reasoning behind the rejection of the evidence about the enquiries and veiled threats made by police subsequent to his departure.  The subsequent enquiry evidence had a direct bearing on the question of whether he had a well-founded fear of serious harm from the authorities because of his imputed political opinions.  The evidence that the father had been gaoled was a matter that might have had, if accepted, a direct bearing on the question of the father’s actual or imputed political opinions.  This in turn could affect the assessment of whether political opinions imputed to the applicant might give him a well-founded reason to fear harm and the assessment of the likelihood of the CID making enquiries about the applicant.

14. I am satisfied that the Tribunal fell into jurisdictional error in failing to take into account a relevant matter, that being the claim by the applicant in his entry interview that his father had been gaoled as a result of having paid bail on behalf of a member of the LTTE.

Ground four

1. I reject the applicant’s submissions on ground four.  The Tribunal did not err in failing to specifically draw the applicant’s attention to the entry interview and seek comment from him.  I dismiss this ground.

Ground five

1. I reject the applicant’s submission on ground five.  Contrary to the submission made by counsel for the applicant, the Tribunal did consider whether the applicant would be at risk of harm in the reasonably foreseeable future.  I dismiss this ground.

Ground six

1. I reject the applicant’s submission on ground six.  I accept the submission of the first respondent that the applicant was on notice of the categories of persons at risk on the basis of the country information.  I dismiss ground six.

2. I propose to quash the Tribunal’s decision and order the Administrative Appeals Tribunal to determine the application for review according to law.

1. I make the orders to be found at the beginning of these reasons.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 25 May 2016