BEL16 v Minister for Immigration
[2019] FCCA 223
•5 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEL16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 223 |
| Catchwords: MIGRATION – Protection visa – adverse credibility findings – case specific inquiry – where applicant made claims in his written statement that he failed to mention to the minister’s delegate – illogicality or irrationality – whether tribunal failed to consider a relevant consideration – where tribunal’s credibility findings could not be rehabilitated by a police report – no error made out in tribunal’s failure to address probative value of the report – typographical or superfluous errors in tribunal’s reasons not jurisdictional error – none of the applicant’s claims made out – application dismissed. |
| Legislation: Migration Act 1958, s.474(2) |
| Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 |
| Applicant: | BEL16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1023 of 2016 |
| Judgment of: | His Honour Judge J D Wilson QC |
| Hearing date: | 5 December 2018 |
| Date of Last Submission: | 5 December 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 5 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Stoller |
| Solicitors for the Applicant: | Abode Migration Lawyers |
| Counsel for the First Respondent: | Mr A Aleksov |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The application filed on 17 May 2016 as amended on 31 October 2018 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the amount of $5 000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1023 of 2016
| BEL16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This application for judicial review raised two points for determination. The first was whether the credibility findings made by the tribunal were open to challenge on the basis that they were affected by jurisdictional error. The second was whether a report[1] could rehabilitate the applicant’s credibility in view of the adverse view the tribunal formed in respect of the applicant’s credibility.
[1] Court book filed on 9 November 2016, 227
So far as the first point was concerned, the applicant called in aid two decisions of the Full Court, namely CQG15 v Minister for Immigration and Border Protection[2] and AVQ15 v Minister for Immigration and Border Protection.[3] The applicant said that the conclusion the tribunal reached in paragraphs 67 and 68 of its reasons were wrong. Conversely, the minister accepted that credibility findings were not immune from scrutiny on judicial review but the minister argued that any such review was confined to legal error. The minister cautioned against any conversion of this application for judicial review into an impermissible merits review. The minister argued that the tribunal correctly made findings on the issues the applicant sought to impugn.
[2] (2016) 253 FCR 496
[3] [2018] FCAFC 133
In the course of my examination of ground one, it became necessary to address each of the issues identified by the applicant in his contention that the tribunal engaged in irrational or illogical reasoning and that the tribunal thereby fell into jurisdictional error.
So far as the second ground of review was concerned, the applicant argued that the tribunal engaged in irrational or illogical reasoning in relation to a particular police report. The minister argued that at its highest, the report was best understood to be the opinion of the complainant about the identity of his assailants.
Synopsis
For the reasons that follow, in my judgment this application for judicial review failed. I dismiss this proceeding and order the applicant to pay the minister’s costs.
Short factual narration
The applicant is a citizen of Sri Lanka who arrived in Australia as an “unlawful maritime arrival” on 20 June 2012. He applied for a protection visa on 1 March 2013. He claimed to fear harm from the Sri Lankan Criminal Investigation Department (“CID”) arising out of a dispute between the applicant’s father, the applicant’s uncle and a politician with links to the CID.
The applicant claimed that his uncle had been detained and upon his release on bail had informed his father that the he too was under suspicion. At that point his father vanished and had not been seen since (it was claimed that he remained in hiding). Shortly thereafter the applicant claimed that CID officers attended his home in search of the applicant’s father. When the CID did not find the applicant’s father, the CID threatened that they would return and kidnap the applicant to secure the presentation of the applicant’s father.
The applicant’s evidence evolved during the protection visa process. Initially, he claimed that he left Sri Lanka due to poverty.[4] At an interview on 24 October 2012, he gave evidence of the CID raid but did not give any evidence as to the reason for the raid. In his written claims accompanying the protection visa application[5] he claimed that the CID was searching for the applicant’s father in connection with his father’s reneging on a deal with a politician whereby his father was effectively being extorted[6] which had led to false allegations being made against the applicant’s father and uncle that they were involved in weapons smuggling. In that same statement the applicant mentioned that his father had political connections but did not claim that his political connections were related to the raid.
[4] Court book, above n 1, 3
[5] Ibid 94-98
[6] Ibid 95
In his interview with the delegate the applicant claimed that the raid was connected to a political issue involving support given by his father and uncle to a local politician,[7] who was opposed to the politician extorting his father and uncle (but was from the same political party).
[7] Ibid 147
The delegate did not believe the applicant’s claims about the raid and otherwise found that the applicant’s circumstances did not give rise to any protection obligations.
Before the tribunal the applicant advanced much the same case as he did before the delegate. The tribunal also did not believe the applicant’s claims about the raid. It affirmed the delegate’s decision.
At paragraph 68 of its reasons the tribunal noticed the differing accounts of the claimed reasons for the raid
At paragraph 69 of its reasons the tribunal considered the significance of those discrepancies.
At paragraph 70 of its reasons the tribunal considered submissions by the applicant’s representative as to why an adverse credibility finding should not be made.
The tribunal found it to be implausible that the CID was interested in the applicant, his father or his uncle. At paragraph 71 of its reasons the tribunal found it to be implausible that the political issue could rise to such a high level if the two politicians were from the same party and were not involved in some form of political rivalry.
According to paragraph 72 of its reasons the tribunal said it did not think that the claimed false allegations of weapons smuggling had in fact been made. That was because, if they had been so accused and the uncle had been arrested for this reason as claimed, the uncle would not have been released after only two days nor would the father have been allowed to remain at liberty prior to the uncle’s release.
The tribunal also reasoned at paragraph 73 that it was implausible that the CID might continue to search out and kidnap the applicant as a means to secure the presentation of his father upon any return to Sri Lanka, given that four years had passed (as at the time of the tribunal’s decision) and the CID could easily have kidnapped his mother or siblings.
In this court
Being dissatisfied with the decision of the tribunal, the applicant brought this application for judicial review in this court. He relied on two grounds each of which was underpinned by extensive particulars. While lengthy, it is useful to set them out. They read as follows (with errors and emphasis in the original) –
The Tribunal made the following jurisdictional errors, by reason of which the migration decision under review is not a ‘privative clause decision’ within the meaning of s 474(2) of the Migration Act 1958 (the Act).
1.In making findings that the Applicant was not credible, the Tribunal engaged in irrational or illogical reasoning or made findings without any probative basis; or constructively failed to exercise its jurisdiction or failed to carry out its statutory task by failing to consider relevant information.
PARTICULARS
a)The Applicant contends that the Tribunal erred in six relevant respects.
b)First, the Tribunal concluded that the Applicant had given ‘differing accounts’ of why he said that the Sri Lankan Criminal Investigation Department (the CID) was pursuing his uncle and father, and that these ‘differing accounts’ constituted ‘discrepancies’ in his evidence in circumstances where:
(i) the Applicant stated in his entry interview that he did not know why his uncle had been arrested;
(ii) the Applicant ‘then claim[ed] in his first written statement that he believed that it related to his father and uncle refusing to pay money to a Singhalese politician in order to operate their business from a local market’;
(iii) the Applicant ‘then [told] the delegate that the CID had arrested his uncle and wanted to arrest his father and uncle because they had been persuaded to do so by Nishantha, a Singhalese politician wanted to defeat Thasanomoorthy, a Tamil politician whom uncle and father supported in elections.’
c)Having regard to the whole of the Applicant's written statement, the Applicant’s evidence in this regard did not contain discrepancies in the sense described by the Tribunal, and it was not open to the Tribunal to so conclude.
d)Further, the Applicant’s ‘first written statement’ stated that it was only a ‘summary’ and was ‘not an exhaustive statement’ of his claims, and that he intended to provide ‘further information’ during his interview with the delegate.
e)Any conclusion that the absence of specific evidence in the written statement, and the Applicant’s provision of further detail to the delegate, constituted a ‘discrepancy’ involved a failure to have regard to the significant qualification to the Applicant’s first written statement (i.e. that it was not an exhaustive statement of his claims), the existence of which negated the Tribunal’s conclusion that the Applicant’s evidence contained discrepancies.
f)Secondly, the Tribunal’s conclusion that the Applicant had given accounts containing ‘discrepancies’ was, in part, based on its conclusion that 'the applicant claimed in his written statement that his uncle and father had been accused of weapons smuggling, but had clearly forgotten this when the issue was discussed during his interview with the delegate as he failed to mention it until reminded of his earlier evidence by the delegate.’
g)The Applicant’s evidence in this regard did not contain any discrepancy in the sense described by the Tribunal, and it was not open to the Tribunal to so conclude. The Tribunal’s finding that the Applicant had ‘forgotten’ a claim is not a finding that the Applicant had given discrepant or otherwise inconsistent evidence.
h)Further, and in any event, in this regard the Tribunal failed to have regard to the Applicant’s explanation for not having raised this claim before being questioned about it by the delegate: that the delegate had not asked him about this aspect of his claim.
i)Thirdly, the Tribunal made a finding that it was ‘not plausible that the CID would have released the applicant’s uncle after only two days or that they would have failed to detain his father, who remained at home and easy to located…. if they had genuinely suspected or believed that they were involved in smuggling guns ...’ (emphasis added).
j)In making this finding, the Tribunal failed to have regard to the way the Applicant put his claim: that his father and uncle were pursued with respect of false allegations of weapons smuggling. It was never contended by the Applicant that the CID genuinely suspected or believed his uncle and father were involved in smuggling guns.
k)Fourth, the Tribunal made a finding that ‘the claim that the CID would continue to hunt for the applicant for nearly four years so they could detain or abduct or get rid of him in order to pressure his father to give himself up completely implausible. If the CID believed that detaining or abducting a family member would have forced his father out of hiding then surely they would have detained his mother or siblings.’
l)In making this finding, the Tribunal failed to have regard to the Applicant's claim that his family ‘are now not staying at home permanently and often spend nights at other relatives’ houses to avoid being detected and coming to harm.’
m)Fifthly, the Tribunal concluded that the ‘applicant’s evidence at the hearing regarding the CID’s continuing interest in him was contradictory and unconvincing’ in circumstances where:
i. The Tribunal ‘incorrectly observed that (the Applicant] had not made (a claim about the CID’s continuing interest in him] previously’;
ii. the Applicant ‘did not correct’ the Tribunal’s erroneous observation;
iii. the Tribunal found that the Applicant ‘indicated that the CID had only come to his home recently and when [the Tribunal] pointed out that this was at odds with the claim that they had come 6 months after he left Sri Lanka, said that this was true but he had only recently learned of these visits, which is at odds with his evidence to the delegate in xxxx [sic]’
n)The Applicant’s evidence in this regard was not ‘at odds’ with, or otherwise contradictory of, any evidence given to the delegate, and it was not open for the Tribunal to conclude otherwise.
o)Further and in any event, the Tribunal’s conclusion in this regard was based on a mischaracterisation of the Applicant’s evidence (alternatively a failure to have regard to the evidence given by the Applicant): the Applicant did not claim that the CID had ‘only come to his home recently’, he claimed that the CID had visited his home twice: once recently, and once earlier – around six months after his departure from Sri Lanka.
p)Sixthly, the Tribunal failed to consider the significance of any inconsistency in the Applicant’s evidence, or the weight to be given that inconsistency, having regard to the Applicant’s case as a whole.
2.The Tribunal engaged in irrational or illogical reasoning, or constructively failed to exercise its jurisdiction or failed to carry out its statutory task by failing to consider relevant information.
PARTICULARS
a.The Tribunal purported to consider a police report submitted by the Applicant, finding that the report ‘relat[ed] to an attack on the applicant’s uncle’s wife and father by people associated with Nisantha.’
b.The Tribunal ‘strongly doubted’ the report was genuine, but did not decide the issue, on the basis that it would give the report ‘no weight’ since ‘it contains nothing which suggests that the CID would pursue the applicant if he returned to Sri Lanka’.
c.It was not open to the Tribunal to reach the conclusion that the report contained nothing which suggests the CID would pursue the Applicant if he returned to Sri Lanka.
d.Further and in any event, the Tribunal ought to have considered the report insofar as it was relevant to the Applicant’s other claims.
Ground one
Under this ground the applicant sought to upset factual findings that were based upon an assessment of witness credibility. Counsel for the applicant recognised that certain difficulties confronted an applicant undertaking that exercise. He addressed those squarely in paragraph 23 of his written submissions with specific reference to the decisions in SZVAP v Minister for Immigration and Border Protection[8] which in turn cited Minister for Immigration and Citizenship v SZNPG.[9] Counsel for the applicant also referred to other cases that have spoken of the difficulties confronting applicants who seek to impugn credibility findings those other cases including CQG15, ARG15 v Minister for Immigration and Border Protection,[10] SZSHV v Minister for Immigration and Border Protection,[11] Minister for Immigration and Citizenship v SZRKT[12] and Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham.[13] There are others. However, counsel for the applicant added that adverse credibility findings are not immune from challenge on an application for judicial review. That much was true.
[8] (2015) 233 FCR 451
[9] [2010] FCAFC 51
[10] (2016) 250 FCR 109
[11] [2014] FCA 253
[12] (2013) 212 FCR 99
[13] (2000) 74 ALJR 405
With those preliminary observations, let me now turn to the detail.
Particulars 1(b) to 1(e)
Specifically, the applicant focused on the tribunal’s findings about various discrepancies in the applicant’s evidence. The applicant pointed first to the tribunal’s observations in paragraph 67 of its reasons. The applicant asserted that the tribunal’s conclusion that the applicant had given differing accounts of the reason why the CID was pursuing his uncle and father, calling those differing accounts discrepancies, was not borne out by the evidence. Conversely, counsel for the minister submitted that at paragraph 69 of its reasons the tribunal expressly considered the applicant’s contention that the applicant was not in a position to know the reason for the CID raid at the time when the applicant gave his first written statement and that the tribunal found the applicant’s assertions about the reasons for the CID raid as being unpersuasive. Counsel for the minister pointed out that the applicant did not challenge that aspect of the tribunal’s reasoning.
More fundamentally, counsel for the minister highlighted that a divergence in the applicant’s evidence about the CID raid was in fact apparent in the applicant’s own material. In the applicant’s initial claim in his statement the applicant said the CID raid was connected with reneging on an extortion deal whereas the applicant later said the CID raid was founded on a political dispute.
Paragraph 69 of the tribunal’s reasons should not be taken in isolation. The opening line of the paragraph referred to “these discrepancies” which in turn compelled a reader to examine the whole of paragraph 68. The tribunal’s examination was recorded at paragraph 68 of its reasons. There the tribunal stated the following (with errors in the original) –
In the first place, the applicant has given differing accounts of why the CID was pursuing his father and uncle, stating in his entry interview that he did not know why his uncle had been arrested, then claiming in his first written statement that he believed that it related to his father and uncle refusing to pay money to a Singhalese politician in order to operate their business from a local market, then telling the delegate that the CID had arrested his uncle and wanted to arrest his father and uncle because they had been persuaded to do so by Nishantha, a Singhalese politician wanted to defeat Thasanomoorthy a Tamil politician whom uncle and father supported in elections. During the hearing he again claimed the CID wanted to arrest his father and uncle because Nisantha wanted to harm Thasanomoorthy, but said that they were from the same party and were not riyals for an elected position. In addition the applicant claimed in his written statement that his uncle and father had been accused of weapons smuggling, but had clearly forgotten this when the issue was discussed during his interview with the delegate as he failed to mention it until reminded of his earlier evidence by the delegate.
It was readily apparent that by those observations the tribunal did not slough off the applicant’s evidence in some generic and non-specific way. To the contrary, the tribunal identified the relevant issue in respect of which the differing versions were given and the tribunal recorded the different versions themselves leading to the tribunal’s expression of the significance of those differences (described as discrepancies). In my view, the differences or discrepancies were not minor. In AVQ15[14] the court held that where it is reasonably open to find that a person has given inconsistent evidence the decision‑maker must assess the significance of that inconsistency and then the weight to be given to it. The court held as follows –
This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact.
[14] Above n 3 (at [28])
Counsel for the minister correctly submitted that whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, relying on paragraph 41(c) of AVQ15. Counsel for the minister also relied on paragraph 41(f) of AVQ15 for the proposition that considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional order.
It seemed to me that the considerations given by the tribunal in paragraph 68 were not considerations in relation to peripheral matters. The applicant’s claim that the CID was pursuing the applicant’s father and uncle was a significant matter. It called for examination by the tribunal. The tribunal duly examined the issue. The tribunal scrutinised the version of the claim that the CID was pursuing the applicant’s uncle and father –
a)in his entry interview;
b)in his first written statement;
c)in the information given to the delegate; and
d)during the hearing.
The tribunal recorded the version given by the applicant on that issue at each phase. The applicant’s version changed four times as the tribunal recorded at paragraph 68 of its reasons. Those responses were inconsistent with one another. The inconsistencies were on a matter central to the applicant’s case. They were not at the periphery. In my view, the applicant’s complaint about paragraph 69 of the tribunal’s reasons was ill‑founded.
I reject paragraphs 1(b) to 1(e) of the applicant’s first ground of review.
Particulars 1(f) to 1(h)
Under this aspect of ground one, the applicant focused on paragraph 68 of the tribunal’s reasons and in particular the finding that the applicant had “clearly forgotten” how his father and uncle had been accused of weapons smuggling during his interview with the delegate.
The applicant submitted that it was wrong for the tribunal to state that the applicant had forgotten the issue because, so the applicant said, the tribunal failed to have regard to the applicant’s explanation for not having raised this claim before being questioned about it by the delegate, namely, the applicant said the delegate had not asked him about this aspect of the claim.
In response, the minister referred to paragraph 41 of the tribunal’s reasons. It is useful to record the relevant portion of that paragraph. After referring to the applicant’s claim about difficulties with the CID the tribunal said the following –
… I also noted that he had claimed in his first written statement that his father and uncle were accused of involvement in weapons smuggling, but did not mention this during his interview with the delegate until reminded of his earlier claim by the delegate. The applicant said that he had he had not been asked about the weapons charges or attempted extortion by the delegate and added that the CID had asked his father and uncle for money. I also noted that applicant had claimed for the first time at the hearing that his father had been accused of smuggling guns for the LTTE. He said that he had mentioned that they had been accused of transporting weapons.
That passage provided the springboard for the minister’s contention that the observations in paragraph 41 were the tribunal’s noticing this feature of the applicant’s case rather than those observations being properly characterised as factual findings in respect of discrepant evidence. Citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[15] the minister put the submission about the applicant’s contentions concerning the applicant forgetting an earlier claim in the following terms (with the citation omitted) –
In any event, the inherent weakness of the explanation tends to suggest that the Tribunal did not have to deal with this issue in any greater degree than it has done, the better inference being that the Tribunal did not think that it was material to its reasoning, and therefore, did not require any more extensive mention in the reasons.
[15] (1996) 185 CLR 259
I do not accept as valid the applicant’s contention that the tribunal fell into jurisdictional error in the manner recorded in particulars 1(f) to 1(h) of the applicant’s amended application. It seemed to me that the tribunal’s observation was open when it said that the applicant had forgotten his claims about his uncle and his father having been accused of weapons smuggling during his interview with the delegate. In AVQ15[16] the Full Court spoke of the situation where a visa applicant raised a claim for the first time at an advanced stage, or the failure to raise the claim previously, being relevant to credibility. Here, the claim was raised in the applicant’s written statement yet he failed to mention it to the delegate and had to be reminded about it by the delegate. Equally, in AVQ15[17] the Full Court spoke of the particular challenges asylum seekers face, including the giving of multiple accounts, the use of interpreters, and other things. I have taken those factors into account in this case. Nonetheless I reject the suggestion that the tribunal fell into jurisdictional error in the manner alleged.
[16] Above n 3 (at [27])
[17] Ibid (at [28])
Particulars 1(i) and 1(j)
Those particulars focused on paragraph 72 of the tribunal’s reasons. The starting point is the paragraph itself. It is not long so I have set it out below in its entirety –
I have also considered the claim that the applicant’s father and uncle were accused of smuggling weapons for the LTTE in 2012 and that this lead to his uncle’s arrest in 2012. It is not plausible that the CID would have released the applicant’s uncle after only two days or that they would have failed to detain his father, who remained at home and easy to located for over two days after his brother’s arrest, if they had genuinely suspected or believed that they were involved in smuggling guns for the LTTE or anyone else.
The second sentence attracted the applicant’s challenge. The applicant’s counsel put the submission that the plausibility finding, being one of the bases on which the applicant was found to have not been a credible witness, was made without regard to all relevant circumstances.
At least some of the relevant circumstances were set out in paragraphs 17, 24 and 70 of the tribunal’s reasons. It is necessary to set out those paragraphs because the minister relied on them to demonstrate that the applicant’s contention that the tribunal’s findings about implausibility, that the applicant’s uncle and father were suspected of weapons smuggling, were erroneous.
Paragraph 17 was as follows –
The applicant did not know the full details of why the CID was looking for his father, but he believed that a Singhalese politician had tried to force his father to pay additional money from their fish business at the local market, so his father began to sell fish from his uncle’s house. Because of this the Singhalese politician organised for the CID to lay false charges of weapon smuggling from Mulliativu against the applicant’s father and wanted to arrest him.
Paragraph 24 of the tribunal’s reasons was longer. It was as follows (with the error in the original) –
The delegate noted that there were a number of contradictions in the evidence provided by the applicant. She pointed out that when he was first interviewed on arrival in Australia he said he said he came because he was in poverty. The applicant said he was confused when he first got off the boat and he had a lot of hardship when he was studying so he mentioned poverty. She also noted that he had previously claimed that father and uncle had problems related to their dried fish business and that false charges of weapons smuggling had been laid again them as a result, but he had failed to mention either of these matters when his father’s problems were discussed during the interview. The applicant said that he had not mentioned his father’s business problems or the weapons charges because he was not asked about them.
Paragraph 70 of the tribunal’s reasons recorded the tribunal’s thought processes on point. That paragraph was as follows –
I have also considered the submissions by the applicant’s representative that he did not understand the application process, that he was fearful of the authorities and that he feared that any information he provided would be sent to Sri Lanka. I do not accept any of them. No knowledge of the protection visa process is needed to answer simple questions such as why did you leave Sri Lanka in an honest and reasonably complete fashion. It is not plausible that someone would come to Australia to seek protection if they feared Australian authorities nor is it plausible that the applicant would have felt the need to conceal the reasons he fled Sri Lanka from the Sri Lankan authorities as he had never been involved in any anti‑government activities and the authorities would have been aware of the false weapons charges allegedly faced by his uncle and father.
There is force in the minister’s contention. The tribunal was entitled to take the view that it took in the second sentence in paragraph 72 of its reasons. That deduction of implausibility was available. The tribunal did not reach an erroneous conclusion in that finding of implausibility. To my mind, such a finding was open having regard to all the relevant information. I reject the contentions of the existence of a jurisdictional error set out in particulars 1(i) to 1(j).
Particulars 1(k) and 1(l)
Under those particulars, the applicant took issue with the tribunal’s use of the words “completely implausible” in paragraph 73 of its reasons. As with other paragraphs of the tribunal’s reasons of relevance in this case, it is utile to record paragraph 73 in its entirety. That paragraph read as follows (with errors in the original) –
Even if I accepted that the CID was continuing to seek the applicant’s father (which I do not) I find the claim that the CID would continue to hunt for the applicant for nearly four years so they could detain or abduct or get rid of him in order to pressure his father to give himself up completely implausible. If the CID believed that detaining or abducting a family member would have forced his father out of hiding then surely they would have detained his mother or siblings. And killing the applicant, as he appears to be suggesting, would no doubtless have caused his father to remain in hiding, not to give himself up.
Adopting similar wording for his complaint about the tribunal’s other use of the word “plausibility”, the applicant said in respect of paragraph 73 that the implausibility finding was made without regard to all relevant information and that it was one of the bases on which the tribunal reached conclusions about the applicant’s credibility. The applicant argued that the tribunal failed to mention that the applicant’s family were not staying at home permanently and they often spent nights at other relatives’ homes to avoid being detected and coming to harm.
The minister acknowledged that the tribunal did not address that evidence. However, the minister said that the absence of a specific reference to that evidence did not reveal jurisdictional error, citing Minister for Immigration & Multicultural Affairs v Yusuf,[18] Minister for Immigration and Citizenshipv SZMDS,[19] Minister for Immigration and Citizenship v SZGUR,[20] and Minister for Immigration and Citizenship v SZJSS.[21] The minister submitted that a court considering a challenge to a tribunal’s decision is generally entitled to infer that any matter not mentioned in its reasons was, at the very least, not considered by the tribunal to be material to its review. The minister further relied on the decision in Minister for Immigration and Border Protection v SZSRS,[22] where the Full court held that the fact that a matter was not referred to in the tribunal’s reasons did not necessarily mean the matter was not considered by the tribunal at all.
[18] (2001) 206 CLR 323
[19] (2010) 240 CLR 611
[20] (2011) 241 CLR 594
[21] (2010) 243 CLR 164
[22] [2014] FCAFC 16
The minister’s written submissions at paragraph 27 seem to me to more correctly state the position. It was there said as follows –
This particular issue arose only as an alternative to the Tribunal’s principal finding, that the CID had never been interested in the applicant, his father or his uncle. The Tribunal addressed it for completeness as the issue arose on one version of the evidence, but it did not have to be addressed because a fundamental premise had been rejected (that current interest in the applicant harked back to the claimed, but rejected, CID raid on his home). In any event, there were three reasons given in response to this claim; (i) the inherent implausibility of the claimed interest given the time lag; (ii) the unlikelihood of the claim given other family members could have been kidnapped; (iii) the unlikeliness for this approach to yield a desired outcome. These were cogent reasons. In these circumstances, the brevity of the Tribunal’s reasons reflects that the evidence said to have been overlooked was not overlooked but was considered to be immaterial and therefore not mentioned in the reasons.
Having put the position in those terms, I agree that the necessary centrality of the evidence in the review was absent. The absence of the centrality of that evidence enlivened concepts canvassed in such authorities as Minister for Immigration and Citizenship v SZRKT[23] and, more recently, by the High Court of Australia in Hossain v Minister for Immigration and Border Protection.[24] Where the point was not central, it could not amount to jurisdictional error.
[23] (2013) 212 FCR 99
[24] (2018) 92 ALJR 780
In my view, those particulars were devoid of merit.
Particulars 1(m) to 1(o)
Under these particulars, the applicant focused on paragraph 74 of the tribunal’s reasons. As before, it is useful to record that paragraph. It was as follows (with the error in the original) –
The applicant’s evidence at the hearing regarding the CID’s continuing interest in him was contradictory and unconvincing. When I incorrectly observed that he had not made this claim previously, he did not correct me but indicated that the CID had only come to his home recently and when I pointed out that this was at odds with the claim that they had come 6 months after he left Sri Lanka, said that this was true but he had only recently learned of these visits, which is at odds with his evidence to the delegate in xxxx. Far from persuading me that he was of continuing adverse interest to the CID, I find the applicant’s changing evidence regarding the claimed visits of the CID to his home a strong indication that he is not a truthful witness
Of that paragraph, the applicant said his evidence was not in fact at odds with, nor did it contradict, any evidence the applicant gave the delegate. The applicant also said, the tribunal’s inclusion of “xxxx” was meaningless. The applicant said that the findings in paragraph 74 of the tribunal’s reasons were not open to it.
The minister said several things in response to the challenge to paragraph 74. First, he said the reference to “xxxx” was no more than typographical or superfluous material which, according to Wu Shan Liang, is not jurisdictional error. Second, the minister said the applicant misread the terms and effect of paragraph 74 of the tribunal’s reasons as the minister said the paragraph merely but accurately recorded what happened at the hearing. The minister said the hearing revealed confusion in the evidence about the timing of the CID visits following the applicant’s departure from Sri Lanka. That led to the tribunal recording in the last sentence of paragraph 74 that the tribunal considered the applicant’s evidence to not have been persuasive.
I detected no error in that path of reasoning. The use of xxxx was superfluous. A plain reading of the paragraph revealed its purport. Had the four x marks been absent the relevant sentence made sense. No jurisdictional error arose from those particulars.
Particular 1(p)
Under this particular the applicant raised what he said was an impermissible blanket approach in the tribunal’s reasoning. The applicant said the tribunal failed to give weight to the alleged discrepancies. The minister argued that paragraphs 69 and 70 of the tribunal’s reasons revealed that the CID incident especially had been separately considered and its significance addressed.
To the extent that this particular is a blanket catch‑all particular then in my view the challenges set out in the preceding particulars have already been addressed, there being no separate new challenge advanced in this particular. It followed therefore that in the absence of a new challenge in particular 1(p), the earlier challenges in respect of particulars 1(b) to (o) have already been addressed. None succeeded.
Ground two
This ground has been recorded above. Expressed most simply, the applicant argued that the tribunal acted illogically or irrationally by failing to consider relevant information, namely, a police report submitted by the applicant, reproduced at page 227 of the court book. The document itself indicated that it had been translated from the Sinhalese language into the English language. It was dated 2 October 2013. In view of the importance the applicant attached to the report, it is necessary to set out the body of it in full. It was as follows (with errors in the original) –
I reside with my three children at the above address. Around 0900 at night of 06-08-2013 four persons unknown to me arrived at our house and asked for my husband Mathi. I told them Mathi is not at home. Then, demanding me to produce my husband, they assaulted me with their hands and legs. When my father came running to the scene, they also assaulted him. They assaulted me and my father and threatened to kill us if we did not surrender my husband to them. As a result of the assault I and my father got wounded. My face is bruised and bleeding. I think that these people were looking for Mathi because they were angry with him for working in support of Nechchamurthy at the elections. I think these people were Sanath Nishantha’s people. They carried swords and poles in their hands. Had they seen Mathi, they would have killed him. I do not recognise them. There were about four persons. Two of them were fat and dark skinned, the other two were short. As this happened in the dark I won't be able to recognise them if I see them again. After assaulting me , and my father, they searched the rooms of the house for Mathi. They smashed our chairs on the floor. They attacked the windows and shattered the window‑glasses. The children got scared and ran away from the house into hiding. These people then searched the back yard of our house. They wanted Mathi, not us. My father is in hospital. His condition is serious. I too am hurt and need to go to the hospital. They then went towards the road. A vehicle arrived and they left in it. Before they left they said that they will return, and threatened that they will harm Mathi if they saw them. I am swollen due to the body blows I received. I request the police investigate this incident and bring us justice. I think they were Sanath Nishantha’s people. This is all I have to say. This statement was read and explained. Signed confirming the accuracy (Signature). I, Police Constable Nishantha, P. C. 47126, hereby declare that I have sincerely and accurately recorded the aforementioned Ahilanmeshvari's statement. (Signature of P. C. 47126).
The applicant contended that the tribunal’s reference to it strongly doubting the genuineness of the report was not open nor was it open to the tribunal to conclude that the report contained nothing to suggest the CID would pursue the applicant if he returned to Sri Lanka. The applicant said that if the report were in fact genuine it provided support for the claim advanced by the applicant that he would be imputed with the political views of his uncle and therefore that he would be at risk of significant harm as a returnee from Australia and therefore targeted by authorities in Sri Lanka.
The minister said that at its highest the report was to be construed as the reporter’s opinion about the identity of the alleged attackers. The minister said the basis for the reporter’s opinion was not given so the report was little more than speculation. More fundamentally, the minister said that, according to the decision in Minister for Immigration and Citizenship v SZNSP,[25] it was open to the tribunal to reach adverse credibility findings in relation to the applicant’s version of events prior to the tribunal examining corroborative material. The minister submitted that the tribunal’s adverse credibility findings could not be rehabilitated by the report referred to above. In those circumstances, the minister said there could not be jurisdictional error in the tribunal failing to address any purported probative value in the report.
[25] (2010) 184 FCR 485
The tribunal’s treatment of the police report was recorded at paragraph 77 of the tribunal’s reasons. That paragraph was short, as follows –
In reaching this conclusion I have considered the police report relating to an attack on the applicant’s uncle’s wife and father by people associated with Nishantha. However, even if this document is genuine, which I strongly doubt, it contains nothing which suggests that the CID would pursue the applicant if he returned to Sri Lanka and I have given it no weight.
Three observations emerge from that paragraph. First, the tribunal strongly doubted the genuineness of the document. Second, the tribunal distilled from it nothing to suggest that the CID would pursue the applicant upon his return to Sri Lanka. Third, in consequence of those two propositions, the tribunal gave the report no weight.
Of those three points, the second was the most significant, to my mind. Yet each warranted attention.
As a starting premise, it fell to the applicant to persuade the tribunal that he was entitled to the visa he thought. If he failed to so persuade the tribunal, so long as the tribunal did not fall into jurisdictional error in the process or in the upshot, then the tribunal’s decision stands, whether or not the decision was favourable to the applicant. As part of the documents the applicant put before the tribunal in this case was the police report. The maker of the police report did not appear before the tribunal. The hearing record of the tribunal showed that only the applicant and his representative appeared, the latter by telephone. The person who made the police report did not. Yet the statement in its translated form was sent to the tribunal at 4:24 pm on the same day as the tribunal hearing, the conclusion time of which was 4:05 pm. No reason was given why the maker of the police report could not and did not appear before the tribunal. The reporter was the applicant’s uncle’s wife.
Having provided the report to the tribunal, the tribunal read it and considered it. The report spoke of the unknown four people arriving at the reporter’s home at 9 pm one night, asking for the applicant. When the reporter told the four unknown persons that her husband was not at home, they beat her and later her father when the father turned up. According to the applicant wife’s police report, the four unknown persons then threatened to kill her and her father unless they surrendered the applicant to the four unknown persons. Then she offered an opinion about why those persons were looking for her husband and in her opinion it was because they were angry with the applicant for working in support of an election candidate. She offered then a second opinion, namely, that the four unknown persons were “Sanath Nishantha’s people” (those were her words). How she was able to so conclude went unsaid. At all events, in her report she offered a third opinion, namely, that the four unknown persons who she opined were angry with her husband for supporting an election candidate and who were, in her opinion, Nishantha’s people, would have killed her husband had they seen him.
Then, after expressing those unsupported opinions, she said she did not recognise the four men yet immediately thereafter she guessed at how many of them were present. This was after stating in the opening lines of her statement that four unknown persons attended at her residence. She later qualified the number by saying “about four”. The number of unknown persons making the threats to kill ought to have been firmly impressed and not in approximate terms. Then she stated that two were fat and dark‑skinned with the other two being short. She said she would be unable to recognise them if she saw them again. Then she said they destroyed furniture and windows. She said, without stating why, they wanted her husband. She said the persons said they would return and threatened they would harm her husband if they saw him.
Certain threads can be drawn together from the police report. In no special order of significance –
a)four persons (although possibly more or less) were not identified beyond two being dark-skinned and fat and two being short, came to her residence;
b)there, they beat the applicant’s uncle’s wife and her father;
c)they threatened to kill her and her father unless the applicant’s wife and father surrendered the applicant to them;
d)they damaged furniture and windows;
e)on leaving, they threatened to harm the applicant if they saw the applicant; and
f)she otherwise speculated about who they were, who they represented and why they were there at all beyond asking for her husband.
The report is headed “Assault by unidentified persons”. It bears four dates, the first 6 August 2013, the second 2 October 2013, the third 24 June 2012 and the fourth 24 July 2014. The relevance of those dates was unexplained. The tribunal strongly doubted that the police report was genuine. The four dates may have actuated that doubt. The events narrated may have actuated the doubt. Yet the tribunal was not persuaded that the police report was genuine. It fell to the applicant to persuade the tribunal of his case for protection. Importantly for present purposes the tribunal said the report did not show that CID persons would pursue the applicant if he were returned. That was correct. Nowhere in the report was a link made to the CID.
I detected no error in paragraph 77 of the tribunal’s reasons nor did I consider that ground two was made out.
With leave, the applicant filed supplementary submissions that addressed the amended grounds but with pinpointed references to the hearing before the delegate. Those supplementary submissions focused on the applicant’s contentions as were the subject of particulars 1(b) to 1(e) as well as the applicant’s contentions as were the subject of particulars 1(m) to 1(o). Having read those supplementary submissions carefully, as well as the transcript of the interview with the delegate exhibited to the affidavit of Gerard Gleeson affirmed 23 November 2018 I have considered the totality of the applicant’s arguments and submissions in this case. I remain of the view that none of the grounds were made out. There is force in the proposition that the applicant was endeavouring to undertake a merits review in this application for judicial review seeking, under the guise of legal unreasonableness, to re‑agitate the claims that were put unsuccessfully before the delegate and the tribunal. Wu Shan Liang does not permit that.
Conclusion
This application for judicial review is dismissed. The applicant must pay the minister’s costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of his Honour Judge J D Wilson QC
Associate:
Date: 5 February 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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