BHD18 v Minister for Immigration
[2019] FCCA 3354
•22 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHD18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3354 |
| Catchwords: MIGRATION – Protection Visa – whether Immigration Assessment Authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment Authority’s decision – Further Amended Application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J(1), 36(2A) Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510 SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 |
| Applicant: | BHD18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 146 of 2018 |
| Judgment of: | Judge Kemp |
| Hearing date: | 16 October 2019 |
| Date of Last Submission: | 16 October 2019 |
| Delivered at: | Perth |
| Delivered on: | 22 November 2019 |
REPRESENTATION
| Solicitors for the Applicant: | AUM Legal |
| Solicitors for the Respondent: | Sparke Helmore |
THE COURT ORDERS THAT
Leave be granted to the First Respondent to vary its title to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Leave be granted to the Applicant to rely on the Further Amended Application filed 16 October 2019.
The Further Amended Application filed 16 October 2019 be dismissed.
The Applicant pay the First Respondent’s costs of the proceedings assessed in the sum of $7,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 146 of 2018
| BHD18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of background, the Applicant is a citizen of Sri Lanka. On 5 May 2013, the Applicant arrived on Cocos Island as an unauthorised maritime arrival. On 20 August 2013, the Applicant was interviewed.
On 19 July 2016, the Applicant was advised by the First Respondent that the bar pursuant to s.46A of the Migration Act 1958 (Cth) (“the Act”) had been lifted and he was invited to apply for a Temporary Protection (Subclass 785) visa or Safe Have Enterprise (Subclass 790) visa (“SHEV”).
On 5 April 2017, the Applicant applied for a SHEV.
The Applicant’s claims were, substantially, as set out in his statutory declaration made on 13 December 2016 which accompanied his SHEV application as contained in the Court Book, being made Exhibit “Court 1”, which shall be referred to herein by “CB page reference”, namely CB 97-102 and are summarised as follows:
a)His father was a supporter of the Liberation Tigers of Tamil Eelam (“LTTE”) and regularly supplied the LTTE with groceries at a reduced price. When the Sri Lankan Army (“SLA”) became aware of this they threatened him, causing the family to move to India (where they lived from 1985 to 1988).
b)Upon the family’s return to Sri Lanka in 1988, his father opened another grocery store in Cheddikulam and continued supporting the LTTE.
c)He would deliver groceries to the LTTE and, in June 1990, he and a friend were stopped by a SLA patrol whilst delivering an order for the LTTE. Their hands were tied behind their backs and they were made to walk, approximately, 2 kilometres before the person he was with was shot and killed. The Applicant was taken to a camp, charged under the “Terrorism Act”, questioned about the location of the LTTE camp and beaten. He escaped after 4 days.
d)His family again fled to India. He did not return to Sri Lanka.
e)He had no family remaining in Sri Lanka and would find it difficult to obtain employment as a result of the amount of time he has spent outside the country. He would be targeted on return as he would stand out.
On 17 August 2017, the Applicant attended an interview with a Delegate of the First Respondent (“the Delegate”), being his SHEV interview.
By letter dated 17 August 2017, the Applicant, through Assist Australia Migration (CB 115), put further matters to the Delegate including, in particular, the matters set out at CB 125 to the following effect:
Identical Ligature scarring on both feet
[The Applicant] mentioned during his SHEV interview that he still has the scars from being hung by his ankles while he was a prisoner in the Sri Lankan Army camp in Cheddikulam. We ask you give consideration to the almost identical ligature marks on both of his feet and ankles, which may be suggestive of similar, if not the same type of trauma, to both of his feet/ankles at the same time and we submit that even in the absence of undeniable evidence, the scarring could be consistent with being hung by his feet with fencing wire or similar binding for an extended amount of time.
On 2 November 2017, the Delegate refused to grant the Applicant a SHEV.
On 28 November 2017, the Delegate’s decision was referred to the Immigration Assessment Authority (“the IAA”), the Second Respondent, herein, for review under Part 7AA of the Act.
On 19 February 2018, the IAA affirmed the Delegate’s decision not to grant the Applicant a SHEV.
The IAA’s decision:
a)Had regard to the material given to it by the Secretary under s.473CB of the Act and confirmed that no further information had been obtained or received: CB 201, [3]-[4];
b)Accepted that the Applicant’s family fled Sri Lanka in 1985 following the outbreak of conflict in the mid-1980’s;
c)Did not accept that the SLA had threatened to kill the Applicant’s father or his family, at that time: CB 202, [8];
d)Accepted that the Applicant’s family returned to Vavuniya, Sri Lanka in 1988: CB 202, [8];
e)Did not accept that the Applicant had been arrested, detained and mistreated by the SLA in 1990 on suspicion of LTTE links or that he had any charges pending against him in Sri Lanka: CB 204-205, [15]. In reaching that finding, that IAA did not accept the Applicant’s explanations as to why that claim was not mentioned at his arrival interview: CB 203-204, [12]-[13];
f)Accepted that the Applicant’s father may have been arrested, detained and mistreated and that the family fled to India as a result, but found that his father did not continue to be of interest to the authorities after his release or at the time of departure to India: CB 204-205, [15];
g)Accepted the claim, raised at his arrival interview, that the Applicant was involved in a small protest in the refugee camp in India relating to the passing of the new constitution in Sri Lanka. The IAA, however, found that there was no evidence that the Applicant came to the attention of the Sri Lankan authorities because of such participation or that his participation resulted in any adverse treatment: CB 205, [16];
h)Accepted that the Applicant’s language and accent may differ from other Tamils living in Sri Lanka and that the Applicant’s immediate family lived in a refugee camp in India. However, it did not accept that he had no family left in Sri Lanka: CB 205, [17];
i)Accepted that the Applicant left illegally and may be identified as having sought asylum in Australia: CB 205, [18];
j)Did not accept, having regard to country information, as well as the circumstances of the Applicant and his father (CB 206-207, [22]-[26]), that there was a real chance that he would face harm through arrest, detention, interrogation or torture by the Sri Lankan authorities because of his family’s past experiences or because he lived in India for most of his life: CB 207, [27];
k)Did not accept that the Applicant would be denied employment on return, or denied such employment for any reason in s.5J(1) of the Act: CB 207, [28];
l)Accepted that the Applicant may be identified as a returning asylum seeker, but was not satisfied, having regard to country information, that he would be detained, mistreated or, otherwise, harmed as a result: CB 207-208, [29];
m)Accepted in relation to the Applicant’s illegal departure, that he was likely to be detained at the airport for processing for up to 24 hours and may be held in a nearby prison for a short duration if he pleaded not guilty or, otherwise, immediately granted bail on personal surety of having a family member act as guarantor if he pleaded guilty, CB 208 at [32], but, otherwise found that prosecution under the Immigrants and Emigrants Act did not amount to persecution for the purpose of s.5J(4) as it was a law of general application: CB 208, [33];
The IAA also found that:
a)In considering the Applicant’s claims under the complementary protection criteria, the Applicant did not face a real risk of significant harm as a result of his Tamil ethnicity, his extended absence in India and then Australia, his participation in a small protest in India, his father’s experiences, his lack of documentation or having sought asylum abroad: CB 209, [38]; and
b)The Applicant did not face a real risk of significant harm as defined under s.36(2A) of the Act as a result of being interviewed, charged for having departed illegally, fined and briefly detained on return: CB 209, [37].
On 16 March 2018, the Applicant filed an Application in this Court. The Applicant was, at that time, self-represented.
On 6 April 2018, the First Respondent filed a notice of address for service. On the same day, the IAA filed a notice of address for service which submitted to the orders of the Court, save as to costs.
On 17 April 2018, the First Respondent filed a Response opposing the orders sought by the Applicant and seeking a dismissal of the Applicant’s Application.
On 5 February 2019, the Applicant’s solicitor, Mr Ganasan Arujunan (“Mr Arujunan”), filed a notice of address for service on behalf of the Applicant.
On 12 February 2019, the Applicant filed an affidavit from a clerk in the employ of Mr Arujunan, affirmed on 3 February 2019, which attached the transcript of the Applicant’s SHEV interview, referred to in paragraph 5 above.
On 13 February 2019, the Applicant filed an Amended Application. At that time, the Applicant was represented by Mr Arujunan. A clerk in the employ of Mr Arujunan affirmed an affidavit on 5 February 2019 which attached the transcript of the Applicant’s arrival interview, referred to in paragraph 1 above.
On 20 February 2019, a solicitor in the employ of the solicitors for the First Respondent filed an affidavit (affirmed on that date) which annexed a transcript of the SHEV interview with amendments where it was considered that the transcript, referred to in paragraph 16 above, was inaccurate. At the hearing, Mr Arujunan confirmed that the Court could rely on this transcript in lieu of that referred to in paragraph 16, above.
On 16 October 2019, the Applicant appeared represented by Mr Arujunan and the First Respondent appeared represented by Ms E. Tattersall.
On 16 October 2019, the Applicant sought the Court’s leave to rely on a Further Amended Application. If such leave was granted, then the grounds of his original Application and Amended Application would not then be pressed. The First Respondent agreed to the late filing of the Applicant’s Further Amended Application and, accordingly, leave was granted.
The grounds and particulars of the Further Amended Application are set out as follows:
1. The IAA’s following findings of facts were not open on the evidence. These errors were significant that infected the IAA’s consideration of the Applicant’s claim that amounted to jurisdictional error. CAE15 v Minister for Immigration & Anor [2017] FCCA 66 - paragraphs 32 to 40.
Particulars 1
The IAA at [10] CB 203 said:
In a submission provided by the Applicant’s representative after the SHEV interview it was submitted for the first time that the Applicant still had scars from being hung by his ankles while he was a prisoner in the SLA camp and that the ligature marks on both of his feet and ankles might be consistent with his claimed torture of being hung by his feet with fencing wire or similar binding for an extended period of time. No photos of the scarring were provided and having listened to the audio, it does not appear the Applicant showed the scarring to the Delegate during the SHEV interview.
In saying this, the IAA failed to take [into] account the Applicant’s following evidence:
(a) SHEV interview transcript at page 3 line 15. The Applicant said:
“I still have marks on my body”
(b) SHEV interview transcript at page 4 line 30 to 40. The Applicant said:
“They were asking me where the LTTE is hiding and their locations, they were beating me. Since I didn’t tell them anything, they hung me upside down and they beat me. I still have marks and injuries on my feet. They burned a rope and burned my thighs as well”.
“Burnt my thighs with the rope. The main questions they were asking were the locations of the LTTE. They kicked me as well. I was crying and I didn’t know what was happening. The next day morning when I woke up, I was on the floor. Part of my eye got injured and I couldn’t see through that. Then after I went to India, they put a lens for me inside my eye to fix it”.
(c) The Applicant’s agent’s post interview submissions at CB 125.
Particulars 2
The IAA at [13] CB 204 said:
“Inconsistently, in the arrival interview, when asked if he knew anyone on the boat he said “I only knew of one person called ‘B’, I didn’t know him before I just met him on the boat”. He did not mention N. In light of the above, I do not accept the Applicant’s explanation that he failed to mention his arrest, detention and mistreatment in 1990s because he was told not to by N, who he met on the boat, that it might link him to the LTTE and he might be sent back to Sri Lanka”
In saying this, the IAA misunderstood the evidence given by the Applicant. The answers above were given in response to the question by the Delegate who the Applicant knew prior to boarding the boat. The IAA missed out the important part of the question of the officer as evident at the excerpts of the transcript below:
Arrival Interview – page 13 lines 10 to 20
Officer: Ok. Was there anybody on board the boat who you knew prior to boarding in the boat?
AS: I know only one person by the name of B... PNC85.
Officer: Ok, PNC85. And how do you know him?
AS: I just saw him but he was living in the same camp.
Officer: Ok. Did you come to Australia to live together?
AS: I know him before but I just met him in the boat. When I come to the boat only I just came to know he is also coming.
Particulars 3
The IAA at [12] – the last sentence at CB 203 and at the beginning sentence of CB 204 said:
He was asked why he came to Australia to which he responded: “The reason I just came to Australia because all these 23 years I was living as a refugee status so the parents they brought me to India, the children they have a good life at least, a peaceful life without fear, but 23 years I was living...like a refugee so that is the reason I just came here I don’t want to live like a refugee in case I have to go to the good country”.
In saying this, the IAA again misunderstood the evidence given by the Applicant. The answers above were given in response to the question by the Delegate.
Arrival interview at page 14 lines 25 to 30
Officer: Ok. Tell me why you’ve decided to leave India?
AS: The reason I just came to Australia because for 23 years I’m just living as a refugee status. So the parents, they brought me to India so the children can have a good life, a peaceful life without any fear. But 23 years I was living in a status like a refugee so that’s the reason I just came over here. I don’t want to live as a refugee I have to go to a good country.
The IAA missed out the important part of the question of the officer as evident at the excerpts of the transcript above.
The Applicant acknowledged that the background facts as outlined by the First Respondent were accurate and accepted by him.
The Applicant also acknowledged that the First Respondent had accurately summarised his claim in the following terms:
In about June 1990 the Applicant and his friend, ‘K’, who owned a pick-up truck, were intercepted by the SLA while on their way to deliver goods to the LTTE. K was shot dead by the SLA. The Applicant was taken to the SLA’s camp detained for four days and tortured. He was questioned in relation to the location of the LTTE camps. On the fourth day the LTTE attacked the camp, the Applicant was able to escape with the help of ‘S’ who was a member of the Eelam People’s Revolutionary Liberation Front (“the EPRLF”) who worked as an interpreter for the SLA and had assisted with the earlier interrogation of the Applicant. On arriving home his family went to another area in Sri Lanka and within three days the family had fled Sri Lanka for India in fear of their safety where the Applicant remained until departing by boat for Australia on 20 April 2013.
The Applicant says that the IAA’s decision that his claimed arrest, detention and mistreatment in 1990 were not genuine was affected by jurisdictional error in that it had made errors of fact which had affected its conclusions as to the Applicant’s credibility on this issue.
The Applicant says that the first error of fact is identified in paragraph 10 of the decision of the IAA, where it stated:
10. In a submission provided by the Applicant’s representative after the SHEV interview it was submitted for the first time that the applicant still had scars from being hung by his ankles while he was a prisoner in the SLA camp and that the ligature marks on both of his feet and ankles might be consistent with his claimed torture of being hung by his feet with fencing wire or similar binding for an extended period of time. No photos of the scarring were provided and having listened to the audio, it does not appear the applicant showed the scarring to the delegate during the SHEV interview
The Applicant says that there was an error of fact given that the Applicant had, in fact, raised the existence of his scarring at the time of his SHEV interview; that it had not been raised for the first time after that interview; and that the Delegate had, unreasonably, ignored it. In particular, the SHEV interview records at page 3, line 15, the Applicant stating:
They took me, arrested me and took me to the camp and tortured me. I still have marks on my body.
And at page 4, lines 30-40:
They were asking me where the LTTE is hiding and their locations, they were beating me. Since I didn’t tell them anything, they hung me upside down and they beat me. I still have marks and injuries on my feet. They burned a rope and burned my thighs as well.
“Burnt my thighs with the rope. The main questions they were asking were the locations of the LTTE. They kicked me as well. I was crying and I didn’t know what was happening. The next day morning when I woke up, I was on the floor. Part of my eye got injured and I couldn’t see through that. Then after I went to India, they put a lens for me inside my eye to fix it.
The Applicant says that the First Respondent had overlooked his evidence, which was central to his claim, that he had been arrested and tortured and that he had scarring to support that claim.
The Applicant says that the second error of fact is identified in paragraph 12 of the decision of the IAA, where it stated:
12. I do not accept the Applicant’s explanation that he was not given an opportunity to mention his claimed arrest, detention and mistreatment by the SLA in 1990 during the arrival interview. He was asked why he came to Australia to which he responded “the reason I just came to Australia because all these 23 years I was living as a refugee status so the parents they brought me to India, the children they have a good life at least, a peaceful life without fear, but 23 years I was living… like a refugee so that is the reason I just came here I don’t want to live like a refugee in case I have to go to the good country” he was then asked what he thought would happen if he returned to Sri Lanka and he said “I can’t say if I go back to Sri Lanka I be alive”.
The Applicant acknowledged that he did not, in fact, mention his claimed arrest, detention and mistreatment during his arrival interview.
The Applicant referred, however, to his arrival interview at page 14, between lines 25-30, where it was stated by the interviewing officer:
Officer: Ok. Tell me why you’ve decided to leave India?
The Applicant says that his response, as recorded by the First Respondent, evidenced a mistake by the First Respondent in believing that his response was directed to his decision to leave Sri Lanka.
The Applicant says that the third error of fact is identified in paragraph 13 of the decision of the IAA, where it stated:
Inconsistently, in the arrival interview, when asked if he knew anyone on the boat he said “I only knew of one person called ‘B’, I didn’t know him before I just met him on the boat”. He did not mention N. In light of the above, I do not accept the Applicant’s explanation that he failed to mention his arrest, detention and mistreatment in 1990s because he was told not to by N, who he met on the boat, that it might link him to the LTTE and he might be sent back to Sri Lanka
The Applicant says that his response, as recorded by the First Respondent, had to be seen in the context of the question that he was asked at the time of his arrival interview which was at page 13, lines 5-20.
Officer: Ok. Was there anybody on board the boat who you knew prior to boarding in the boat?
AS: I know only one person by the name of [B].
Officer: Ok, [B] and how do you know him?
AS: I just saw him but he was living in the same camp
Officer: Ok. Did you come to Australia to live together?
AS: I know him before but I just met him in the boat. When I come to the boat only I just came to know he is also coming.
The Applicant said that he did not mention “N” because “N” was not known to him prior to boarding the boat. The Applicant said that the First Respondent should not have drawn an adverse inference from the fact that he did not mention “N” and that he had answered inconsistently with his arrival interview.
The Applicant relied on the decision of the Full Court of the Federal Court of Australia in Sutharsan Kopalapillai v Minister for Immigration & Multicultural Affairs (including the corrigendum dated 14 September 1998) [1998] FCA 1126 (11 September 1998) (O’Connor, Branson and Marshall JJ), and, in particular, where their Honours stated:
As Foster J observed in Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 194:
"It is well to remember that self-contradictory statements and apparent evasiveness, although of obvious importance, do not necessarily require a conclusion that the witness is being untruthful in those aspects of his or her evidence or, more significantly, that the whole of his or her evidence should be rejected."
And, after referring to a passage from Professor Hathaway in “the Law of Refugee Status 1991” (Butterworths at pages 84-86) as referred to by the primary Judge, stated:
Ultimately, however, even clear evidence of a lack of candour does not necessarily negate a claimant's need for protection:
Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. 'Lies do not prove the converse.' Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility." (footnotes omitted)
His Honour described the cautions of Professor Hathaway as sound and sensible advice to, and guidelines for, decision makers. We join with him in reiterating the wisdom of that advice in the context of decision making by the RRT.
The Applicant also referred to a number of decisions being BTT16 v Minister for Home Affairs [2019] FCA 251 and BWC16 v Minister for Home Affairs [2018] FCA 1370 and, relevantly, to the decision of his Honour Judge Young in CAE15 v Minister for Immigration & Anor [2017] FCCA 66, which he submitted, in paragraphs 27 to 28 and 30 to 40, summarised the relevant principles as follows:
27. In my view, the Tribunal was confused about the difference between the Qarabagh Motor Depot, Ghazni city and Qarabagh town in Qarabagh district. The Tribunal accurately records the applicant’s claim that he lived at the “Qarabagh Motor Depot in Ghazni City” at the beginning of its statement of reasons. However, later in the reasons the Tribunal says the applicant gave evidence that “… he started his own car painting workshop in an area in Ghazni Province called Ardeyeh Qarabagh. He confirmed that this was in Qarabagh District rather than Ghazni city itself.” There is nothing to suggest that the Tribunal was aware of the ambiguity in those answers and the consequent potential for confusion. The hearing was not properly recorded in its entirety and the Tribunal produced a summary record of the evidence given. The summary record sets out the evidence on this point as follows:
After that he went to Ghazni and started his own car painting workshop in Ghazni. He said that the workshop was in an area called Ardeyeh Qarabagh. When asked whether this was in the district of Qarabagh, he said that Ardeyeh Qarabagh was at the junction where a number of roads joined. That was where he had his shop. He confirmed that it was in Qarabagh District and that it was not in Ghazni City itself. When asked how far Ardeyeh Qarabagh was from Ghazni City, the applicant stated that he had not really calculated. It was about half an hour. It depended on whether you used a private car or public transport
28. In my view, this passage falls well short of confirming that the applicant was referring to Qarabagh town in Qarabagh district. There was no exploration of the meaning of “Ardeyeh Qarabagh”. The term “Ardeyeh” does not appear elsewhere in the materials and is undefined. It might also be wondered what word was used that was interpreted as “district” and whether that word was unambiguously equivalent to “district” in the sense of an administrative district or whether it had a more general meaning of area. Further, there was no evidence about the travel time between Ghazni city and Qarabagh town in Qarabagh district. There was no evidence about the condition of the road between Ghazni city and Qarabagh town but given that it appears to be about 60 km south of Ghazni city, according to the map attached to the International Crisis Group report relied on by the Tribunal, one might doubt that the travelling time was as little as “about half an hour”. It might be suspected that this was more like an estimate of time to travel between Ghazni city and one of its suburbs. In my view, this passage does not confirm that the applicant was referring to Qarabagh town in Qarabagh district. On the contrary, it seems likely that the applicant was referring to an area in or near Ghazni city
...
30. In my view, the only explanation for the Tribunal’s failure to clarify this issue is that it misunderstood the applicant’s evidence and was unaware of its ambiguity. Consequently it misunderstood an important element of the claim being advanced by him. Counsel for Minister agreed that there were indications that the Tribunal was confused about this issue but said that there were separate and sufficient bases for an adverse credibility finding. I do not accept that submission. It is true that there were other aspects of the applicant’s claims that might be doubted but the claim, as the Tribunal understood it, that the applicant moved to Qarabagh town in Qarabagh district was inherently implausible when tested against independent information. This was the only aspect of the applicant’s claim that could be so tested. If the claim had been made the Tribunal was entitled to place very significant weight on it in forming an adverse view about the applicant’s credibility.
31. As a result this misunderstanding formed an important basis, perhaps the most important basis, for its adverse credibility finding and, as the passages quoted from the Tribunal’s reasons demonstrate, the finding appears to have had a cascade effect on other credibility findings. If the Tribunal had correctly understood the applicant’s evidence it would necessarily have had to approach the evidence about Taliban controlled areas differently. The map “Appendix B” attached to the International Crisis Group report shows that only some areas of Ghazni province were dominated by insurgents. The district in which Ghazni City is situated was not, according to the map, dominated by insurgents. That the applicant would move to the city of Ghazni is not rendered implausible for that reason and, had the Tribunal properly understood the applicant’s evidence, an adverse credibility finding on that basis was not open to it.
32. McHugh J observed in Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham a finding of credibility “is the function of the primary decision-maker par excellence”. Further, North and Lander JJ said in Minister for Immigration and Citizenship v SZNPG:
However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claim is not jurisdictional error, so long as the error, whichever it might be, does not mean that the RRT has not considered the applicant’s claim (references omitted).
33. The principles relevant to the case where there has been a misapprehension of evidence in making adverse credibility findings has been considered recently in two decisions of the Full Court of the Federal Court. In CQG15 v Minister for Immigration and Border Protection the Court, referring to Durairajasingham, said:
It is important to note that McHugh J’s observations and his Honour’s use of the phrase “par excellence” were made in the specific context of a claim that the Tribunal had not complied with its statutory obligation under s 430 of the Migration Act to give reasons for its decision. Nothing said by McHugh J suggests that the Tribunal’s adverse findings on credibility are not amenable to judicial review on jurisdictional error grounds.
34. The Court referred with approval to the decision of Flick J in SZVAP v Minister for Immigration and Border Protection where his Honour said:
20. Whatever may be the difficulties, however, adverse findings of fact founded upon credibility — like other findings of fact — may expose jurisdictional error. A finding of fact founded simply upon a conclusion that witness is not to be believed is no more immune from judicial scrutiny than any other finding of fact.
21. In an appropriate case findings of credibility by an administrative decision-maker may expose legal error.
35. The Court referred to a further passage from SZVAP citing the judgement of Lee and RD Nicholson JJ in WAGO v Minister for Immigration and Multicultural and Indigenous Affairs:
The unwarranted assumptions of the Tribunal as to matters relevant to formation of a view on the credibility of the corroborative witness caused the Tribunal to disbelieve and disregard that evidence and constituted a failure by the Tribunal to duly consider the question raised by the material put before it: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at [4]…. his Honour’s comments are equally pertinent to an unauthorised exercise of decision-making power 18 [2016] FCAFC 146 at [37] 19 [2015] FCA 1089; 233 FCR 451 at [20]-[21] 20 [2002] FCAFC 437; 194 ALR 676 at [54] CAE15 v Minister for Immigration & Anor [2017] FCCA 66 Cover sheet and Orders: Page 12 that results from the Tribunal failing to take into account relevant material. In misunderstanding the material before it, the Tribunal thereby failed to have regard to relevant material, resulting in a decision for which the Tribunal had neither authority nor jurisdiction under the Act…
36. The Court also referred to a passage from a decision of Robertson J in Minister for Immigration and Citizenship v SZRKT:
It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim. (emphasis added by the Court).
37. In a more recent decision of the Full Court in ARG15 v Minister for Immigration and Border Protection22 the Court, after referring to the decision in CQG15, summarised the principles guiding judicial review of findings concerning credibility as follows:
(a) McHugh J’s oft quoted comments in Ex parte Durairajasingham … to the effect that a finding on credibility is the function of the primary decision-maker (or Tribunal) par excellence, do not mean that such findings are not susceptible to review for jurisdictional error on several potential grounds;
(b) whether or not a credibility finding is tainted by jurisdictional error is “a case specific inquiry” and it is not one which should be analysed by reference to fixed categories or formulas …;
(c) in each case, what the decision-maker has decided must be analysed in detail in order to determine whether or not a jurisdictional error has occurred …;
(d) without derogating from what was said about the danger of relying too heavily on “fixed categories or formulas” (which includes the danger of blindly repeating McHugh J’s comments in Ex parte Durairajasingham) adverse credibility findings might involve jurisdictional error on recognized grounds such as:
(i) failure to afford procedural fairness;
(ii) reaching a finding without a logical or probative basis;
(iii) unreasonableness; and/or
(iv) other grounds discussed by Flick J in SZVAP v Minister for Immigration and Border Protection23 and SZSH V Minister for Immigration and Border Protection24 referred to approvingly by the Full Court in CQG15 at [40] – [42].
38. In this case I am satisfied that the Tribunal’s conclusion that the applicant lacked credibility because it was implausible that he would go to live in Qarabagh town in Qarabagh district was reached without a logical or probative basis. I am also satisfied that the Tribunal’s conclusion that the applicant’s workshop was not, as he stated, at Qarabagh Motor Depot in Ghazni City was reached without affording the applicant procedural fairness.
39. In ARG15 the Court found that a misunderstanding of the evidence led to a series of adverse credibility findings. Referring to the particular circumstances of the case, the Court said the Tribunal made a series of cascading adverse findings based on an initial mistaken finding so that dependent findings were infected by the legal flaws in that initial adverse credibility finding. It went on to say:
In these circumstances, the relevant legal deficiencies in the Tribunal’s adverse credibility finding relating to the appellant mother’s evidence concerning the dowry cannot be isolated or confined in the manner suggested by the Minister. In view of the Tribunal’s reliance upon that finding to support other parts of its reasons for rejecting the appellants’ claims, the error necessarily affected those other parts. In the particular circumstances here, it should be concluded that the error was so serious and significant to the Tribunal’s rejection of the appellant’s claims as to amount to a jurisdictional error.
40. These comments are apposite to the circumstances of this case. I am satisfied that the misunderstanding by the Tribunal of the applicant’s evidence about where he lived cannot be isolated from its other credibility findings about the applicant for the reasons previously discussed. The error was so serious and significant as to amount to jurisdictional error.
The Court has had specific regard to the following extracts from the Applicant’s SHEV interview, at pages 12 and 14, as follows:
Page 12
Officer: Ok, so when you arrived in 2013, you were interviewed at what's called your entry interview in Curtin immigration detention centre in August 2013. At that interview, you I'd stated that you left Sri Lanka and moved to India with your family, because your father was arrested and tortured by the Sri Lankan army after he returned home to his old area
to view his old family home, and he I'd been subsequently arrested by the Sri Lankan army. You don't make any mention at that interview of you suffering any harm in Sri Lanka or any member of your family being suspected of an LTTE involvement. So the question I've got is can you explain why there are those significant differences in the accounts of the reasons why you left Sri Lanka given what you've told me today?
INT: I might need to break the =[inaudible]
Officer: I'm sorry. Do you want me to repeat?
INT: No, it's fine.
AS: When I was coming in the boat, there was a guy named N. He was coming with us as well. He told me that, what I thought is when I went to India, they didn't ask any questions, they just registered me as a refugee so I thought that was the same thing that was going to happen to me in Australia and this Naveen told me that when he came to know my story, he told me don't tell anything that you have connections with LTTE and stuff so he asked me to tell only about my father's thing. I didn't know what was going to happen in Australia, I didn't know that there was going to be an interview. What I thought was that it's going to be the same as India, they're just going to register our name so because of that, I was scared to tell the story for the problems I had that they suspected me as LTTE that's why I didn't tell that.
Officer: So, just to clarify here, when you arrived in Australia in 2013, you came to Australia for protection from persecution in Sri Lanka. As a consequence, it's reasonable that the department expects you to give truthful reasons why you left Sri Lanka at that time. So again, why didn't you tell the truth at your entry interview?
AS: I had a similar incident, situation before as well. So when I go to India, they didn't ask anything, they just registered and let me. So in my thinking, it was the same thing was going to be here as well. So I didn't think too much about telling everything and I was careless not to tell that I have connection to LTTE. Then only after I read mail so I know that we have to tell what the problem we have in Sri Lanka is. Until then, I didn't know what I had to tell.
Page 14:
Officer: So I'm just going to highlight some of the concerns I've come across during the course of the interview. Ok first of all, I have some concern that you were detained and tortured by the Sri Lankan army, I have concerns with the testimony you've given today regarding your escape from detention, I find it implausible that an interpreter who was working for the Sri Lankan army in a Sri Lankan army base at that time would take the opportunity during an LTTE attack to help you escape from that secure facility. I also think it's reasonable to assume that had you previously known the individual who helped you escape, that that information would form part of your original claims but it doesn't. I have concerns that there are such significant differences in the various accounts of your problems you incurred in Sri Lanka from your entry interview to you're -...-. SHEV Claims. I have concerns that you've admitted today that you did not tell the truth to the department at your entry interview. I also have concerns with your claim that you were scared to tell the truth and that you I'd been told not to tell the truth when you arrived in Australia. I'm aware that you left Sri Lanka many, many years ago and that you I'd been living as a refugee in India. So, I think your trip to Australia would've been well planned, you've had a long time to think about the reasons why you felt it was appropriate to come to Australia, so I don't accept that you would've therefore been given false information upon arrival because you were scared.
The First Respondent submitted that none of the identified grounds, referred to by the Applicant above, establish any jurisdictional error.
The First Respondent submitted that, in circumstances, where the IAA expressly noted and engaged in a consideration of the submission that the Applicant’s scarring corroborated his claims of previous harm (CB 203, [10]), it is not appropriate for the Court to draw an inference that this claim was not considered: SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25]: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47]. The Court accepts that submission.
The Court, further, accepts that it is well established that a decision of an administrative merits reviewer, such as the IAA, must not be read with an “eye keenly attuned to error” and that a “common sense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the [decision-maker] was saying”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-272; Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14] per Allsop J (as he then was).
The Court is not satisfied that there was any relevant misunderstanding by the IAA of the Applicant’s evidence. The IAA found that the Applicant raised for the first time in submissions following the SHEV interview, with the particularity described in that submission (as referred to in paragraph 25 above), that he still had scars from being hung by his ankles and that such scarring might be consistent with the claimed torture. It is apparent that the IAA was cognisant that the claim that the Applicant had scarring had been discussed at his SHEV interview, in circumstances, where:
a)The IAA, directly, referred to the paragraph in the post-interview submissions where it was stated, “[the Applicant] mentioned during his SHEV interview that he still has the scars from being hung by his ankles”: CB 125.
b)The IAA, specifically, noted that it had listened to the audio recording of the SHEV interview with a view to confirming whether the scarring was shown to the Delegate during that interview: CB 203, [10].
c)Furthermore, the IAA was correct to suggest that the formal submission that the scarring supported the claimed harm was first made by way of post-hearing submissions. At the interview, the Applicant’s submissions went no further than stating that:
“They took me, arrested me and took me to the camp and tortured me. I still have marks on my body”.
“Since I didn’t tell them anything, they hung me upside down and they beat me. I still have marks and injuries on my feet”.
The Court, further, accepts the submission of the First Respondent that:
a)The Applicant provided no evidence that he had provided any photographs of the claimed scarring to either the Delegate or the IAA; or that he had showed the Delegate the scarring at the SHEV interview;
b)Accordingly, it cannot be maintained that the statement that, “no photos of the scarring were provided and having listened to the audio, it does not appear the Applicant showed the scarring to the Delegate during the SHEV interview” was, factually, incorrect nor illogical or irrational;
c)Furthermore, it was for the Applicant to provide his evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts: Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Lat (2006) 151 FCR 214;
d)The decision maker is not required to make the Applicant’s case for him: Abebe v The Commonwealth (1999) 197 CLR 510 at [187]; Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155.
The Court, further, accepts that the Applicant seeks that the Court engage in impermissible merits review. It was for the IAA to identify the material it found relevant to is reasoning and to give it appropriate weight: NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11]-[13].
The Court also accepts that it was for the Applicant to provide his evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts. The decision maker is not required to make the Applicant’s case out for him. Further, the Court notes that it is not the role of the IAA to engage in a fact-finding mission. This is supported by ss.473DC(1) and (2) of the Act. Subsections 473DC(1) and (2) of the Act provide the following:
(1) Subject to this Part, the IAA may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the IAA considers may be relevant.
(2) The IAA does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the IAA may invite a person, orally or in writing, to give newinformation:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
The Court, further, accepts the First Respondent’s submission that there was no misunderstanding of the Applicant’s evidence. In that regard, the IAA, correctly, summarised the Applicant’s evidence at paragraph [12] of its decision and was cognisant of the distinction between the claims as to why the he left India versus why he left Sri Lanka: CB 203.
Further, the Court accepts that the IAA noted that the Applicant had during his arrival interview been warned not to give a lot of information at once (see his interview, page 13, line 23) and had been given a number of opportunities to provide information about his claimed detention and mistreatment by the SLA in 1990 (see his interview, page 13, lines 29 and 35 and page 14, line 36). The IAA was cognisant that the Applicant had lived in India from 1990 until he departed for Australia in 2013: CB 201, [5]; CB 203, [9]; correctly summarised the evidence as to why the Applicant came to Australia, being the response to the question why he decided to leave India (see his interview, page 14, lines 40 and 44, and page 15, line 7); and, further, correctly summarised his evidence in relation to why he said he could not return to Sri Lanka (see his interview, page 15, line 11).
The Court accepts that the IAA found that it did not accept the Applicant’s explanation that, on advice from “N”, he was told not to make his full claims at his arrival interview on a number of bases, including that his evidence given at his SHEV interview was somewhat at odds with the explanation provided in his SHEV application, namely, that he was told not to go into detail about his claims: CB 97, [2]-[3] and that there was no mention of “N” at his arrival interview.
The Court accepts that the IAA’s finding that the Applicant did not mention “N” at his arrival interview does not demonstrate a misunderstanding of his evidence. In that regard, the Applicant was asked at this interview whether there was anyone he travelled with that told him not to tell the truth or otherwise told him what to say, yet “N” was not mentioned (see his arrival interview, page 17, lines 14 and 53). Also, at his SHEV interview, the Applicant’s evidence was that “N” had told him not to disclose any connections to the LTTE (SHEV interview, page 12). Further, at the SHEV interview the Applicant’s evidence was that he was in jail with “N” (SHEV interview, page 13).
The Applicant’s explanation that he failed to mention his arrest, detention and mistreatment in 1990s because he was told not to by “N” was only one of the several factors the IAA considered.
For a misunderstanding of evidence to constitute jurisdictional error, that misunderstanding must result in an error of fact that infected the decision maker’s consideration of the Applicant’s claim: Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 per North, Lander JJ at [28] (with whom Katzmann J agreed); MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441; [2010] FCAFC 123 per Keane CJ, Perram and Yates JJ at [83]). The Court is satisfied that there has been no identified infection of the decision of the IAA in terms of its consideration of the totality of the Applicant’s claims, in this regard.
In the above circumstances, it follows that, as no jurisdictional error has been identified, the Applicant’s Further Amended Application must be dismissed.
Costs
The First Respondent seeks an order to vary its title to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”. This was not opposed by the Applicant and will be ordered.
The Applicant maintained that if the decision of the IAA was affected by jurisdictional error, then it’s decision should be set aside and the matter remitted for determination, according to law. The First Respondent agreed that, in those circumstances, costs would follow the event and the First Respondent could be ordered to pay the Applicant’s fixed costs as per Schedule 1 of the Federal Circuit Court Rules 2001 in the sum of $7,467.00.
The Applicant accepted that, if no jurisdictional error was established, his Further Amended Application should be dismissed with costs and that the First Respondent’s costs would be assessed in the sum of $7,000.00.
Given the Court’s determination as set out in paragraph 51 above, the Applicant is now ordered to pay the First Respondent’s costs in the sum of $7,000.00, as referred to above.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Date: 22 November 2019
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