BNZ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 370
•1 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
BNZ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 370
File number(s): MLG 1167 of 2020 Judgment of: JUDGE BLAKE Date of judgment: 1 March 2021 Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise subclass 790 visa – failure to consider expert reports – illogical or irrational reasoning when considering expert reports – errors in the consideration of evidence – no jurisdictional established – application dismissed. Cases cited: AUF18 v Minister for Immigration, Citizenship, Migrant Services, Multicultural Affairs & Anor [2019] FCAFC 222
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
BFH16 v Minister for Immigration [2020] FCAFC 54
Navoto v Minister for Home Affairs [2019] FCAFC 135
SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589
SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562
Number of paragraphs: 51 Date of hearing: 19 November 2020 Place: Melbourne Counsel for the Applicant: Mr McDonald Norman Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondents: Mr Hill Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 1167 of 2020 BETWEEN: BNZ20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
1 MARCH 2021
THE COURT ORDERS THAT:
1.The Application filed on 9 April 2020 and amended on 21 October 2020 be dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $7,467.
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application for review of a decision made by the Immigration Assessment Authority ('Authority') on 9 March 2020. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicant a Safe Haven Enterprise (Subclass 790) visa ('visa').
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is a Sri Lankan national. He arrived in Australia by boat on 17 November 2012 as an unauthorised maritime arrival.
On 16 January 2013, the Applicant attended an arrival interview with a delegate of the Minister on Christmas Island ('Entry Interview').
The Applicant applied for the visa on 15 November 2016. His claims for protection are set out in a statutory declaration (Court Book 108) that accompanied his application ('Statutory Declaration').
The Applicant was interviewed by a delegate of the Minister on 6 April 2017. The transcript of this interview is contained at annexure CH-1 to the Affidavit of Chris Honnery ('SHEV Interview') filed on behalf of the Applicant on 21 October 2020 ('Honnery Affidavit').
On 9 May 2017, a delegate of the Minister ('delegate') refused to grant the Applicant the visa. The Authority subsequently affirmed the decision of the delegate. Court proceedings were commenced, which ultimately resulted in the matter being remitted to the Authority for re-hearing (Court Book 211).[1]
[1] AUF18 v Minister for Immigration, Citizenship, Migrant Services, Multicultural Affairs & Anor [2019] FCAFC 222.
On 14 February 2020, the Applicant was invited to attend an interview on 18 February 2020 to provide the Authority with 'further information about [his] claims to protection'. The interview proceeded by way of video link on 18 February 2020, with the Applicant's representative and a Tamil interpreter present by phone. A transcript of the interview is contained at annexure CH-2 of the Honnery Affidavit.
On 27 February 2020, the Applicant's representatives provided submissions and three further documents to the Authority by way of email, including an unsigned statutory declaration of the Applicant, a health report by the International Health and Medical Services ('IHMS') and a report dated 17 January 2018 from Dr AT ('AT Report') (Court Book 435).
On 9 March 2020, the Authority affirmed the decision not to the grant the Applicant the visa.
Prior to the hearing, the Minister filed a Court Book and written submissions pursuant to Orders. The Applicant filed an Amended Application, submissions, and a further affidavit, the Honnery Affidavit which was read into evidence.
THE APPLICATION FOR REVIEW
The Application contains two Grounds of Review.
Ground 1
The first ground of review is as follows:
1. The Second Respondent (Authority)’s decision was affected by jurisdictional error because of errors in its consideration of medical evidence before it.
Particulars
a.The Authority afforded less, or no, weight to the Applicant’s counsellor’s conclusion that he suffered from significant problems in terms of cognition and/or memory because these were not corroborated by reports from IHMS and a psychiatrist before the Authority: CB 476 [48].
b.In reaching this conclusion, the Authority:
i.erred in treating the reports by IHMS and the psychiatrist as purporting to provide an exhaustive account of the Applicant’s symptoms, and hence proceeded upon an incorrect understanding of the content or purpose of those reports; or
ii.further or in the alternative, failed to consider the purpose for which those reports were prepared or the distinct subject matter of those reports and the reports of the Applicant’s counsellor; or
iii.further or in the alternative, engaged in illogical and/or irrational reasoning.
c. If not for the errors identified in (b) above, there is a realistic possibility that the Authority could have reached a different conclusion as to whether the Delegate’s decision should be affirmed.
d. In the premises, the Authority’s decision was affected by jurisdictional error.
This ground concerns evidence in relation to the Applicant's mental health. The Authority had before it the following reports in respect of the Applicant's mental health:
(a)Two reports from AH, a social worker, from Foundation House. The first report is dated 8 July 2019 (Court Book 252-260) and the second report is dated 4 February 2020 (Court Book 279-288) (collectively, the 'AH Reports');
(b)An IHMS Health Summary report prepared by JJ, a clinical reporting nurse, dated 29 December 2019 ('IHMS Report') (Court Book 445-8); and
(c)the AT Report dated 17 January 2018 (Court Book 449).
In order to assess the complaint made under this ground, it is important to note the following aspects of the reasons of the Authority:
(a)the Authority summarised the Applicant's claims for protection at paragraph [11] of its reasons;
(b)the Authority extensively summarised the AH Reports at paragraphs [36]-[38] of its reasons. That summary included, among other things, observations at [38] by AH, that:
…when talking about past traumas, the applicant has become very disoriented, has hit his forehead, has frozen in mid-sentence, dissociated, and has hit his head against the wall of the counselling room
(c)the Authority at [39] recorded its own observations of the Applicant obtained through its interview that he:
…appeared calm and relaxed and he gave no indication at any time that he felt he was having difficulty giving evidence because of this arrangement. Throughout the interview the applicant appeared calm and engaged. He sometimes claimed that he was unable to recall certain matters that there was no indication that he was unfit to give evidence that he was experiencing any cognitive difficulties.
(d)the Authority also drew the conclusion at [39] obtained from its own interview, Entry Interview and SHEV Interview, that the Applicant was capable of putting his case;
(e)the Authority at [46] of its decision put to the Applicant that AH was neither a doctor nor a psychologist and obtained his response to this; and
(f)the Authority at [47] of its decision summarised the AT Report and the IHMS Report.
The Applicant takes issue with the finding of the Authority set out at paragraph [48] of its reasons. That paragraph is in the following terms:
I note that persons affected by conditions like major depression and PTSD can sometimes experience difficulties with memory as a result of these conditions, and I accept that the applicant is affected by major depression, PTSD and anxiety. Nevertheless, and although the applicant has claimed to have very serious problems with his memory, and although his counsellor MS AH is of the view that he does have such problems and also problems with cognition, it was not apparent to me from the applicant's presentation at his IAA interview, or from his presentation at his April 2017 SHEV interview and January 2013 entry interview, that he has significant problems in terms of cognition and/or memory. Significantly, such evidence as is before me from the psychiatrist who formerly treated the applicant, and from the IHMS report as to the treatment the applicant is currently receiving - from an IHMS general practitioner, psychiatrist and IHMS mental health team - gives no indication that the applicant's mental health problems, or that the effects of these or of associated episodes of insomnia and anxiety, are causing him any significant difficulties with memory or cognition. It is apparent from the IHMS report that in December 2019 (after a period of almost two years being held in immigration detention) the applicant broke a table and had to be restrained and expressed feelings of intense anger towards security officers, and of frustration, and that he threatened to commit suicide if he was not released, but there is no indication that he has been seen banging his head during the recent year, or that he has experienced problems with headaches or heart palpitations or the other matters of which the applicant has claimed to Ms AH and the IAA. Plainly the applicant is affected by some mental health problems and plainly he has found the uncertainty of his migration status, and the matter of his being detained, and his separation from his family in Sri Lanka, very difficult as can be readily understood. But the evidence before me also suggests that the applicant has sometimes sought to exaggerate the extent of his health problems and that this is particularly the case with regard to his claims about his memory.
The Applicant submits that the reasoning of the Authority at [48] discloses error in the following way. The Authority either afforded less weight to the AH Reports on account of the AH Reports not being corroborated by the IHMS Report or the AT Report, or alternatively, the absence of corroboration in the IHMS Report and the AT Report was taken to contradict the AH Reports. The AT Report and the IHMS Report ought not have been treated as exhaustive of the Applicant's symptoms. Further, the AT Report and the IHMS Report were not directed to the same subject matter as the AH Reports. These matters, among others it was submitted, are to be characterised as a constructive failure to consider the reports; that is, the Authority made unwarranted assumptions as to the content or purpose of the reports and thus failed to consider questions arising from them or alternatively, the Authority made an illogical or irrational decision in treating the AH Reports as inconsistent with the AT Report and the IHMS Report.
It is well accepted that the Authority is required to give active intellectual consideration to all claims by the Applicant. It is also well accepted that in order for the Court to make a finding as to illogicality or irrationality, 'extreme' illogicality or irrationality is required: BFH16 v Minister for Immigration [2020] FCAFC 54 at [39].
In this matter, there is no doubt that the Authority gave very careful, and extensive consideration to the material concerning the Applicant's mental health. The summary of the AH Reports is extensive, covering some three paragraphs (or 1.5 pages) in the Authority's reasons. The Authority's own observations of the Applicant are the subject of extensive consideration in paragraph [39], and the AT Report and IHMS Report are each discussed at paragraph [47] of the reasons. This is not a case where there is a mere reference to the material.
Plainly, the area of dispute between the parties comes down to what view one takes of the reasoning of the Authority at paragraph [48]. In my view, paragraph [48], properly read, discloses, relevantly, the following:
(a)the Authority expressly acknowledged that the Applicant is affected by major depression, post-traumatic stress disorder, and anxiety, and that persons with those conditions can experience difficulties with memory. This acknowledgement is clearly based on the review of the various medical reports which occur in the preceding paragraphs;
(b)the Authority expressly acknowledged the AH Reports and the content of them;
(c)the Authority set out its own observations of the Applicant, being that it is not apparent that he has significant problems in terms of cognition and/or memory; and
(d)the Authority noted that the IHMS Report and the AT Report gives no indication that the Applicant's mental health problems, or that the effect of these or of associated episodes of insomnia and anxiety, are causing him any significant difficulties with memory or cognition.
Properly read, in my view, what the Authority has done in paragraph [48] is, first, to form its own view from the Applicant's interview with the Authority, the Entry Interview and the SHEV Interview, about whether the Applicant has a problem with cognition or memory. Having considered that it was not apparent to it that the Applicant had a problem in terms of memory or cognition, the Authority then recites or refers to the IHMS Report and the AT Report as providing support for the finding it made from its own observation. Accordingly, what the Authority has done is to record that the conclusions in the AH Reports are not consistent with the Authority's own observations of the Applicant. The IHMS Report and the AT Report are significant in that neither contained an opinion that contradicted the Authority's own observation and assessment of the Applicant.
It is apparent throughout the reasons that the Authority emphasised its own observations and views of the Applicant's cognition and memory. I have already outlined earlier in these reasons the comments of the Authority at paragraph [39]. The Authority there set out its observations of the Applicant as it concerned his ability to conduct his case. It is to be noted that insofar as it did so, the Authority concerned itself with the specific question of whether the Applicant was able to conduct his case (compared to the general observations made by AH: see Court Book page 285). Further to that, at paragraph [54], the Authority records the Applicant as being 'calm and engaged' through the interview with the Authority and also at the Entry Interview and SHEV interview. At paragraph [81], the Authority records that the 'applicant has been able to answer questions and conduct himself calmly, politely, and cooperatively, when being interviewed by Australian immigration officials like the delegate and also when being recently interviewed by the IAA'. The emphasis placed by the Authority on its observations of the Applicant throughout its reasons, in my view, provides support in relation to the construction of paragraph [48] that I have reached above.
One issue that arises from my construction of paragraph [48] of the reasons of the Authority is that the Authority preferred its own view of the Applicant over the content of the AH Reports. This was, in my view, a course that was open to the Authority and not one that was illogical or irrational. AH, while clearly an experienced social worker, did not possess medical qualifications. This was a point of which the Authority was acutely aware: see paragraph [46] of the reasons. It was open to the Authority to give weight to its own view of the Applicant over AH given she was not a medical practitioner. It was also open to the Authority to rely on the IHMS Report and the AT Report as support for its own conclusions. There is nothing irrational or illogical about that approach.
Plainly, what the Authority has done is consider and weigh the different evidence before it including its own observations of the Applicant. There is nothing unusual about that approach. The Authority clearly engaged with the material before it and weighed it in the course of reaching its conclusion.
The Applicant's submission before the Court, in part, is that the Authority has used the IHMS Report and the AT Report to undermine or place less weight on the AH Reports. For the reasons that I have articulated above, in my view, this is not what the Authority has done. Further, for the reasons articulated earlier, it also cannot be accepted that the Authority assumed that the symptoms of the Applicant would be recorded in the AT Report and the IHMS Report.
In my view, there was nothing illogical or irrational about the approach taken by the Authority. The Authority weighed the evidence including its own observations of the Applicant. It was entitled to take that approach. In my view, there is nothing in the decision that discloses an error of the type identified in Ground 1 of the grounds of review.
Ground 2
The second ground of review is as follows:
2.The Second Respondent (Authority)'s decision was affected by jurisdictional error because of errors in its consideration of evidence given by the Applicant in his interview before the Delegate.
Particulars
a. The Authority found that the Applicant had provided inconsistent accounts between his statement supporting his protection visa application (SHEV Statement) and his interview with the Delegate (SHEV Interview) as to:
i.whether his questioners came to him (attributed to the SHEV Statement); or
ii.whether he went to them (attributed to the SHEV Interview): CB 469 [28]-[29].
b.There was no inconsistency between these accounts capable of supporting an adverse finding as to the Applicant's credibility.
c.Further or in the alternative, in reaching this conclusion, the Authority failed to consider the SHEV Statement's qualifier that it was 'a summary of his claims' and that the Applicant was 'happy to provide further detail at my interview' (CB 108 [1]), and failed to consider relevant material in the SHEV Statement which was consistent with the account that the Applicant had given in the SHEV Interview.
d.In the premises:
i.the Authority failed to consider substantial and cogent material before it; and/or
ii.further or in the alternative, the Authority engaged in illogical or irrational reasoning.
e.If not for the errors identified in (d) above, there is a realistic possibility that the Authority could have reached a different conclusion as to whether the Delegate's decision should be affirmed.
f.In the premises, the Authority's decision was affected by jurisdictional error.
Under this ground, the Applicant takes issue with the statements of the Authority at paragraph [28]-[29] of its reasons. Those paragraphs are in the following terms:
28.On 6 April 2017 the delegate interviewed the applicant about his claims (the SHEV interview). At that interview the applicant submitted that when he was on Christmas Island he had not been well and so he had not made all his claims. At the SHEV interview there was some discussion of the applicant's history and that of his family. The applicant said that after his father had died (in 1986) his family had lived with his mother's brother, [R], but that [R] was taken by the military in around 1990 and was missing. The applicant said that in 1990 he and his family were displaced by shelling and bombing and they went to the Vanni area and stayed with an aunt. In 1996 they returned to Kumburupiddy. As in his written claims he claimed that he had had a cousin in the LTTE and that he had been questioned on two occasions by the military about this cousin, and that these incidents had been 15 days apart. He said that his cousin's name was [AR] and that his LTTE name was [S]. However, where in his SHEV written claims he had claimed that he was "asked to come for questioning", and "called…back again" (indicating that he was required to present himself to the SLA), and whereas this is also what was claimed on the applicant's behalf in Fr DJF's letter of 13 November 2016 (which refers to the applicant being taken twice to a military base in 2000), at the SHEV interview the applicant claimed that the military "came" to him on both occasions. And whereas in the SHEV interview he was beaten with a pole at the first incident and told to take of his jeans at the second, in the SHEV interview account all of this happened at the second incident while the first incident involved only questioning and the presence of a hooded witness who alleged that the applicant's cousin had been coming to the applicant's house and taking things.
29.While it is plausible that a person might have different recollections in the sequence of a course of traumatic events it seems more doubtful that applicant would provide inconsistent evidence about whether his questioners came to him, or whether he went to them, if he was recalling a genuinely experienced event. I also note that it is not apparent that Fr DJF was a witness to this event or of any of the events of which he writes other than the applicant involvement in parish activities and that the applicant sometimes stayed with Fr DFJ. Thus, beyond matters of which he could have first-hand knowledge Fr DFJ's letter carries little weight.
The Applicant submits, inter alia, that there is no inconsistency between his claim that the Army asked him to attend for questioning or called him back again (the Statutory Declaration) and his statements at the SHEV Interview that the military 'came' to him on both occasions. The Applicant also submits that the Authority failed to take account of the fact that the Statutory Declaration was a 'summary' of the Applicant's claims, and not intended to be exhaustive. Any distinction between the two accounts, it was submitted, was a distinction without a difference: SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589 at [44] ('SZHYH'). As a result of this, it is submitted it was not open to the Authority to reason in the way it did and to draw an adverse inference against the Applicant from the claimed inconsistency.
The passage relied on by the Applicant in SZHYH is not of assistance to the Applicant. SZHYH was concerned with the situation where the Tribunal found inconsistencies in the Applicant's evidence in respect of how the Applicant described his leadership position in his village. Those inconsistencies were rightly described by Allsop CJ as 'distinctions without differences'. That is not the situation, however, which confronted the Authority in the present matter.
In the present matter, the Authority was dealing with the Applicant's recollection of events, in particular, whether the Army came to him, or he was asked to go to the Army. That is a matter of detail and significance. It cannot, in my view, be dismissed as a matter of expression. Further, the claim is not assisted by the fact that the Statutory Declaration was a 'summary' of claims. The events surrounding whether the Army came to him or whether he went to the Army are detailed in the Statutory Declaration. There was limited, if any room, to expand on what was said in the Statutory Declaration as it relates to these issues. Consequently, submitting that the Statutory Declaration is only a summary is of no assistance to the Applicant in respect of the present issue.
The Applicant spent some time before me in oral submissions (and also in the written submissions) explaining how the references in the Statutory Declaration and the SHEV Interview may be read consistently. That submission, in my view, misses the point. The issue before the Court is whether the Authority had a rational basis for concluding that there was an inconsistency. I am satisfied that it did have a rational basis for concluding that there was an inconsistency given the subject matter being examined, even though it may not have been the view that every decision-maker may have taken.
For the above reasons, I am of the view that the Authority did not fall into error in assessing the relevant evidence from the Statutory Declaration and the SHEV Interview as inconsistent.
In the event that I am wrong in relation to the conclusion above, there is then an issue about whether, if the finding made by the Authority is incorrect, that means of itself that the decision ought to be set aside as invalid, bearing in mind that the finding necessarily goes to a matter of credit.
In AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the Full Court of the Federal Court of Australia stated at [41] that:
Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).
The Applicant contended that the findings at paragraphs [28]-[29] of the reasons of the Authority were critical and material to the Authority's reasoning. The Applicant submitted that, if removed, there would be a realistic possibility that a different outcome may have been reached and that 'it is not realistic to put the various aspects of the appellant's evidence into hermetically sealed boxes or to approach the reasoning of the Tribunal member on the basis that this is how the evidence was approached' because 'the assessment of credibility is necessarily an impressionistic one, which if formed properly, takes into account all of the evidence': SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44].
Further, in support of his submission, the Applicant points to paragraph [60] of the reasons of the Authority. Paragraph [60] of the reasons of the Authority is as follows:
Since the time of his SHEV application he would claim that on Christmas Island he was not in his proper state of mind when he made his decisions about what to say and what not to say. This too seems doubtful given that, at other times, the applicant has claimed that he was in fact in better health when he first arrived in Australia. If in fact the applicant did have a cousin who a member of the LTTE, and if he was questioned about this, and if he had had a confrontation with the Karuna Group, and if he had been involved in the distribution of a sensitive video, it seems very doubtful that he would not have said so at his entry interview either during the discussion about why he had departed, or when asked about whether the police and security or intelligence organisations impacted on his day to day life, or when asked about what he thought would happen to him if he returned to Sri Lanka. The evidence which he has provided about these matters has not been convincing and has often been inconsistent in certain significant regards. I am not satisfied, and I do not accept that the applicant had a cousin in the LTTE, or that the applicant was ever questioned or mistreated in 2000 when he was 15, or that the applicant ever had a confrontation with the Karuna group, or that he was ever involved in the distribution of a sensitive video, or that he was ever of interest to the CID or anyone else on this basis.
The Applicant contends that the sentence 'the evidence which he has provided about these matters has not been convincing and has often been inconsistent in certain significant regards' in paragraph [60] above incorporates a reference to the findings made by the Authority at paragraphs [28]-[29] of its reasons.
The Minister submitted, inter alia, that the ultimate findings made by the Authority at [57] to [60] of its reasons were made on a basis that was independent of, and disconnected from, the observations at paragraphs [28]-[29] of the reasons of the Authority.
In order to assess these matters, it is necessary to not only consider the finding at paragraph [60] but also to consider the reasons of the Authority as a whole.
A useful starting point in respect of which to consider the above issues is paragraphs [51]-[53] of the reasons. Having reviewed and summarised the evidence before it, the Authority put to the Applicant a number of concerns it had about the Applicant's claims and in particular about why he had failed to raise various claims during his Entry Interview. Of particular significance is the following:
(a)at paragraph [51], the Authority put to the Applicant that at his Entry Interview, he had said nothing about ever having had an encounter with the Karuna Group and that this could raise doubts about his claim. The Applicant was invited to respond;
(b)at paragraph [52], the Authority put to the Applicant that during his Entry Interview he had said nothing about having had a cousin in the LTTE or about having had problems in Sri Lanka as a result of this. It was put to the Applicant that the omission could raise doubts about his claim and he was invited to respond;
(c)at paragraph [53] of its reasons, the Authority put to the Applicant that he had said nothing during his Entry Interview about having been involved in distributing a video of the Sri Lankan military. Once again, the Applicant was told that his failure to raise the issue could raise doubts about his claims and he was invited to respond.
It is important to observe that in putting the matters above to the Applicant, the Authority did not put to the Applicant the inconsistency identified at paragraphs [28]-[29] of the reasons about whether the Applicant went to the Army, or whether the Army came to him.
The matters the subject of the Authority's questioning of the Applicant at paragraphs [51]-[53] above are then the subject of a series of findings by the Authority in paragraphs [57]-[59]. Those paragraphs are as follows:
57.With regard to his claim that in 2011 he was involved in disseminating a sensitive video, and that in 2006 he had a confrontation with the Karuna Group, and that in 2000 he was questioned (when he was around 15 years old) about a cousin involved in the LTTE, I have serious doubts about these claims given the applicant's claim that he did not make the Karuna Group claim known to the Department until March 2013, and given that he did not make these other claims known to the Department until he lodged his November 2016 SHEV application.
58.With regard to the matter of the applicant's claim that during the questioning in 2000 he suffered torture and a sexual assault I am mindful that a person might be understandably reluctant to talk about such matters in a situation like an entry interview. But this is not why the applicant claims he did not mention these matters earlier and, in any event, even if he said nothing about such mistreatment it seems doubtful that he would have said nothing at all about having a relative in the LTTE.
59.What the applicant has claimed with regard to his claims about his 2000 questioning, and with regard to the Karuna Group claim, is that he withheld this information because he feared the Australian authorities would disclose this information to the Sri Lankan authorities. I note that it is well reported that a 2004 split within the LTTE resulted in pro-government Tamil paramilitary Karuna Group and that this movement – which went on to form the political party known as the Tamil Makkal Viduthalai Pulikal or TMVP – had a close relationship with the Sri Lankan ruling parties during the subsequent years of the civil war and for several years after it end. The influence of this group even saw it win the Eastern Provincial Council elections in 2008 such that it was regional government for areas like Trincomalee over the years which followed. If, however, the applicant really had been of interest to the Karuna Group such that in 2006 he had an encounter with members of this group, and if the applicant really had been of interest to the SLA on the basis of an alleged relationship with a cousin in the LTTE such that the applicant was questioned about such a matter in 2000, it seems doubtful that the applicant would have withheld such information from the Australian authorities out of fear that this would be disclosed to the Sri Lankan authorities since these would be matters about which the Sri Lankan authorities already knew (this being the whole point of the claim: that the Sri Lankan authorities knew these things about him and would harm him on this basis if he were returned to Sri Lanka). With regard to the matter of his involvement in distributing sensitive videos the applicant has claimed that he did not think this matter would make any difference. This seems doubtful given that this claim has appeared to assume the place of the most pressing reason for why the applicant fears harm. That his evidence about his matter has been particularly inconsistent and unconvincing, and that he has never provided any evidence of the videos which he claims are now in the public domain on YouTube, has done little to overcome such doubts. (citation omitted)
The findings of the Authority quoted above are notable for two reasons. The findings are findings that relate to matters that the Authority put to the Applicant in paragraphs [51]-[53] of the reasons of the Authority. Further, the findings at paragraphs [57]-[59] do not reference the issue discussed at paragraphs [28]-[29]; that is, whether the Applicant went to the Army, or the Army came to him.
There is then paragraph [60] of the reasons of the Authority. I have set that paragraph out in full earlier in these reasons. A review of paragraph [60] discloses that, within that paragraph, the Authority is dealing with each of the matters or claims that are the subject of findings in paragraphs [57]-[59]. Critically, in dealing with those matters, the Authority's reasons for regarding the claims as doubtful rests on the failure of the Applicant to raise these matters at his Entry Interview. The Authority says at paragraph [60]:
If in fact the applicant did have a cousin who a member of the LTTE, and if he was questioned about this, and if he had had a confrontation with the Karuna Group, and if he had been involved in the distribution of a sensitive video, it seems very doubtful that he would not have said so at his entry interview either during the discussion about why he had departed, or when asked about whether the police and security or intelligence organisations impacted on his day to day life, or when asked about what he thought would happen to him if he returned to Sri Lanka. The evidence which he has provided about these matters has not been convincing and has often been inconsistent in certain significant regards (emphasis added).
The Applicant naturally places much emphasis on the last sentence as including a reference to the findings at paragraphs [28]-[29] of the reasons. While I understand how that submission is put, I regard that as being the non-preferred construction of the reasons of the Authority. In my view, the reference to 'these matters' in the sentence relied on by the Applicant can only be a reference to the matters that immediately precede the sentence (which, as I have indicated, does not include a reference to whether the Army came to the Applicant or the Applicant went to the Army, as discussed in paragraphs [28]-[29] of the reasons). Further, in my view, the reference to the Applicant's evidence being 'inconsistent in certain significant regards' is, given the structure and context of the decision, a reference to the discussion by the Authority of the Applicant's claim in relation to the distribution of a video which is discussed at the end of paragraph [59] of its reasons. In this respect, it is to be noted that the Authority described that evidence as being 'particularly inconsistent and unconvincing'. The reference to 'significant regards' within paragraph [60] aligns much more closely to the description of the evidence in paragraph [59] above, and not to the references about whether the Army came to the Applicant, or the Applicant went to the Army which arise in paragraphs [28]-[29], and which are not the subject of any further attention either in paragraphs [51]-[53], or in paragraphs [57]-[60].
Accordingly, even if there was an error in the findings contained at paragraphs [28]-[29], the Authority rejected the claims at [57]-[60] for reasons not related to findings at paragraphs [28]-[29].
In reaching this conclusion, I am conscious of the fact that findings on credibility are not necessarily linear. However, I am satisfied for the reasons articulated above that the Authority dismissed the claim for reasons independent of whether the Applicant went to the Army or whether the Army came to him. The simple fact that the Authority has included the statements in paragraphs [28]-[29] does not demonstrate those statements are critical: Navoto v Minister for Home Affairs [2019] FCAFC 135 at [68]. The statements in paragraphs [28]-[29] were not, in my view, a critical step in the Authority's reasons for rejecting the Applicant's claim that he was interrogated in 2000 about his cousin and assaulted by the Army.
For the above reasons, no jurisdictional error is made out in respect of Ground 2.
CONCLUSION
For all of the above reasons, I conclude that the Authority has not committed jurisdictional error. The Application must be dismissed.
The Minister seeks costs in the amount of $7,467. I will make an order in that amount.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 1 March 2021
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