Buw16 v Minister for Immigration
[2020] FCCA 498
•12 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUW16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 498 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration not to grant to the applicant a Protection (Class XA) (Subclass 866) visa – applicant asserted that Administrative Appeals Tribunal did not listen to and take into account the material and evidence given at a previous Tribunal hearing before a different member – further asserted that Administrative Appeals Tribunal made wrongful credibility finding – application for judicial review dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s.19D |
| Cases cited: ANQ16 v Minister for Immigration [2019] FCA 693 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 Percerep v Minister for Immigration (1998) 86 FCR 483 |
| Applicant: | BUW16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1849 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing dates: | 28 November 2018 & 20 February 2019 |
| Date of Last Submission: | 5 March 2019 |
| Date Reserved: | 13 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 12 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser of Counsel appeared on 28 November 2018 and Mr R. Selliah appeared on 20 February 2019. |
| Solicitors for the Applicant: | Rasan T Selliah & Associates |
| Counsel for the First Respondent: | Ms S. Sangha appeared on 28 November 2018 and Ms A. Carr of Counsel appeared on 20 February 2019. |
| Solicitors for the First Respondent: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
Grant leave to the Applicant to file in Court an Amended Application.
The Amended Application filed in Court on 28 November 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1849 of 2016
| BUW16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Sri Lanka aged 40 years.
By Amended Application filed in this Court on 28 November 2018 he seeks to quash and have re‑determined according to law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 27 June 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 16 August 2013 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
Background
The Applicant arrived on Christmas Island as an unauthorised maritime arrival on 20 June 2012. An officer from the Department of the Minister (Department) conducted an Entry Interview with the Applicant on 18 August 2012 (Entry Interview).
On 19 November 2012 the Applicant applied for a Protection visa through the Refugee & Immigration Legal Centre Inc. (RILC) of Victoria, which continued to represent the Applicant as his migration agent throughout the processing of his Protection visa application up to the date of the Tribunal decision under review in this proceeding. From at least 22 July 2014 an officer of the RILC, namely Ms Karen Richards (Ms Richards) who is herself a solicitor and migration agent, represented the Applicant in propounding his Protection visa application.
At [1], [2] and [27] of a Statutory Declaration dated 15 November 2012 (Statutory Declaration) lodged in support of his Protection visa application, the Applicant summarised the nature of his claims to protection, as follows:
1.I am a 33 year-old citizen of Sri Lanka. I was born in 1979 in Suravanaiyadyuththu Thumpankeny Thikkoday, Batticaloa district in the Eastern Province of Sri Lanka. I am of Tamil ethnicity, and my religion is Hindu. My family, including my father, mother two sisters and one of my brothers and my wife and infant son, all remain living in our home. I make this Statutory Declaration in support of my application for a Protection Visa.
2.I respectfully request that the Department of Immigration grant me protection from the harm that I fear in Sri Lanka. My main reasons for seeking the protection of the Australian Government are based on fear of harm at the hands of the Sri Lankan authorities and government parties, on account of my Tamil ethnicity, my particular profile, and because I have left Sri Lanka unlawfully.
27.In summary, I fear harm including arrest, detention, physical assault and death at the hands of the Sri Lankan government authorities on account of my Tamil ethnicity and having made a report against the Karuna group. I face an increased risk of this harm as I am a young male Tamil and because I left Sri Lanka illegally. I have been pursued by the Karuna party and experienced death threats. I cannot reasonably relocate anywhere in Sri Lanka to avoid the threat of harm.
I further note for consideration below that in the Statutory Declaration the Applicant claimed to fear harm from the Karuna Group which is anti-Tamil, had fought against the LTTE in the war and targets Tamils. He claimed that by 2010 the Karuna Group was ruling Batticaloa when on 20 August 2010 he rode his motorbike to the police station where he intended to seek permission to move to his wife’s area. Two members of the Karuna Group were at the police station and they said to him that they needed his motorbike, which was then collected by a member of the Karuna Group that night named Chandru, who brought the motorbike back to him the next morning. However, the police arrested the Applicant the next morning because the Karuna Group had used his motorbike to commit a robbery (motorbike incident).
By letter dated 22 July 2014 Ms Richards made a lengthy and detailed submission of 34 pages to the Tribunal (Ms Richards’ Submissions) which it is convenient to reproduce here in its summary of the Applicant’s claims to protection:
1.Outline of Submissions
(a)The applicant is Sri Lankan national of Tamil ethnicity. He grew up in the Batticaloa district in the Eastern province of Sri Lanka. The applicant first left Sri Lanka in 2001 because of the attention he and his family were receiving from the LTTE. He travelled to Qatar where he worked for 7 years before returning to Sri Lanka in 2007. [The Applicant] only remained in Sri Lankan for 3 months because he again received adverse attention from the LTTE and from the SLA. He returned to work in Qatar and did not return to Sri Lanka until 2010. In 2010 the Karuna political group that were aligned with the Sri Lankan government had a strong presence in the Batticaloa district. In August 2010 the applicant identified and was a witness against members of the Karuna group that had been involved in a crime. His actions resulted in him receiving death threats and demands for money. The applicant gave evidence against these men in 2011 and then left Sri Lankan again shortly after the court case as he feared being targeted by members of the Karuna political group because of his actions. He returned in February 2012 and he remained in hiding until he departed again in May 2012.
(b)The applicant fears that, if he is returned to Sri Lanka, he will suffer persecution and/or substantial discrimination amounting to a gross violation of human rights in the form of forced labour/recruitment, psychological harm, abduction or arbitrary arrest and detention, imprisonment, extortion, physical assault and torture, and possible death, at the hands of the SLA and other pro-government forces such as the Karuna political group on account of, considered separately or cumulatively:
(i)his Tamil ethnicity;
(ii)his membership of particular social groups 'young Tamil males' and/or 'young Tamil males from Eastern Province’.
(iii)his actual/imputed political opinion in support of the LTTE and against the other pro-government militias resulting from;
•His identification and evidence as a witness that assisted in the conviction of 2 members of the Karuna faction;
•His refusal to pay money after receiving threatening phone calls from the Karuna group;
•His Tamil ethnicity;
•His profile as a young Tamil male from the east of Sri Lanka;
(iv)His actual and/or imputed political opinion in support of the LTTE, and against the activities of the Sri Lankan authorities and the systematically brutal treatment of ethnic Tamils resulting from;
•His Tamil ethnicity;
•His profile as a young Tamil male from the east of Sri Lanka
•His imputed opinion in support of the LTTE;
•His illegal departure from Sri Lanka and asylum claim in Australia.
(v)His membership of the particular social group 'young Tamil asylum seekers/returnees who have fled Sri Lanka unlawfully' where he will face discriminatory treatment beyond the normal punishment for this crime amounting to persecution on account of his profile outlined in (i) - (iv) above.
(c) Where serious harm is carried out by pro-government paramilitary groups, such as the Karuna group the applicant fears he will not be provided with any protection from the Sri Lankan authorities against this serious threat, on account of his profile above. The applicant will thus be discriminatorily denied effective state protection constituting Convention persecution.
…
(h)In sum, there is a real or substantial possibility, which is not remote or fanciful, that in the current circumstances, the applicant would face harm amounting to persecution, were he returned to Sri Lanka. Accordingly, the applicant meets the definition of a 'refugee' and is owed protection obligations by Australia under the Refugees Convention.
(i)Without conceding anything in relation to the applicant's status under the Refugee Convention, the applicant is also owed protection under pursuant to section 36(2)(aa) of the Migration Act 1958.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
The Applicant attended an interview with the Delegate on 9 May 2013. Subsequently, under cover of an email dated 5 June 2013 the RILC forwarded to the Delegate a 12 page Written Submission in support of the Applicant’s claims.
In his Decision Record the Delegate summarised the Applicant’s claims for protection from [1] – [19]. He then turned to consider the claims under the headings of:
a)Significantly different accounts between the Entry Interview and the Applicant’s subsequent claims;
b)The Applicant’s awareness of the men’s Karuna group membership;
c)Runs contrary to independent country information; and
d)Lack of knowledge of court proceedings.
Overall the Delegate did not find the Applicant to be a credible witness and he specifically rejected the following claims of the Applicant:
1.Members of the Karuna group borrowed the applicant’s motorbike and used it in a robbery;
2.The applicant provided information to the police which ultimately led to the arrest of three Karuna members;
3.The applicant was a witness in court proceedings against the three Karuna members; and
4.The applicant was subsequently threatened by these Karuna members for reasons of providing evidence against them in court.
Further, in relation to his other claims the Delegate found as follows:
Cumulative grounds
In light of the independent country information as cited above, I do not consider the applicant faces a real chance of persecution for any Convention reason or reasons when his claims are considered cumulatively. That is, the combination of the applicant’s Tamil ethnicity, his illegal departure, his failed asylum seeker status, his origins from Eastern Sri Lanka and his time spent overseas, will lead to a real chance of persecution if retuned to Sri Lanka.
In the result the Delegate was not satisfied that the Applicant was a person to whom Australia owed protection obligations under the Refugees Convention criterion or the complementary protection criterion and refused to grant to him a Protection visa.
Decision of Tribunal
The Applicant lodged an application for merits review with the Tribunal (then the Refugee Review Tribunal) on 3 September 2013.
On 23 July 2014 the Tribunal received Ms Richards’ Submissions (see [7] above), attached to which was a Statement dated 23 July 2014 (Statement) of the Applicant in support of his claims.
On 28 July 2014 a hearing took place before the Tribunal, comprised of Member Mr Krohn, at which the Applicant gave evidence and presented arguments (first Tribunal hearing). The Applicant’s wife also gave oral evidence by telephone.
Ms Richards made a further post-hearing seven page written submission to the Tribunal dated 15 August 2014 which included reference, in connection with the claim of ill treatment of Tamil failed asylum seekers in Sri Lanka, to the wife of the Applicant giving evidence at the first Tribunal hearing to the following effect:
1.The Treatment of returning Tamil failed asylum seekers
At the hearing Mr [Applicant]’s wife mentioned that one of her relatives had returned to Sri Lanka after traveling to Australia and failing to have his asylum claims recognised in Australia.
The applicant’s wife described the man as her uncle; he was in fact her mother’s cousin and his name was VS. I am instructed that he travelled to Australia in September 2012 and returned to Sri Lanka in December 2012. He was arrested and detained upon his return to Sri Lanka. During his detention he was interrogated and beaten.
Member Krohn had not made a decision on the review application by December 2015, at which time he apparently became unavailable. Accordingly, and presumably under s.19D of the Administrative Appeals Tribunal Act 1975 (Cth), the Applicant was advised by letter dated 15 December 2015 in the following terms that the Tribunal would be reconstituted with Member Mr Henry:
Dear Mr [Applicant],
CHANGE IN MEMBER
…
I am writing to inform you that Member Krohn is no longer available to review your case. A different Member, Member Henry, will finish the review.
All documents and other material that were previously considered by Member Krohn have been given to Member Henry. This material includes Department of Immigration and Border Protection file; recordings of any hearings with us; and any submissions or other evidence provided to us. We will write to you if Member Henry requires any further information.
However, by April 2016 Member Henry was also no longer available and the Tribunal, by letter dated 20 April 2016 further advised the Applicant as follows:
Dear Mr [Applicant],
CHANGE IN MEMBER
…
I am writing to inform you that Member Henry is no longer available to review your case. A different Member, Member Younes, will finish the review.
All documents and other material that were previously considered by Member Henry have been given to Member Younes. This material includes Department of Immigration and Border Protection file; recordings of any hearings with us; and any submissions or other evidence provided to us. We will write to you if Member Younes requires any further information.
I find on the basis of this letter (and further evidence referred to below) that Member Ms Younes was given, amongst the other material referred to, an audio recording of the first Tribunal hearing.
Member Younes then took the view that to be fair to the Applicant there should be a further Tribunal hearing because the first Tribunal hearing before Member Krohn had taken place two years earlier. The further Tribunal hearing took place on 6 June 2016, when the Applicant appeared, together with Ms Richards by telephone, to again give evidence and present arguments (second Tribunal hearing). Prior to the second Tribunal hearing Ms Richards had sent to the Tribunal a further five page written submission dated 24 May 2016, which stated in part as follows:
Key facts relied Upon
[The Applicant] continues to rely on his Statutory declaration dated 15 November 2012 and the Statement dated 23 July 2014.
He continues to fear that he would be targeted by the men he assisted to convict in 2010 or their associates because of his role in identifying and giving evidence as a witness in their criminal court case. [The Applicant] believes these men were and continue to be members of the “Karuna group” which is known as a pro-government Militia group.
[The Applicant] also continues to fear that he will be targeted by the Sri Lanka authorities upon return on account of his imputed political opinion and his illegal departure.
Overview of Protection Claims
We submit that there is a real chance that [the Applicant] would face serious harm from the Sri Lankan authorities on account of the following Refugees Convention grounds, taken either individually or cumulatively:
His imputed political opinion in support of the Liberation Tigers of Tamil Eelam (LTTE) and against the government resulting from:
o His identification and evidence as a witness that assisted in the conviction of members of the Karuna group
o His Tamil ethnicity; and
o His illegal departure from Sri Lanka; and
o His extended presence in Australia as an asylum seeker.
It is further submitted that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Sri Lanka, there is a real risk that he would suffer significant harm, as defined in s.36(2A), for the purposes of s.36(2)(aa). There is a real risk of the following forms of significant harm:
· Torture; and
· Cruel and inhuman treatment or punishment; and
· Degrading treatment or punishment.
At the hearing in this Court on 28 November 2018 Counsel for the Applicant accepted that Ms Richards also appeared as the Applicant’s representative at the first Tribunal hearing, and thus was the Applicant’s representative at both the first and second Tribunal hearings. However, I do note that whilst the transcript of the first Tribunal hearing evidences that Ms Richards was present, the hearing record of the Tribunal for the first Tribunal hearing does not appear to confirm that.
From [10] – [23] of its Decision Record the Tribunal summarised the substance of the submissions and evidence received on behalf of the Applicant since the Applicant’s Statutory Declaration (see [5] – [6] above), and which material is identified at [7], [9], [15], [17], and [20] above.
At [30] – [59] of its Decision Record the Tribunal recorded its findings and reasons under the following headings:
a)Has the Applicant suffered any of the claimed harm?;
b)The motorbike incident;
c)Entry interview; and
d)Claims in relation to the returning uncle.
In the result the Tribunal rejected the Applicant’s claims root and branch, in particular at [31], [58] and [59] of its Decision Record, in the following terms:
[31]For the reasons explained below, looking at the claims singularly and cumulatively, the Tribunal is not satisfied that the applicant has suffered any of the claimed harm, or that he has any profile on those grounds which is or would be of any adverse interest to the Sri Lankan authorities, or any other group.
[58]In consideration of the evidence as a whole and given the Tribunal's concerns about the applicant's credibility, the Tribunal does not accept that the applicant was ever forced to join the LTTE, or that the LTTE ever came to his home when he was not there, that his mother was ever taken by the LTTE for training, or that his mother or brother was ever detained by the LTTE, or that he was asked to pay any bribe when he had to report to the STF, or that he personally or through another person gave alcohol or food or money, or that he was ever pressured by the Sri Lankan army, or that he was ever perceived by anyone to be wealthy, or that he was ever targeted by anyone for any perception of wealth, or that anyone ever demanded money from him, or that the motorbike incident as claimed ever occurred, or that he was ever pursued by any member of the Karuna group, or that Chandru and Senadirajah (if they exist) were members of the group, or that the applicant was a witness in proceedings against them or against anyone in relation to theft as claimed, all that he had received any threatening calls, or any such callers had demanded any sum of money from him, or that when he refused to give the money they threatened him, or that he mentioned the threats to the judge who ordered the removal of their phone numbers, or any threats became more severe because of the corruption of the police, or that when he returned to Sri Lanka from Saudi Arabia, he stayed at home in fear of being targeted, or that he was targeted for any reason including but not limited to a perception of being wealthy, or that his uncle on returning from Australia to Sri Lanka suffered any of the claimed harm.
[59]In essence and for the stated reasons, the Tribunal does not accept that the applicant has suffered any of the claimed harm or that there is a real chance of any such harm occurring to the applicant in the reasonably foreseeable future. In reaching those findings, the Tribunal has considered the court documents and the evidence of the wife but they do not overcome the Tribunal's concerns about the applicant.
From [61] – [76] of its Decision Record the Tribunal recorded its consideration, analysis and findings as to whether, if the Applicant were to return to Sri Lanka, he would face a real chance or real risk of suffering significant harm, and concluded that he would not. From [77] – [102] the Tribunal recorded its consideration and analysis of whether he would be harmed on the basis of being a failed asylum seeker, a returnee from a western country or on the basis of his illegal departure from Sri Lanka, and concluded that he would not.
Accordingly, in the result the Tribunal was not satisfied that the Applicant was a person to whom Australia had protection obligations under the Refugees Convention criterion or the complementary protection criterion and affirmed the Delegate’s decision not to grant the Protection visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
At the scheduled final hearing on 28 November 2018 I granted leave over the opposition of Ms Sangha, who appeared on behalf of the Minister, to Mr Zipser of Counsel, who appeared for the Applicant, to file an Amended Application. Ms Sangha had quite reasonably opposed leave being granted because earlier consent orders had required that any Amended Application be filed by 28 October 2016.
As it transpired this late abandonment of the Grounds of the original Application and the raising of the new Grounds in the Amended Application meant that the matter had to be adjourned for further hearing to 20 February 2019, when Mr Selliah appeared for the Applicant in place of Mr Zipser and Ms Carr of Counsel appeared for the Minister. Mr Selliah then gave up Ground 3 of the Amended Application, and so accordingly the Grounds relied upon are as follows:
1. The applicant appeared before the Administrative Appeals Tribunal (“the Tribunal”) differently constituted on 28 July 2014 (“the First Hearing”) and gave evidence. The Tribunal, in its decision dated 27 June 2016, did not consider the applicant’s evidence given at the First Hearing. The Tribunal is required to consider all evidence given by an applicant at a hearing. For the Tribunal to not consider the evidence given by the applicant at the First Hearing is a jurisdictional error.
2. The Tribunal, in the course of finding at [31] that it was “not satisfied that the applicant suffered any of the claimed harm”, repeatedly found that it had “doubts” about aspects of the claims and the applicant’s credibility: see for example at [34], [36], [38], [40], [41], [42], [44] and [45]. See also reference “on balance” at [57]. The language used by the Tribunal indicated that the Tribunal had a real doubt as to whether its findings on material questions of fact were correct. In the circumstances, the Tribunal ought to have considered the possibility that its finding that it was “not satisfied that the applicant has suffered any of the claimed harm” was wrong.
4. The Tribunal found at [40] that “the applicant has now changed his evidence”. This finding contributed to the Tribunal’s conclusion that [31] that it was “not satisfied that the applicant has suffered any of the claimed harm”. A review of the applicant’s evidence indicates that the applicant had not, in fact, changed his evidence. The Tribunal’s incorrect finding that the applicant had changed his evidence involved jurisdictional error.
Consideration
Ground 1
This Ground as amplified by Mr Zipser at the hearing contends that Member Younes “… didn’t listen and have proper regard to … the audio recording of the applicant’s evidence at the first Tribunal hearing”. I note in this respect that the Full Court of the Federal Court of Australia in MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 at 173 [67] comprised of Tracey, Murphy and Mortimer JJ said:
[67]What we have said should not be taken to cast doubt on the proposition that it is legitimate, and indeed in many cases, necessary, for a differently constituted tribunal to have regard to what occurred during any hearing or process previously conducted by a tribunal in relation to the same applicant…
Mr Zipser at the first conceded that if I found against him in this connection on the facts then “… that’s the end of this argument”. At this point he was contending at a general level that the evidence given by the Applicant and his wife at the first Tribunal hearing as a body of evidence had not been listened to and considered by the Tribunal and he did not submit that any specific evidence given by the Applicant at the first Tribunal hearing was not considered by the Tribunal. His position changed, as identified at [40] below, but I first turn to deal with his submission at a general level, noting that Mr Zipser did disavow any suggestion that the Tribunal did not consider any of the Applicant’s specific claims to protection. This disavowal was not a particularly auspicious start to a finding of jurisdictional error, having regard to the well-known statement of the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47]:
[46]It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons…
[47]The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected...
I do find against Mr Zipser’s submission on the facts, and consider that the Applicant has failed to establish that Member Younes did not listen to the audio recording of the first Tribunal hearing, or otherwise take into account the evidence which the Applicant had given at the first Tribunal hearing. I so conclude for the following reasons.
Mr Zipser tendered into evidence the transcript of the first Tribunal hearing. I have already found that Member Younes had been given, amongst other relevant material, the audio recording of the first Tribunal hearing: see the Tribunal’s letter of 20 April 2016 reproduced at [19] above. I find that the material was given to her for the serious purpose of her considering the material, including listening to the audio recording of the first Tribunal hearing. I consider that in relation to this Ground I am entitled to take into account evidence external to the Decision Record of the Tribunal, because such evidence is generally admissible when the ground of review relied on is for a breach of procedural fairness by the Tribunal: see Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs (2012) 127 ALR 288 (Gondarra) at 295 [30] – [32] per Kenny J; Weinberg J in Percerep v Minister for Immigration (1998) 86 FCR 483 at 495 (D–E); and Minister for Immigration v SCAR (2003) 128 FCR 553. In Gondarra Kenny J at 295 [32] said:
[32]New evidence… will be admissible in a judicial review proceeding where that evidence is relevant to establishing a ground of review challenging the decision-making process…
The transcript of the second Tribunal hearing establishes that at its commencement Member Younes stated in the presence of the Applicant and Ms Richards:
Member:What I'm going to do this morning I am going to explain you some procedure matters firstly and then I am going to speaking with you about the claims that you have made. I know that the previous hearing you had a long time ago. So it would be better to me to hear from you and take evidence from you and take it to my mind. I'm the person going to take decision on your case. The tribunal is independent. And in making my decision I will consider the relevant information contained in departmental file here which is before me and the tribunal file. All evidences you have given previously and evidences you have given today will also be taken into account. There are before me various submissions made before. I have read everything and I have heard the enquiry recordings. So I understand with your claims. I will be asking you questions that would be relevant for my decision making. You may feel that I am asking questions that you had been asked previously. I said I wanted to make up my own mind. So I will be asking questions that had been asked previously. I would like to ask you to listen carefully to my questions please and try to answer it truthfully and to your best ability. If you don't understand a question please ask me to clarify. If you don't a question me to clarify I will assume that you had understood my question.
(see TP2, emphasis added)
I note that Ms Richards never asked the Tribunal at the second Tribunal hearing to listen to the audio of the first Tribunal hearing and I infer that was because she understood from the above statement that Member Younes had already done so.
Then towards the end of the second Tribunal hearing the following exchange took place between Member Younes and the Applicant:
Member:I know that your previous member when he had a hearing he contacted your wife. You remember that?
Applicant: Yes.
Member:And I have listened to her evidence carefully. I understand that she gave the evidence about the uncle who returned from Australia. Do you know what happened to the uncle?
Applicant:He is not in the country. I don't know where he is. He has been hidden and sent somewhere.
(see TP35)
Then almost immediately after this exhange Ms Richards was telephonically disconnected, and when she was reconnected the following exchange between Member Younes and Ms Richards took place:
Member:Subsequent to that I was speaking to the applicant about his wife's evidence in the course of previous hearing and her statement in relation to the uncle. You are familiar with the claims.
Ms Richards: yes. I am familiar with claims.
(see TP37)
Finally, at the end of the second Tribunal hearing Member Younes asked Ms Richards if she wished to make any oral submissions. Ms Richards responded by asking Member Younes to be generous in her assessment of the Applicant’s credibility, and referred to s.424AA of the Migration Act 1958 (Cth):
Ms Richards: I would like to clarify with you member whether would you like to have further response for the concerns that you have put in relation to section 424AA.
Member:Well it is inappropriate for me to say than more than what I have said that I express concerns and gave an indication that I would consider those responses that you would appreciate is premature of me to say anything of definitive consequences currently because there is lot information here the applicant has had a previous hearing and this has been a long hearing as well. I need to listen to those information very carefully before I prepare to say anything else.
(see TP42, emphasis added)
The above passages from the transcript of the second Tribunal hearing all tend in favour of finding that Member Younes listened to the audio recording of the Applicant’s evidence at the first Tribunal hearing and considered that evidence. Insofar as Member Younes is shown by the transcript to be specifically focusing upon and referring to the wife’s evidence at the first Tribunal hearing, this was because, unlike the Applicant, the wife did not give evidence at the second Tribunal hearing and because the claim about her mother’s cousin VS was primarily her claim, rather than that of the Applicant: see [17] above.
The terms of the Decision Record of the Tribunal also tend in favour of a finding that the evidence of the Applicant given at the first Tribunal hearing was considered by Member Younes.
The paragraphs of the Decision Record of the Tribunal referred to below all cumulatively confirm that Member Younes was very conscious of the first Tribunal hearing and support a finding that she considered the evidence given at the first Tribunal hearing:
a)at [4] the Tribunal indicated its consciousness of relevant evidence given at both the first and second Tribunal hearings:
[4]The former Tribunal also received oral evidence from the applicant's wife. The Tribunal hearings were conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
b)at [32] the Tribunal stated:
[32] In the course of the hearing, the Tribunal indicated to the applicant that although he has appeared before the Tribunal, differently constituted, given that hearing was about two years earlier, the Tribunal considered it to be fair to conduct another hearing.
c)at [55] the Tribunal further stated:
[55]The Tribunal discussed with the applicant the oral evidence given by his wife in the course of the hearing before the previous Member. The Tribunal indicated that it would consider further the weight that it would place on her evidence. The applicant responded by saying that it was his fault that he has no other details about his uncle…
d)the last sentence of [57] concluded:
[57]… The Tribunal has carefully considered the totality of the evidence before it and has decided that on balance and given the Tribunal's concerns above about the applicant's evidence, the Tribunal is not satisfied that the applicant has suffered any of the claimed harm.
e)at [90] the Tribunal finally referred to its “consideration of the evidence as a whole” and at [98] to having “carefully considered the material before it”.
No part of the Decision Record of the Tribunal has a tendency to establish that Member Younes did not consider the evidence given at the first Tribunal hearing.
As presaged at [30] above, towards the end of the first hearing day in this Court Mr Zipser commenced asserting that specific evidence at the first Tribunal hearing had not been considered by the Tribunal. The hearing then ended on the basis that he would put on further written submissions identifying the particular evidence given at the first Tribunal hearing which he submitted the Tribunal had failed to consider. This he did by a Written Submission dated 9 January 2019 which contended that the Tribunal had failed to consider evidence given at the first Tribunal hearing in three respects. At this point I note that in Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at 78 [49] it was stated by Katzmann, Griffiths and Wigney JJ that “while the distinction between claims and evidence may be a useful tool of analysis, ultimately what is required is a case-specific analysis focussing on the importance of the ignored material and the seriousness of the error”.
First, Mr Zipser submitted that the Tribunal had failed to consider that at the first Tribunal hearing the Applicant and his wife had given evidence of people attending their family home in October and December 2013 to search for the Applicant. Evidence to similar effect had been given by the Applicant at [18] – [20] of his Statement and was also given by him at the second Tribunal hearing (see TP38). In my view the Applicant has failed to establish that the Tribunal failed to meaningfully consider either this claim or the evidence given in relation to it at the first Tribunal hearing. The evidence from the Applicant and his wife in relation to the people visiting the Applicant’s house in October and December 2013 is specifically recognised by the Tribunal at [16(i) – (j)] of its Decision Record in the following terms:
[16] i. He gave evidence in court against members of the group who have allies with the Sri Lankan government and the army. He is fearful that if he were to return, he would be harmed or killed by those people. He believes that they are still looking for him. In October 2012, they went to his house looking for him and his wife told them that he was in Australia and they left. His wife has recently told him that in December 2013, three men with weapons broke into the home. His wife, son, his wife's two younger brothers, and his parents in law were living there at the time. They woke all of them up and asked his wife where he was and she was kicked by one of the men.
j.His wife went to Batticaloa to lodge a complaint with the police but she could not complain because of the group. She also lodged a complaint with the human rights group because she was in fear of her life. Subsequent to the assault, his wife stopped sleeping at the house and she now goes to sleep at her aunt's house.
(emphasis added)
I note the Tribunal’s reference to “2012” is clearly a typographical error which was not material to any of the Tribunal’s findings and does not of itself establish jurisdictional error.
At [37] of its Decision Record the Tribunal noted the Applicant’s claim at the second Tribunal hearing that he would have problems with the Criminal Investigation Department (CID) if he returned to Sri Lanka because “in September 2013 the CID went to his home, broke the door and kicked his wife”. I take this claim at the second Tribunal hearing to be a reference to the same claims identified at [16(i) – (j)] of the Decision Record.
At [55] of its Decision Record the Tribunal recorded that it had discussed the oral evidence given by the wife at the first Tribunal hearing with the Applicant at the second Tribunal hearing.
Further, at the second Tribunal hearing Member Younes stated towards the end of the hearing to the Applicant:
Member: I know that your previous member when he had a hearing he contacted your wife. You remember that?
Applicant:Yes.
Member:And I have listened to her evidence carefully…
(see TP35)
It is true that the claimed visits of October and December 2013 are not further referred to in the Decision Record of the Tribunal. This is consistent with the Tribunal considering in the overall circumstances that the claimed visits, well after the Applicant had left Sri Lanka, were relatively unimportant and not considered to be material. The fact that there was no further specific reference to, or mention of, the visit to the house does not mean that the Tribunal ignored the claim or did not have regard to it, and this is more particularly so when at [16] of its Decision Record the claim of the visits had been specifically identified.
It is trite law that it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. As Tracey J said in Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 (MZYZA) at [29] – [32]:
[29]The failure by a tribunal, in its reasons, to refer to a particular consideration or piece of evidence will not necessarily lead to the conclusion that that consideration or evidence was disregarded or overlooked. At the other extreme, a statement by a tribunal that it has had regard to a particular consideration or item of evidence will not necessarily lead to a conclusion that it has done so or done so in an appropriate manner.
[30]A reviewing court will not lightly infer that relevant considerations or material have been overlooked by a decision-maker. In forming a judgment the court will have regard to a range of factors. They include:
•The terms of the relevant statutory requirement to provide reasons.
•Whether what the Tribunal has supposedly failed to consider is a relevant consideration or an item of evidence.
•The relative importance of the consideration or the evidence to the party’s case.
•Whether any reference is made to the consideration or the evidence in the tribunal’s reasons.
•The reason reliance is placed on the consideration or evidence by the party who asserts its significance.
•The relative significance of the absence of reference to the consideration or evidence having regard to the tribunal’s reasons as a whole.
[31]The Tribunal was required, by s 430 of the Act, to provide reasons for its decision. The terms of s 430 have been set out above at [23]. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 McHugh, Gummow and Hayne JJ held that s 430(1) required the Tribunal to “set out its findings on those questions of fact which it considered to be material to the decision which is made and to the reasons it had for reaching that decision.” (Emphasis in original). Their Honours held that if, in its reasons, the Tribunal fails to refer to particular material, a reviewing court may infer that that “matter … was not considered by the Tribunal to be material.”
[32]That does not mean, as French CJ and Kiefel J pointed out in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 605–6, that, simply because a matter is not mentioned in the reasons, it was not considered. The “matters” referred to by McHugh, Gummow and Hayne JJ in Yusuf were “matters of fact” or “findings of fact” made or not made by the Tribunal and not “matters generally”: see SZGUR at 617 (Gummow J).
Further, overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered that applicant’s claims: Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 (SZNPG) at 309 [28] per North and Lander JJ.
Associated with this is the fact that the visits in October and December 2013 were not material which could be regarded as so “fundamental”, “important” or “overwhelming” such that a failure to have regard to them by the Tribunal would constitute jurisdictional error: see MZYZA at [60] per Tracey J. The visits were not of pivotal or fundamental importance to the Applicant’s claims.
Accordingly, in my view it has not been established by the Applicant that the Tribunal ignored or did not consider the Applicant and his wife’s evidence at the first Tribunal hearing in this respect, which in any event was entirely consistent with [18] – [20] of his Statement and his evidence at the second Tribunal hearing.
The second item of evidence that Mr Zipser submitted was given by the Applicant at the first Tribunal hearing, but ignored by the Tribunal, was that two of his friends had returned to Sri Lanka and had been harassed by the CID, beaten by the CID and asked to pay money.
However, the Tribunal at [10(s) and (t)], [19] and [21(e)] of its Decision Record expressly recognised the Applicant’s claims to fear harm from being a failed asylum seeker. Then from [77] – [90] the Tribunal considered and dealt with the claim that the Applicant feared harm as a failed asylum seeker in detail and with reference to independent country information.
It is true that there was no reference to the evidence concerning the experiences of the Applicant’s two friends on their return to Sri Lanka, but it was open to the Tribunal to regard the independent country information on this issue as the most important material to its consideration of this claim, and it was a matter for the Tribunal to identify the material it found relevant to its consideration of the failed asylum seeker claim and the weight attributable to that material. I do not infer that the Applicant’s reference to the problems of the two friends made at the first Tribunal hearing was ignored or overlooked, but rather that the Tribunal did not consider that evidence to be so material that it needed to be set out in its Decision Record. Again the evidence given about the friends at the fist Tribunal hearing was not so “fundamental”, “important” or “overwhelming” such that a failure to have regard to it by the Tribunal, if such had been the case, would constitute jurisdictional error.
The third item of evidence which Mr Zipser contended led to the conclusion that the Tribunal had not considered the evidence given at the first Tribunal hearing related to the demand of him for money in 2010 by the Karuna Group.
At [16] of his Statutory Declaration the Applicant had said that he had been asked for 300,000 rupees (which is equal to 3 lakhs). He adhered to that evidence at the first Tribunal hearing, but at the second Tribunal hearing said that he had been asked for 1.5 lakhs. At the second Tribunal hearing Member Younes in discussion contrasted his oral evidence before her with the Applicant’s evidence in his Statutory Declaration that he had been asked for 3 lakhs.
The Tribunal then dealt with the matter at [38] of its Decision Record and expressed concern at the inconsistency between the evidence given by the Applicant at the second Tribunal hearing and the evidence at [16] of his Statutory Declaration without referring to the evidence at the first Tribunal hearing, which was consistent with the Statutory Declaration.
At [10] of his Written Submissions filed on 9 January 2019 Mr Zipser contends that the Tribunal “was concerned about the applicant’s inability to recall in 2016 the date of the extortion demand for RS300,000”. However, as pointed out by Ms Carr the Tribunal was concerned about the quantum of the claimed demand, rather than its date. In considering the discrepancy between the Statutory Declaration and his evidence at the second Tribunal hearing there was no necessity for the Tribunal to refer to the evidence given at the first Tribunal hearing, which was consistent with the amount in the Statutory Declaration and which was put to him at the second Tribunal hearing. The failure of the Tribunal to refer to the evidence given in relation to the quantum of the demands given at the first Tribunal hearing does not establish that the Tribunal ignored that evidence. The Tribunal was entitled to focus on and refer to the evidence given at the second Tribunal hearing and point out its relevant inconsistency with the Statutory Declaration without specifically having to note that the Statutory Declaration was in accordance with the evidence on this point at the first Tribunal hearing. Its failure to refer to the consistency between the Statutory Declaration and the first Tribunal hearing does not mean that the Tribunal failed to have regard to the evidence given at the first Tribunal hearing.
In my view nothing put by Mr Zipser in support of this Ground establishes that the decision of the Tribunal was affected by jurisdictional error.
Ground 2
This Ground contends that the Tribunal ought to have applied the “what if I am wrong?” test in its assessment of whether the Applicant had a well-founded fear of persecution.
However, in my view this Ground is not made out. It follows from a fair reading of the Tribunal’s Decision Record as a whole that the Tribunal had “no real doubt” that its findings were correct. There is no basis for finding that it should have considered the possibility that its findings were wrong, having regard to its complete rejection of the Applicant’s claims. The Tribunal did not suffer from any uncertainty in relation to its findings and its rejection of the Applicant’s claims.
This Ground fails to establish that the decision of the Tribunal was affected by jurisdictional error.
Ground 4
This Ground contends that the Tribunal made an incorrect finding when, at [40] of its Decision Record, it found that the Applicant had “now changed his evidence” in connection with the motorbike incident: see [6] above. In short, the Tribunal at [40] recorded what it considered to be a change in the Applicant’s evidence at the second Tribunal hearing between a first assertion that Chandru was with Senadirajah at the police station when he went there during the motorbike incident and a second assertion of the Applicant that he did not see Chandru at the police station on this occasion. I note for completeness that the Applicant’s Statutory Declaration did not attempt to identify the second person at the police station with Senadirajah in its recitation of the motorbike incident.
The relevant pages of the transcript of the second Tribunal hearing are pages 9 to 14. At page 9 the following exchange occurred:
Member:okay. So what happened when you returned to Sri Lanka in 2010?
Applicant:I got married and was living at my wife's place and the law of country at that time was that anyone coming new coming into the area should register themselves with the local police station. When I went there for reporting or registering I saw two individuals from Karuna group there.
Member: Who did you see and how do you know they are from Karuna group?
Applicant: One of the person was my father's far relative.
Then from pages 11 to 13 of the transcript the following evidence was given in connection with the motorbike incident:
Applicant: First time I met him after I come back from Qatar when I went to police station register myself with the police, soon on seeing me he recognized me he asked me that I am the son of Sivanesarasa.
Member: When you went to register in 2010?
Applicant: After I got married I went to register.
Member: And where did you see him?
Applicant: Kaluvachikudy Police Station.
Member: And what was he doing there?
Applicant: He was with the police officers inside.
Member: So what was he talking to them? About what?
Applicant: He was just chatting there and when I went to register myself he saw me and when I was walking out he saw me and after that he started talking to me.
Member: So what happened after that? He saw you and talking and what happened after that?
Applicant: Then actually I left after but actually they got my phone number. I think after a couple of days I think, they called me that they want my motorbike.
Member: Who is they?
Applicant: Senadirajah called me and said that he will send Chandru to Pickup.
Member: And who is Chandru?
Applicant: Chandru is a member. He was in the movement and was with Senadirajah.
Member: Where did you mean the movement as LTTE?
Applicant: Yes.
Member: When did he join the LTTE? (unclear).
Applicant: I only met with him after they separated from the LTTE.
Member: Was chandru also a member of involved with the Karuna group or not?
Applicant: Senadirajah rang me and said that he will send the person to pick up the bike but I didn’t know Chandru. He was asking the bike on Friday and I said I can’t give on that day and I will give tomorrow.
Member: That’s not I am asking you about that at the moment? Could you please listen to me carefully to my questions (unclear) I need to understand what? you explain me. I was asking about Chandru. Was he also involved with the Karuna group?
Applicant: Yes.
Member: How do you know that?
Applicant: He was with Senadirajah.
Member: He was with him?
Applicant: Yes.
Member: When you say with him, when did you see him with him and how, when? (unclear).
Applicant: He sent Chandru to pick up the motorbike.
Member: I am asking you how you know that Chandru was involved with the Karuna group?
Applicant: I have seen them together in the Police afterwards.
Member: Let’s step back a little bit. So when did you actually go to the police station to register?
Applicant: I don’t know the exact date. But in 2010 after I got married I went there.
Member: And when you got to the police station did you see Chandru and Senadirajah together?
Applicant: I didn’t see Chandru at that time.
Member: So he wasn’t at the police station at that time?
Applicant: At that time no.
Member: In the statutory declaration that you have provided in support of your application you do gave a date when you went to the police station which was 20 August 2010?
Applicant: Yes.
Member: But you also say that you saw two members of Karuna group at police station.
Applicant: That person was not Chandru. The Second person was not Chandru.
Member: So whose is that?
Applicant: I don’t know. I haven’t seen him after.
(emphasis and emboldened line added)
As may be seen from the above transcript of the second Tribunal hearing, the Tribunal extensively traversed with the Applicant what had occurred when he first attended the police station after his return from Qatar. The Tribunal’s questioning was directed at attempting to confirm the identity of the “two individuals from Karuna group there” (see TP9, as emphasised and reproduced at [62] above). The Applicant then stated twice that he had seen Chandru “with” Senadirajah (see TP12, as emphasised and reproduced at [63] above).
In my view a fair and legally reasonable reading and construction of the Applicant’s evidence in this regard, as reproduced at [63] above before the emboldened line inserted into the transcript, was that Chandru was with Senadirajah at the police station.
The evidence given by the Applicant after the line at [63] above is to the effect that the second person at the police station was not Chandru and that he did not know the identity of that second person. On that reading of the transcript it was open to the Tribunal to find, as it did at [40] of its Decision Record, that the Applicant had “changed his evidence”.
For myself, I doubt that I would have reached that conclusion, but rather would have come to the view that perhaps there was a misunderstanding between the Member and the Applicant and that they were in some way at cross purposes and that overall the Applicant’s evidence did not justify a view that he was being inconsistent. Nevertheless, that is not the test. I am not able to say that no rational or logical administrative decision-maker could have arrived at the Tribunal’s view in this case that the Applicant had changed his evidence, because different minds might reach a different conclusion of the sense and meaning of what was said in the above exchange as evidenced by the transcript. There is of course the further consideration that a transcript must necessarily fail to exactly reproduce the nuances of the hearing it seeks to reproduce in writing.
Accordingly, on this basis nothing in [40] of the Decision Record of the Tribunal establishes jurisdictional error. However, even if I am wrong and it was not legally reasonable for the Tribunal to take the view that the Applicant had changed his evidence, any such error was not “material” to the Tribunal’s ultimate decision, and it did not deprive the Applicant of the realistic possibility of a successful outcome: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123. Any error by the Tribunal in this connection in the overall context of its evaluation of the Applicant’s claims was a minor and venial one. A misunderstanding of evidence does not amount to jurisdictional error so long as the error does not mean that the Tribunal failed to consider the Applicant’s claims: see SZNPG per North and Lander JJ at 309 [28]. As Wigney J said in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at 221 – 22 [55] – [56]:
[55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at [151]. Even if an aspect of reasoning, or a particular factual finding, 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: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at [66]; SZWCO at [64]-[67].
[56] An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; 67 AAR 376 at [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
The Tribunal in its Decision Record in relation to the motorbike incident was not so much concerned about the identity of the two persons at the police station but the fact that he had omitted this claim at the Entry Interview. At [53] the Tribunal recognised the caution to be used in assessing credibility by reference to evidence initially given by an applicant at an entry interview (see MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 at 450 [55] – [56] and ANQ16 v Minister for Immigration [2019] FCA 693) but notwithstanding concluded at [52] – [53]:
[52] The Tribunal noted that at the entry interview, the applicant did not claim that members of the Karuna faction threatened him, and that he did not mention that he provided his motorbike to the group which was involved in a robbery that subsequently led to him becoming a witness in criminal court proceeding. The Tribunal indicated to the applicant that the fact he did not mention the group or the motorbike incident at entry interview could raise doubts about the veracity of his claims. When asked to respond to, comment on and/or whether he needed further time, the applicant stated that when he came to Australia, he was told not to mention anything and because he was uncertain as to whether he could provide corroborative evidence of his claims. The applicant has made a number of claims, most of which are not independently supported by probative evidence. The Tribunal is not persuaded or convinced by the applicant’s explanations.
[53] The Tribunal is of the view that the failure to mention such significant claims at entry interview raises serious doubts about the applicant’s claims and his general credibility. The Tribunal gives regard to the submissions that the entry interview is intended to capture the essence of the applicant’s claims and it is possible that such an interview is conducted in a quick manner. However these are significant claims and arguably they form the essence of the reasons for the applicant’s claim to protection and in those circumstances, the Tribunal draws adverse conclusions, the Tribunal is of the view that failure to have mentioned those substantial claims raises doubts about their veracity and the applicant’s credibility.
In my view Ground 4 fails to establish jurisdictional error.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Amended Application filed in this Court is to be dismissed.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 12 March 2020
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