CUD16 v Minister for Immigration
[2020] FCCA 1495
•10 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUD16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1495 |
| Catchwords: MIGRATION – Protection Visa – decision of the Administrative Appeals Tribunal – whether Tribunal’s credibility findings illogical – whether Tribunal failed to make an enquiry – whether Tribunal was biased – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 424AA, 425, 476 |
| Cases cited: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 Minster for Immigration & Citizenship v SZMDS [2010] HCA 16 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 |
| Applicant: | CUD16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2090 of 2016 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 3 August 2018 |
| Date of Last Submission: | 3 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 10 June 2020 |
REPRESENTATION
| Applicant: | In person with the assistance of an interpreter |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
| Second Respondent: | Submitting appearance, save as to costs |
ORDERS
Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Applicant’s application filed on 26 September 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2090 of 2016
| CUD16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed in this Court on 27 September 2016, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 7 September 2016. The Tribunal’s decision affirmed a decision of a delegate (Delegate) of the then Minister for Immigration and Border Protection (Minister) not to grant the Applicant a Protection (Class XA) visa (Visa).
This application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (Act). To be successful, the Applicant is required to demonstrate that the Tribunal has made a jurisdictional error.
The materials before the Court include the judicial review application (Application), submissions prepared by the Applicant dated 13 July 2018 which were marked as Exhibit A1 (Exhibit A1), a Court Book numbering 301 pages and outlines of written submissions filed by the Minister on 3 May 2018 (Minister’s Written Submissions) and on 20 July 2018 (Minister’s Supplementary Submissions). The Court has also reviewed in detail the transcript of the hearing.
Background
The Applicant is a citizen of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 2 August 2012[1]. On 27 November 2012, the Applicant applied for the Visa[2]. The Applicant was assisted by a Solicitor Migration Agent[3]. The Applicant’s claims for protection can be summarised as follows[4]:
a)The Applicant’s family were required to move around to avoid fighting between the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lankan Army (SLA). The Applicant was injured in a bomb explosion on one occasion which left a scar on his leg.
b)The Applicant was regularly interviewed by the SLA who asked him if he was supporting or fighting for the LTTE. The SLA was suspicious of the Applicant because of his scar. The Applicant was hit during one of these interviews.
c)The Applicant was stopped and taken to the Criminal Investigation Department (CID) on two occasions. He was threatened and questioned. The Applicant was told he had to report to the CID every week but he did not do so as he felt he was being harassed and singled out for no good reason.
d)The Applicant fears he will be seriously harmed, tortured or killed by the Sri Lankan government or affiliated agencies, including the CID and the SLA, as he is a Tamil and will be imputed with a pro-LTTE profile.
e)The Applicant will face severe hardship because the authorities in Sri Lanka are eroding the rights of Tamils and are harassing and deliberately targeting young Tamil men.
[1] Court Book (CB) 127.
[2] CB 25-108.
[3] CB 33.
[4] CB 53-56.
The Applicant attended an interview before the Delegate on 12 November 2013[5]. During the course of the interview, the Applicant raised a new claim that his uncle was a former member of the LTTE and that he has been suspected of being involved with the LTTE because of his uncle’s involvement[6]. On 7 February 2014, the Delegate refused to grant the Applicant the Visa (Delegate’s Decision)[7].
[5] CB 116-117.
[6] CB 134.
[7] CB 122-142.
The Applicant sought review of the Delegate’s Decision at the Tribunal on 11 February 2014[8]. The Applicant was invited to attend a hearing before the Tribunal on 3 August 2016[9].
[8] CB 143-148.
[9] CB 170-173.
On 28 July 2016 (though the submissions are dated 28 June 2015), the Applicant’s Solicitor Migration Agent forwarded submissions and detailed country information to the Tribunal[10]. New claims were also raised in the submissions that the Applicant’s involvement and connection to the LTTE was greater than he had previously disclosed. These claims included a claim that the Applicant’s father was a cook for the LTTE and that the Applicant assisted his uncle in tasks for the LTTE[11].
[10] CB 175-256.
[11] CB 176-177.
The Applicant attended a hearing before the Tribunal with his Solicitor Migration Agent on 3 August 2016[12].
[12] CB 266-267.
On 7 September 2016, the Tribunal affirmed the decision not to grant the Applicant the Visa (Tribunal’s Decision)[13].
[13] CB 271-292.
Tribunal’s Decision
The Tribunal’s Decision appears at Court Book pages 271-292. The Minister’s Written Submissions at [12]-[34] accurately, and in detail, summarise the Tribunal’s Decision. The Court adopts those submissions, with some alterations, as follows.
The Tribunal first set out the background to the application before it and summarised the legal principles applicable to the protection visa criterion[14]. The Tribunal then summarised the Applicant’s claims, evidence and submissions and referred to the Delegate’s Decision and reasons[15].
[14] CB 272-274, at [1]-[18].
[15] CB 274, at [20]-[22].
The Tribunal first outlined the credibility concerns that it had:
a)It noted that the Applicant presented as “well-educated and intelligent” and that certain aspects of his evidence had been consistent. However, the Applicant raising new claims at a late stage caused the Tribunal concern and the Tribunal also had significant concerns that the Applicant had attempted to embellish many aspects of his claims in order to strengthen his claims for protection[16].
b)It considered that the Applicant’s explanation for raising new claims at a later stage (that he had been told not to disclose his involvement with the LTTE as the information would be used against him), was undermined due to inconsistencies in his evidence about the new claims in the written submissions and his evidence provided to the Tribunal at the hearing. The Tribunal further noted that no evidence had been provided regarding any trauma that may have affected the Applicant’s ability to provide evidence, and found that the Applicant was able to actively engage in the Tribunal hearing[17].
c)It did not accept the submissions advanced that discrepancies arose as a result of the confusion surrounding how the Applicant was asked questions or because he was not given a chance to respond at the interview with the Delegate. The Tribunal also noted that the Applicant had been provided with opportunities to clarify the questions at the interview, including at the hearing, and that he had been provided with further time to provide written submissions after the hearing. Despite this, no further submissions were provided[18].
[16] CB 275, at [25].
[17] CB 275, at [26].
[18] CB 275, at [27].
The Tribunal detailed the Applicant’s evidence regarding his father’s role as a cook and his own involvement with the LTTE and why the Applicant did not disclose this earlier[19]. Due to its credibility concerns, the Tribunal did not accept the Applicant’s reasons for the late disclosure of the new claims. It also noted inconsistencies in the Applicant’s evidence that led it to reject the Applicant’s new claims, namely that he had assisted his uncle in the LTTE, that his uncle was a commander in the LTTE, and that his father worked as a cook for the LTTE[20]. The Tribunal did not accept that the Applicant’s father was a cook for the LTTE though was willing to accept his uncle was involved in the LTTE. However, the Tribunal did not accept that the uncle’s involvement was at the level that the Applicant claimed.
[19] CB 276, at [28]-[31].
[20] CB 277-278, at [32]-[38].
The Tribunal accepted that the Applicant was injured by flying shrapnel, which left a scar on his leg. The Tribunal also accepted that the Applicant and his family attempted to travel to India by boat, and that they were intercepted and placed in “A” camp in Jaffna[21].
[21] CB 278, at [39].
The Tribunal accepted as plausible that the Applicant may have been questioned, hit and threatened by the SLA while at the A camp[22]. However, having regard to country information, it did not accept that the SLA had a serious adverse interest in him as he was not taken to a rehabilitation camp for actual and suspected LTTE members[23]. In so doing, the Tribunal noted that the Applicant’s claim that the country information referred to matters in camps in other areas, and A camp was different. However, due to the credibility concerns and lack of evidence to support this contention the Tribunal did not accept this. Finally, the Tribunal detailed various inconsistencies in the Applicant’s evidence regarding when his family was released from the camp[24].
[22] CB 278, at [41].
[23] CB 279, at [42].
[24] CB 279, at [43].
The Tribunal accepted that the Applicant moved back to Mulliyavalai with his parents, after residing at the A camp, and that his uncle was sent to a rehabilitation centre[25]. It also accepted that the Applicant was stopped and questioned by the SLA and CID on his way to school[26]. However, the Tribunal found the Applicant’s evidence about what occurred when he was questioned to be inconsistent and found it difficult to accept that if he was of adverse interest as a LTTE suspect he would have been released simply because his mother attempted to make an issue out of it and he was a student[27]. The Tribunal did not accept that the CID retrieved a file about the Applicant, or that he was told that he spent the time in A camp for fighting for the LTTE, as it considered it was clear from the Applicant’s evidence that he and his family were in a welfare centre and not a rehabilitation camp[28].
[25] CB 279, at [44].
[26] CB 249, at [45].
[27] CB 279-280, at [46]-[47].
[28] CB 280, at [48].
Having detailed the Applicant’s evidence regarding the questioning by the CID when he was playing cricket[29], the Tribunal found that the Applicant’s evidence was “generally consistent”[30]. However, having regard to country information, it did not accept that if the Applicant had been seriously suspected of LTTE involvement and had signed a form admitting membership of the LTTE, that he would have been released by the CID after his coach intervened, or that he would have been allowed to continue to play in the cricket tournament[31].
[29] CB 281, at [49]-[51].
[30] CB 281, at [52].
[31] CB 281, at [53]-[54].
The Tribunal found the Applicant’s evidence with respect to the events in the lead up to his decision to leave Sri Lanka to be inconsistent and lacking in credibility in many respects and having given the Applicant the opportunity to explain, the Tribunal gave little weight to the explanations[32]. The Tribunal was willing to accept that, at some stage, the Applicant and his cricket team travelled to Colombo during which time they were stopped and questioned by the SLA and CID. It also accepted that the Applicant was released after his cricket coach intervened. However, it did not accept that this occurred in 2012, shortly before the Applicant left Sri Lanka. It further did not accept that the Applicant signed a form admitting his involvement with the LTTE or that he was required to report to the CID or SLA on his release[33].
[32] CB 282, at [55]-[58].
[33] CB 282-283, at [59]-[60].
At [61]-[62], the Tribunal stated:
61. Given inconsistencies and other above concerns, the tribunal does not accept that, after returning from Colombo, the applicant either received a call from the CID which he did not answer or decided to report to the CID himself. The tribunal does not accept that on the way to do this and/or see his uncle, two days before his departure, the applicant was advised by a friend about leaving Sri Lanka by boat, that he made a decision to leave after that conversation or that he was in hiding with his uncle, or with anyone else, prior to his departure from Sri Lanka.
62. Given its numerous concerns and resulting findings, the tribunal does not accept that the applicant was of any adverse interest to the authorities at the time of his departure from Sri Lanka in July 2012. On this basis and its above findings, the tribunal does not accept the applicant’s claim (in his written statement) that the CID and SLA share a file about him that says he supported and fought for the LTTE and that he was detained because he was dangerous. As already noted above, the applicant was not detained because he was dangerous.
Noting its findings that the Applicant was not of any adverse interest to the authorities, and explaining in considerable detail the inconsistencies in the Applicant’s evidence[34], the Tribunal did not accept that the CID had made inquiries about him after his departure from Sri Lanka, or that the authorities had taken copies of documents or photographs of the Applicant, threatened to shoot him onsite, or that they had suspicions of his LTTE involvement[35].
[34] CB 284, at [65]-[69].
[35] CB 284-285, at [70].
The Tribunal had regard to country information which was discussed with the Applicant at the hearing in relation to his risk of future harm as a Tamil or someone with LTTE associations[36]. The Tribunal accepted that the Applicant’s uncle was a former LTTE member, however, it noted that the Applicant had not faced any problems in the past due to his uncle’s LTTE membership[37]. The Tribunal found that there was only a remote chance that the Applicant would face serious harm on account of being a perceived LTTE supporter due to his relationship with his uncle and, for the same reasons, the Tribunal found the risk of the Applicant facing significant harm due to his relationship with his uncle to be remote[38].
[36] CB 285-286, at [72]-[75].
[37] CB 286, at [76].
[38] CB 286, at [77].
Having referred to the Applicant’s claim relating to his being a young Tamil male, the Tribunal noted that on the two occasions when the Applicant was stopped and questioned by the authorities, and asked to show his ID card, the Applicant was unharmed. Having regard to these findings, and country information, the Tribunal found that the Applicant faced only a remote chance of serious harm from the authorities as a young Tamil male, or Tamil youth, from Mullaitivu or from a Tamil area where the LTTE was active. For the same reasons, the Tribunal found that the risk of the Applicant facing significant harm on the basis of his Tamil race, combined with his age and origins, was remote. The Tribunal also found the chance or risk that the Applicant would be detained under the Prevention of Terrorism Act to be remote[39].
[39] CB 286-287, at [79].
Having regard to country information, the Tribunal accepted that a level of discrimination existed against Tamils in Sri Lanka. However, it did not accept that this amounted to serious harm or significant harm. Having regard to the evidence before it, it further did not accept that Tamils faced a real chance or risk of being prevented from studying or having their movements restricted such as to amount to either serious or significant harm[40].
[40] CB 287, at [80].
The Tribunal noted that scarring had been used in the past to identify LTTE suspects, and accepted that the Applicant may have been questioned about the scar on his leg. However, it also noted that country information from the British High Commission indicated that this practice had ceased or was now used infrequently. Having regard to its finding that the Applicant was not of adverse interest to the authorities, the Tribunal found the chance of serious harm, or risk of significant harm, to the Applicant for suspected LTTE associations because of the scar on his leg, to be remote[41].
[41] CB 287-288, at [81].
Having regard to country information and the Applicant’s individual circumstances[42], the Tribunal did not accept that the standard questioning or security checks that the Applicant would face on return to Sri Lanka, or at any time after he left the airport, amounted to serious harm or significant harm. Having regard to the evidence before it, the Tribunal did not accept that the Applicant would face a real chance of serious harm as a failed asylum seeker, including due to any pro-LTTE opinion due to leaving Sri Lanka without permission and, for the same reason, found that the Applicant would not face a real risk of significant harm due to having left Sri Lanka illegally and having sought asylum in Australia, or any perceived pro-LTTE opinion arising out of those actions[43].
[42] CB 288-289, at [82]-[86].
[43] CB 289, at [87].
Having referred to country information[44], the Tribunal accepted that the Applicant was likely to be charged under the Immigrants and Emigrants Act (I&E Act). However, the Tribunal found that the I&E Act was a law of general application and non-discriminatory in nature[45].
[44] CB 289, at [88]-[89].
[45] CB 290, at [90]-[91].
Having regard to country information and the evidence before it, the Tribunal found that the Applicant would be held in remand for a short period, and that he would be granted bail, and if required, his mother would be able to act as guarantor[46]. The Tribunal found that the risk of being imprisoned rather than fined was remote, and that the imposition of a fine did not constitute serious or significant harm. The Tribunal noted that the Applicant was currently working, and that he presented as “intelligent, educated and resourceful”. Having regard to the evidence before it, the Tribunal found that the Applicant would be able to pay any fine imposed on him[47].
[46] CB 290, at [92].
[47] CB 290-291, at [92]-[95].
The Tribunal found the chance or risk that the Applicant would spend more than a few days in prison to be remote. Although it noted that prison conditions in Sri Lanka were poor, the Tribunal did not accept that the Applicant faced a real chance of serious harm or a real risk of significant harm if he spent a few days in prison[48].
[48] CB 291, at [96]-[98].
Having regard to the Procedures Advice Manual guidelines, the Tribunal found the risk that the Applicant would face significant harm for any reason while on remand for a short period to be remote. It also found that the poor prison conditions were not intentionally inflicted, but rather due to a lack of resources and therefore did not amount to significant harm[49].
[49] CB 291, at [99].
Having considered the Applicant’s claims both separately and cumulatively, the Tribunal did not accept that the Applicant faced a real chance of serious harm due to his race, political opinion, membership of any particular social group, or any other Convention ground. It therefore concluded that the Applicant did not satisfy the Refugee Convention criterion[50].
[50] CB 291-292, at [100] and [102].
Having considered the Applicant’s claims both separately and cumulatively, the Tribunal was not satisfied that there was a real risk that the Applicant would face significant harm on return to Sri Lanka, and therefore concluded that he did not satisfy the complementary protection criterion[51].
[51] CB 292, at [101] and [103].
Proceedings in this Court
In the Application, the Applicant raises the following grounds of review:
1. The Tribunal’s finding at paragraph 38 of its decision record that it does not accept that the applicant helped his uncle either in an official LTTE capacity or unofficially at any time was so illogical and irrational reasoning process which resulted in the Tribunal fell in to jurisdictional error. ( Refer to Minister for Immigration & Citizenship –V- SZMDS {2010} HCA 16 )
2. The Tribunal’s finding that the applicant’s father was not involved with the LTTE was not supported by evidence.
3. The Tribunal has not assessed the applicant’s claim cumulatively being a Young Tamil of Hindu faith carrying a scar on his leg which would impute him with perceived political opinion of supporting the LTTE.
(Without alteration)
The Minister’s Written Submissions respond to these grounds of review.
Exhibit A1 also contained further grounds of review as follows:
2.1. That the AAT’s dismissal of evidence based on perceived inconsistencies and concerns around credibility lacked logic or probative value;
2.2. As a result the AAT erred in their assessment of whether the Appellant had a well-founded fear of persecution and the application of the ‘real chance’ test established by the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 189 CLR 379.
2.3. That the AAT not corroborating the uncle’s senior LTTE involvement amounted to jurisdictional error
2.4. Alleged political influence government has had over the constituents of the adjudicating tribunal members of the Migration and Refugee Division of the AAT, and lack of recognition of earlier bias in the Protection Visa process, could give rise to apprehended bias.
While the Applicant did not file written submissions, Exhibit A1 explained in detail the Applicant’s arguments in relation to the grounds that are indicated immediately above. The Minister’s Supplementary Submissions addressed these additional grounds.
At the hearing before this Court, it was indicated that the Applicant had not received the Minister’s Supplementary Submissions. The Court adjourned for an hour to allow the interpreter to translate the Minister’s Supplementary Submissions to the Applicant. The Applicant then indicated that he had a CD that he wished to play for the Court. The CD contained the audio of the hearing that took place before Tribunal. The Applicant indicated that he did not have enough time to get a transcript. The Court advised the Applicant that it would not receive the CD into evidence. The Orders made on 29 March 2017 (over one year prior to the hearing) were that any evidence of the contents of any sound recording that the Applicant wished to rely upon was to be presented to the Court as a transcript verified by affidavit. The Applicant had had over one year to do so and had not. Accordingly, the Court did not receive the CD into evidence or listen to its contents.
At the hearing, the Applicant gave brief oral submissions. He indicated that the Tribunal had “listened” to him but did not accept his claim about his uncle’s role in the LTTE movement. The Applicant continued to say that his uncle was involved in the LTTE movement, his uncle has made a YouTube video about his involvement and only now has the Applicant been able to obtain materials in support of this. None of these matters are relevant to the Court’s task on judicial review. Rather, they are directed to the merits of the Applicant’s claims which the Court cannot consider or express disagreement with the Tribunal’s Decision which does not amount to jurisdictional error.
Consideration
Application
Ground 1
The Applicant takes issue with [38] of the Tribunal’s Decision which provides as follows:
The applicant has claimed that prior to the final stages of the war, he was exempt from forced recruitment as he was the only child. There is some support for this proposition. While the tribunal acknowledges country information indicating that the LTTE became conducting more aggressive forced recruitment campaigns as the conflict worsened, given inconsistencies and concerns above, the tribunal does not accept that in early 2009 the LTTE approached the applicant in order to recruit him or that the applicant’s uncle intervened or advised that the applicant was already assisting him, that he would either speak to his superior or convince the applicant to join the LTTE himself. While the tribunal is willing to accept that, after the uncle’s injuries dating from 2007 he may have on occasion received some assistance from the applicant’s family (such as looking after him), the tribunal does not accept that the applicant helped his uncle, either in an official LTTE capacity or unofficially at any time (including January-February 2009) including by driving him around on a motorbike or carrying his weapons.
(Emphasis added. Footnote omitted.)
The Applicant submits that the final sentence is “illogical”. The Applicant refers to Minster for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131] and [135] where the error of “illogicality” was described as follows:
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
[…]
On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.
The Tribunal’s reasons for not accepting that the Applicant assisted his uncle in an official or unofficial capacity must be read in the context of the Tribunal’s reasons as a whole. The Tribunal’s discussion at [30]-[38] clearly provide a logical and probative basis for the Tribunal to find as it did. In particular, it is noted that:
a)The Tribunal had serious concerns about the fact that this claim (that he had assisted his uncle) was disclosed late and did not accept the Applicant’s explanation[52];
b)The Applicant gave inconsistent evidence about when he began assisting his uncle[53]; and
c)The Tribunal gave little weight to the Applicant’s explanation about why he was given responsibility for driving around his uncle and found the claim to “lack credibility”[54].
[52] CB 276, at [31]-[32].
[53] CB 277, at [34]-[35].
[54] CB 277, at [36].
These concerns clearly provided a logical and probative basis for the Tribunal to find that it did not accept that the Applicant had provided the assistance he claimed to have provided. The basis of the finding was, in effect, the credibility of the claim. The Tribunal’s concerns as to the credibility of the claim were logical and well-reasoned. It relied on inconsistencies, a delay in raising the claim and a lack of believability.
Ground 1 is dismissed.
Ground 2
The Applicant takes issue with the Tribunal’s finding that his father was not involved with the LTTE. He states that there was “no evidence” to support this conclusion.
At [37], the Tribunal states as follows:
While the tribunal acknowledges that many people living in formerly LTTE controlled areas had dealings with the LTTE, due to the above concerns, the tribunal does not accept that the applicant’s father worked for the LTTE as a cook from 2004-2009 as claimed […]
The “above concerns” were those discussed by the Tribunal at [29]-[36] of its decision. In particular:
a)The submissions provided to the Tribunal prior to the hearing were the first time that the Applicant had made mention of his father being involved with the LTTE and those submissions were inconsistent with the evidence that the Applicant gave at the hearing[55];
b)The Tribunal found it difficult to accept that the Applicant would indicate his uncle’s involvement previously, but not his father’s involvement and, further, have indicated expressly at all previous times that his father was not involved with the LTTE[56]; and
c)In light of the credibility concerns of the Tribunal (detailed at [25]-[27] of the Tribunal’s Decision), the Tribunal was not willing to accept the Applicant’s explanation for why he had previously omitted these details particularly in circumstances where the Applicant came to Australia to seek protection and was advised of the importance to provide truthful evidence[57].
[55] CB 276, at [29].
[56] CB 276, at [32].
[57] CB 276, at [32].
The “evidence” that the Tribunal relied upon was the Applicant’s own evidence which it deemed to be not credible. Hence, having disbelieved the Applicant, there was no basis to accept the claim. That is, there was no evidence to establish the claim and therefore it was entirely open for the Tribunal to conclude as it did.
Ground 2 is dismissed.
Ground 3
The Applicant claims that the Tribunal failed to consider his claims “cumulatively”. In particular whether his being a young Tamil Hindu with a scar on his leg would impute him with a pro LTTE opinion.
It is first to be noted that at no time throughout the Applicant’s Visa application process did the Applicant ever raise a claim to fear harm on the basis of his Hindu faith. Therefore, the Applicant cannot now, on judicial review, suggest that this was overlooked or that his Hindu faith was a reason for his being imputed with a pro-LTTE opinion.
In any event, the Tribunal expressly states at [100] and [101]:
Considering the applicant’s claims both separately and cumulatively, the tribunal does not accept that he faces a real chance of serious harm due to his race, political opinion, membership of any particular social group or any other Convention ground and does not accept that his fears of persecution are well-founded.
Having considered the applicant’s separate and cumulative claims, the tribunal is further not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that the applicant will face significant harm.
In circumstances where the Tribunal has expressly stated it has considered the Applicant’s claims cumulatively, the Court should not lightly find that it has done otherwise. Furthermore, the Tribunal specifically states at [100] “or any other Convention ground”. Given the Tribunal had acknowledged that the Applicant was a “Tamil Hindu”, it can be inferred that in considering the claims cumulatively the Tribunal did turn its mind to the Applicant’s religion (as religion is, relevantly, a Convention ground).
The Applicant’s claim that his being a Tamil and having a scar on his leg would impute him with a perceived political opinion of supporting the LTTE was addressed as a whole and cumulatively in the Tribunal’s consideration under the heading “Future risk of harm as a Tamil and/or LTTE Association” at [71]-[81]. Of note is the following:
a)Country information that indicated being a Tamil, a young Tamil male or a Tamil from formerly LTTE controlled areas generally no longer gives rise to a risk profile in Sri Lanka now nor does such a profile impute an individual with a pro-LTTE opinion[58]. Other country information also caused the Tribunal to find that the chance of serious or significant harm from the authorities faced by the Applicant as a young Tamil male, or Tamil youth, from Mullaitivu or from a Tamil area where the LTTE was active, or as Tamil generally was remote[59];
b)The chance of the Applicant being imputed with a pro-LTTE opinion because of his relationship with his uncle was “remote”[60]; and
c)The practice of identifying LTTE suspects by scarring has either ceased or is used less frequently and given the Applicant’s previous evidence, the chance or risk of him suffering harm for suspected LTTE links because of his scar was remote[61].
[58] CB 285, at [73].
[59] CB 287, at [79].
[60] CB 286, at [76]-[77].
[61] CB 287-288, at [81].
When read with the Tribunal’s statements at [100] and [101], it cannot be said that the Tribunal did not “cumulatively” consider the Applicant’s claims. The Tribunal expressly considered in detail each of these matters.
Further, as the Minister submits, the Tribunal rejected each of the Applicant’s individual claims (i.e., that he would be imputed with a pro LTTE opinion because he is a Tamil, he is a young Tamil, his uncle was associated with the LTTE and he has a scar on his leg), therefore a cumulative assessment was not necessary. In Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [34] it was stated:
[…] It seems to us, as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result. It follows, in our respectful view, that the primary judge was wrong to hold otherwise.
Applying the above to the findings of the Tribunal that the individual claims of the Applicant did not give rise to a real risk or chance of harm, it is apparent that it was unnecessary for the Tribunal to consider the matters “cumulatively”.
Ground 3 is dismissed.
Exhibit A1
Ground 2.1
Ground 2.1 takes issue with the Tribunal’s credibility findings and particular findings of the Tribunal that are said to be without a logical or probative basis. The first 27 pages of Exhibit A1 provide “submissions” in support of Ground 2.1.
It appears that the Applicant is alleging that the Tribunal’s credibility findings lack a logical and probative basis. In DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2 (DAO16), the Court outlined the following principles in relation to illogical credibility findings:
(1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
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…
(citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
For the reasons that are explained in more detail below, the Tribunal has not erred in its assessment of the credibility of the Applicant’s claims and its subsequent rejection of those claims. The Tribunal’s findings were based on identifiable inconsistencies and discrepancies (for which there were a significant number), concerns as to the plausibility (or credibility) of the claims, the fact that matters were not raised at an earlier stage and the limited or unsatisfactory explanations for these matters (being the delay and the inconsistencies).
It is not the case that the Tribunal used one insignificant matter, or one sole inconsistency, to undermine the entirety of the Applicant’s evidence. Nor can one finding be seen to have infected the rest of the Tribunal’s findings. The Tribunal had a large number of clearly noticeable concerns which arose from the Applicant’s evidence and when considered as a whole these led the Tribunal to logically and reasonable find that the Applicant’s credibility and the credibility of his claims was severely damaged.
The Court is not satisfied that there is any illogicality in the Tribunal’s Decision. The Tribunal’s Decision is well reasoned, there is a logical connection between the evidence, the Tribunal’s credibility concerns and the finding that the Tribunal made and it cannot be said that no other decision-maker could not have formed the same view when presented with the same materials as the Tribunal.
Notwithstanding this, the Court will also address the particular issues identified in Exhibit A1 and explain why none of those issues identify any “illogicality” in the Tribunal’s conclusion.
Paragraphs 14-23
Paragraphs [14]-[23] of Exhibit A1 submit that the Tribunal acted illogically as it made an adverse finding because the Applicant’s evidence had not been properly interpreted. For the reasons given below at [154]-[162], any error in translation was not material and, in any event, was an observation and not a “finding”. Had the Tribunal made a finding on the credibility of the claim on this objectively minor (and perhaps erroneous) fact, then the Court would maybe find that the Tribunal had erred. However, the Tribunal did not do so. Reading the reasons as a whole, it cannot be said that the Tribunal relied on this observation to any significant extent, or at all, when rejecting the Applicant’s claim about his father. The Tribunal’s reasons for doing so are set out at [32]-[36] of the Tribunal’s Decision and refer to numerous other inconsistencies, of which the one the Applicant refers to in his submissions here is not one.
Nothing arises in these paragraphs.
Paragraphs 24-29
These paragraphs take issue with the Tribunal’s finding that:
[…] The tribunal finds it difficult to accept, even taking into account the applicant’s above explanation, that he would make reference (in his entry and departmental interviews) to an uncle who was a former LTTE member but would fail to mention his father’s association with the LTTE as a cook, given his evidence that his father was not even an LTTE member.
The Applicant submits that the Tribunal does not state why it finds it difficult to accept the Applicant’s explanations for why he did not disclose his father’s involvement with the LTTE further.
The Applicant is taking an overly narrow reading of the Tribunal’s Decision. The Tribunal’s use of “difficult to accept” is analogous to the Tribunal finding it implausible that the Applicant would have mentioned his uncle’s involvement but not his father’s involvement, and, further still, state that his father was not an LTTE member at all. There was nothing illogical about the Tribunal finding it “difficult to accept” the circumstances. It cannot be said that no decision-maker could not have concluded the reason for the lack of disclosure of the claim about the father’s involvement in the circumstances here “difficult to accept”.
To the extent the Applicant refers to other passages of the Tribunal’s Decision and says that “if the Tribunal found it difficult to accept because of…” a particular paragraph, the fact is the Tribunal found it difficult to accept because of the pure lack of believability of the situation in the particular circumstances. It was not informed by any other matters.
The Applicant makes submissions that the Applicant disclosing the uncle’s involvement earlier was “unavoidable” and that the country information supported a finding that the Applicant’s father was required to carry out a role as a cook. These submissions rise no higher than impermissible merits review. The Tribunal expressly acknowledged the information that the Applicant refers to as supporting his claim about his father but nonetheless was not satisfied because of the other concerns with the claim and the Applicant’s evidence. The Tribunal gave reasons for why it did not consider the country information supportive to the Applicant’s claim about his father and it was entirely open for the Tribunal not to accept the claim, despite the country information, given the other (multiple) concerns it had noted.
There was nothing illogical in the Tribunal’s rejection of the Applicant’s claim that his father was a cook for the LTTE.
Paragraphs 30-36
The Applicant takes issue with the Tribunal not accepting that his uncle was a “senior” member of the LTTE. The Applicant says that the fact that he did not provide details of this earlier is not consistent with attempting to embellish the claim. It is consistent with his explanation that he was trying to downplay his LTTE connections. The Applicant says there was no logical basis to conclude that the Applicant’s uncle was not a senior member of the LTTE.
The Applicant is simply disagreeing with the Tribunal in his submissions in Exhibit A1. The fact that the Applicant says that his failure to disclose this fact is consistent with his explanation for not doing so is the Applicant simply taking a different view of the evidence. However, the Applicant’s view is not the only view open to have been taken.
There was a logical basis for the Tribunal to find that the Applicant’s uncle was not a senior member of the LTTE. That basis is set out in detail in the Tribunal’s decision at [32]-[36] and included:
a)That the Applicant’s explanation for not doing so was of little weight, as the Applicant came to Australia for the purpose of seeking protection and would have been advised of the importance to tell the truth[62];
b)That the Applicant had failed to mention or disclose that his uncle had a senior role in the LTTE prior to the Tribunal hearing, and that included in the pre-hearing submissions there was no mention, despite those submissions discussing the uncle’s involvement[63];
c)The inconsistencies in the Applicant’s written and oral evidence in respect of his claims relating to his uncle, such as what happened when the LTTE came to his house to recruit him[64]; and
d)That it lacked credibility that the Applicant had been given responsibility for driving around his uncle (who was a senior LTTE member)[65].
[62] CB 276, at [32].
[63] CB 276-277, at [33].
[64] CB 277, at [34]-[35].
[65] CB 277, at [36].
These matters provided a logical and probative basis for the Tribunal to find that it did not accept that the Applicant’s uncle was a senior member of the LTTE. There was nothing illogical, in the sense of arbitrary or capricious, in this finding.
The Applicant also refers to an exchange in the hearing as follows:
[MEMBER] and why haven’t you mentioned this before, your dad’s work?
[INTERPRETER] I was scared to disclose this information, that my family was involved with LTTE
[MEMBER] but I think, as it was mentioned in your original entry interview you said your uncle was an LTTE member and you have referred to him as being in charge of people.
The Applicant says this exchange makes it apparent that he did disclose his uncle’s senior involvement in the LTTE at the original entry interview and the Tribunal here acknowledges this. It appears that the Applicant may be relying on this to undermine the Tribunal’s reference to the uncle’s senior involvement not being disclosed earlier.
The Court is not prepared to accept this transcript exchange as proof that the Applicant had previously disclosed his uncle’s senior involvement. The extract lacks context. For example, what occurred prior to this exchange is not transcribed and the Court is of the view that the statement “and you have referred to him as being in charge of people” is potentially a reference to the Applicant’s evidence given prior to this exchange, where he raised for the first time that his uncle was in charge of people. That is, that the Tribunal was referring to the Applicant having stated to it in the course of the hearing that the uncle was “in charge” of people. This reading of the transcript exchange is supported by the Tribunal’s Decision which records at [31] that the Tribunal had “pointed out to the Applicant that he had already referred to his uncle being an LTTE member in his entry interview” which is a direct reference to the extract the Applicant has provided. Further, at [33] the Tribunal confidently states that only the membership of the uncle was disclosed at the entry interview. The Court is not prepared to find that the Tribunal erred in stating that the Applicant only raised his uncle’s senior involvement at the hearing. Rather, the Court is satisfied that this was the first time it was raised.
There is nothing illogical in the Tribunal’s findings regarding the Applicant’s uncle’s involvement with the LTTE.
Paragraphs 38-41
The Applicant takes issue with the Tribunal finding a discrepancy with the Applicant’s evidence regarding the timing of when the Applicant began assisting his uncle. These discrepancies were:
a)In the submissions to the Tribunal, the Applicant stated that at the time the LTTE came to the Applicant’s home in early 2009, the Applicant’s uncle told them that the Applicant was already helping the uncle with LTTE activities; and
b)That at the hearing the Applicant stated he did not start assisting the uncle until after the LTTE visited the home and when the LTTE visited the home the uncle told them that he would convince the Applicant to help the LTTE.
The Applicant stated that what was said to the LTTE officers by the uncle was for the purposes of preventing the Applicant’s recruitment, not to describe accurately to the LTTE officers the nature of the Applicant’s LTTE involvement with him at the time. Therefore, it was not a logical basis from which to determine the time in which the Applicant commenced working for his uncle or identify discrepancies from.
Again, the Applicant is simply disagreeing with the Tribunal identifying a discrepancy and is trying to explain the discrepancy and indicate that the evidence was not purported to be used in the way it has. It is a matter for the Tribunal how it assessed the evidence and it was open to the Tribunal to find that the Applicant’s evidence of when he began assisting his uncle was inconsistent.
Nothing arises in these paragraphs.
Paragraphs 42-49
These paragraphs argue that there was no inconsistency or discrepancy in the Applicant’s account of what happened when the LTTE came to his house and how his uncle caused the LTTE to leave. The Applicant provided an extract of the transcript which he says indicates the account was not inconsistent.
It is clear that the account was inconsistent:
a)In the written submissions to the Tribunal the Applicant claimed that when the LTTE came over his uncle told them that the Applicant was helping the uncle with LTTE activities and they should not worry about recruiting him. The uncle then told the LTTE men that he would discuss this with his superior and the LTTE men left; and
b)At the Tribunal hearing the Applicant stated that his uncle told the men that he would convince the Applicant to assist the LTTE instead of the LTTE forcing him and that the men left because they respected the seniority of the uncle.
There are two clear discrepancies in these accounts: how the uncle caused the LTTE to leave (i.e., that the Applicant was already working for the LTTE as compared to the uncle convincing the Applicant to work for the LTTE) and why the LTTE men left (i.e., because the uncle said he would speak to his superior as compared to the men recognising the uncle).
The Applicant’s submissions that there was no inconsistency or discrepancy must fail.
There was nothing illogical in the Tribunal noting the discrepancy in the Applicant’s evidence as to what happened when the LTTE came to his house and how his uncle caused them to leave.
Paragraphs 54-55
The Applicant claims that the following passage of the Tribunal’s Decision was erroneous:
The tribunal further notes that the applicant’s evidence of attempted recruitment by the LTTE in early 2009 and providing assistance to his uncle (who he claims lives in Mulliyavalai and was residing next door at the time of the attempted recruitment) in January-February 2009 appears inconsistent with the applicant’s written claims that his family was displaced from Mulliyavalai in 2008 to various villages before going to Mullivaaikal, from where they attempted to travel to India before being intercepted by the Sri Lankan Navy (SLN).
The Applicant overlooks that the Tribunal made no finding that this was a further inconsistency. It simply noted that it “appeared inconsistent”. Even if this was not inconsistent (as the Applicant submits), the Tribunal was simply “further noting” it. The Tribunal had already identified that the Applicant’s evidence on his forced recruitment was inconsistent (based on other evidence). Therefore this “further” note was not material to the Tribunal’s findings or rejection of the Applicant’s claim that the LTTE sought to recruit the Applicant or that his uncle intervened. Even if this was a false factual premise, it did not damn the Applicant’s credibility or cause the Applicant’s claim to be rejected: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 (SZLGP). It was just a further note to an already large number of issues that arose with the Applicant’s evidence in the context of a larger number of inconsistencies and concerns that had already been identified.
Nothing arises from this paragraph.
Paragraphs 60-68
The Applicant takes issue with the Tribunal finding that his evidence about what happened when he was questioned by the authorities in 2011 was inconsistent. At [46], the Tribunal states:
The applicant’s evidence about what happened while he was questioned has been inconsistent. At the hearing, the applicant gave evidence that the authorities asked whether the applicant’s brother was a martyr or whether he was an LTTE member. When he said no, they asked how that was possible and took him and others into a type of house for further questioning. Because the camp is not far from his house, someone informed his mother and she came to the camp and started crying. His mother threatened to make it a big issue because he was a student. The authorities could not do anything and let him go. In his original statement, however, the applicant stated that during this incident, the CID retrieved a file about the applicant at their office and told him that he had been kept at [A] camp for 1 ½ years due for fighting with the LTTE. When the applicant was asked at the hearing about whether he had ever been shown any file, he initially referred to a form he claims he had to sign when stopped by the CID in Colombo (discussed further below), referred to seeing a ‘file’ when at [A] camp and stated that when he was questioned by CID in 2011 they said they had a file on him, but did not indicate that he had seen any physical file at the time.
The Applicant provided a further transcript extract of the hearing and says that the Tribunal was confused with the Applicant’s evidence. This extract does not demonstrate anything other than that the Applicant discussed signing a form. It is not apparent whether this exchange is what the Tribunal is referring to at [46], given the exchange did not have any reference to the Applicant stating that the CID told him they had a file on him.
The Applicant also suggests that it is entirely plausible that the CID did not have a file and were simply using this to intimidate the Applicant. This overlooks what the Tribunal is stating. The Tribunal is referring to the fact that the Applicant’s written statement said that the Tribunal “retrieved” a file and therefore the Applicant had seen the physical file, whereas his evidence at hearing was that he had not seen a file. Therefore, the inconsistency was in the detail of whether the Applicant had seen the file. The Court agrees that it would be entirely plausible that the CID simply said they had a file to intimidate the Applicant. However, that was not what the Tribunal was considering. Rather, it was considering whether the Applicant’s claim to have been questioned was, as a whole, credible and doing so by reference to inconsistencies and discrepancies in the Applicant’s evidence on this particular issue.
There is nothing illogical in the Tribunal’s observations that the evidence was inconsistent. There were inconsistencies in the details that the Applicant provided.
Paragraphs 73-78
The Applicant alleges it was illogical for the Tribunal to reject that the Applicant received phone calls from the CID after he returned to Colombo. At [56] and [61], the Tribunal stated:
The above evidence is inconsistent and lacking in credibility in many respects. Firstly, the applicant’s hearing evidence that nothing happened for the week that he was in Kokkulai but that he decided to go to sign in at the CID on the second week because he thought they might visit his uncle differs from his written statement, which states that the CID called him to attend interviews when he returned home but he ignored the calls. This claim is repeated in the applicant’s departmental interview. When this was put to him at hearing, the applicant confirmed that he did receive a phone call but did not answer it and that he may not have mentioned it because he was ‘going with the flow’ of evidence. Given numerous concerns about the credibility of the applicant’s evidence, the tribunal gives little weight to his explanation for his failure to mention a significant detail such as receiving a phone call from the CID in his evidence.
[…]
Given inconsistencies and other above concerns, the tribunal does not accept that, after returning from Colombo, the applicant either received a call from the CID which he did not answer or decided to report to the CID himself […]
The Applicant submits that just because he did not mention the phone call in the hearing, does not mean that the phone calls did not occur and yet this is how the Tribunal reasoned. The Applicant misreads the Tribunal’s statement. It was not simply that the Applicant failed to mention the phone calls at the hearing. Rather it was that the evidence the Applicant gave to the Tribunal instead of referring to the phone calls completely differed (or contradicted) the phone calls. That is, instead of stating that he ignored the CID the Applicant actually stated that he himself decided to go to the CID. This was a major shift in the evidence.
Further, there was nothing illogical in the Tribunal finding that the Applicant’s explanation was of little weight because of the “significance” of this in the Applicant’s claim. The Tribunal was observing that this phone call had formed a major part of the Applicant’s claims previously and that to not refer to it was not adequately explained by the Applicant “going with the flow”.
Nothing illogical arises in the Tribunal not accepting that the Applicant received a phone call from the CID.
Paragraphs 79-82
The Applicant submits that the inconsistencies that the Tribunal refers to at [57]-[59] of its decision are inconsequential and of no probative weight in determining whether the Sri Lankan authorities were interested in the Applicant and simply indicated that the Applicant was “confused” when giving his evidence.
The Tribunal is entitled to consider inconsistencies and discrepancies when considering whether to accept an Applicant’s claims. The weight the Tribunal affords to the evidence is a matter for the Tribunal as it considers appropriate in the circumstances[66]. It is not for the Applicant to say that these matters have no probative value. That was the role of the Tribunal and it was entirely logical and rational for the Tribunal to consider the Applicant’s inconsistent accounts of what occurred when he returned to Colombo were of concern and give them some weight.
Paragraph 83
[66] Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464, at [27]
The Applicant submits that it was illogical for the Tribunal to find it “difficult to accept” that the Applicant would choose to leave Sri Lanka by boat after a single conversation with a friend without the Tribunal having regard to the Applicant’s age and maturity at the time of making the decision. The Applicant’s Solicitor Migration Agent offered an explanation for the Applicant’s evidence about when he decided to leave after the Tribunal expressed concern. That explanation did not include that the Applicant was young or immature. Further, the Tribunal found it “difficult to accept” not simply because of the inherent unlikelihood of such, but also because of the Applicant’s inconsistent account of what he did prior to his leaving (for example, where he stayed).
The failure to refer to the Applicant’s age or maturity was not illogical nor was the Tribunal finding it “difficult to accept” the Applicant’s account a conclusion not open to be made.
Paragraph 84-88
The Applicant submits that there is no probative link between discrepancies identified in the Applicant’s claims of what occurred after he left Colombo and the timing of the cricket match and questioning in Colombo. This was especially so in light of the Tribunal having accepted all the other aspects of the Applicant’s claims of what occurred when he played cricket. In effect, the Applicant is stating that it was illogical to conclude that the discrepancies in the Applicant’s evidence about what happened after he left Colombo meant that what he said occurred on the cricket trip (that he was questioned) did not occur in June 2012.
At [59], the Tribunal states that “in the context of general concerns about many aspects of the Applicant’s evidence, the tribunal also questions the timing of the Applicant being stopped and questioned by CID in Colombo, just one to two weeks before he decides to leave the country”. This supplies the “link” that the Applicant says is lacking. The Tribunal considered that, in general, the Applicant’s evidence about what occurred in the weeks prior to his leaving Sri Lanka was not credible and therefore the timing of the alleged questioning (being June 2012) was of concern. It was a culmination of the Applicant’s inconsistent accounts of what occurred prior to his departure including the Applicant adding that he had signed a “form”, which caused the Tribunal to doubt the timing of the claimed questioning.
It was entirely logical for the Tribunal to have accepted the Applicant’s account that he was questioned by the CID when in Colombo playing cricket, yet not be satisfied that it occurred when the Applicant said it did. The Tribunal is not required to uncritically accept every aspect of the Applicant’s evidence on a particular matter[67]. The link or connection here arose from the Applicant’s inconsistent account of the “timing” of the events that followed this alleged questioning in 2012.
[67] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.
Nothing arises from this paragraph.
Paragraph 89-100
The Applicant takes issue with the Tribunal finding that he was not required to report to the CID weekly after returning from Colombo. The Applicant states that country information supported that he would have been required to do so and, again, there was no logical connection between the inconsistencies and the Tribunal’s finding.
Having rejected that the Applicant was questioned by the CID while in Colombo in June 2012 (the incident which he alleged he was told that he was required to report weekly after), it was entirely logical for the Tribunal to find that the Applicant was not required to report to the CID after his “release”. That is, the basis of the Applicant having to report to authorities was rejected.
In any event, the finding that the Applicant was not required to report weekly is supported by further independent reasons, including that it was inconsistent with the Applicant’s evidence that after he was released he continued playing cricket with his team for five days in Colombo without incident (which did not support a view that he was of interest) and that the Applicant’s account about what occurred when he left Colombo was also inconsistent.
Nothing illogical arises in the Tribunal’s finding. It was entirely open for the Tribunal to conclude as it did.
Paragraph 101-114
Here, the Applicant takes issue with the Tribunal not accepting that inquiries had been made about the Applicant to his mother and uncle after his departure. The Applicant states that it was illogical for the Tribunal solely to conclude this did not occur based on the inconsistency in the Applicant’s account of the amount of times his mother and uncle were visited.
The Tribunal did not conclude solely on account of the inconsistencies in the Applicant’s evidence about the sequence and timing of the alleged visits. This was just one basis. The Tribunal also referred to the finding that the Applicant was of no adverse interest to the authorities, the numerous discrepancies in the Applicant’s evidence generally, that the Applicant had further claimed for the first time that the authorities had taken documents and photographs of him, that the Applicant’s own evidence was that the uncle had not been harmed after his release from detention and that it was implausible that (or the Tribunal did not understand the rationale behind) the uncle “signing in” for the Applicant since his departure.
To the extent the Applicant takes issue with the Tribunal referring to there being a lack of rationale behind the uncle signing in for the Applicant and refers to country information that the Applicant says supports this, the Court disagrees. The country information refers to individuals being required to “sign in”. The Tribunal’s issue was with the uncle signing in on behalf of the Applicant. The Tribunal’s reference to their being no rationale for this is akin to, as noted above, the Tribunal considering it implausible or doubtful.
The Tribunal’s findings had a logical and probative basis that was not solely confined to one concern or inconsistency. Nothing arises in these passages.
Paragraph 117-118
These paragraphs simply disagree with the Tribunal finding that the Applicant had embellished his claim. The Applicant argues that his evidence is consistent with the situation “on the ground” as opposed to “embellishment”. The Delegate similarly considered that the Applicant had embellished his claims. The Tribunal gave detailed reasons why it considered the Applicant had embellished his claims and those reasons are entirely reasonable and rational. It was based on the Applicant’s numerous additions to his claims at various stages of the process without reasonable explanation. This was an entirely sound basis to consider that the Applicant may have “embellished” aspects of his claims.
The finding that the Applicant had embellished his claims was entirely open.
Paragraph 119-124
The Applicant disagrees with the Tribunal not accepting the explanations the Applicant provided for the inconsistencies and discrepancies. The Applicant submits that the Tribunal in particular did not accept that the Applicant had genuine fears about disclosing his LTTE involvement as an explanation because, it was said, the Tribunal considered he had been told to tell the truth.
The Tribunal considered, on numerous occasions, the Applicant’s explanation for any discrepancies or inconsistencies[68]. Numerous discrepancies and inconsistencies arose and, while the Tribunal had regard to the explanations for these, none were sufficiently compelling to account for the amount of them. In light of the sheer number of inconsistencies and the manner in which the Applicant presented himself to the Tribunal (as “well-educated and intelligent” and effectively and actively engaging), it was open to the Tribunal to consider that the explanations for the discrepancies and inconsistencies (which were not “minor or slight”) were not sufficient.
[68] See, for example: CB 275, at [26]-[27]; CB 276, at [32]; CB 277, at [36]; CB 279, at [42]; and CB 282, at [58].
In respect to the Tribunal’s reference to the Applicant not disclosing his LTTE links because the Applicant feared disclosing this, the Tribunal found as follows:[69]
The tribunal has considered the above explanations but gives them little weight in light of its overall concerns about the applicant’s credibility as well as concerns specifically relating to these late claims. The tribunal finds it difficult to accept, even taking into account the applicant’s above explanation, that he would make reference (in his entry and departmental interviews) to an uncle who was a former LTTE member but would fail to mention his father’s association with the LTTE as a cook, given his evidence that his father was not even an LTTE member. While the tribunal has considered the representative’s submissions that Sri Lankan asylum seekers being told not to disclose LTTE links out of fear is ‘quite common’, as discussed at hearing, the applicant came to Australia for the purpose of seeking protection and would have been advised at every stage of the process the importance of providing truthful evidence. In circumstances where many other aspects of the applicant’s claims give rise to credibility concerns, the tribunal is not willing to accept the applicant’s reasons for the late disclosure of significant claims.
[69] CB 276, at [32].
While the Tribunal did reference the importance of telling the truth, this was not a “major” reason for the Tribunal not accepting the Applicant’s explanation. Read as a whole, it is apparent this was but one reason (and a fair and logical reason) why the Tribunal did not accept the Applicant’s explanation that he did not disclose his LTTE involvement previously because he feared to do so. The Tribunal also noted this explanation was inconsistent with the disclosure made about his uncle, contrary to evidence he had given (that his father was not involved with the LTTE), did not correlate in circumstances where the Applicant was seeking protection and the other credibility concerns generally held by the Tribunal.
The Tribunal’s non-acceptance of the various explanations that the Applicant offered for any discrepancies in his evidence were well-reasoned and were not arbitrary or capricious.
Nothing arises in these paragraphs.
Paragraph 125
The Applicant states that the Tribunal applied an inconsistent standard of credibility. The Applicant appears to suggest that the Tribunal, in some parts of the decision, accepts the Applicant’s account of what occurred despite inconsistencies in the evidence but in other parts rejects certain events occurred because of inconsistencies.
Reading the reasons as a whole, the Court does not consider the Tribunal’s findings demonstrate that an inconsistent standard of credibility was applied. The Tribunal’s acceptance or rejection of claims was detailed, thorough and well-reasoned. While the Tribunal may have accepted some aspects but not others, the Tribunal always explained its reasons for doing so. Further, on many occasions the Tribunal uses the expression “willing to accept”. This indicates that the Tribunal, notwithstanding that it had difficulty in accepting the evidence, was prepared to accept the evidence to ensure that any risk or chance of harm that could possibly have arisen from the circumstances claimed which the Tribunal could not confidently reject was addressed.
Finally, the Tribunal is not required to uncritically accept any or all of the Applicant’s claims[70]. That is, the Tribunal accepting some parts of the Applicant’s claims and not others is not an “inconsistent” standard of credibility. It was the Tribunal undertaking the fact finding function.
[70] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.
There was no inconsistent standard of credibility applied.
Paragraph 126
The Applicant submits that, given his history and the Tribunal’s knowledge of the events that he had been through, including that he had been a member of the Tamil community in the LTTE held areas of the Northern Province of Sri Lanka 2008-2009 and was young at that time, it was unreasonable for the Tribunal to reject the “generalised reasons” offered for the inconsistencies including trauma, the length of time elapsed and memory lapses.
At [26]-[27], the Tribunal stated as follows:
26. The tribunal has considered this explanation but finds that the applicant’s credibility is further undermined by significant inconsistencies in his evidence including between new information set out in submissions on his instructions (and accompanied by the applicant’s signed statement that the submissions accurately and comprehensively present his claims) and his evidence at the tribunal hearing. The tribunal further has concerns about the plausibility of several aspects of the applicant’s claims, as discussed in further detail throughout the decision. Contrary to oral submissions from his representative, the tribunal does not find these discrepancies to be minor or slight. Generalised reasons were suggested in oral submissions to explain the inconsistencies including trauma, the length of time elapsed and memory lapses. Given the nature of the discrepancies, as described in this decision, the tribunal does not accept that these factors satisfy the tribunal’s concerns. The tribunal notes that no independent evidence has been provided regarding any trauma or its impact on the applicant’s ability to give evidence. On the contrary, the applicant was able to effectively engage with the tribunal during his hearing including providing an account of his claims and actively engaging in discussion regarding country information. Given this, while the tribunal acknowledges that an applicant may be anxious due to the somewhat formal setting of a tribunal hearing, it also does not accept that any anxiety or unfamiliarity with a formal interview setting impacted upon the applicant such as to explain the numerous deficiencies in his evidence.
27. The tribunal further does not accept submissions that inconsistencies or discrepancies have arisen due to confusion about how the applicant was asked a question or not being given an opportunity to explain his evidence at his departmental interview. The tribunal notes that the applicant was represented at that interview and it was open to him to seek clarification regarding questions at that interview or to provide post-interview clarification. This was not done. The tribunal further notes that some of the evidence giving rise to its concerns was provided by the applicant at hearing, where these concerns were raised with him and where he had opportunity to clarify his evidence and respond to concerns. The tribunal further notes that the applicant and his representative were asked if they wanted time to provide further written submissions in response to concerns, which was declined. Following this a request was made for two weeks to provide written submissions, which the tribunal granted, but within that time period the tribunal was advised that, on the applicant’s instructions, submissions would not be forthcoming.
While the Tribunal was aware of the Applicant’s “history”, as the Tribunal observed the manner in which the Applicant presented and gave his evidence did not suggest that any trauma or anxiety accounted for the deficiencies. The Tribunal also noted that the Applicant had given detail and provided his claims. The Applicant was, by all accounts, a confident witness that had no difficulty engaging with the Tribunal therefore it was entirely open to reject the “generalised” reasons in the absence of them being expressly raised.
Paragraphs [26]-[27] demonstrate that the Tribunal’s consideration of the explanations for the discrepancies, including the generalised reasons, was entirely reasonable. The Applicant was also given a further opportunity to address these (such as submissions regarding the Applicant’s maturity at the time of the events or the passage of time) and did not do so. It cannot be said that the Tribunal’s findings were so unreasonable that no reasonable decision-maker could have come to the same conclusion that these “generalised” explanations were not sufficient to account for the concerns the Tribunal had. This is particularly so given the Tribunal’s observations of the Applicant’s demeanour at the hearing.
There is nothing unreasonable in the Tribunal’s findings.
Conclusion
The Applicant’s submissions in Exhibit A1, in effect, express disagreement with each of the Tribunal’s factual findings. As the Minister submits, there was no “extreme” illogicality[71]. The Tribunal’s findings were based on rational and logical conclusions that the Tribunal had drawn in light of the Applicant’s evidence. The Applicant relied heavily on SZLGP. The Tribunal did make findings that it did not accept the Applicant’s claims (for example, his father’s involvement in the LTTE) however those findings, as explained above, have a rational and probative basis and do not offend the principles in SZLPG or any of the other principles that were referred to in DAO16 or otherwise in relation to determining an Applicant’s credibility.
[71] Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611.
Ground 2.1 is dismissed.
Ground 2.2
The Applicant first contends in this ground that for the reasons advanced in Ground 2.1, namely that the Tribunal made illogical and irrational credibility findings, this impugned the Tribunal’s assessment of whether the Applicant had a well-founded fear of persecution. As the Court is satisfied that the Tribunal’s credibility findings were logical, reasonable and open to be made, this argument must be rejected.
The Applicant alternatively argues that the Tribunal, in any event, erred in applying the real chance test. The Applicant’s submissions in Exhibit A1 indicate the Tribunal erred in applying the real chance test as it overlooked country information provided by the Applicant and handpicked information unfavourable to him. The Applicant used the example of his scarring.
The Applicant’s claims that the Tribunal misapplied the real chance test cannot be accepted. It is apparent from [12] of the Tribunal’s Decision that the Tribunal was clearly aware of the real chance test and, in particular, the principles established in Chan v Minister for Immigration and Ethnic Affairs (1989) 189 CLR 379. In relation to the application of those principles, it is plain on the face of the Tribunal’s Decision that it had a correct understanding of the “standard”. The Tribunal used the terms of the statute and also assessed the chance of harm as “remote”, which is well recognised as an appropriate expression when determining whether a well-founded fear is established.
The Applicant states that the information before the Tribunal did not indicate that the practice of identifying LTTE supporters by reason of their scars had “ceased” and as the Applicant had provided information that the authorities who were around when that practice was used were still in place, it would be unreasonable to assume the practice had ceased. The Tribunal did not “assume” the practice had ceased. Rather, the Tribunal (correctly) determined that the Applicant had no real chance of harm for this reason because of his lack of adverse profile with the authorities and that he had not been harmed or suspected of LTTE involvement because of his scars in the two further incidents he was questioned by the CID. It is apparent from this that the Tribunal understood the “real chance” test in that it compared the country information to the Applicant’s particular circumstances and determined that it did not arise to the requisite level.
It is apparent from a reading of the Tribunal’s Decision as a whole that the Tribunal has carefully evaluated the Applicant’s claims and evidence and has considered the relevant country information to make the necessary findings to determine if it is satisfied that the Applicant had a real chance of serious harm.
The Applicant’s submissions in relation to this ground purport to argue a misapplication of the real chance test, though are more akin to an argument with the Tribunal’s choice of country information. The choice and assessment of country information is a matter for the Tribunal.[72] It can be seen that the reasons the Tribunal did not refer to the country information the Applicant makes reference to in his submissions was because the Tribunal had already rejected the claim in which the information purported to support based on its multiple credibility concerns or findings it had already made. Hence, the information that was overlooked was irrelevant.
[72] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, at [11]-[13].
Ground 2.2 is dismissed.
Ground 2.3
The Applicant appears to be arguing in this ground that the Tribunal should have sought out evidence about the uncle’s involvement with the LTTE. The Applicant states that this was a “critical” fact upon which the Tribunal ought to have made an inquiry given the information could be easily ascertained because of the “close relationship between the Sri Lankan and Australian Government”. The Applicant also argues that there was insufficient evidence to dismiss the Applicant’s claim that the uncle was not a “senior” member of the LTTE.
To address the failure to make an inquiry first, the Court has considered the leading statement in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, at [25]:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
The Court is not prepared to find that the Tribunal failed to make an inquiry for the following reasons:
a)The seniority of the Applicant’s uncle does not, on the face of the Tribunal’s Decision appear to be a “critical fact”. The Tribunal’s reasons at [73]-[77] indicate that the country information indicates that past membership or connection to the LTTE does not warrant protection unless an individual is perceived to have a significant role in post-conflict Tamil separatism. The Applicant did not claim to have such involvement. Further, the fact that the Applicant’s uncle was subject to reporting requirements, had not been harmed by the authorities and that the Applicant had not previously been questioned or harmed because of his uncle, indicated any connection to the uncle was not of interest. It was not the “lack of seniority” that caused the Tribunal to find that the Applicant was not at risk of harm, rather that the evidence did not indicate that the Applicant had a profile of a person who was at risk or chance of harm and the “level of seniority” was of no bearing on this in light of the Applicant’s evidence;
b)Even if it was a “critical fact” which was “obvious”, the existence of the fact could not, contrary to the Applicant’s submissions, be easily obtained. The Applicant pointing to a news article about the “close relationship” between the Australian government and the Sri Lankan government does not suggest that the fact was “easily obtained”. It cannot be said that an inquiry to a foreign government is “easily obtained”. More so, the difficulty of an inquiry to a foreign government in relation to a matter which, by its nature, requires confidentiality and anonymity and relates to the foreign government itself is something that is patently clear and tells against being “easily ascertained”; and
c)For the reasons expressed at (a) above, the failure to inquire does not supply a sufficient link to constitute a “failure to review” as, ultimately, the Tribunal’s finding that there was no real chance of harm did not require having regard to the “seniority” of any connection as the country information indicated that the circumstances had changed.
The Court is not satisfied any jurisdictional error arises from the failure to inquire.
As for the argument that there was insufficient evidence to dismiss the Applicant’s claim, the Court has addressed this above at [70]-[77]. Furthermore, the fact is there was no evidence to support the Applicant’s claim about his uncle’s seniority. It is for the Applicant to provide to the Tribunal whatever evidence or argument he wishes to advance in support of his claims and the Tribunal does not need rebutting evidence in order to reject his claims[73]. Here, the Applicant’s evidence in support of the claim was rejected on the basis that it lacked credibility. Once this occurred there was no evidence to support the claim.
[73] Abebe v Commonwealth of Australia (1999) 197 CLR 510, at [187].
Ground 2.3 is dismissed.
Ground 2.4
Ground 2.4 alleges that the Tribunal was affected by apprehended bias. The test for apprehended bias is whether a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the Applicant’s case: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80. The Applicant’s submissions refer to statistics and “policy” at the time which indicated that the Tribunal and Department were predisposed to not granting visas at the time. The Applicant refers to statistics and media articles in support of his position.
In ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [37]-[46], the Court rejected the use of statistics as evidence of demonstrating bias on the part of a decision-maker. For the same reasons, the Court considers the “statistics” and articles cannot demonstrate bias here.
To the extent the Applicant states that there was a “policy” at the time, there is no evidentiary basis to this whatsoever. The Applicant is merely speculating or, rather, grandstanding the opinion of the media or commentators as a basis for indicating bias without any specific connection to the Applicant’s own case save for a reference to the presiding Tribunal Member being appointed at a particular time. The Court does not accept there to be any “policy” that caused bias toward the Applicant.
Having regard to the Tribunal’s Decision, it is apparent that the Tribunal did not have a pre-existing state of mind or predisposed opinion which disabled it from undertaking an objective review. The Tribunal gave the Applicant the benefit of the doubt and was “willing to accept” certain parts of his evidence despite some concerns. The Tribunal hearing lasted for over four hours and the Tribunal’s Decision indicates that the Tribunal actively engaged with the Applicant at the hearing and gave him every opportunity to provide his evidence.
To the extent that the Applicant states that the Tribunal was “biased” because it referred to the Delegate’s Decision and made comments such as “like the delegate the tribunal has significant concerns”, this must be rejected. The Tribunal was entitled to have regard to the Delegate’s Decision and the mere fact it references the Delegate’s Decision is not indicative of bias. When one considers the Tribunal’s Decision, it is apparent the Tribunal conducted its own review and formed its own views independently of the Delegate. There is no greater example of this then in the passages that immediately follow the Tribunal stating it had significant concerns “like the delegate” that the Applicant had embellished his claims. The Tribunal’s reasons for doing so differed entirely from the Delegate – it was that the Applicant had raised additional claims at the hearing and had a number of inconsistencies and discrepancies. Given the Tribunal’s reasons for finding the Applicant embellished his claims arose largely from the matters that occurred before the Tribunal (and after the Delegate’s Decision), it cannot be said that the Tribunal was biased by virtue of it having the Delegate’s Decision before it.
The Applicant has not established that a reasonable fair-minded person would apprehend that the Tribunal did not bring an open mind to the review. Ground 2.4 is dismissed.
Other matters
The Applicant’s submissions in Exhibit A1 also adverted to other potential errors that were not articulated as grounds of review. The Applicant also made an oral submission to the effect that if “he had been told […] [he] would have got more evidence” which arguably raises a procedural fairness issue. The Court has done its best to identify these additional alleged errors and addresses them below.
Translation errors
At paragraphs [14]-[23] of the Applicant’s submissions in Exhibit A1 he appears to allege that there were interpretive errors at the Tribunal hearing. The Applicant has provided extracts of portions of the transcript with what it is said was the interpreter’s translation and then the actual translation of what he said. The Minister submits that little weight should be placed on this as there is no indication of the accreditation of the person who translated.
The Applicant refers to the following passage of [29] of the Tribunal’s Decision:
There is some inconsistency in the applicant’s evidence about his father; the applicant instructs in submissions received that while the Sri Lankan authorities did not know about his father’s involvement, villagers do. However, at the hearing the applicant stated that his father’s LTTE work was not ‘open’.
The Applicant says that this inconsistency arose because of an interpreter error. The key issue the Applicant takes is with the following portion of the hearing:
[MEMBER] and why haven’t you mentioned this before, your dad’s work?
[INTERPRETER] I was scared to disclose this information, that my family was involved with the LTTE
[MEMBER] but I think, as it was mentioned in your original entry interview you mentioned your uncle was an LTTE member and you have referred to him as being in charge of people.
[INTERPRETER] because everybody knows that my uncle was in the LTTE, so it was a bit obvious. And that myself and my dad’s involvement with the LTTE was not, ah, you know, open. It was not open. I never told army that I was in the LTTE. Even when they me asked the question, even when they inquired me I always said I’ve never
(Emphasis added)
The Applicant says that what he actually said was:
Because, that my uncle was LTTE everyone knows. But, that I was, was not known, and that my dad was, was not known, to the army.
The Minister submits that in circumstances where there is no accredited translation of the transcript before the Court, the Tribunal noted that the Applicant was “well-educated and intelligent”, the Applicant was assisted by an interpreter at the hearing and there is nothing to suggest that there were any interpreter issues at the hearing, it cannot be said that there were any deficiencies to such a level as to effectively prevent the Applicant from giving evidence or were material to a conclusion of the Tribunal adverse to the Applicant.
In SZRMQ v Minister for Immigration & Border Protection [2013] FCAFC 142 at [65], it was stated that in circumstances where there has been alleged mistranslation:
The question is whether the mistranslation or non-translation, singular or plural as the case may be, individually or in the aggregate, led to a material unfairness that is, relating to a matter of significance or potential significance for the applicant’s case and what the applicant was putting about the claim or for the decision-maker’s decision.
Even accepting the Applicant’s evidence, the Court does not consider the “mistranslation” was so inadequate that the Applicant was prevented from giving evidence or that the error was material to the conclusion reached. This is because the alleged mistranslation and the identification of the “inconsistency” was not a part of the Tribunal’s reasons for rejecting the claim that the Applicant’s father was a cook for the LTTE. The Tribunal’s reasons are from [32]-[37] and, relevantly, do not include a mention of the inconsistency in the Applicant’s evidence about whether his and his father’s involvement was known by villagers. Therefore, it was not a material error and was not a matter of significance to what the Applicant was putting about his claim of him and his father having worked for the LTTE.
Read as a whole, it is apparent that the substance of what the Applicant was communicating, the reason why he did not disclose his father’s involvement earlier, was received by the Tribunal. That is, that the Tribunal was aware that the reason the Applicant did not disclose his father’s involvement and his involvement earlier was because it was not known to the SLA and may “go against” him[74]. As such, the standard of interpretation was adequate and there was no unfairness to the Applicant.
[74] CB 276, at [31].
Accordingly, no error arises from [14]-[23] of the Exhibit A1.
Procedural Fairness
At [36] and [49] of Exhibit A1, the Applicant alleges that the Tribunal did not raise concerns with the Applicant about his uncle’s senior involvement so that he could respond and did not advise him of any inconsistency in his evidence regarding when the LTTE officers came to his house. At the hearing, the Applicant also made a submission to the effect that he did not know there was an issue with his uncle’s senior involvement and he would have provided more evidence if he did.
The Applicant appears to be suggesting that the Tribunal may have breached the obligations in s.424A, 424AA or 425 of the Act. This is clearly not the case for the following reasons:
a)The Tribunal was not required to put to the Applicant “doubts, inconsistencies or the absence of evidence”[75] which is exactly what the matters in [36], [49] and the Applicant’s oral submissions are referring to;
b)The Applicant takes issue with the Tribunal’s assessment of his own evidence that he provided during the hearing. This is exempt from s.424A and 424AA and the Tribunal is not required to “put” concerns with the Applicant’s evidence to him[76];
c)The Applicant was aware from the Delegate’s Decision that his credibility was in issue[77]. The Delegate expressly stated that it had found that the Applicant had attempted to “embellish” some of his claims for protection. The Applicant was thereby on notice that the credibility of his evidence and claims was a dispositive issue and the Tribunal was not required to indicate or say that it might not accept his claims;
d)The Tribunal is not required to provide a “running commentary” of what it thinks about the Applicant’s evidence which is what the Applicant is purporting to seek[78]; and
e)The Tribunal’s Decision notes in detail the instances in which the Tribunal indicated to the Applicant that it had concerns[79] (notably in relation to the late claims) thus the Applicant was advised by the Tribunal that matters including his uncle’s seniority were an issue. Further, the Tribunal also noted that the Applicant and his agent had the opportunity to comment on any inconsistencies and explain matters, including the delay[80].
[75] SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, at [18].
[76] Migration Act 1958 (Cth), ss.424A(3)(b) and (ba).
[77] SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63.
[78] SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63, at [48].
[79] CB 275, at [25]; CB 276, at [31]; CB 279, at [42]; CB 281, at [43]; and CB 282 at [58].
[80] CB 275, at [26]-[27]; CB 276, at [32]; CB 284, at [68].
It is apparent that there has been no breach of ss.424A, 424AA or 425 of the Act. The Applicant was given a real and meaningful opportunity to participate and give his evidence and the Tribunal was not required to give the Applicant notice of thoughts or appraisals of his evidence.
There was no denial of procedural fairness to the Applicant as he claims.
Conclusion
The Applicant has failed to satisfy the Court that there is jurisdictional error in the Tribunal’s Decision. The Application, including the matters in Exhibit A1 to the extent they added to the grounds of review, is dismissed.
I certify that the preceding one hundred and sixty-seven (167) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 10 June 2020
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