CZY18 v Minister for Immigration
[2019] FCCA 2975
•4 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
CZY18 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2975
Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of protection visas – applicants claiming a fear of harm in Sri Lanka – first applicant disbelieved in critical respects – whether the Authority engaged in irrational reasoning or failed to consider corroborative evidence considered – jurisdictional error established.
Legislation:
Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CA
Cases cited:
AQS15 v Minister for Immigration [2016] FCA 1362
AVQ15 v Minister for Immigration [2018] FCAFC 133
AYY17 v Minister for Immigration [2018] FCAFC 89
BZC17 v Minister for Immigration [2018] FCA 902
DPI17 v Minister for Home Affairs (2019) 366 ALR 665
EHF17 v Minister for Immigration [2019] FCA 1681
Minister for Immigration v BBS16 [2017] FCAFC 176
Minister for Immigration v SZMDS (2010) 240 CLR 611Minister for Immigration v SZRKT (2013) 212 FCR 99
Minister for Immigration v SZUXN [2016] FCA 516
Re Minister for Immigration; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration (2003) 77 ALJR 1165
SZTAP v Minister for Immigration (2015) 238 FCR 404
First Applicant: CZY18
Second Applicant: CZZ18
Third Applicant: DAA18
Fourth Applicant: DAB18
Fifth Applicant: DAC18
First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY
File Number: SYG 1620 of 2018
Judgment of: Judge Driver
Hearing date: 17 October 2019
Delivered at: Sydney
Delivered on: 4 December 2019 REPRESENTATION
Counsel for the Applicant: Ms P Abdiel
Solicitors for the Applicant: Quinn Emanuel Urquhart & Sullivan
Counsel for the Respondents: Mr G Johnson
Solicitors for the Respondents: HWL Ebsworth ORDERS
(1)A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 24 May 2018 into this Court for the purpose of quashing it.
(2)A writ of mandamus shall issue, requiring the Immigration Assessment Authority to reconsider according to law the review referred to it.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEYSYG 1620 of 2018
CZY18 First Applicant
CZZ18
Second Applicant
DAA18
Third Applicant
DAB18
Fourth Applicant
DAC18
Fifth Applicant
And
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent
IMMIGRATION ASSESSMENT AUTHORITY Second Respondent
REASONS FOR JUDGMENT
Introduction and background
1.The applicants seek judicial review of a decision of the Immigration Assessment Authority (Authority) made on 24 May 2018. The Authority affirmed three separate decisions of a delegate of the Minister (delegate) not to grant the applicants protection visas.
2.The following statement of background facts is derived from the submissions of the parties.
3.The applicants are a Telugu-ethnicity family from the Eastern Province of Sri Lanka.[1] The first applicant makes claims for protection. The second applicant, his wife, and the fourth applicant, his daughter, rely on the first applicant’s claims and make their own claims. The third applicant (the first applicant’s minor son) and fifth applicant (his minor nephew) rely on the first applicant’s claims and membership of the family unit.[2]
[1] [13] Court Book (CB) 1254
[2] [2] CB 1251; note that the fourth applicant in this proceeding is referred to as the third applicant by the Authority
4.The applicants departed Sri Lanka on 23 May 2013 and arrived in Australia by boat on 9 June 2013.[3] The Minister’s Department conducted Arrival and Induction Interviews with the first applicant on 17 July 2013 and 27 May 2014.[4] The Minister’s Department conducted an Arrival and Induction Interview with the second applicant on 27 May 2014.[5]
[3] CB at 800, 879, 913
[4] CB at 502
[5] CB at 481
5.The applicants lodged a combined application for SHEVs[6] on 10 May 2017.[7] The Minister’s Department conducted protection visa interviews with the first, second and fourth applicants on 18 January 2018 and 23 January 2018.[8] By way of a summary, the relevant factual claims made by the applicants included that: [9]
a)while the applicants were of Telugu ancestry, they identified themselves as Tamil while living in Sri Lanka, because of the attitudes of other Sri Lankans towards those of Telugu ethnicity;
b)during the war, first applicant was rounded up and detained on a number of occasions, under suspicion of providing the LTTE[10] with assistance;
c)the first applicant had assisted the LTTE by offering food and money at various times, but was otherwise not involved in the LTTE;
d)toward the end of the civil war, the LTTE buried a cache of weapons in a vacant block adjoining or neighbouring the land on which the applicants resided;
e)in or around 2013, the Sri Lankan police, in the course of conducting a search on the block for illegal alcohol production, found the cache of weapons;
f)the Sri Lankan police suspected the first applicant of involvement in the hiding of the weapons, and therefore involvement with the LTTE;
g)the first applicant went into hiding for several months, during which time members of the Sri Lankan police or military visited the second applicant and her children, in their home, looking for the first applicant; and
h)on one such occasion the police or military men locked the second applicant’s children in one room, and raped the second applicant.
[6] Safe Haven Enterprise Visas
[7] CB at 256; 776. A sixth applicant, the first applicant’s adult son, also made an application for a protection visa, which was denied by the Minister’s Department: CB 1178-1205. While there are references to the sixth applicant throughout the Authority decision, the Departmental decision in relation to the sixth applicant was not the subject of the same merits review by the Authority as the remainder of the family
[8] Affidavit of Bianca Montgomery-Hribar (BMH Affidavit), see Annexures A, B, C and D
[9] These factual claims were summarised by the Minister’s Department and the Authority: CB 1100-1101, 1131-1133, 1160-1161, [5]-[7]; 1251-1252
[10] Liberation Tigers of Tamil Eelam
6.The applicants’ SHEV applications were refused in three separate decisions by the delegate on 22 March 2018.[11]
[11] CB 1093-1121; 1122-1153, 1154-1177
7.Upon refusal of the SHEV applications by the delegate, the applicants’ matters were referred to the Authority by operation of s.473CA of the Migration Act 1958 (Cth) (Migration Act). On 24 May 2018 the Authority affirmed the decisions under review.[12]
[12] CB 1250
8.The Authority affirmed the delegate’s decisions to not grant the referred applicants protection visas.[13] The Authority determined that the applicants did not have a well-founded fear of persecution, for the purposes of ss.5H(1) and 5J of the Migration Act. Relevantly, the Authority:
a)did not accept that the applicants faced a real chance of harm based on their Telugu ancestry;[14]
b)accepted that the first applicant had historically assisted the LTTE and that as a young Tamil male, he was detained and mistreated by the authorities, on four occasions, on suspicion of LTTE involvement;[15]
c)did not accept the first applicant’s claims that he was considered by the authorities to have been involved with the LTTE or was imputed to be a LTTE supporter or was otherwise a person of interest of the Sri Lankan authorities by the end of the war;[16]
d)owing to inconsistencies in the applicants’ accounts of the weapons cache story, did not accept those claims, save for the fact that there “may have been hidden weapons discovered on land near the applicants’ house at some stage”;[17]
e)accepted that that the second applicant had given a “compelling account of being raped in 2013”, but determined that, in the context of country information, the assault was “opportunistic” because her husband was not at home at the time, and the attack was not related to any imputed LTTE support by him;[18] and
f)accepted the fourth applicant’s account that she was further threatened with violence after her mother was raped but found that this was “part of an overall pattern of harassment and intimidation”, rather than an attempt to compel the fourth applicant to disclose her father’s whereabouts.[19]
[13] CB 1250
[14] [13]; CB 1254
[15] [15]-[16]; CB 1255
[16] [17]; CB 1255
[17] [24]; CB 1256
[18] [28]; CB 1257
[19] [28]; CB 1257
9.The Authority also determined that the applicants did not face a real risk of significant harm, for the purposes of complementary protection pursuant to s.36(2A) of the Migration Act.[20]
[20] [53]; CB 1263
The current proceedings
10.These proceedings began with a show cause application filed on 8 June 2018. The applicants now rely upon an amended application filed on 15 March 2019. There are three grounds in that application:
1. The second respondent’s finding that the “only area of consistency” between the applicants’ accounts in relation to weapons being hidden and discovered on their neighbouring land was that “there may have been hidden weapons discovered on land near the applicants’ house at some stage”, was irrational, and thereby constituted jurisdictional error.
Particulars
The first, second and third applicants’ Protection Visa Interviews, dated 18 and 23 January, gave consistent, not-inconsistent, and/or corroborative accounts that:
i.the Liberation Tigers of Tamil Eelam (LTTE) had hidden the weapons;
ii.the weapons had been hidden a long time ago;
iii. the police discovered the weapons;
iv. the weapons were discovered in or around 2013;
v. bombs were among the weapons that were discovered;
vi.the weapons were discovered in the course of a search or investigation into villagers illegally brewing alcohol on the land;
vii. the third applicant and her female sibling were in school at the time the weapons were discovered;
viii. the first applicant was not at home when the weapons were discovered;
ix. the first applicant was off working in his fishing business when the weapons were discovered;
x. after the weapons were discovered, and on the day they were discovered, the police searched the applicants’ house while the second applicant was at home;
xi. the second applicant informed the first applicant of the weapons being discovered, after which the first applicant went into hiding;
xii. while the first applicant was in hiding, members of the army or police came to the family home, where the second applicant was alone with her children, on multiple occasions;
xiii. during these visits, the police asked about the second and third applicants’ knowledge of. and involvement in hiding the weapons, and asked about the first applicant’s whereabouts;
xiv. on one such occasion, the police or army members locked the third applicant and her sibling or siblings in a room, and raped the second applicant in another room.
2. The second respondent failed to consider corroborative evidence, a claim, or an integer of a claim by the first applicant, that the LTTE told him not to tell anyone about their hiding of weapons in neighbouring land, in circumstances where this corroborative evidence, claim or integer of a claim was material or critically relevant to:
a. the second respondent’s finding of an inconsistent account between the first and second applicants as to whether the first applicant knew about the weapons before they were discovered;
b. the second respondent’s unwillingness to accept that the LTTE buried the weapons or that the first applicant was suspected of LTTE involvement as a result; and/or
c. the first applicant’s claim of well-founded fear of persecution, and/or real chance of harm, should it, or should it already have, come to the attention of the Sri Lankan authorities that he was aware of the weapons, but kept that information secret at the behest of the LTTE, and therefore vitiated the decision with jurisdictional error.
3. The second respondent’s finding, or process of finding, that the sexual assault visited upon the second applicant in 2013 was “opportunistic”, was illogical, and thereby constituted jurisdictional error.
Particulars
i. The second respondent accepted the accounts of the second and third applicants that the second applicant was raped in her house in 2013, while her children were locked in another room.
ii. A component of the third applicant’s account of the incident was that the police or army members who attacked the second applicant were
1. were specifically looking for the first applicant: and
2. threatened the third applicant with rape if they did not bring the first applicant to them;
iii. Despite (ii) above, the second respondent found that:
1. the sexual assault was opportunistic, based on the fact that the second applicant’s husband was not at home, rather than targeted and did not occur in the context of the family’s imputed LTTE support;
2. the threat to the third applicant was simply “part of an overall pattern of harassment and intimidation”; and
3. this was in part, based on the second respondent’s rejection of the claim that the first applicant was wanted by authorities in 2013 in relation to an LTTE weapons cache;
iv. Therefore:
1. the second respondent’s positive finding regarding the accounts of the third applicant was at odds with second respondent’s conclusion that the assault was opportunistic; and/or
2. the second respondent’s conclusion required a rejection in respect of the third applicant’s account of what was, in fact, accepted.
11.Ground 3 in the amended application was not pressed.
12.In addition to the court book (in two substantial volumes) filed on 3 August 2018, I have before me as evidence the affidavit of Bianca Jane Montgomery-Hribar made on 14 March 2019 to which are annexed transcripts of various interviews conducted with the applicants.
13.Both the applicants and the Minister filed pre-hearing submissions in this matter and also made helpful oral submissions through their counsel at the trial on 17 October 2019. I have been assisted by those submissions.
Consideration
Relevant facts
14.Notably, one of the claims for protection advanced by the applicants was that towards the end of the civil war, the LTTE went to the first applicant’s house and buried a cache of weapons in a vacant block behind his backyard fence, and that in 2013 the Army[21] conducted a search in relation to illegal alcohol production at the vacant block and discovered the weapons cache. Only his wife was present at the time of the discovery of the weapons. The first applicant claimed that subsequently the Army came to their house, while he was staying elsewhere with friends, locked the children in a room, and raped his wife.
[21] Sri Lankan Army
15.Relevantly, the Authority considered the applicants’ claim concerning the discovery of hidden weapons in the vacant block behind the first applicant’s house as part of the claims advanced concerning him being of adverse interest to the authorities because of suspected LTTE links. Ultimately the Authority accepted the claim that weapons had been discovered (although not necessarily that the weapons were discovered in 2013), but it did not accept that the applicants were suspected of LTTE involvement as a result. The Authority found relevantly that the block of land where the weapons were discovered appeared to have been in use by people not associated with the applicants for the production of illegal liquor.[22] Further, it found that the land was bordered by other neighbours, a main road and the sea.
[22] [24]; CB 1256
16.The Authority noted a disparity in the accounts of the first and second applicants as to whether the neighbours were arrested on suspicion of hiding the weapons.[23] The Authority referred to country information concerning consequences for those suspected of hiding weapons, and concluded that if the first applicant or his family were wanted for hiding weapons on behalf of the LTTE, they would have been detained for a long period of time, charged and prosecuted. The Authority did not accept the first applicant’s explanation as to why he was not detained and prosecuted, namely, that he was in hiding for two months.[24] The Authority accepted the second applicant’s claim that she was raped in 2013, but considered, by reference to country information and the circumstances as described, that the assault was opportunistic.[25] The Authority did not accept that the first applicant had an LTTE profile as a consequence of the discovery of weapons by the Army.[26]
[23] [25]; CB 1256
[24] [26]; CB 1257
[25] [28]; CB 1257
[26] [36]; CB 1259
17.The gravamen of the applicants’ claims on judicial review are that:
a)the Authority engaged in an illogical and irrational reasoning process in arriving at a finding regarding the veracity of the applicants’ accounts that:
i)a weapons cache had been discovered by the Sri Lankan authorities in land adjoining their residence in Sri Lanka; and
ii)the first applicant was suspected of LTTE involvement as a result.
b)the error, in short, was that the Authority found that the “only area of consistency” was that “there may have been hidden weapons discovered on land near the applicants at some stage”; when, in fact, there were a number of other consistencies between the applicants’ accounts. The conclusion the Authority arrived at was not, therefore, available to it; and
c)the Authority failed to consider an integer of a claim, or a claim, made by the first applicant that he had been threatened with violence by the LTTE if he ever disclosed that he was aware that they had hidden the weapons cache. This claim was critical to findings of inconsistency between the first and second applicants’ accounts, findings regarding who had buried the weapon cache, and whether the applicant was imputed with an LTTE association as a result, and the Authority’s consideration of a claim for protection arising from that fact in itself.
Ground 1 – did the Authority make an irrational finding in relation to the consistency between the applicants’ accounts concerning the discovery of the weapons cache?
Applicants’ contentions
18.Ground 1 of the amended application contends that the Authority engaged in irrational reasoning. Illogical reasoning or irrational findings by a decision maker is a well-established ground of jurisdictional error.[27] A ground of “irrationality” or “illogicality” will only found jurisdictional error if the decision is one at which no rational or logical decision maker could arrive on the same evidence.[28] Courts should be “‘slow, although not unwilling’ to find that the task of an administrative decision-maker miscarried in a jurisdictional sense for want of logic in its reasoning process, or for reasoning or findings which can be described as ones at which no rational or logical decision maker could arrive”.[29]
[27] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [132]; Minister for Immigration v SZUXN [2016] FCA 516 at [54]
[28] SZMDS at [130]-[131] (per Crennan and Bell JJ)
[29] BZC17 v Minister for Immigration [2018] FCA 902 at [87]
19.Ground 1 sets out that, at [24] of the decision, the Authority found that the applicants had offered “vastly differing versions of events” in relation to the discovery of a weapons cache on a property behind their residence. The Authority stated: [30]
I have considered the applicants’ submissions that their varying recollections of these events were affected by the trauma that followed including the rape of the second applicant and that the some [sic] of the family members were children at the time. However I do not accept that this accounts for such vastly differing versions of events. Based on the only area of consistency, I am willing to accept that there may have been hidden weapons discovered on land near the applicants’ house at some stage but because of the inconsistencies in the family’s accounts, I do not accept that weapons were necessarily found in 2013 or that the applicants were suspected of LTTE involvement as a result. The block of land behind their house appears to have been in use by a number of people not associated with the applicants for the production of illegal liquor. The applicants have described that the land itself was bordered by other neighbours, a main road and the sea.
(applicants’ emphasis retained)
[30] CB 1256 at [24]
20.The flaw in the Authority’s process of reasoning is said to be self-evident. That weapons were discovered on land near the applicants’ house, did not, in fact, comprise the only area of consistency between the accounts provided by first, second and fourth applicants. At Schedule 1 to these reasons, the applicants identify the “numerous areas of consistency” as between the applicants in relation to the weapons cache account.
21.The Authority’s conclusion is said to rise to jurisdictional error for several reasons.
22.First, the applicants contend that the conclusion was “utterly unsustainable”. No rational or logical decision maker could arrive at the conclusion that there was only one area of consistency between the applicants’ accounts. That conclusion was simply not open to the decision maker in circumstances where there were numerous consistencies between the applicants’ accounts.[31]
[31] See Schedule 1
23.Secondly, the claims that were consistent, and/or corroborated as between the applicants, were material and critically relevant to applicants’ claims for protection. They were not “objectively minor matter[s] of fact.”[32] The applicants’ consistent evidence offered a significant degree of detail as to what was hidden, who had hidden the weapons, when they were discovered, by whom they were discovered, the circumstances of their discovery, the location of each of the applicants on the day of the discovery, and generally what had occurred on that day. The applicants submit that it was not open, therefore, to the Authority to not grapple with those matters.[33]
[32] Minister for Immigration v SZRKT (2013) 212 FCR 99 at [78] (Robertson J)
[33] Items no. i, iii, vi, xiv and xv of Schedule 1 were referred to in the decision at [20], [23] and [28]; CB 1256-1257. The balance of the consistencies were not referred to at all
24.Certainly, just because there is no reference in the decision-maker’s reasons for decision to particular material, “this does not necessarily give rise to an inference that the material was not considered.”[34] Regard must be had, however, to the “importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task”. That is, “failure to refer to evidence that on its face bears on a finding, may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision making.”[35]
[34] AVQ15 v Minister for Immigration [2018] FCAFC 133 at [41e] (per Kenny, Griffiths and Mortimer JJ)
[35] Ibid at [41(c)] and [41(e)]
25.Here, the applicants submit that the veracity of their claims regarding the weapons cache as a whole, is critically relevant to the question of whether the first applicant was suspected of LTTE involvement and why the second applicant was sexually assaulted; both of which founded the applicants’ claims for protection. The consistencies between the applicants had the potential to offer profound cogency to the veracity of their accounts of the weapons cache event. Therefore not only was the Authority required to grapple with those matters in its assessment of what comprised the whole field of consistent evidence regarding the weapons cache matter, by reason of the critical nature of those consistencies to the applicants’ claims for protection, it was required it to do so in plain view. That is, the Authority was required to assess the consistencies as against its finding in [24] of the decision, that the applicants’ evidence revealed only one area of consistency.[36] That those consistencies do not comprise part of the Authority’s findings as to the “areas of consistency” between the accounts is said to reveal a failure to properly grapple with them at all.
[36] CB 1256
26.Thirdly, the applicants submit that it cannot be said that the consistencies referred to in Schedule 1 were simply subsumed into the general finding that “there may have been hidden weapons discovered on land near the applicants’ house at some stage.”[37] A plain reading of that finding could not include all the consistencies identified in Schedule 1. Further, as noted above, the consistencies were “critical to the veracity of the weapons cache claim”; which in turn was critical to the applicants’ protection claims. They needed to be dealt with properly.
[37] AQS15 v Minister for Immigration [2016] FCA 1362 at [44], quoting Applicant WAEE v Minister for Immigration (2003) 236 FCR 593
27.Fourthly, the applicants concede that it may have been open to the Authority to turn its mind to the consistencies between the applicants’ accounts, and reject them. It is not necessarily irrational for a decision maker, who is “convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness”.[38] Here, however, the applicants submit that a conclusion that the accounts were inconsistent in several (minor) ways is not the same as a determination that the applicants were delivering dishonest accounts and fabricating facts. At no point in the decision does the Authority suggest that it had made that extreme assessment of the applicants’ credibility.
[38] Re Minister for Immigration; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration (2003) 77 ALJR 1165, 1168-1169 at [12] per Gleeson CJ
28.Further, as noted by the Full Federal Court in AVQ15, [39] the process of relying on inconsistencies in assessing an applicant’s credibility (and, importantly, rejecting other aspects of an applicant’s account) must be:
conducted fairly and reasonably, taking into account that the assessment of the reliability, and credibility, of accounts given by asylum seekers is well recognised as involving a number of particular features and considerations, and calls for a careful and thoughtful approach.
[39] at [23] per Kenny, Griffiths and Mortimer JJ
29.Explicating this issue by reference to academic material, their Honours cautioned decision makers of: [40]
the necessity for care, fairness and a reasonable approach, in order to avoid what the learned authors describe at one point as “a quest to disbelieve”… or to avoid irrationality or legal unreasonableness in an approach to credibility assessment.
[40] Ibid at [24]
30.The applicants submit that fairness would dictate that if the Authority was willing to largely reject claims of protection based on a small number of minor inconsistencies,[41] it needed to be willing to openly assess those facts against the consistent accounts of the applicants.[42] This was particularly so, in circumstances where the applicants had stated that they were affected by the trauma that followed.[43] Even if it could be argued that Authority grappled with the consistent material and rejected it, there is no evidence that demonstrates that it engaged in the thoughtful careful process required to complete its statutory task of review.
[41] At [21]-[24] of the decision, the Authority makes findings in relation to four inconsistencies concerning the discovery of the weapons cache and what occurred immediately thereafter. The applicants do not agree that those findings were correctly made. For instance, the Authority made a finding that second applicant said that the police found “pistols and grenades” (and her daughter had claimed they were bombs). In fact, the second applicant had said that the weapons comprised “pistols, or small weapons or bombs or shells or grenades”: Annexure B to BMH Affidavit, page 73 [414]
[42] The Authority is not “not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice”: DPI17 v Minister for Home Affairs (2019) 366 ALR 665 at [80], quoting French CJ in Minister for Immigration v Li (2013) 249 CLR 332 with reference to the Migration Review Tribunal
[43] [24]; CB 1256
31.The applicants note that there were also only a small number of inconsistencies identified by the Authority. Numerically, those inconsistencies are said to be far outweighed by the 15 consistent factual matters raised by the applicants.[44] In substance, the inconsistencies were no more or less significant or trivial than any of the factual material that was consistent between the accounts. To effectively reject the entirety of the weapons cache account, save for one aspect, on the basis of a small number of inconsistencies, without engaging in a careful weighing of them against the consistent aspects of the accounts, is said to reveal a patently unfair approach, and a “quest to disbelieve”.[45]
[44] See Schedule 1
[45] Hathaway, J., and Foster, M., The Law of Refugee Status (2nd edition, 2014) page 139. Referred to in AVQ15 at [24] per Kenny, Griffiths and Mortimer JJ, see [29] above
32.The applicants submit that, in any event, while the above matters give colour to the irrationality and illogicality of the Authority’s process, Ground 1 is not asking the Court to engage in a weighing exercise or embark on a merits review of the decision. The Authority’s conclusion that there was only “one area of consistency”, being that “there may have been hidden weapons discovered on land near the applicants’ house at some stage”, is said to be sufficient to ground a finding of illogicality in this case. This is because, simply put, there were many more consistencies than that.
Minister’s contentions
33.The Minister submits that whether the Authority erred as contended for by the applicants in the first ground depends not upon the Court’s own assessment of the consistencies or inconsistencies in the evidence that was before the Authority, but upon a correct understanding of the Authority’s findings at [20]-[29].[46] In these paragraphs the Authority addresses aspects of the evidence given by the first, second and third applicants concerning the weapons claim, and the events that followed. The Authority appeared to have at least four particular concerns with the first applicant’s claim that he was at risk from the Sri Lankan authorities due to imputed LTTE connections arising from the discovery of weapons on the vacant block adjoining his property. First, that there was no independent evidence corroborating the claims.[47] Secondly, that there were variations in the accounts given by the first, second and third applicants concerning the relevant events.[48] Thirdly, that country information indicated that had any of the applicants been suspected of hiding weapons, they would have been detained and prosecuted by the authorities.[49] Fourthly, that aspects of the first applicant’s evidence, for instance concerning his being in hiding for two months, were not persuasive.[50]
[46] CB 1256-1258
[47] [20]
[48] [20]-[24]
[49] [25]
[50] [26]
34.The Minister asserts that the applicants in the first ground take issue only with the second of these factors. Focussing upon the findings at [24], the Authority referred to the “varying recollections” of “these events” by the first, second and third applicants. The Authority did not articulate precisely what the variances were between the accounts, but there were clear differences in the accounts, for instance, the first applicant claimed that after he was informed by his wife of the discovery of the weapons by the Army he did not return home and hid for two months in a different town, whereas the second applicant claimed that the first applicant returned home after the discovery and then went into hiding for about one month. Another variance between the first and second applicants’ accounts was whether the authorities had visited or suspected the neighbours.
35.The applicants contend that the Authority’s reference to the “only area of consistency” under-appreciated the extent to which the applicants’ accounts were consistent regarding the issue of the discovery of the weapons. The Minister counters however, again, that the Authority does not articulate what it considered the “only area of consistency” to be. When seeking to discern illogicality or irrationality in decision making, it is imperative to begin with an examination of the decision maker’s reasons, which should not be read with an eye attuned to error.[51] Read in context, and without an eye for error, it appears that the Authority recognised that there was sufficient consistency in the applicants’ accounts for it to be persuaded that the discovery of hidden weapons on land near the applicants’ house did occur. That is, the reference to the “only area of consistency” is a reference to the burying by the LTTE and later discovery of the weapons by the Army. Having regard to [24], the only aspects of the weapons claim that were not accepted, due to “inconsistencies in the family’s accounts”, were that the weapons were discovered in 2013, and that the applicants were suspected of LTTE involvement as a result.
[51] SZTAP v Minister for Immigration (2015) 238 FCR 404 at [12]
36.The Minister contends that, leaving aside the Authority’s scepticism about the date of the discovery (upon which very little turns), the only significant issue the Authority disbelieved of the first applicant’s claim was that he and his family were suspected of LTTE involvement due to the weapons discovery. In this respect, there was ample difference between the accounts of the first and second applicants to support the Authority’s finding. For a finding of fact to be illogical, it must be go beyond a mere disagreement with the satisfaction reached by the decision maker. In the present case, inconsistencies were identified between the first and second applicants’ accounts concerning what the first applicant did after he claimed to have been told of the discovery of the weapons, and whether he went into hiding immediately, or went home first. There was also a discrepancy regarding the authorities’ interest in the neighbours in connection with the weapons. These were issues that went not to the issue of the occurrence of the burial and later discovery of the weapons, but to whether the applicants were of any adverse interest from the authorities as a consequence.
Resolution
37.The applicants submit that the Authority’s reasoning at [24] of its decision record, in which the Authority referred to “the only area of consistency”, was irrational because there were many other areas of consistency. The applicants identify in their submissions what they say were consistencies (or substantive consistencies) between the accounts given by each of the applicants concerning the discovery by the Army of the weapons cache, and the subsequent rape of the applicant wife.
38.In my view, the Authority did fall into error in dealing with the issue of the consistency of the applicants’ accounts concerning the discovery of the weapons cache. This is not a conclusion based upon an arithmetical analysis of Schedule 1. It is a conclusion based upon an analysis of the Authority’s reasons. In its reasons at [20]-[23] the Authority set out the accounts of the applicants concerning the weapons issue and presumably included in those paragraphs the consistency or lack of consistency of concern to the Authority. The Authority notes at [20] that the applicants assert that the weapons were found in 2013, which was only a matter of months before the applicants left Sri Lanka and came to Australia. It could be expected that the timing of the discovery would have been fresh in the minds of the applicants.
39.The critical part of the Authority’s reasoning appears at [24][52] where the Authority stated:
I have considered the applicants’ submissions that their varying recollections of these events were affected by the trauma that followed including the rape of the second applicant and that … some of the family members were children at the time. However, I do not accept that this accounts for such vastly differing versions of events. Based on the only area of consistency, I am willing to accept that there may have been hidden weapons discovered on land near the applicants’ house at some stage, but because of the inconsistencies in the family’s account, I do not accept that weapons were necessarily found in 2013 or that the applicants were suspected of LTTE involvement as a result. The block of land behind their house appears to have been in use by a number of people not associated with the applicants for the production of illegal liquor. The applicants have described that the land itself was bordered by other neighbours, a main road and the sea.
[52] CB 1256
40.What is remarkable is that the Authority found, because of the inconsistencies in the family’s accounts, that it did not accept that weapons were necessarily found in 2013 (or that the applicants were suspected of LTTE involvement as a result). It is a remarkable finding because that was an area of consistency in the accounts of the applicants as pointed out by the applicants by reference to Schedule 1. Further, it was not a point of inconsistency referred to by the Authority in its reasons at [20]-[23]. The issue is critical because the second applicant was raped in 2013, which was accepted by the Authority. The effect of the finding at [24] was to uncouple the weapons cache issue from the rape and enable the Authority to conclude that the rape was an opportunistic crime not related to any imputed LTTE activity. In my view, on a fair analysis of the Authority’s reasons, there was a lack of probative support for the Authority’s conclusion that the inconsistencies in the family’s accounts supported a rejection of the proposition that the discovery of the weapons took place in 2013.
41.In my view, and taking into account the discussion of principles by Derrington J in EHF17 v Minister for Immigration[53] at [76]-[96], the Authority’s lack of satisfaction concerning the eligibility of the applicants for protection visas was infected by irrational and critically important fact finding.
[53] [2019] FCA 1681
42.I find that this ground has been established and the applicants should receive the relief they seek.
Ground 2 – did the Authority fail to consider corroborative evidence?
43.I prefer the Minister’s submissions on the second ground.
44.The applicants’ second ground is that the Authority failed to consider the first applicant’s evidence that the LTTE threatened him and told him not to speak to anyone about the hiding of the weapons. There is no contest as to the principles that apply in the discernment of claims that the Authority is required to consider in conducting its review.[54]
[54] AYY17 v Minister for Immigration [2018] FCAFC 89 at [18]; Minister for Immigration v BBS16 [2017] FCAFC 176 at [79]
45.It is well-established that a decision maker is required to correctly construe and consider claims, and their component integers, made by an applicant or apparent on the material before the decision maker.[55] A decision maker may fall into jurisdictional error if he or she misconstrues or fails to consider a claim, or an integer of a claim, where that claim is clearly made or clearly arises on the basis of established facts.[56] That genus of jurisdictional error gives rise to a “failure to complete the exercise of jurisdiction embarked on.”[57]
[55] AQS15 at [41]
[56] Ibid at [41]-[48]
[57] Ibid (internal citations omitted)
46.The pertinent parts of the decision to Ground 2 are extracted below:
The first applicant claims that he knew the weapons were hidden in vacant land behind his house during the war and he had asked the LTTE not to hide them there. He claims that he was away for work when the weapons were discovered, his wife called him and told him not to come home and he hid first in Trincomalee and then a village further away for about two to three months.
…
The second applicant claims that she and her husband were not aware of the buried weapons but noted after the SHEV interview that her husband could have been aware that they were there.
(applicants’ emphasis retained)
47.Ground 2 asserts that the Authority failed to consider the first applicant’s evidence that the LTTE had threatened him and told him not to speak to anyone about the hiding of the weapons. In his protection visa application, the first applicant stated:[58]
[58] [25]-[26]; CB 828
After all of this but still before the end of the war, the LTTE came to me at night and said that they want to hide weapons in the building behind my house. There was an old house behind my house that no one occupied, people said it was haunted. The LTTE said they wanted to hide weapons in that house or close to it. I told them that that is too dangerous, my life will be in danger if you do that. But then they beat me and said that this is for the Tamil people, you have to do this.
…
They threatened me that if I tell anyone about the arms here, we will kill you.
48.In his protection visa interview the first applicant said that, at the time the LTTE were trying to hide the weapons behind his house:[59]
[59] Annexure A to BMH Affidavit at 39 [619]
I told them please don’t hide the weapons here in the land behind my house because if the army comes this way it will be a big problem for me.
Ok then they said we are fighting for the Tamils and being a Tamil you don’t want to help us ah and they ah gave me two slaps and they said we are going to keep it here but don’t tell anyone.
So then they ah hid it there and told me not to mention this or not to talk about it with anyone.
49.This aspect of the applicant’s evidence (repeated twice) was not referred to in the decision at any point.
50.The applicants submit that the first applicant’s evidence that the LTTE threatened him not to disclose the hiding of the weapons in the vacant lot was material to the assessment of the applicant’s overall claims for protection in three ways. First, that the evidence was material to what the applicants say was a noted inconsistency in the first and second applicant’s accounts as to whether the first applicant knew about the burial of the weapons. However, the first and second applicants were on notice in the SHEV interview of the disparity between their accounts as to whether the first applicant was aware of the burial of the weapons or not. Through their representative, they advanced a submission to the Authority concerning the disparity, which it described as a “small” inconsistency.[60] In order to address the inconsistency, the applicants explained that the second applicant struggled to remember the precise details of the incident due to its association with her rape. The Authority took this explanation into account but did not accept it accounted for the different versions of events.[61] The representative in the submission did not submit, and neither did the first applicant expressly assert, that the reason the second applicant was unaware of the burial of the weapons was because the first applicant felt compelled not to disclose that information. Whilst the Authority does not refer expressly to whether it placed any particular weight on the discrepancy between the first and second applicants’ accounts regarding the prior knowledge of the weapons, even the applicants accepted there was an inconsistency, and to that end, the Authority was entitled to place some weight on the inconsistency.
[60] CB 1054
[61] [24]; CB 1256
51.Secondly, the applicants contend that the first applicant’s evidence of having been threatened by the LTTE was material in that it corroborated his account of who buried the weapons and provided a basis upon which the first applicant would be imputed with an association with the LTTE. That may well be so, but the Authority did not reject the claim that it was the LTTE who buried the weapons (and it expressly accepted that weapons had been buried and discovered by the Army). Further, the Authority expressly took into account the first applicant’s evidence that he had had personal contact with the LTTE at the point at which the weapons were buried, and it noted that he had asked the LTTE not to hide the weapons there.[62] That the LTTE might have threatened the first applicant on this occasion would not materially have added anything to the applicant’s claims. Indeed, the Authority does not appear to have rejected the first applicant’s evidence of his engagement with the LTTE when the weapons were buried. The issue it determined adversely to the first applicant was that he would not be suspected of LTTE involvement as a result of the discovery of the weapons.[63] This finding was based on a number of factors, including that the block of land where the weapons were discovered was in use by people not associated with the applicants and that a number of other properties adjoined the vacant block.
[62] [21]; CB 1256
[63] [24]; CB 1256
52.Thirdly, the applicants assert that it was open to the Authority to find that the first applicant had a well-founded fear of persecution should it have come to the attention of the authorities that he was aware that the weapons had been hidden, but had kept this information secret at the behest of the LTTE, and that this claim squarely arose on the material before the Authority. However, the Authority took into account that the first applicant had knowledge of the burying of the weapons.[64] The Authority properly directed its attention to whether the first applicant had been the subject of adverse attention due to the discovery of the weapons.[65] It concluded, for instance, that had the family been wanted for hiding weapons on behalf of the LTTE, they would have been detained for a long period of time, charged and prosecuted. The Authority expressly took into account the first applicant’s claim that he was not detained and prosecuted because he was in hiding for two months, but it did not accept those claims.[66] The Authority found that the applicants did not have an “LTTE profile”.[67] Put another way, the Authority’s finding at [25] subsumed any implicit claim that the applicant might have come to the attention of the authorities for some other reason.
[64] [21]; CB 1256
[65] [25]; CB 1256
[66] [26]; CB 1257
[67] [36]; CB 1259
53.For the above reasons, and for the purposes of the second ground, it was immaterial to the Authority’s assessment of the first applicant’s claims that he was threatened by the LTTE not to reveal that weapons had been buried. The second ground does not make out any error by the Authority.
Conclusion
54.The applicants have succeeded in establishing that the decision of the Authority is affected by jurisdictional error. I will order that the applicants receive relief in the form of the constitutional writs of certiorari and mandamus.
55.I will hear the parties as to costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 4 December 2019
SCHEDULE 1
Applicants’ matrix of consistencies
| Factual Claims | Corroborative Evidence | |
| i. | The Liberation Tigers of Tamil Eelam (LTTE) had hidden the weapons | First Applicant: CB at 79 [25]-[26] |
| ii. | The weapons had been hidden a long time ago | First Applicant: CB at 79 [25]-[26] |
| iii. | The police discovered the weapons | First Applicant: CB at 79 [27] |
| iv. | The weapons were discovered in or around 2013 | First Applicant: CB at 79 [27] |
| v. | Bombs were among the weapons that were discovered | Second Applicant: Annexure B to BMH Affidavit, page73 [414] |
| vi. | The weapons were discovered in the course of a search of investigation into villagers illegally brewing alcohol on the land | First Applicant: CB at 79 [27] |
| vii. | The third applicant and her female siblings were in school at the time the weapons were discovered | First Applicant: Annexure A to BMH, page 42 [656] |
| viii. | The first applicant was not at home when the weapons were discovered | First Applicant: CB at 79 [28] Second Applicant: CB at 748 [13] |
| ix. | The first applicant was off working in his fishing business when the weapons were discovered | First Applicant: CB at 79 [21]-[28] |
| x. | After the weapons were discovered, and on the day they were discovered, the police searched the applicant’s house while the second applicant was at home | Second Applicant: Annexure B to BMH Affidavit, page 73 [420] |
| xi. | The second applicant informed the first applicant of the weapons being discovered, after which the first applicant went into hiding | First Applicant: CB at 79 [28] |
| xii. | While the first applicant was in hiding, members of the army or police came to the family home, where the second applicant was alone with her children, on multiple occasions | First Applicant: CB at 79 [29] |
| xiii. | During these visits the police asked about the second and third applicants’ knowledge of and involvement in hiding the weapons, and asked about the first applicant’s whereabouts | First Applicant: CB at 79 [29] |
| xiv. | On one such occasion, the police or army members locked the third applicant and her sibling or siblings in a room, and raped the second applicant in another room | First Applicant: CB at 79 [29] |
| xv. | Weapons were found on land behind the applicants’ house | First Applicant: Annexure A to BMH Affidavit, page 41 [633] – [642] |
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