DBP16 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

DBP16 v Minister for Home Affairs [2020] FCA 781

Appeal from: DBP16 v Minister for Immigration and Border Protection [2018] FCCA 3566
File number: WAD 622 of 2018
Judge: BANKS-SMITH J
Date of judgment: 9 June 2020
Catchwords: MIGRATION - appeal from decision of Federal Circuit Court affirming decision of Immigration Assessment Authority - adverse credibility findings made against appellant based on inconsistencies and implausibility - whether credibility finding irrational - role of proportionality in context of credibility finding - appeal dismissed
Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 473CA, 473CB, 473CC, 473DC, Part 7AA
Cases cited:

AMZ15 v Minister for Immigration and Border Protection [2016] FCA 1195

Applicant NAAF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83

AWU16 v Minister for Immigration and Border Protection [2020] FCA 513

BAO18 v Minister for Home Affairs [2019] FCA 965

BLU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 706

BQQ15 v Minister for Home Affairs [2019] FCAFC 218

Brett Cattle CompanyPty Ltd v Minister for Agriculture [2020] FCA 732

Bruce v Cole (1998) NSWLR 163

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280

Comcare v Banerji [2019] HCA 23

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175

DJS16 v Minister for Immigration and Border Protection [2019] FCA 254

Lobban v Minister for Justice [2015] FCA 1361

Malek Fahd Islamic School Limited v Minister for Education and Training (No 2) [2017] FCA 1377

McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Murphy v Electoral Commissioner [2016] HCA; (2016) CLR 28

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217

Renzullo v Assistant Minister for Immigration and Border Protection [2016] FCA 412

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589

The Republic of Nauru v WET040 (No 2) [2018] HCA 60

Vanstone v Clark [2005] FCAFC 189; (2005) 147 FCR 299

W148/00A v Minister for Immigration and…

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Details
Case
[2020] FCA 781
Decision Date

CaseChat Overview and Summary

In DBP16 v Minister for Home Affairs, the appellant, a Sri Lankan national, appealed against a decision of the Federal Circuit Court which affirmed a decision of the Immigration Assessment Authority (IAA) to refuse him a protection visa. The appellant claimed to have been a member of the Liberation Tigers of Tamil Eelam (LTTE) and had experienced persecution and threats from the Sri Lankan authorities. The IAA found the appellant's claims to be implausible and lacking in credibility, leading to the refusal of his application. The court had to determine whether the IAA's adverse credibility findings were illogical or irrational, considering the cumulative effect of inconsistencies in the appellant's evidence. The court found that the appellant's claims were implausible given the country information and that the cumulative effect of the inconsistencies was properly considered by the IAA in its decision-making process. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent's costs to be assessed on a lump sum basis if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Authority affirmed the delegate's decision.The Authority's decision In its reasons for decision the Authority summarised the appellant's claimed fear of adverse attention from the authorities. It referred to the claims that his sister was taken away by the LTTE in 2007 or 2008; that the family decided the appellant should tell the CID that he was a member of the LTTE, and he signed a form confessing to that involvement; that the family surrendered to the Sri Lankan Army in 2009; that family members were fired upon by the SLA; the family were displaced to Menik Farm for internally-displaced persons until released in 2010; that in 2012 the CID came to the appellant's house and arrested him and held him for six days; that he reported to the CID office after that and was not physically harmed but was threatened; that he was later arrested when driving a tractor and taken to the police station and beaten; that he then, with his father's assistance, arranged for smugglers to help him leave Sri Lanka; and that his father was arrested and detained after the appellant left Sri Lanka. The Authority also cited country information from both the UK Home Office and the Department of Foreign Affairs and Trade. However, the Authority had serious concerns about the appellant's credibility and the truthfulness of his evidence. There are four paragraphs of the reasons that are central and it is appropriate to reproduce them in full:[14]Having considered his two written statements, from 2013 and 2015, his evidence from his SHEV interview, and the available country information, I have serious concerns about the credibility of the applicant and truthfulness of his evidence.[15]He maintained that because his family did not want to jeopardise his eldest sister's university studies, they agreed he would say he was in the LTTE instead of his sister and both he and his sister told the authorities he was the one in the LTTE. He was not consistent in his evidence as to when he and his sister told the authorities - it was either when his sister was arrested by the CID after the family's return to Paranthan (2013 statement) or at Menik Farm but with no further mention of his sister being arrested (2015 statement and SHEV interview). Having revealed to the CID at Menik Farm that he was in the LTTE, the applicant was made to sign a confession and then effectively ignored until March 2012 when the CID decided to question the applicant further about his LTTE involvement. I consider it implausible, given the country information, that the authorities would not have arrested and detained the applicant if he confessed when he was at Menik Farm that he was involved with the LTTE.[16]He consistently claimed his sister was in the LTTE but was not consistent about when she was in the LTTE - alternatively, it was not specified (2013 statement); it was in around 2008 (2015 statement); and it was 2007 (SHEV interview). He did not mention any confrontation with the LTTE and the LTTE ordering his family to be shot in his 2013 statement. He says the shoot to kill order from the LTTE occurred when his sister was recruited, which was in around 2007 or 2008, but he and his family did not leave Kandivali for the SLA controlled area to escape the LTTE until January 2009. In the SHEV interview he mentioned for the first time that his oldest sister escaped from the LTTE after being with them for a week and also that his second eldest sister was taken by the LTTE, in the other sister's place, but also escaped after one day.[17]The applicant stated in his 2013 statement that when arrested by the CID in 2015 he was not beaten or harmed but in his 2015 statement says he was punched in the head and had his ears twisted. At the SHEV interview he said he had his ears twisted and, when asked about his statement about being punched in the head, said it was all the same. In his written statements he said after he left Sri Lanka his father was arrested twice, once for five days then, a couple of weeks after that, for two days and questioned about the applicant. At the SHEV interview he said variously that the first time the CID questioned his father they just came to the house and he was only arrested the second time he was questioned; that his father was detained two days; and the first occasion they captured him and questioned him for one day and the second occasion he was arrested and held for five days. He also confirmed that his written statements were read back to him before he signed them.

Ratio Decidendi

Legal Principle Established

With those general observations and principles in mind, it is now necessary to consider the inconsistencies relied upon by the Authority.Were the Authority's adverse credibility findings illogical or irrational? It is appropriate to note at this point that the appellant in the 2015 statement said that he aimed in that statement to provide more details and clarify some aspects of the 2013 statement. He said that, due to the time that had elapsed since some of the events, he could not remember with absolute detail all of the minute details, such as exact dates and time periods. Whilst such a statement could not properly be regarded as curing discrepancies or inconsistencies of itself, the appellant's acknowledgment that he cannot accurately remember all minute details should not be ignored and is consistent with some of the features of asylum seeker evidence discussed in AVQ15 that call for an assessment of the reliability and credibility of accounts given by asylum seekers to be conducted carefully. Further, the inconsistencies upon which the appellant relies should not be viewed in isolation. The Authority found that the appellant's evidence lacked credibility, having considered all of the evidence and the country information (at [14]) and having considered 'the overall differences in his evidence' together with 'some implausible evidence' (at [18]). At [16] of the reasons the Authority refers to a number of other inconsistencies in the appellant's evidence, inconsistencies that are not addressed by the appellant in this appeal. It is clear from [14] and [18] of the reasons that the Authority relied upon the cumulative effect of the perceived inconsistencies. However, reliance upon the cumulative effect of a number of trivial or peripheral discrepancies to discredit a protection visa applicant may still be illogical or irrational. As Murphy J described the position in BAO18 v Minister for Home Affairs [2019] FCA 965:[55]It may be accepted that the individual components of a cumulative finding should not be weighed as if each one must be capable of supporting the final conclusion, but a cumulative finding is only as good as the individual findings lying beneath it. It is therefore necessary to consider the five matters relied upon by the appellant.First inconsistency: when the appellant or his sister told the authorities that he was in the LTTE The appellant claims that he and his family agreed that they would inform the CID that he, and not his sister, was a member of the LTTE, so as not to jeopardise her University studies. The inconsistency is said to arise as to when that information was given to the CID. In the 2013 statement, the appellant said:After the war, my family and I were released from Menik Farm IDP camp and we returned to our home village in approximately June 2010. Members of the village reported to the CID that our family had links to the LTTE, and that one of us had been a member. Often when the CID were targeting one family, that family would point to other families who had been involved to shift the focus from themselves. My sister [redacted] had been a member of the LTTE. [My sister] had been injured by aerial bombardment and had returned to study at university. We did not want her to admit to the CID she had been in the LTTE, so I agreed to say I had been in the LTTE in her place.The CID arrested my sister as she was the eldest. She told them that she was a student and had not been a member of the LTTE. She gave them my name instead.I was then arrested by the CID and held for five days in March 2012 …