DDH16 v Minister for Immigration and Anor
[2020] FCCA 1138
•15 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DDH16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1138 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether the Tribunal failed to comply with s.425 of the Migration Act 1958 (Cth) – whether the Tribunal failed to consider an integer of the Applicant’s claims or erred in the manner in which it had regard to evidence given by the Applicant in his entry interview. |
| Legislation: Migration Act 1958 (Cth), s.425 |
| Cases cited: MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436; [2014] FCAFC 80 |
| Applicant: | DDH16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2893 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 23 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 15 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kumar (direct access) |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the First Respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2893 of 2016
| DDH16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 29 September 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Sri Lanka, arrived in Australia in July 2012. On 19 November 2012 he lodged an application for a protection visa. The application was refused and he sought review by the Tribunal.
In a statement provided in support of his protection visa application the Applicant claimed to fear harm as a young Tamil male from a particular area in Sri Lanka. He claimed he had lived in his home village with his family and “used to help [his] father with the fishing”. He claimed that the area he lived in was controlled by the Sri Lankan army which was always suspicious of young Tamil males and regularly mistreated them. He claimed he was stopped on several occasions by the army and had been hit for no reason and on one occasion badly beaten.
The Applicant also claimed that he had been a member of the Fishermen’s Society which he explained was “sort of like a union”. He claimed that sometimes people from the Liberation Tigers of Tamil Eelam (the LTTE) came to their meetings and once instructed them to work for the LTTE during an event celebrating Tamil culture. He claimed that the army and the police did not like this event and came to check who was involved and that thereafter he was suspected of helping the LTTE and experienced more problems from the army, was stopped more frequently and beaten up for no reason. In his initial statement the Applicant referred to two particular incidents in which he was beaten up by the army. He claimed he had required hospital treatment on the second occasion. He claimed that he then went to stay with his aunt. He claimed the army had visited his home several times looking for him. He claimed he then moved to his brother’s home ten kilometres away from his home, that he was unable to work properly and was too scared to go home. He claimed that while he was living at his brother’s home a friend from the Fishermen’s Society, who had also helped at the Tamil event, had been shot dead by the army. He claimed that anyone who celebrated Tamil culture was seen as a real nuisance and was usually killed or disappeared. His mother suggested he should leave Sri Lanka. He left Sri Lanka in February 2007 and went to work in Malaysia. He came to Australia in 2012.
The Applicant claimed to fear returning to Sri Lanka because he was a Tamil and the army suspected all Tamils of helping the LTTE. He claimed to fear being detained, assaulted, tortured and killed if he returned to Sri Lanka for reasons of his race and ethnicity as a Tamil, an imputed political opinion on the basis of his race and his membership of the particular social groups of young Tamil males who had been active in or were suspected of being active in the LTTE or those who had escaped to and claimed asylum in western countries.
The application was refused on 13 January 2014. The Applicant sought review by the Tribunal. He was invited to a Tribunal hearing of 17 July 2015. He attended the hearing. A transcript of the hearing is in evidence.
In a written submission dated 16 July 2015 (the day before the Tribunal hearing) that was given to the Tribunal at the hearing, the Applicant’s agent stated that he wished to add further information which the Applicant had raised with him that day.
The submission explained that the Applicant had advised that his family had “a significant and involved association with the LTTE”, that his named sister (U) had been a member of the LTTE for five years and that another sister (A) had been a member for 18 months. He claimed that an (unnamed) brother had helped the LTTE by providing transport and supplying food, as well as arranging meetings and communications and that a named brother (S) had disappeared in August 2010. A statement from a member of the Provincial Council of the Northern Province of Sri Lanka attesting to this disappearance was attached.
The Applicant also claimed that he had personally provided assistance to the LTTE (as many young Tamil men were obliged to do during the war years) by assisting with logistics and completing tasks assigned to him. He claimed that his family had also allowed LTTE members to stay in their house, both willingly and as a result of coercion.
The Applicant claimed that he had been given limited information by his family about his brother’s “demise” and had not been aware of the disappearance until late 2014 because his family was reluctant to cause him worry and sadness when he had been away from home for so long.
The submission stated that the Applicant explained that he had not previously mentioned his and his family’s involvement with the LTTE because he had been advised by friends that it was “likely to cause him problems” in Australia. The agent submitted to the Tribunal that while this advice was clearly misguided, it was not unusual, and that the Tribunal should be understanding of the fear attached to the potentially extreme consequences of revealing past links to the LTTE.
The submission acknowledged that the new information indicating links to the LTTE raised more substantial claims than those previously made by the Applicant. It cited country information in relation to the potential consequences for Sri Lankan Tamils with actual or imputed links to the LTTE and the current situation in Sri Lanka. It was submitted that the Applicant and his family members came within the United Nations High Commissioner for Refugees (UNHCR) risk profiles and that he had a well-founded fear of persecution as a result of a combination of his ethnicity and consequential imputed political opinion, as well as his imputed political opinion as a supporter of the LTTE whose family members were also LTTE supporters or members, as well as his membership of the particular social group of failed Tamil asylum seekers.
It was submitted that the Applicant was at risk of being detained and tortured at the hands of both state and non-state actors who may wish to substantiate the accusations of LTTE links raised against the Applicant through coercion.
After the hearing the Applicant’s agent provided post-hearing written submissions referring to authorities in relation to the assessment of credibility and (as had been discussed at the Tribunal hearing) a copy of a UNHCR Return Form in relation to the 2010 release of the Applicant’s sister U from a camp.
On 25 January 2016 the Tribunal wrote to the Applicant, through his agent, putting to him a recent DFAT country report on Sri Lanka for comment. The agent responded, briefly addressing particular paragraphs in the report.
The Tribunal Decision
In its reasons of 29 September 2016 the Tribunal stated that it had considered express, implied and possible claims made by the Applicant in his statement, by his agent on his behalf, in oral and written submissions, in documentary evidence provided to it and in earlier interviews in which the Applicant had participated. However, for reasons it gave, the Tribunal did not accept that the Applicant had a well-founded fear of persecution for a Convention reason or that he met the complementary protection criterion.
The Tribunal observed that some of the Applicant’s claims had changed throughout the process. It detailed the claims he had made in support of his protection visa application. It had regard to the fact that in the interview with the delegate the Applicant was recorded as having stated that neither he nor his family were ever members of the LTTE and when asked if they had ever supported the LTTE, he had said that he had relatives who had given food to the LTTE which was a common thing to do. He was also recorded as having explained to the delegate that in 2002 or 2003 he had been arrested, taken to a camp and beaten on suspicion of being in the LTTE. However when asked, the Applicant had not claimed to have experienced any later incidents of harm.
The Tribunal referred to the fact that at the end of the departmental interview the Applicant’s agent had told the delegate that the Applicant had a subjective fear of harm because he had been beaten and sexually assaulted and had then moved from the north of Sri Lanka to Colombo. The Tribunal also had regard to the Applicant’s evidence to the delegate that he had not stayed in his village but had lived in a lodge in Colombo after 2002/2003 until the army searched for him and that he then went to stay in Negombo in hiding.
The Tribunal summarised the new claims raised in the submission to it of 16 July 2015 and the explanation given for the Applicant’s failure to previously mention those claims. It observed that at the hearing it had raised the fact that the Applicant had previously discussed his claims at interviews and in his protection visa application form and statement, but that it was only just before the Tribunal hearing that he made new and significant claims. The Applicant had acknowledged that whenever he had previously given information he had not disclosed his and his family’s involvement in the LTTE, but claimed that everything else in his written materials was true and correct and that there were no other claims or new information that he had not disclosed throughout the process.
The Tribunal described the Applicant’s evidence about his family members, including that his father had worked as a fisherman all his life and had not been “involved” with the LTTE, although LTTE people came to the house and his father did not mind. It recorded that the Applicant said that his two younger brothers fished with his father and had no problems after the war. He claimed that his older brother (referred to herein as P), who used to be a fisherman, had helped the LTTE by providing food and transporting them at night and had been taken in for questioning and warned not to help them. He had paid bribes to leave Sri Lanka legally. He had lived in Qatar since 2011.
The Applicant also claimed to the Tribunal that another brother (S) was also a fisherman and was involved in the LTTE in a similar manner to P. He claimed that S was not a member of the LTTE, but helped by providing accommodation and food and organising meetings for approximately three years from 2002 onwards. The Applicant did not know what S did after that.
The Tribunal outlined the Applicant’s oral evidence to it that his sister U was a member of the LTTE who “went for fighting”. It recorded that he did not know exactly what she had done, except that she was involved with the LTTE from 2003 until the end of the war in 2009. She was then detained in a camp and released in March 2010. He claimed that in about 2011 he became aware that his sister had been detained. She now lived in Colombo and had not experienced any problems since then.
The Applicant also claimed to the Tribunal that his sister A was involved with the LTTE for around 18 months towards the end of the war, but that she did not have any problems thereafter. He also had another sister in Sri Lanka who had not been involved with the LTTE.
The Tribunal recorded that at the hearing the Applicant told it that, apart from U, no-one else in his family had been detained, as far as he was aware. However he then claimed that his brother S had experienced some problems. His evidence was that none of the other siblings had any problems after the end of the war.
In its findings and reasons the Tribunal stated that it had serious concerns about the Applicant’s credibility and the veracity of his claims. It did not accept that he was a witness of truth concerning his claims of past harm; his or his family’s involvement with the LTTE; where he lived and why he moved; his reasons for travelling to Australia or in relation to his future fears. It gave very detailed reasons for its adverse credibility finding.
First, in paragraphs 60 to 70 of its reasons the Tribunal addressed the changing evidence about where the Applicant had lived in Sri Lanka which it found was directly and indirectly relevant to his claims including, for example, because he claimed he had fled his village when he suffered harm (which he had identified in the interview with the delegate as having occurred in 2002/2003).
The Tribunal detailed inconsistencies in the Applicant’s claims in this respect as follows:
· In the Entry Interview the applicant claimed that he resided his whole life in his village ([named] in the Northern Province) except for a period when he lived in Colombo, (Western Province) from June 2006 until February 2007 [8 months].
· According to his attachment to his protection visa application form he always lived in his village (until he left Sri Lanka in 2007) except for a 2 year period when he lived in [town name] (a small town in the Mullaitivu District, Northern Province) from 1995 until 1997.
· According to his statement, he lived in his village all his life until about 1.5 years before he left Sri Lanka, when he moved to live with his brother (10 kilometres away from his village in [village name] in … Jaffna District, Northern Province (approximately September 2005 until February 2007).
· According to his evidence at his interview with the delegate, after the incidents in 2002/2003, he moved to Colombo and then Negombo in hiding.
(footnotes omitted)
The Tribunal also found that at the Tribunal hearing the Applicant’s evidence about where he had lived had been evasive and changing (as it detailed).
The Tribunal noted that the Applicant had not mentioned in his oral evidence his claim that he had lived in a small town in the Mullaituvu District as he had stated in his protection visa application form. When this omission was raised at the Tribunal hearing, the Applicant gave inconsistent evidence about when he had lived in that town. The Tribunal found it difficult to understand why the Applicant would have included in his protection visa application form the address in Mullaituvu which he had told it he could not remember because he was too young, but failed to include his more recent claimed addresses, including in relation to his later claim that he moved to Colombo and Negombo to escape harm. The Tribunal had regard to the fact that the Applicant had not provided an explanation for this or for the different evidence in his entry interview about where he had lived and when he moved to Colombo.
The Tribunal stated that it had considered the comments by the Full Court of the Federal Court in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436; [2014] FCAFC 80 at [56] - [57] cautioning decision-makers against reliance on omissions in initial entry interviews. However it stated that its concern was not that the Applicant had omitted details about where he had lived from his entry interview, but rather that he had given details that were different to that given in his later evidence. The Tribunal was not prepared to give the Applicant the benefit of the doubt concerning the address he gave in the entry interview.
The Tribunal also had regard to the Applicant’s inconsistent evidence in relation to his work in Sri Lanka, in particular the fact that his claim that he had always worked as a fisherman did not coincide with his (changing) claims about his places of residence. It referred to discussion of these issues at the Tribunal hearing. The Tribunal considered that the Applicant’s inconsistent and changing evidence about where he lived and when and about his work undermined his claims in that respect and his credibility.
In paragraphs 71 and 72 of its reasons the Tribunal had regard to the fact that new claims were made to it on the day before the Tribunal hearing. It observed that the protection visa application was lodged in November 2012 and refused in January 2014. It did not understand why it was only just before the Tribunal hearing in July 2015 that the Applicant made new claims that his whole family had been involved with the LTTE. It considered the Applicant’s explanation that friends had told him that if he disclosed his activities with the LTTE his case would be dragged out. The Tribunal acknowledged that there could be a number of reasons why the Applicant had not disclosed these claims earlier. However, given all the other concerns it had about the Applicant’s evidence, including some which “can be considered not directly attributable to these late claims”, the Tribunal was not prepared to accept the Applicant’s claimed reasons for his earlier omissions. It considered that he had ample opportunity to make these claims and that raising them after the delegate had refused his claim and just before the Tribunal hearing undermined his credibility and those claims.
In addition, at paragraphs 73 to 84 of its reasons the Tribunal detailed concerns about the Applicant’s “changing, inconsistent… and at times evasive evidence as to the whereabouts of some siblings”. It described the Applicant’s vague, limited and changing evidence in relation to his brother S (whom he had first said had gone missing in August 2010), including an inconsistency between his claims and the claims in the letter from the Northern Provincial Council about where S had been living when he disappeared; whether S was detained by the police in May 2011 (as the Applicant told it in the hearing, contrary to the previous claim that S had disappeared in August 2010); the fact that when this inconsistency was raised the Applicant changed his evidence to say that S was detained in May 2010; and the fact that the Applicant did not know how long S had been detained. The Tribunal did not find the Applicant’s new evidence about S persuasive.
The Tribunal also had regard to inconsistencies in the Applicant’s evidence as to whether his brother P was living in Sri Lanka or in Qatar at the time of his protection visa application. The Tribunal was also concerned about the Applicant’s initial failure to respond to repeated questioning about whether P had any problems in Sri Lanka and to the subsequent changes in his evidence.
The Tribunal considered the Applicant’s explanation that he found the questioning about his siblings “confusing”, but was of the view that it was unlikely that if he was recounting true information about his siblings he would get so confused. The Tribunal considered that the Applicant’s inconsistent evidence in this respect undermined his credibility and his claims about his siblings.
The Tribunal also had regard (at paragraphs 85 to 89 of its reasons) to the fact that the Applicant’s evidence was changing, inconsistent and not credible in relation to his claims. It detailed the Applicant’s varying claims about being detained while living in his home village as made in support of his protection visa application, at the departmental interview and at the Tribunal hearing, in particular as to the number and nature of his encounters with the army, whether he had any further encounters with the authorities and whether he had been arrested. It found that his explanations did not address all the inconsistencies.
The Tribunal was also of the view that the Applicant’s evidence about the questioning he had experienced when detained was not credible. While his evidence to the Tribunal was that his whole family had been involved in assisting the LTTE, he had also said that he was never asked about his family when he was detained or questioned. The Tribunal found this difficult to accept. It considered it unlikely that the Applicant would not have been asked about his family members, given his claims about their involvement with the LTTE and his eventual claim at the hearing that before his first detention the army “knew” that he was involved with the LTTE.
The Tribunal also had regard (at paragraphs 90 to 92 of its reasons) to the Applicant’s inconsistent and changing evidence about his whereabouts after his last encounter with the authorities in his village. It referred to a discussion at the hearing of his changing evidence in that regard. It noted that if the Applicant’s original evidence that he remained in his village until mid-2005 was accepted, this would indicate that he was not of further interest to the army for two years after 2003.
The Tribunal also took into account the Applicant’s failure to mention in his statement or protection visa application form his subsequent claim that he had come to the adverse attention of the authorities in Colombo and his changing evidence in that regard. It was of the view that the Applicant’s claim that he was and remained of interest to the authorities was inconsistent with his (changing) claims about regular contact with the authorities while he was in Colombo.
Further, at paragraphs 100 to 104 of its reasons the Tribunal found that the Applicant’s willingness (after his claimed torture) to return to his home village on three occasions between mid-2005 until he left Sri Lanka in February 2007 was inconsistent with his claims that he feared harm on the basis of suspected involvement with the LTTE and that he had been subjected to sexual assault. The Tribunal considered it highly unlikely that if the Applicant had been subjected to the torture claimed he would have made “many” journeys between his village and Colombo, where he would pass through checkpoints and draw himself to the attention of the authorities.
The Tribunal also had regard to the Applicant’s inability to explain why his life would be in danger if he returned to Sri Lanka, given that his claim was that the army and government had known about his involvement with the LTTE since 2002, had had the opportunity to kill him, but had not done so.
The Tribunal concluded on the basis of all these matters that it was not satisfied that the Applicant was a witness of truth. In this context it considered the claim that the Applicant may have been nervous during the process, but did not accept that this could explain the difficulties with his evidence. In light of its concerns it did not find the explanations for the inconsistencies in the post-hearing submission to be persuasive.
The Tribunal addressed the possible sources of corroborative evidence before it. It acknowledged that the Applicant had provided some consistent evidence through the process. However it observed that the supporting letter from the Northern Provincial Council about brother S did not state that he had been detained, but rather that he had disappeared in August 2010. Given the Tribunal’s concerns and country information noting that fraudulent documents could be obtained in Sri Lanka, it was not prepared to place any weight on this letter.
The Tribunal also found that a supporting letter of May 2013 from a Sri Lankan Roman Catholic Church was inconsistent with the Applicant’s claims and, given its credibility concerns, was not prepared to place any weight on that letter. Nor was it prepared to place weight on a letter from the Grama officer for the Applicant’s local village which stated that the Applicant had been questioned by the army in 2006 and thereafter was in a “timid” frame of mind, given its credibility concerns.
The Tribunal acknowledged that after the hearing the Applicant had provided a copy of a UNHCR Return Form for his sister U, but noted it did not state that she had been released from detention. It was not prepared to place any weight on this document as evidence that U was involved with the LTTE or that she had been detained. It was prepared to accept that U returned to the village in 2010, but did not accept that this meant that the Applicant’s claims about her were true.
The Tribunal accepted, based on a letter from the UNHCR, that the Applicant had made claims for refugee status while in Indonesia, but found that this did not mean that his claims of past harm and fears were genuine. The Tribunal was also prepared to accept that the Australian Tamil Church (which the Applicant said he attended) considered the Applicant favourably, but did not consider that this overcame its credibility concerns.
In so far as the Applicant’s agent referred to another Tribunal case, the Tribunal pointed out that it was not bound to follow findings in other Tribunal decisions. In addition, while the Tribunal was prepared to accept that the Applicant had some scars on his body, it was not prepared to accept that these supported his claims.
Considered cumulatively, the Tribunal’s concerns led it to conclude that the Applicant was not a witness of truth and had exaggerated and fabricated accounts of events and family connections as well as the claimed fears upon which he based his protection claims.
The Tribunal was prepared to accept that the Applicant was a thirty year old Tamil male who was born in a particular village in the Northern Province and that he had lived with his family and attended school until 1999, that he had done some work in the north of Sri Lanka with his father who was a fisherman, and that he had a number of siblings in various locations in Sri Lanka and one brother working in Qatar.
On the basis of its adverse credibility finding, the Tribunal did not accept that the Applicant or his family were actually involved or imputed as being involved in the LTTE or any of the claims that flowed from such claims, such as in relation to past activities, incidents and harm. Hence the Tribunal did not accept the claims (including those made in the agent’s submissions to it) that the Applicant faced harm because of his own and his family’s links to the LTTE.
The Tribunal was also not prepared to accept that the Applicant had suffered harm as a young Tamil male, that he was a member of the Fishermen’s Society, that he was involved in the promotion of Tamil culture or that he was suspected of involvement with the LTTE. Nor did it accept that the Applicant’s friend was killed and that this was the reason his mother suggested he should leave Sri Lanka.
Further, the Tribunal was not prepared to accept that the Applicant had been living in hiding, that anyone had an adverse interest in him or that he was involved in or imputed with involvement in any social, political or other activities (including the promotion of Tamil culture) which could have drawn adverse attention. It was not prepared to accept that he was mistreated or harmed or subjected to any abuse or threats in Sri Lanka.
The Tribunal recorded that it had put to the Applicant its credibility concerns and the fact that, on his evidence, it was unsure where he had lived before he left Sri Lanka. It was prepared to accept that in his earlier years the Applicant had resided in the Northern Province, but considered it more likely that he spent the years prior to leaving Sri Lanka in Colombo. It was prepared to accept that he would travel to visit his family in their village while he lived in Colombo, but found that he did not face any difficulties at checkpoints or during his travels because neither he nor his family was of any adverse interest to the authorities.
The Tribunal did not accept that the Applicant had any adverse encounters with the authorities in Colombo or that he was required to sign on with the police on a regular basis or pay money for his passport, as he had claimed.
The Tribunal was prepared to accept that the Applicant left Sri Lanka in 2007 to travel to Malaysia (where he had organised work), but was not satisfied that he had any difficulties obtaining his passport or that the police had retained it and he had to pay money to get it back. It considered that he made an effort to go to Malaysia to avoid the conflict in Sri Lanka and to work and earn money.
The Tribunal summarised its conclusion that it had “such significant concerns” with the Applicant’s credibility that it had not accepted that he had suffered any of the claimed problems in Sri Lanka, although it noted that, understandably, he preferred to work in another country while his country was in conflict. It did not accept that he left Sri Lanka due to genuine fears as a Tamil, that he or his family had been imputed with involvement with the LTTE or that he was in fear of the Sri Lankan authorities or any other organisations or persons. It did not accept that the Applicant fled Sri Lanka in fear of his life or because he was in danger or because he was targeted for harm by any person, groups or authorities. It did not accept that anyone had any adverse interest in the Applicant while he was in Sri Lanka or since he left. The Tribunal found that the Applicant was of no interest to the authorities (or to the LTTE or to anyone else) while he was in Sri Lanka before he left for Malaysia in 2007.
Nonetheless, the Tribunal considered the Applicant’s claimed fear of harm on return to Sri Lanka. It referred to the fact that it had not accepted any of the Applicant’s claims in relation to past harm, that he or his family members had previously come to the adverse attention of the authorities or to any groups or organisations or that he had ever had any past political, social or cultural movement involvement. It did not accept that there was any reason at the time that the Applicant left Sri Lanka for him to be imputed with an anti-government opinion, to be suspected of any involvement with the LTTE or to be of any interest to any militia groups. It did not accept that anyone else had shown any adverse interest in the Applicant.
Under the heading: “Tamil ethnicity, place of origin, imputation as pro-LTTE, anti-government because of ethnicity, travel and application for asylum in Australia”, the Tribunal noted that the Applicant had not claimed to have any political involvement in Australia. It reiterated that it did not accept that he had any LTTE connections or that he was ever suspected in that respect and it clarified that he did not claim that he had left Sri Lanka illegally.
The Tribunal accepted that there was a real chance (and risk) that the Sri Lankan authorities would assume that the Applicant was returning involuntarily as a failed asylum seeker from Australia. However, in light of country information, particularly as to recent changes in Sri Lanka and UNHCR risk profiles (which it considered in some detail), the Tribunal was not satisfied that a person with the Applicant’s profile faced a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future. Nor was it satisfied that someone with the Applicant’s profile would be presumed to have LTTE links as a Tamil who had spent time overseas or as a failed asylum seeker.
Noting that the Applicant had left Sri Lanka legally, the Tribunal was also not satisfied that he would face a real chance of serious harm or a real risk of significant harm while being held and questioned under the usual procedures at the airport on return or that he would be subject to monitoring, detention or persecution on return to Colombo or while visiting his parents in the north of the country.
The Tribunal noted that in the submission the agent had referred to possible extortion and/or harm from paramilitaries. It noted that the Applicant had not made any such claim at the hearing. The Tribunal accepted that there were some reports of extortion, but found that this did not apply to all returnees. It was not satisfied on the evidence before it that the Applicant faced a real chance of serious harm or a real risk of significant harm from being subjected to extortion or from paramilitaries.
The Tribunal concluded that it was not satisfied on the evidence before it that the Applicant had suffered or faced a real chance of suffering, in the reasonably foreseeable future, harm in the form of adverse interest from the authorities or others in his area, or discrimination, harassment or persecution in Colombo or when he visited his family in the north. It stated that it had considered his claims individually and on a cumulative basis having regard to its finding that he was not a credible witness as well as relevant country information.
The Tribunal concluded that the Applicant did not have a well-founded fear of Convention-related persecution for any of the reasons put forward by him or on his behalf.
Similarly, the Tribunal was not satisfied that the Applicant met the complementary protection criterion. It addressed this criterion in some detail (at paragraphs 197 to 206 of its reasons) referring to its earlier findings, including the reasons for its adverse credibility finding and the fact that it did not accept that the Applicant had experienced any of the past harm claimed, that he or his family had any involvement with the LTTE or were ever so imputed, that he fled Sri Lanka in fear, or that anyone had ever shown any adverse interest in him.
The Tribunal was not satisfied that any of the facts contributing to the Applicant’s profile, whether individually or cumulatively, supported a finding that there was a real risk of significant harm to him. It found that he did not meet the complementary protection criterion.
The Tribunal affirmed the delegate’s decision.
The Applicant sought review by application filed on 21 October 2016. There are three grounds in the application.
Ground 1
The first ground is as follows:
1. The Second Respondent breached section 425 of the Migration Act 1958 (Cth).
Particulars
a. The Second Respondent said that (a) “The Tribunal was concerned that the applicant also gave inconsistent evidence about his work in Sri Lanka” at paragraph 66; (b) “changing details about his siblings paragraph 73-84; (c) “Changing inconsistent/not credible evidence about his detention” paragraph 85 to 92; (d) willingness to return to his village after claims of torture paragraph 100 to 104 (in fact he went to Vavuniya not his village).
b. The findings played a part in the Second Respondent’s decision on the application for review.
c. These questions were not raised by the delegate of the First Respondent because it was not an issue before them.
d. These questions were not clearly put to the Applicant by the Second Respondent.
(errors in original)
In support of the proposition that the Tribunal’s asserted failure to “put questions” to him amounted to a jurisdictional error the Applicant referred generally to SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152; [2006] HCA 63 at [41] apparently on the basis that he had no notice that there were issues about the particularised matters. The Applicant contended that it was relevant that, as Bromberg J had pointed out in SZTKEv Minister for Immigration and Border Protection [2015] FCA 1002 at [31], in SZBEL the High Court had held at [36] that unless the Tribunal told an applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the visa identified the issues that arose in relation to that decision. Counsel for the Applicant contended that, as pointed out in SZTKE at [36], it was necessary that the Applicant be somehow alerted by the Tribunal to the fact that an issue was live.
The Applicant submitted that there was no direct discussion at the Tribunal hearing that would lead him to conclude that his evidence in relation to his work was in issue. It was suggested that in the absence of such direct discussion, he would have considered that the issue of his work was a minor and not a dispositive issue.
The Applicant also submitted that his “residence” had not been an issue before the delegate and that at the Tribunal hearing the Tribunal had not put him on notice that there was an issue in this respect. However it was said to be apparent that in the Tribunal’s findings the issues of the Applicant’s residence and work were interconnected.
The Applicant also contended that while there had been no issue about his siblings before the delegate, the Tribunal had placed considerable emphasis on changing details in that respect in finding that there were inconsistencies in his evidence. Counsel for the Applicant acknowledged that the claims in relation to the siblings had not been before the delegate, but submitted that the Tribunal had erred in failing to engage with the Applicant at the hearing such that he was on notice that changing details in that respect were in issue.
In addition, the Applicant submitted that at the hearing the Tribunal had not given him a proper opportunity to deal with the concerns that led it to find that he had given changing, inconsistent and not credible evidence about his detention. It was submitted that he had not been properly heard at the Tribunal hearing on that issue and that the Tribunal did not give him a proper opportunity to answer and to clarify the issue of detention.
It was pointed out that in response to the Tribunal putting to the Applicant that he had given “significantly inconsistent evidence about the times, the encounters [he] had with the authorities” when he was detained (which the Tribunal summarised), the Applicant had responded: “Yes I was about to give you more information about these things but you insisted me to answer to the questions you were asking that’s why I didn’t say” (transcript, p.70). It was also submitted generally that the Tribunal’s questions in this respect had been put in a way that was procedurally unfair.
The Applicant also referred to the fact that the Tribunal had found that his willingness to return to his home village after having experienced torture indicated that he was not of interest to the authorities. It was initially submitted that the Applicant had told the Tribunal that he went to Vavuniya (as pleaded in particular (a) to this ground). However after the attention of counsel for the Applicant was drawn to the part of the transcript of the Tribunal hearing in which there was a discussion of the Applicant’s visits to his home village, this aspect of ground 1 was not pressed. The Applicant maintained that the Tribunal’s questioning of him about his returns to the north of Sri Lanka, including three visits to his home village, had not put him on notice that his willingness to return to his village was a dispositive issue.
In response to detailed submissions from the Minister referring to particular parts of the transcript of the Tribunal hearing, the Applicant acknowledged that in the Tribunal hearing the Tribunal gave him general advice that his credibility was in issue, but maintained that it had not put to him the issues particularised in this ground with the necessary specificity.
The First Respondent initially submitted that while the specific issues raised in the particulars to ground 1 had not been addressed in the delegate’s decision record (and the claim about the siblings was only made before the Tribunal), the delegate’s decision had clearly put the Applicant on notice that his credibility was in issue.
In oral submissions the solicitor for the First Respondent submitted that credibility, rather than the specific issues referred to in the particulars to this ground, was the “dispositive issue” but contended that, in any event, the Tribunal had sufficiently raised both credibility and the particularised issues at the hearing. It was submitted that the Tribunal’s comprehensive questioning of the Applicant had put him on notice of the significance of these issues in the sense considered in SZBEL and SZTKE at [34].
The First Respondent referred, in detail, to particular parts of the transcript of the Tribunal hearing and pointed to various ways in which the Tribunal had raised, both specifically and generally, its concerns with the Applicant about the particularised issues and about his credibility (see SZTKE at [34]). It was contended that it was plain, having regard to the entirety of the Tribunal hearing, that it should have been clear to the Applicant that the credibility of his claims was in issue for reasons which included his evidence in relation to the particularised matters.
Consideration
In essence, the Applicant’s contention was that the Tribunal did not sufficiently identify the issues arising in relation to the decision under review beyond those which the delegate had considered dispositive (see SZBEL at [35]-[36]).
The delegate did not address all the issues raised in the particulars to this ground. Indeed it was only on the day of the Tribunal hearing that the Applicant’s agent informed the Tribunal of significant new, and significantly different, claims about his family’s involvement with the LTTE.
The delegate did note that the Applicant had not maintained a consistent timeline of his whereabouts in Sri Lanka following two claimed beatings by the army in two brief detentions in 2002/2003, but, despite some doubts, the delegate accepted that those incidents had occurred.
The delegate did not make a general adverse credibility finding. Rather, the delegate concluded that in circumstances where the Applicant was last detained in 2002/2003, was released after a short time and had been absent from Sri Lanka during the height of the civil war, it was not plausible that at the time of the decision he would be of interest for imputed LTTE links or face a real risk of future harm for that reason.
Contrary to the First Respondent’s initial submission, I do not accept that the Applicant was clearly on notice from the delegate’s decision that his credibility was in issue. However, for the reasons that follow, I am not satisfied that the Tribunal breached s.425 of the Migration Act 1958 (Cth) (the Act) as contended for by the Applicant.
First, what occurred at the Tribunal hearing is to be seen in light of the fact that there are various ways in which a dispositive issue may be identified by the Tribunal. It is the case that the mere fact that an issue is the subject of oral evidence before the Tribunal or that an applicant’s “version of events is elicited” is “insufficient by itself to identity an issue” (SZTKE at [33]). However, as Bromberg J explained in SZTKE at [34]:
What is required is that the [applicant] be somehow alerted to the fact that the issue is live. That may be done in a number of different ways including by the Tribunal challenging what the applicant has said and asking the applicant to explain why his or her account should be accepted. But, that does not require the Tribunal to put to the applicant (in so many words) that he or she is lying or embellishing, nor to disclose what it is minded to decide.
I have also borne in mind that as his Honour observed in SZTKE at [36]:
… More is required than that the Tribunal abstain from positively indicating to an appellant that his or her account will be accepted. More is required than that an [applicant] be merely given an opportunity to explain himself or herself. So much is evident from the fact that in SZBEL the relevant evidence was “elicited“ by the Tribunal without further comment and that, notwithstanding that elicitation, it was held that procedural fairness had not been afforded. There must be something that indicates to the [applicant] that the issue is live.
In this case I am satisfied that the Tribunal sufficiently indicated to the Applicant not only that his credibility was in issue, but also that the truth, consistency and significance of his evidence about the particularised aspects of his claim were live issues. As the First Respondent submitted, read as a whole, the transcript of the Tribunal hearing reveals that the Tribunal not only gave the Applicant a sufficient opportunity to provide evidence about various aspects of his claims, but also put him on notice of its concerns as to the veracity and consistency of the particularised claims as well as the relevance of its concerns in relation to his credibility.
Relevant to the issue of his credibility generally, the Tribunal initially informed the Applicant that it was not bound to accept anything the delegate had accepted (transcript, p.2) and that if it had any concerns as to whether he met the criteria it would raise those concerns with him, but that that did not mean the Tribunal member had made up her mind (transcript, p.3).
Importantly, the Tribunal not only elicited the Applicant’s claims, including his new claims, it also alerted him to the fact that (transcript, p.8):
… there are some significant claims that I am been informed of today and so I am in a position of not knowing whether this was just an omission from what you said previously or if everything you said previously is incorrect. So I am in a difficult position. So can you explain to me is that the previous statement you did and the information you have given is that all incorrect or is it correct but you just omitted to mention this connection to the LTTE.
As discussed below, throughout the hearing the Tribunal raised concerns with the Applicant in relation to various aspects of his evidence, before it summarised at some length its credibility concerns and gave him the opportunity to comment and his agent the opportunity to provide a post-hearing submission in relation to the credibility issue.
At the hearing the Tribunal raised specific concerns about inconsistencies and changes in aspects of the Applicant’s evidence about his work and residence in Sri Lanka in a manner that, having regard to the hearing as a whole, alerted him to the fact that the truth of those claims was a live issue and to the relevance of his changing and inconsistent evidence. For example, at transcript p.34 the Tribunal expressly put to the Applicant that:
You have given pretty inconsistent evidence about where you lived or resided throughout your process listed out in your attachment, your statement and the delegate decision record which sets out the interview. I am concern about your changing evidence. Ok now I am going to ask you again so listen to the question and answer the question.
(error in original)
The Tribunal also put to the Applicant that his written evidence about his work in Sri Lanka was inconsistent with his oral evidence to it (in particular as to whether he had been living in Colombo and Negombo at times he claimed he had been fishing with his father) and also inconsistent in relation to how he survived financially living away from home and as to his employment history (transcript, pp.42-45). The Tribunal engaged in detailed questioning in this respect and raised issues with the Applicant at various stages in relation to its concerns about aspects of this evidence. Towards the end of the hearing, in raising its general credibility concerns, the Tribunal again referred to its concerns about inconsistencies in his evidence about where he had lived (transcript, p.67). This sufficiently put the Applicant on notice that the credibility of his evidence in relation to his work history (and, in that context, his residence) in Sri Lanka was in issue.
As to the “changing details” in the Applicant’s evidence about his siblings, the Applicant only raised with the Tribunal the claim that his family was involved with the LTTE on the day of the Tribunal hearing. At various points in the hearing the Tribunal put to the Applicant specific concerns about changing and unsatisfactory aspects of his evidence to it regarding two of his brothers (for example at transcript, pp.17, 25-26 and 29-30). For example, at transcript p.17 the Tribunal told the Applicant:
… You are applying in different country to be able to stay there and I would think that it is important for you to know that you brother had actually disappeared. That's important information that you now giving so clearly it's important information. So I want to know why that information wasn't given before.
(errors in transcript)
The Tribunal also questioned the Applicant about matters such as inconsistencies and other issues about his evidence as to where brother S was living when he disappeared, if and when he was detained, where brother P was living at the time of the protection visa application and whether he had any problems after the war. It drew his attention to the need to listen to and answer the Tribunal’s questions (transcript, p.22) and the fact that if he did not answer the question “I think that you are avoiding the question” (transcript, p.25).
The Tribunal put the Applicant on notice that it was concerned that it was not until more than one year after his case had been refused by the delegate that he told the Tribunal that his “whole family pretty much” were members of the LTTE (also see transcript, pp.65-66). In the pre-hearing submission which raised these claims the Applicant’s agent had recognised that the late raising of new claims would be a credibility issue for the Tribunal. The Tribunal’s questioning in this respect squarely put the Applicant on notice that the credibility of his claims about his siblings (and his credibility more generally) would be in issue.
Similarly, the issue of the Applicant’s changing, inconsistent and not credible evidence about his claimed detention was put to him for comment at various times in the hearing (transcript, pp.65, 69 and 70). As the Tribunal stated in its reasons, it raised with the Applicant its concerns regarding his evidence about his detention, including the fact that while he claimed he had been detained, he said that he was never questioned about his family’s LTTE links despite his claims that they were very involved with the LTTE and that the army knew this (transcript, p.66). The Tribunal also raised its concern that while the Applicant claimed that the authorities knew that he was assisting the LTTE, he was never charged or detained for any long period of time (transcript, pp.66-67).
As the solicitor for the First Respondent pointed out, the Tribunal put to the Applicant the concern that he had given “significantly inconsistent evidence” about his encounters with the authorities while detained. It detailed the various inconsistent versions of events and then gave the Applicant the opportunity to comment (transcript, pp.69-70). In this way it alerted him that the truth of his evidence in this respect was in issue.
In so far as the Applicant submitted that the Tribunal did not give him a proper opportunity to answer and clarify his evidence in relation to the issue of his detention, that claim is not made out.
Relevantly, in the course of a discussion about the Applicant’s encounters with the authorities and questions about his claims that they took his passport, the Tribunal asked the Applicant “and this is in Colombo?”. The Applicant said: “Sorry I clarify the passport was with them, later on I went and actually met the authorities” (transcript, p.59). The Tribunal explained that it did not quite understand the Applicant’s evidence. It put to him its understanding of what he had said. He agreed. The Tribunal went on to ask about the next claimed encounter, which it understood was a week later in Colombo. The Applicant said “no”, and when the Tribunal asked where it was the Applicant responded “Can I explain?”. At this point the Tribunal responded “I just want to know if it is in Colombo or not” (transcript, p.59, line 30).
As the First Respondent submitted, it was open to the Tribunal to seek confirmation of this specific fact. The Tribunal went on to ask further questions, clarifying its understanding of the Applicant’s evidence. This gave the Applicant the opportunity to further explain and also to address the Tribunal’s concerns in relation to this aspect of his evidence.
The Applicant pointed to the fact that while he told the Tribunal that he was about to give more information about these things, the Tribunal insisted that he answer its questions (transcript, p.70).
However, as the First Respondent observed, this occurred in circumstances where, after extensive evidence, the Tribunal raised a specific concern about the Applicant’s “quite significantly inconsistent evidence” about the times and encounters he had with the authorities when he was detained (which it detailed) (transcript, pp.69-70). Rather than addressing the inconsistencies raised, the Applicant responded:
Yes I was about to give you more information about these things but you insisted me to answer to the questions you were asking that's why I didn't say.
(transcript, p.70)
In so far as the Applicant appeared to imply that he had not been given an opportunity to give evidence or to respond to the Tribunal’s concerns, in response the Tribunal reminded the Applicant that it had given him the opportunity to tell it anything that he had not already told it. It then reiterated its general credibility concerns and, importantly, gave the Applicant the opportunity to provide further evidence. After it summarised its credibility concerns and put them to him for comment it gave him the opportunity to tell it anything else that he wanted to say that he had not already said (transcript, pp.70-75). The Applicant did not provide any further evidence in relation to his detention. The Tribunal sufficiently alerted the Applicant to the significance of his changing evidence about his detention and gave him the opportunity to elaborate on his claims and to explain inconsistencies.
The issue of the relevance of the Applicant’s willingness to return to his village despite his claims of “torture” was also raised at the Tribunal hearing. Having regard to the Tribunal’s reasons it is clear that the reference to “torture” included the Applicant’s claims about having experienced sexual assault. At the hearing the Tribunal discussed in some detail its concern that the Applicant had claimed that he had stayed in his village following the claimed torture and subsequently had returned to his village two or three times while he was living in Colombo (transcript, pp.36 and 38). It suggested to the Applicant that this indicated that the authorities did not have an interest in him (transcript, p.67). The Tribunal put to him that:
… I find it difficult to accept that if you had been tortured in the manner that you claimed, you would have put yourself in risk again and returned to Jaffna when you are already in Colombo.
(transcript, p.68)
The Applicant was clearly on notice from the Tribunal’s questioning that the credibility of this claim and his evidence concerning his fear of harm in his village was in issue.
As indicated, in addition to raising specific concerns about the consistency or plausibility of the particularised aspects of the Applicant’s claim during the hearing, towards the end of the hearing, after giving the Applicant the opportunity to tell it “anything else” (transcript, p.64), the Tribunal put its credibility concerns to the Applicant. It started by stating generally:
I have concerns about the credibility of your claims. I have not made up my mind but it is important that I let you know that I do have those concerns. The concerns I have are fairly significant about your credibility for example just now you said to me that your life is in danger because they think that you are LTTE but they known that ever since 2002. They had opportunity to kill you but they haven't done so.
(transcript, p.65)
After the Applicant responded, the Tribunal then put to him its particular concern about the late raising of the family claim and gave him an opportunity to explain. It then put to him:
According to your evidence today you have this family of LTTE member/assistance but you never asked about them by any of the authorities whenever you were questioned so I find it difficult to accept that you are from this family of LTTE members or people who are … LTTE and the authorities ever any questions about your family members.
(transcript, p.66, errors in original)
When asked, the Tribunal clarified its concerns (transcript, p.66) and gave the Applicant an opportunity to comment.
The Tribunal also raised with the Applicant the fact that his evidence was that he stayed in his home village some two years after his second 2003 detention. The Tribunal suggested that his evidence indicated that the army did not believe he was involved with the LTTE and had no interest in him (transcript, p.67). In relation to the Applicant’s claims that in 2005 he moved to his brother’s house, the Tribunal pointed out that this was inconsistent with his earlier evidence to it (transcript, p.67).
The Tribunal also referred to the fact that, on the Applicant’s evidence to it, the police knew that he was in Colombo and that he reported daily to them but there was no questioning about the LTTE or interest in him shown by the army (transcript, pp.67-68).
The Tribunal raised with the Applicant (transcript, pp.69-70) his inconsistent evidence about his encounters with the authorities. It highlighted that he had failed to explain the difference between his written claim that he had no subsequent encounters with the authorities after his detention and his claim to it that he had done so (transcript, p.70).
The Tribunal alerted the Applicant to the relevance of these issues as to his credibility. It commenced:
Sir I have great concerns about your credibility. I don't even know if you are from Jaffna or where you lived? I have regards to DFAT ... I have to have regards to DFAT reports and DFAT report indicates that documents can be fabricated. You have provided supporting documents and they could be fabricated.
(transcript, p.70)
After discussing the documents the Applicant had provided, the Tribunal then summarised its concerns about whether his claims were true and whether he had a well-founded fear of future harm on any of the bases claimed. In doing so, it again alerted the Applicant to its concerns about his credibility, as follows:
… At the moment I am concerned that your claims are not true I don't know where if you are from Colombo or if you are from Jaffna where are you from? I accept that you are Tamil but UNHCR guidelines indicate that people who are Tamils and people who are from Northern Province and that's not the reason now for someone to be granted the refugee status. It seems to me that you didn't leave illegally so I accept you would be seen if you don't have a passport showing how you legally travelled to Australia that you would be seen as returning as a failed asylum seeker but there are hundreds, thousands of failed asylum seekers who have returned from western countries and the authorities don't assume that they are LTTE. If you had that kind of connections that you claimed and if you had been involved with the LTTE as claimed, I think circumstances would be different. I am just concerned those claims are not true. Also there is no evidence about when you left Sri Lanka but you said that you left legally in 2007 so assuming you did leave legally in February 2007. You had a passport you were able to pass through the country and you were able to pass through check points. If I don't accept your claims then the authorities would see you as someone who had been out of the country and coming back as failed asylum seeker and it doesn't seems to me that you suffered a real risk of serious harm sorry real chance of serious harm or real risk of significant harm. It would seem that what will happen would be that you go through the normal process that they would want to know about someone who doesn't have documents who doesn't have a passport so they would be similar to people who breach the immigrant and emigrant act. They would ask you questions and investigate your background by calling the authorities in your local area. So that seems to me to be a law of processing a general application it's not discriminatory. Sri Lankan authorities apply that equally to Tamils, Muslims and Sinhalese. It would seem that you would be held just they investigate you through few hours perhaps up to may be 24 hours. If I don't accept your claims, they will find that you were someone who is a Tamil who had left legally and you are coming back. So it doesn't seem to me that what you would face on return at the airport the questioning that wouldn't match to persecution or serious or significant harm. There are references in the submission to militarization. I accept that there is militarization in north if you are from north. It appears to me that if I don’t accept your claims, you were someone who was able to perhaps travel to work without any problems with the authorities. Although there is some monitoring in the north even if you would have to return to north but it doesn't seem to me that you and your circumstances that would match to significant harm or serious harm. Anything that would happen to you or the circumstances are not such that there is a real chance of serious harm or significant harm to you back in the north. Even if there were problems in the north according to your evidence you lived for long time in Colombo and Negombo, there would be no reason for you not to go and live there. I have to look and see in terms of relocation whether it is reasonable or whether persecution or serious or significant harm would happen to you and I can't see why that would happen to you in Colombo if you don't have the profile that you claim. So do you want to say anything about that?
(transcript, pp.73-74, errors in original)
In response, the Applicant referred to news reports of people who had gone missing or been detained after returning to their villages. The Tribunal again explained:
I should tell you that that I do accept that the government concerned about revival of the LTTE. I accept that and the people who have been perceived or suspected of having links with the LTTE or as said in DFAT report have been suspected of criminal offences or terrorism offences or something like that. For those people I think it would be a different story. So accept that there is an interest … an adverse interest. But I am just not sure that you will fall within those categories as people who face a real chance of serious harm or real risk of significant harm.
(transcript, p.74)
Significantly, after other issues were discussed (including why the Applicant would have returned to his home area if he had been tortured or had family members who were involved with the LTTE), the Tribunal gave the Applicant’s agent an opportunity to provide a written submission “about the credibility issues” that the agent had acknowledged existed (transcript, p.77). It is clear that the Tribunal had sufficiently alerted the Applicant to the significance of this issue.
The agent provided a post-hearing written submission in which he expressly recognised that credibility concerns had been raised by the Tribunal and that this was a matter of critical importance. This revealed an awareness that from the Tribunal’s perspective the Applicant’s credibility was a dispositive issue. The agent referred to the Applicant’s explanation for his late claims and suggested that he had not attempted to dramatise or to exaggerate any of the claimed events. The agent also referred to issues relevant to the assessment of the Applicant’s credibility generally. He concluded by acknowledging that there may have been specific inconsistencies in the Applicant’s evidence, but submitted that there was an overall consistency in his claims and generally known facts.
In SZBEL the High Court considered whether the visa applicant was on notice that his accounts of specific aspects of his claim were issues arising in relation to the decision under review (at [42]). The Tribunal in that case had found that particular elements of the applicant’s claims were implausible. The High Court made the point at [36] that:
… unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
In SZBEL the delegate had not based his decision on those specific aspects of the visa applicant’s claims. Its decision did not indicate that these aspects of the visa applicant’s account were in issue and the Tribunal had not identified those aspects of the account as important issues, challenged what the applicant said or said “anything to him that would have revealed to him that these were live issues” (SZBEL at [43]).
As the High Court explained in SZBEL at [47]-[48]:
47. First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
48. Secondly, as Lord Diplock said in F Hoffmann‑La Roche & Co AG v Secretary of State for Trade and Industry:
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
(footnote omitted)
In this case the Tribunal, in its statements and questions during the Tribunal hearing, not only sufficiently indicated to the Applicant that his credibility (and in that context, everything he said in support of the application) was in issue, it also asked the Applicant to expand on the particularised aspects of his account and to explain why his account should be accepted. The Tribunal’s questioning identified various aspects of the Applicant’s account (including the particularised matters) as important issues. It challenged what the Applicant said, both in raising particular inconsistencies and changing evidence and generally in relation to his credibility in a way that revealed that these aspects of his account, and his credibility generally, were live issues. It was not obliged to disclose what it was minded to decide (as discussed in SZBEL at [48]). The Applicant’s concern that he was not afforded a “meaningful opportunity” to give evidence and present arguments in relation to the issues arising in relation to the decision under review or otherwise denied procedural fairness is not made out.
Whether the dispositive issues in this case are seen as the Applicant’s credibility generally or encompass the specific aspects of his account particularised in this ground, the Tribunal sufficiently alerted the Applicant to the fact that all these matters were live issues. It has not been established that the Tribunal breached s.425 of the Act in the manner contended for by the Applicant.
Ground 1 is not made out.
Ground 2
Ground 2 is as follows:
The Second Respondent engaged in legal error by failing to consider a claim or component integer for the Convention reasons thereof. The Tribunal did not consider the claims of being (a) a Tamil fisherman in [the Applicant’s village] (b) sibling of the former LTTE members (c) cumulative grounds.
The Applicant pointed out that he had claimed that he was a member of the Fishermen’s Society and that he had been beaten on a few occasions by the army. It was submitted that the Tribunal had failed to engage with these “fishing claims”. It was contended that the Applicant’s claim was that his problems with the Sri Lankan army arose when he was involved with fishing and attended fishing association meetings and that the Tribunal had failed to engage with the claim he feared harm as a Tamil fisherman. Such a claim was said to clearly arise on the materials before the Tribunal. The Applicant pointed to his claims in the statement attached to his protection visa application.
It was also submitted that even if one put aside the issue of the Applicant’s membership of the Fishermen’s Society, he also claimed that he helped his father with fishing and that this gave rise to a claimed fear of harm. Hence, it was submitted that even if the Tribunal had rejected the LTTE aspect of the Applicant’s claims, that still left a need to consider the claim that the Applicant feared harm as a Tamil fisherman in his village.
The First Respondent submitted that the Tribunal had considered each of the bases on which the Applicant claimed to fear harm.
Consideration
In its reasons the Tribunal noted that the Applicant had claimed to fear harm as a Tamil fisherman. It accepted that he had done some work with his father, who was a fisherman in the north. However it rejected the claim that he had suffered past harm as a young Tamil male. The Applicant told the Tribunal that his family continued to fish and had not experienced any problems in that respect.
The Tribunal considered, but rejected, the claim that the Applicant was a member of the Fishermen’s Society in light of its significant credibility concerns. At the hearing the Tribunal had discussed the Applicant’s evidence about moving away from his village. It found that on return to Sri Lanka the Applicant would live in Colombo, where he would be able to find employment. It was not satisfied that he would return to the north of Sri Lanka to work as a fisherman. It did not accept that anyone (including the authorities) had any adverse interest in the Applicant while he was in Sri Lanka or since he left the country.
In these circumstances, the Tribunal’s reasons sufficiently considered any claimed fear of future harm by reason of the Applicant’s past work as a member of the Fishermen’s Society or his claims to fear harm as a Tamil fisherman as referred to in particular (a) to this ground.
Otherwise, the Applicant’s claims to the Tribunal were connected with or based on his actual or perceived association with the LTTE and his ethnicity and status as a failed asylum seeker. The Tribunal considered and rejected those claims. In relation to particular (b) (the Applicant’s claims to be a sibling of former LTTE members), the Tribunal considered, but rejected on the basis of its adverse credibility finding, the claim that the Applicant or his family were actually involved with or imputed as being involved with the LTTE or any claims that flowed from such claims. Moreover, it went on to find that hence it did not accept the claims (including in the agent’s submission) that the Applicant faced harm because of his own and his family’s links to the LTTE.
As to particular (c), it is apparent from the Tribunal’s extensive reasons (as well as its express references to considering credibility issues on a cumulative basis and also to considering the Applicant’s claims on a cumulative basis having regard to its finding that he was not a credible witness as well as relevant country information) as summarised above, the Tribunal considered the Applicant’s claims to fear future harm both individually and on a cumulative basis.
No jurisdictional error has been established on the basis contended for in Ground 2.
Ground 3
Ground 3 is as follows:
The Second Respondent engaged in legal error by heavily relying on the entry interview information in relation to the addresses the applicant lived in which were not relevant to his claims of persecution. He gave evidence that he was hiding temporarily various places during this time and his permanent residence was [village]. The Second Respondent made error of law demonstrated in MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 at paragraph 56-57.
The Applicant took issue with the Tribunal’s reliance on his evidence in his entry interview. It was submitted that an entry interview was not meant to be a full account of an applicant’s claims (see MZZJO at [56]-[57]). It was contended, however, that the Tribunal had highlighted what it considered to be inconsistent evidence about where the Applicant lived. In particular, the Tribunal had regard to the fact that in his entry interview the Applicant had claimed to have lived in his home village, except for a brief period, whereas he had made different claims in subsequent written documentation and orally.
The Applicant referred to the fact that the Full Court of the Federal Court had pointed out in MZZJO at [56] that “some caution should be exercised by decision-makers” in relation to the use of information given in an entry interview. It was submitted that the Tribunal had failed to give due allowance to the fact that the Applicant was not expressing his detailed claims in the context of his entry interview. It was also submitted that where the Applicant lived was not relevant to his claim at the time he gave the entry interview.
It was contended that while the Tribunal had referred to MZZJO in its reasons, it nonetheless had fallen into error by drawing an adverse inference from the information given in summary form by the Applicant in his entry interview.
Counsel for the Applicant clarified that he was placing no reliance on paragraphs 37 to 40 of his written submissions (which appeared to raise unpleaded claims of unreasonableness, irrationality, illogicality and factual errors).
The First Respondent submitted that the Applicant’s contentions in support of Ground 3 were plainly flawed, in so far as where the Applicant had lived was relevant to his claim that he had fled his village after suffering harm. It was submitted that the Tribunal’s adverse credibility finding in this regard was reasonably open to it on the evidence before it. It was pointed out that the Tribunal had not relied on an absence of information in the entry interview (see MZZJO at [56]-[57]), but rather on the fact the Applicant had given an address in Sri Lanka which was different to that given in his later evidence.
Consideration
In MZZJO the Full Court of the Federal Court warned (at [56]) that “some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interviews” (emphasis added). As their Honours stated:
… They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.
However the Court held in MZZJO that the Tribunal in that case had not erred in relying on inconsistencies arising from information provided at the entry interview. As it stated at [57]:
Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review. However, the Tribunal relied on inconsistencies arising from information presented by the appellant after the entry interview as well, including inconsistencies between the delegate interview and what he said to the Tribunal, and the somewhat inexplicable reluctance of the appellant to have his childhood friend, who arrived on the same boat, give evidence to corroborate aspects of his account. We consider its approach was open to it as a merits decision-maker …
Similarly, as the First Respondent pointed out, in this case the Tribunal did not simply rely on an omission or the absence of information in the entry interview. It had regard to the fact that the Applicant gave an address in his entry interview that was different to that he gave in his later evidence. The Tribunal’s finding in this regard was not inconsistent with the caution suggested in MZZJO. Moreover, the Applicant’s place of residence was relevant, in particular to his claim to fear harm in his home village.
The Tribunal also had regard to the late raising of new claims, but it did so in circumstances where it was of the view that the Applicant had ample opportunity to raise such claims when he made his protection visa application and thereafter and, indeed, after the refusal. It was mindful that there could have been a number of reasons why the Applicant had not disclosed these new claims earlier, but given all its other concerns was not prepared to accept the claimed reasons for the earlier omissions. This was not a case in which the Tribunal’s credibility findings were based solely (or even substantially) on an omission or evidence given by the Applicant in his entry interview or on minor inconsistencies. Rather, the Tribunal took into account extensive evidentiary inconsistencies in various respects that were central to the Applicant’s claims. Such an approach was open to the Tribunal and is not indicative of a misunderstanding of its task on review.
This ground is not made out.
As no jurisdictional error has been established on any basis contended for by the Applicant, the application must be dismissed.
I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 15 May 2020
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