FFP17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 279
•27 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FFP17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 279
File number: MLG 2603 of 2017 Judgment of: JUDGE SYMONS Date of judgment: 27 March 2024 Catchwords: MIGRATION – protection visa – decision of the Immigration Assessment Authority - where applicant alleges Authority failed to consider the consequences of his return to Sri Lanka on temporary travel documents – where Authority rejected the applicant’s central protection claims based, in part, on the identification of inconsistencies in his accounts – where applicant alleges that these findings involved factual errors – whether the making of factual errors undermined the credibility findings of the Authority as a whole – where findings as a whole survived despite error of fact – no jurisdictional error – application dismissed with costs Legislation: Migration Act 1958 (Cth), s 36 Cases cited: AWU16 v Minister for Immigration and Border Protection [2020] FCA 513.
DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91.
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3.
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of last submissions: 12 December 2023 Date of hearing: 12 December 2023 Place: Melbourne Counsel for the Applicant: Mr T Burn-Francis Counsel for the First Respondent: Mr J Barrington Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2603 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FFP17
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
27 MARCH 2024
THE COURT ORDERS THAT:
1.The application for judicial review filed on 30 November 2017 and amended on 14 November 2023 be dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount of $8,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
By an application filed on 30 November 2017 and amended on 14 November 2023, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 1 November 2017 pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The Authority affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (visa). The Minister opposes the application. The Authority enters a submitting appearance, save as to costs, and has not participated in the proceeding.
BACKGROUND
The applicant is a citizen of Sri Lanka, of Tamil ethnicity, who first arrived in Australia as an unauthorised maritime arrival on 27 August 2012.
On 20 September 2012, the applicant attended an arrival interview (CB 9-16) (arrival interview).
On 13 January 2013, the applicant participated in an Irregular Maritime Arrival Entry Interview (CB 17-33) (entry interview).
On 11 July 2016, the applicant made a valid application for the visa (CB 105-152). A registered migration agent assisted the applicant to prepare and lodge his application.
In support of the application, the applicant relied on a statutory declaration he had made on 5 September 2013 in connection with an earlier made (but invalid) protection visa application (CB 64-66) (2013 declaration). The applicant’s claims were described in this document as arising from the following circumstances and events:
(a)The applicant worked as a gold/silversmith in Puttalam town in Puttalam district, North-Western Province for many years and became well known as a jeweller.
(b)Because of his work as a jeweller, people thought the applicant had a lot of money.
(c)In about March 2012, the applicant was riding his bicycle when two people on a motorcycle stopped him and demanded he pay 25,000 rupees or they would kill him.
(d)A week later the applicant met the two people but could only give them 14,500 rupees, which they took and left.
(e)After a few months the applicant received a phone call. His life was threatened again if he did not pay 100,000 rupees. The applicant did not know if it was the same people from the last occasion.
(f)The applicant fled to Batticaloa. People continued to call the applicant’s wife looking for him. When the applicant was in immigration detention in Australia, his wife told him that some people on a motorcycle had come to their house asking about the applicant.
(g)The applicant cannot return to Puttalam because he could only live safely if he was to continue paying money (which he does not have). He fears that he will be hurt badly, even killed, by those who sought money from him previously.
(h)The applicant fears if returned to Sri Lanka he will be interrogated, detained and hurt badly by authorities on arrival because of his status as an asylum seeker and because he left Sri Lanka illegally.
(i)He cannot reside elsewhere in Sri Lanka safely as the only skill he has is in jewellery making, and because of this he will continue to be targeted.
(j)The Sri Lankan authorities cannot protect him as they continue to discriminate against Tamils.
On 12 December 2016 the applicant participated in a SHEV interview with an officer of the (then) Department of Immigration and Border Protection (SHEV interview). During the SHEV interview, the applicant mentioned for the first time that in 2007 and 2008 he had received calls from people unknown to him who threatened him and demanded that he pay them 2,000 to 3,000 rupees.
On 18 July 2017, a delegate of the Minister made a decision to refuse the applicant the visa (CB 165- 175).
On 21 July 2017, the refusal decision was referred to the Authority for a review under Part 7AA of the Act (CB 180-181).
On 1 November 2017, the Authority made a decision to affirm the decision of the delegate not to grant the applicant the visa and produced a written statement of decision and reasons (Reasons) (CB 197-210).
To the extent that the Reasons engage with the grounds of review identified in the amended application, they will be discussed below. It is sufficient at this stage to observe that the Authority:
(a)did not accept that the applicant had ever been the victim of extortion or threats and did not, as a result, accept the applicant’s claim that people had been looking for him since July 2012 (Reasons, [7], [13], [19]);
(b)accepted that the applicant was previously employed as a jeweller and had resided overseas (in Saudia Arabia and Australia) but, having regard to country information and the applicant’s history and profile, did not accept that there was a real chance that the applicant would face harm through extortion or the threat of extortion, now or in the reasonably foreseeable future, if he was to return to Sri Lanka (Reasons, [19]-[20]).
(c)accepted that the applicant is a Tamil male from the North-Western province of Sri Lanka but did not accept the applicant had links, or could be imputed to have links, with the LTTE, had a political history or was otherwise wanted by Sri Lankan authorities. Based on country information and these findings, the Authority did not accept that there was a real chance the applicant would be harmed by reason of his ethnicity or origins on his return to Sri Lanka (Reasons, [14], [21]).
(d)accepted that the applicant departed Sri Lanka illegally and would be identified as a failed asylum seeker if returned to Sri Lanka. The Authority found, based on country information, that there was a real chance the applicant could be temporarily detained on his return (although not for more than a few days) but that having regard to country information and the applicant’s evidence, detention in these circumstances would not amount to “serious harm” (Reasons, [22]-[27]).
(e)for the same reasons, found that the applicant was not owed complementary protection (Reasons, [32]-[34]).
THE APPLICATION FOR JUDICIAL REVIEW
In his amended application filed on 14 November 2023 the applicant identifies two grounds of judicial review which were the subject of argument at a hearing on 12 December 2023 at which the applicant was represented by Mr Burn-Francis of counsel and the Minister by Mr Barrington of counsel.
In addition, the applicant relied on written submissions filed on 15 November 2023 while the Minister relied on written submissions filed on 18 March 2019 (before the application was amended) and further written submissions filed on 27 November 2023 (responsive to the new grounds of review).
GROUND ONE
Ground one reads:
1. The IAA’s decision was affected by jurisdictional error in that the IAA failed to consider a relevant claim or piece of evidence.
Particulars
Having found a returnee travelling on temporary travel documents would be subject to further investigations, the IAA failed to consider the consequences of the applicant returning to Sri Lanka on temporary travel documents.
The applicant’s submissions
The applicant accepts that at Reasons, [5], the Authority correctly identified his claim to fear being detained, interrogated, and badly hurt by Sri Lankan authorities on his return because of his Tamil ethnicity, because he left Sri Lanka illegally and because he would have the status of a failed asylum seeker.
The applicant notes that at Reasons, [22], the Authority accepted that “if returning on a temporary travel document, police will undertake further investigations, for example to ensure the returnee is not trying to hide their identity because they have a criminal or terrorist background”. The Authority also accepted (in the same passage), that recent reports indicate returnees “may be ill-treated on their return if they have a criminal or terrorist background”.
The applicant submits that having made those findings, the Authority should have gone on to consider the consequence of the applicant returning to Sri Lanka on temporary travel documents. He makes the further submission that had the Authority engaged in this exercise, it should have found it was likely that the applicant would be detained for longer than 24 hours while the police undertook further investigations. According to the applicant, the Authority should also have considered the risk that the applicant might be ill-treated as someone who may be trying to hide their identity because they have a criminal or terrorist background.
The Minister’s submissions
The Minister submits that the applicant’s argument involves a misconstruction of the Reasons because it focuses on a single sentence without consideration of its place in the context of a more far-reaching and emphatic set of findings.
In particular, the Minister notes that the Authority had earlier comprehensively rejected the applicant’s central claim of extortion, describing it as “so inconsistent as to suggest fabrication” (Reasons, [7]). It also found that the applicant did not have links, nor would he be imputed to have links, with the LTTE or be otherwise wanted by Sri Lankan authorities (Reasons, [14]). The Authority recorded a finding that there was “no evidence that would indicate the applicant has a criminal background or any outstanding court orders or arrest warrants or is otherwise wanted by the authorities” (Reasons, [23]).
The Minister submits that in view of these findings, the Authority considered that there was not a real chance that the applicant would be detained for a lengthy period or tortured. The Minister contends that, contrary to the submission of the applicant, this finding did reflect a consideration of the consequences of returning on temporary travel documents. In short, the Authority found that there would be no relevant consequences. The Minister submits that the Authority was not required to consider that the applicant would be further detained in circumstances where the Authority had found that he was of no adverse interest to anyone in Sri Lanka. Nor was the Authority required to consider whether the applicant might be ill-treated in circumstances where it correctly found that there was no evidence that the applicant had a criminal background.
CONSIDERATION OF GROUND ONE
The culmination and net effect of the factual findings recorded by the Authority at Reasons [6]-[16] was that beside the fact that the applicant had departed Sri Lanka illegally and would be identified as a failed asylum seeker if he was returned to Sri Lanka, there was otherwise nothing in the applicant’s background, attributes or circumstances that would bring him to the adverse attention of Sri Lankan authorities.
Against these findings, the Authority gave separate consideration as to whether the applicant’s profile as an illegal departee and failed asylum seeker would engage the criteria under either ss 36(2)(a) or 36(2)(aa) of the Act. In this context it noted, relevantly that:
·More recent reports indicated that returnees may be ill-treated on their return if they have criminal or terrorist backgrounds or are otherwise wanted by the authorities for their crimes other than merely departing the country illegally (Reasons, [22]).
·DFAT assessed that the risk of torture or mistreatment of the majority of returnees was low, including for those found to have departed illegally (Reasons, [22]); and
·DFAT’s most recent country information indicated that following arrival at the airport, returnees would receive treatment of a kind that was described under six bullet-points (also at Reasons, [22]).
The applicant places emphasis on the second of the matters identified as part of the procedures adopted by the Sri Lankan government for the processing of returnees, namely, that “if returning on a temporary travel document, police will undertake further investigations, for example to ensure the returnee is not trying to hide their identity because they have a criminal or terrorist background or to avoid a court order or arrest warrant”.
However, rather than fail to consider how this aspect of the processing arrangements might impact on the applicant, the Authority plainly had it within contemplation when it said, at Reasons, [23] that:
I do not accept the applicant will be imputed to have links with the LTTE and there is no evidence that would indicate the applicant has a criminal background or any outstanding court orders or arrest warrants or is otherwise wanted by the authorities. There is nothing to suggest the applicant was a facilitator or organiser of a people smuggling venture. Accordingly, based on the applicant’s evidence and the available country information I find that there is not a real chance the applicant will be detained for a lengthy period or tortured on his return to Sri Lanka.
The Authority engaged again with the question of how the applicant might be affected by the processing regime when it found, at Reasons [24], that “[o]n the basis the applicant departed Sri Lanka illegally, I find there is a real chance the applicant could be temporarily detained on his return, as part of the procedures adopted by the Sri Lankan Government for processing returnees set out above” (emphasis added).
Then, again, at Reasons, [25], after finding that the applicant would likely be detained at the airport for processing, held at the Criminal Investigation Department’s office at the airport for up to 24 hours, taken to the Magistrate’s Office, detained for a short period until a Magistrate becomes available and if pleading guilty, detained for a longer period while he waits for a family member to pick him up from Colombo, recorded that it was satisfied that the applicant would not be detained for more than a few days in total and that in all instances, the applicant’s detention would be temporary.
It is clear from the above that the Authority assessed the consequences for the applicant against each of the routinely applied processing steps identified in the country information but found that there was nothing in the applicant’s profile that would result in the application of those steps causing him either serious or significant harm. It is also clear that despite the submission of the applicant to the contrary, the Authority did not find that any detention would not exceed 24 hours.
Ground one is without merit.
Ground two
Ground two reads:
2. The IAA’s decision was affected by jurisdictional error in that the IAA made findings that were illogical, irrational and/or unreasonable.
Particulars
The findings that were illogical, irrational and/or unreasonable were:
a. the finding that the Applicant had never been the victim of threats or extortion on the basis that the Applicant’s evidence was so inconsistent as to suggest fabrication (at paragraph [7] of the IAA’s decision) in circumstances where:
i.the IAA accepted there had been past reports of extortion in Sri Lanka;
ii.some of the inconsistencies to which the IAA referred were in fact not inconsistencies;
iii.any remaining inconsistencies were not “significant” (contrary to paragraph [9]);
iv.the IAA accepted that psychological issues such as past trauma can affect a person’s memory and that living in Sri Lanka may have been traumatic for the Applicant; and
v.the Applicant’s memory loss and stress were plausible explanations for any ‘inconsistencies’;
b. the finding that the Applicant’s account that he returned to Puttalam at night to see his children was not “consistent with the behaviour of a person who is in fear of his life” (at paragraph [12] of the IAA’s decision); and
c. the finding that the Applicant’s family members would be able to act as guarantor if required (at paragraph [25] of the IAA’s decision) in circumstances where the IAA considered that the Applicant did not appear to have been residing with his family prior to his departure.
The applicant’s submissions
The applicant submits that the Authority made two findings along the way to the conclusion that he had never been the victim of threats or extortion that were illogical or irrational. The first finding was that the applicant’s evidence was so inconsistent as to suggest fabrication (Reasons, [7]).
One of the reasons supplied by the Authority for this conclusion was that the applicant’s recollection of the extortion attempts was inconsistent. At Reasons [9] the Authority identified these inconsistencies in the following terms with those challenged by the applicant identified in bold:
The 2013 statutory declaration stated that the applicant was threatened and the subject of two extortion attempts in 2012; in March when he was approached by two people on a motorcycle, while riding his bike, demanding 25,000 rupees and a second time in June when he received a call from people unknown to him demanding he pay them 1 lakh by August. In his arrival interview he stated the earlier incident happened five months prior to his departure (which would be February not March) and that two people demanded he pay 15,000 rupees not 25,000 rupees. In the arrival interview, he stated that the second incident happened two months later (which would be April not June). Further, in the SHEV interview he said the first extortion attempt occurred in June (not March) and that it involved a call rather than being approached while riding his bicycle and that he had asked for a 10 to 15 day extension to pay the money, which he had never mentioned before. In the SHEV interview, the applicant also failed to mention the second incident when he was purportedly asked to pay 1lakh, until prompted by the delegate. When asked to explain these significant inconsistencies, the applicant said he had forgotten to mention them because he suffered from memory loss. In the SHEV interview the applicant also struggled to recall much detail in relation to the purported 2012 incidents; he could not recall what the two purported extortionists were wearing, stating he thought they were wearing shirts.
The applicant submits that the inconsistencies identified by the Authority as between his answers given in the arrival interview and the 2013 declaration were not, in fact, inconsistencies, as the Authority misinterpreted several of the applicant’s answers given in his arrival interview.
First, in the arrival interview the applicant said, “5 months back I was asked to give money” (CB 11, Q. 21). The applicant submits that the applicant should be understood to have been referring to a time five months prior to the interview, rather than to his departure from Sri Lanka. Given that the interview took place approximately six weeks after the applicant’s departure, the inconsistency did not arise or was at least, inconsequential.
Second, as part of his answer to the same question in the arrival interview, the applicant said that he “gave 15,000 rupees” (CB 11, Q. 21). That answer is said to be consistent with the applicant’s answer given in the 2013 declaration that he paid 14,500 rupees.
Third, in relation to the second extortion attempt, the applicant had said “then they asked 2 months before my leaving for 1 Lakh” not that the second incident happened “two months later”. Given that the applicant left Sri Lanka in July, the Authority’s interpretation that the incident had occurred in April was said to lack a logical connection to the evidence. Instead, the applicant’s answer placed the second incident as occurring in around May 2012.
The applicant then submits that to the extent there were genuine inconsistencies in the answers he gave during the SHEV interview, the Authority failed to consider whether these inconsistencies might have been explained by the passage of time, the applicant’s memory loss or the applicant’s lack of education. The applicant also contends that as part of this inquiry, the Authority should have considered that the applicant’s memory loss was not selectively confined to his recollection of the extortion incidents but that it also extended to less contentious matters such as the inability of the applicant to recall living in Saudia Arabia, or the year that he had started working.
The applicant submits that the only conclusion open to the Authority was that the applicant’s memory loss was at the very least a plausible explanation for any inconsistencies in his answers given during the SHEV interview.
Still on the topic of the extortion threats, the applicant submits that it was illogical for the Authority to find that the applicant’s account of returning periodically at night from Batticaloa (where he was in hiding) to Puttalam to see his children did “not seem consistent with the behaviour of a person who is in fear of his life” (Reasons, [12]). The applicant submits that it is one thing for the Authority to have harboured some doubt about the applicant’s explanation but that it involves an entirely different logic to find essentially that the two states of affairs are inconsistent with one another.
Then, in the context of the Authority’s findings about arrival and entry conditions for the applicant on his return to Sri Lanka, the applicant submits that the finding, recorded at Reasons, [25], that the applicant’s family members would be able to act as guarantor, was irreconcilable with the Authority’s earlier finding (recorded at Reasons, [15]) that it did not appear the applicant was residing with his family prior to his departure. The applicant submits that the Authority made an unwarranted assumption that despite not living together, the applicant’s family would act as guarantor to facilitate the applicant’s release.
The Minister’s submissions
The Minister characterises the applicant’s arguments directed at ground two as involving an impermissible attempt at merits review and submits that the applicant has overstated the significance of any discrepancies in the Authority’s understanding of his evidence and their place in the reasoning process.
The Minister submits that the applicant’s first attempt at reconciliation of his evidence fails because in circumstances where his arrival interview was conducted on 20 September 2012 (CB 16) his reference to the extortion attempt being “5 months back” from that point would have placed it in late April 2012. That being the case, the dates (April compared with March) were still a month off.
The Minister submits that the more fundamental reason why the applicant’s efforts to impugn the Authority’s findings about the credibility of his extortion claims cannot succeed is that none of the arguments sufficiently undermine the integrity of the ultimate state of satisfaction reached by the Authority. In this respect, the Minister refers to the judgment of the Full Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 where at [34] the Court (Allsop CJ, Besanko and O’Callaghan JJ) observed that:
The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZMDS 240 CLR at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.
The Minister submits that the applicant’s argument, taken at its highest, discloses only that there was a lapse of logic (or a mistake of fact) along the way to the decision. However, according to the Minister, it was not possible to characterise the decision of the Authority as a whole as irrational.
The Minister notes that there are many other aspects of the Authority’s overall credibility finding which the applicant has not impugned and submits that these findings provide a rational basis for the Authority’s rejection of the applicant’s extortion claim. According to the Minister, for example, it was entirely open to the Authority to rely upon the applicant’s failure to mention any extortion attempts in 2007 and 2008 and the “significant inconsistencies” between his SHEV interview and his written evidence.
The Minister submits that the applicant’s arguments directed at the impact of his memory loss on his ability to recount events do not assist in the analysis. This is because the applicant never made any argument to the Authority to this effect. The Minister submits it to be also clear that the applicant did give evidence about living in Saudia Arabia at the SHEV interview (CB 201, [11]).
As far as the applicant seeks to impugn the finding about his behaviour in returning, at night, to Puttalam, the Minister submits that it was plainly rational for the Authority to find that making repeated return trips from Batticaloa to Puttalam was inconsistent with the applicant’s claim to have been in “hiding” in Batticaloa during that time. The Minister makes the further submission that any irrationality could not impugn the Authority’s ultimate state of satisfaction because the Authority did not believe that the applicant had been the victim of any threats to begin with, such that there was no need to hide (Reasons, [12]).
As to the finding about the applicant’s family acting as guarantor, the Minister submits that it was rational for the Authority to observe that there was no evidence that the family would not be able to act as guarantor if required in circumstances where: (i) the Authority had already referred to evidence that the two eldest children were working and not dependent upon the applicant (Reasons, [15]); and (ii) if a guarantee did not require the payment of money, the very presence of the applicant’s family in Sri Lanka was sufficient. The Minster notes further that there was no evidence that the applicant and his family were estranged. Indeed, the applicant claimed that if he needed to relocate, his family would come with him.
The Minister submits that in any case the finding does not involve jurisdictional error because the issue was not critical or important. The Minister refers to DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [98]-[101] as authority for this submission.
CONSIDERATION OF GROUND TWO
The applicant invites the Court to find that the Authority’s conclusion that his evidence about extortion threats was so inconsistent as to suggest fabrication was unsound because it was based, in part, on the identification of inconsistencies in the applicant’s account of events that in truth did not exist.
It is necessary at the outset to determine whether, and to what extent, the applicant’s evidence was misunderstood by the Authority.
As to the first “inconsistency”, the Minister accepts that it reflected the Authority’s mistaken view that the applicant’s reference to “five months prior” was a reference to five months prior to his departure from Sri Lanka, rather than five months prior to the arrival interview as he had indicated by his response. However, as the Minister has observed, the effect of this mistake was not to create an inconsistency where one in fact did not exist, but rather to alter the reference points for that inconsistency. There was still, on either construction, a difference of roughly a month between both accounts.
As to the second “inconsistency”, I understand the Minister to accept that the Authority misunderstood the applicant’s evidence when it identified an inconsistency as between his answer given in the arrival interview that he “gave 15,000 rupees” to the extortionists and his evidence in the 2013 declaration that the extortionists had made a demand that the applicant pay them 25,000 rupees. The correct comparison should instead have been with the applicant’s evidence in his 2013 declaration that in response to the extortion demands, the applicant had given the two people “about 14,500 rupees”. While this comparison would still have produced a technical inconsistency, it was of a lower order of magnitude. The two accounts were at least capable of reconciliation.
As to the third “inconsistency”, I accept the submission of the applicant that the Authority appears to have misunderstood his evidence from the arrival interview that placed the making of the second extortion threat two months before he left Sri Lanka for Australia rather than (as the Authority understood the evidence) two months after the first extortion threat had been made. This produced an inconsistency as between May and June, rather than April and June.
The net result therefore is that while one of the three inconsistencies relied upon by the Authority did not in fact possess this character, the remaining two inconsistencies did, even on a correct evaluation of the applicant’s evidence. The question then becomes whether the intrusion of this single irregular inconsistency finding was sufficient to impugn a set of credibility findings that have otherwise not been challenged.
In answering this question, I acknowledge that the assessment of credibility is necessarily impressionistic, and emphatic findings on credibility may well, expressly or implicitly, be linked with one another so that it will not be possible, or realistic, for a reviewing Court to be confident that an error in one strand of credibility reasoning does not infect other strands.[1]
[1] AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 at [20].
It is important however to also acknowledge that in this case the Authority’s reasons for rejecting the applicant’s extortion claims were expressed across several paragraphs, and not just [9] of the Reasons upon which the applicant’s ground two focuses. These paragraphs ([7]-[11]) read:[2]
7. I do not accept the applicant has ever been the victim of threats or extortion. While there are past reports of extortion and abductions by paramilitary groups in Sri Lanka, the applicant’s evidence in relation to these events is so inconsistent as to suggest fabrication.
8. The first time the applicant mentioned the 2007 and 2008 extortion attempts was in the SHEV interview on 12 December 2016 (SHEV interview). He did not mention these events in the arrival interview on 13 January 2013 (arrival interview), the invalid protection visa application made in 2013, the SHEV application form dated 31 March 2016 (SHEV form) or the accompanying statutory declarations dated 5 September 2013 (2013 statutory declaration) and 31 March 2016 (2016 statutory declaration). When the delegate queried why, the applicant first stated it was because he had not taken them into account because the amounts demanded were so low. Then he said he forgot to mention these incidents because he suffers from memory loss. There is no evidence to suggest the applicant ever paid the sums purportedly demanded at this time or was ever harmed as a consequence of not paying the sums purportedly demanded. When pressed for more information about these incidents in the SHEV interview the applicant did not provide any detail.
…
10. The applicant struggled to recall, with any consistency or detail, all instances of his purported persecution in Sri Lanka, explaining that it was because he was stressed, illiterate and suffered from memory loss. I accept psychological issues such as the experience of past trauma, can affect a person’s memory and ability to give coherent evidence and that living in Sri Lanka up until 2012, an environment of past prolonged armed conflict, serious human rights violations and military occupation, may have been traumatic for the applicant. However, in the arrival interview, which was five months after he arrived in Australia, he was able to recall his boat journey to Australia in good detail. His boat journey to Australia and the last purported extortion attempt were both, in or about, July 2012. In the arrival interview, he was able to recall the faces and the identification numbers of the people who drove the boat to Australia. In the arrival interview the applicant recalled the approximate age and first name of the person who organised his boat journey to Australia, the street in Colombo where he met the man, the cost of the journey and how it was paid, the time it took on the bus to reach the boat and the number of people in the van. In contrast, the applicant could not recall with certainty whether the purported extortionists in 2012 were wearing shirts, dates and the sums demanded. There is also a lack of evidence to support his claim that he suffers memory loss, such as a medical report. Accordingly, I do not accept memory loss, stress or a lack of education as plausible explanations for the large number of inconsistencies in his claims.
11. While I accept the applicant travelled to Saudi Arabia in 2009, I do not accept that this was to flee persecution as indicated in his SHEV application form. In the arrival interview and the SHEV interview the applicant never stated that his reason for going to Saudi Arabia was to flee persecution. It is possibly for this reason that in the SHEV interview, the delegate pressed the applicant to explain why he went to Saudi Arabia in 2009. In response the applicant said he went to Saudi Arabia to see the place and because ‘the boys’ asked him to go. When these inconsistencies were pointed out to the applicant he blamed it on his poor memory. When further questioned by the delegate in the SHEV interview, he said business was quiet at the time and so he left to go work in Saudi Arabia. The applicant said he did not try to renew his working visa when he returned to Sri Lanka because he could not locate his passport. Further, the applicant said that on his return he recommenced his jewellery business working from home in Puttalam. This behaviour does not seem consistent with what may be expected of a person who fled the area earlier in fear of his life.
[2] Paragraph 9 is omitted because it is reproduced already at [31].
As can be seen, the Authority identified a variety of reasons for rejecting the applicant’s extortion claims. Thematically, they can be described as involving:
(a)The failure of the applicant to mention the 2007 and 2008 extortion attempts until the SHEV interview (in December 2016).
(b)Inconsistencies in the accounts given by the applicant as between the arrival interview and the 2013 declaration and as between those accounts and the SHEV interview.
(c)A lack of detail in the accounts of persecution provided by the applicant which the Authority compared (unfavourably) with the relative level of detail he provided about his trip by boat to Australia.
(d)The failure of the applicant to identify persecution as the reason he travelled to Saudia Arabia in 2009 in his arrival interview or SHEV interview.
(e)The applicant’s evidence that he had recommenced his jewellery business working from home in Puttalam when he returned from Sri Lanka, which behaviour the Authority found was not consistent with the behaviour of a person who fled the area earlier in fear of his life.
The second inconsistency formed part of the strand of reasoning captured in general terms by [57(b)] above. It was one of six or seven inconsistencies identified by the Authority and which it described, cumulatively, as “significant”. While I accept that the task of evaluating the quality of the Authority’s reasons does not reduce to a quantitative exercise, nonetheless when the credibility reasons are read as a whole, I do not consider that the error in the second inconsistency finding operates to undermine the integrity of the Authority’s reasoning. The impugned inconsistency finding did not materially undermine the strand of reasoning of which it formed part or the credibility reasons as a whole, which were informed by at least five different strands of reasoning.
This not to say that each of the strands of reasoning operated independently of one another but rather that the place of the impugned (and discredited) finding within the whole did not cause the Authority to stray beyond the area of decisional freedom that was given to it as fact finder. The residual aspects of the Authority’s credibility findings (of which there were many) were capable of rationally sustaining the conclusion that the applicant’s account had been fabricated.
While reasonable minds might differ as to the significance of the different accounts given by the applicant and the level of detail that he supplied about different events, that is not the test that I must apply. Equally, reasonable minds might take a more beneficial view of the claims made by the applicant that his memory had been impacted through his exposure to traumatic events. However, in circumstances where the Authority considered this explanation (see Reasons, [10]) and dismissed it because it was not corroborated, I do not consider that any error arises from the approach taken by the Authority.
As far as the applicant challenges the reasoning that appears at Reasons [12] about the behaviour of the applicant in returning at night to Puttalam, I accept the submission of the Minister that this finding was made on two bases, neither of which can be impugned. The Authority rejected this claim because it had already found that the threats of extortion had not occurred. The factual premise for the claim was essentially removed. The second reason reflected the view of the Authority that the behaviour engaged in by the applicant did not reflect human experience. Again, while reasonable minds might differ as to the significance of this behaviour as involving a departure from the norm, the approach was not legally irrational or unreasonable.
Finally, I am not persuaded that the Authority erred as alleged by the applicant in its approach to the question of whether the applicant’s family could act as guarantor on his return to Sri Lanka. It is necessary to record what the Authority said about this at Reasons, [25].
Based on the available country information the applicant is likely to be detained at the airport for processing and may be held at the Criminal Investigation Department’s office at the airport for up to 24 hours. The applicant will be taken to the Magistrate’s Office at the earliest available opportunity. It is only if a Magistrate is not immediately available (such as on a weekend or public holiday) that the applicant may be held in a nearby prison for a short period until a Magistrate becomes available. If the applicant pleads guilty he will be free to leave immediately. If he does not plead guilty he will be immediately granted bail on certain conditions. The applicant may be detained for a longer period while he waits for a family member to pick him up from Colombo if one of his bail conditions is that a family member acts as guarantor. Prison conditions in Sri Lanka are poor, due to overcrowding and a shortage of basic facilities. However, the applicant’s immediate family, including his wife, live in Puttalam and the evidence before me does not suggest that they would not be able to act as guarantor if required…
The Minister referred the Court to the decision in DCP16 where at [97]-[98] the Full Federal Court (Beach, O’Callaghan and Anastassiou JJ) said:
Further, as to a family member acting as a guarantor, contrary to the appellant’s submission the Authority did not make any assumption that a family member would act as guarantor. The country information was that the appellant may be required to have a family member act as guarantor and that is all the Authority said. The question of whether a family member would act as guarantor was not critical to the Authority’s decision (SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 at [79] per Robertson and Kerr JJ).
On the question of the guarantee, the Authority was dealing with a triply contingent hypothetical. First, the appellant had to plead not guilty. If he pleaded guilty, he would be fined, with the fine able to be paid by instalments; no guarantee question would arise. Second, if he pleaded not guilty, he could be released on his own personal recognizance. In that eventuality, no guarantee would be required. Third, the guarantee question would only arise if he pleaded not guilty and his own personal recognizance was not sufficient. Now in that eventuality, and given that no immediate payment of money would be required from a guarantor, it might be expected that a family member may act as guarantor to secure the appellant’s release. But all of this is in the realm of a hypothetical which the Authority did not need to speculate about or discuss in detail.
The circumstances of this case are not relevantly distinguishable from those identified in DCP16. In particular, the Authority did not find that a family member would act as a guarantor; the approach was less emphatic and operated on the same country information which, as the Full Court recognised, contemplated a number of eventualities. It follows that any error in the approach adopted by the Authority to the capacity of family to act as a guarantor for the applicant was immaterial and cannot sound in jurisdictional error or relief for the applicant.
Ground two is dismissed.
ORDERS
The applicant has not established that the Authority decision is affected by jurisdictional error. In these circumstances, I will order that the application for judicial review be dismissed.
The parties both sought costs fixed in the amount of $8,000 in the event of their success. Given that the Minister has successfully resisted the applicant’s application for judicial review I will order that the applicant pay the Minister’s costs in the amount of $8,000, which amount I note is less than currently prescribed in the scale set out in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for a proceeding concluded at final hearing.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons . Associate:
Dated: 27 March 2024
0
5
1