SZUXN v Minister for Immigration
[2015] FCCA 1268
•26 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUXN v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1268 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming ethnic, political and particular social group persecution in Sri Lanka – applicant not believed – Tribunal making adverse credibility findings based upon the failure of the applicant to articulate his claims comprehensively immediately on arrival in Australia – Tribunal decision unreasonable. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 91R, 424A |
| Applicants in V722 of 2000 vMinister for Immigration [2002] FCA 1059 SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63 |
| Applicant: | SZUXN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2260 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 14 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 26 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | Westside Legal |
| Counsel for the Respondents: | Ms B Anniwell |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
A writ of certiorari shall issue removing the record of the Refugee Review Tribunal decision made on 14 July 2014 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2260 of 2014
| SZUXN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 14 July 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties. The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival (UMA) from India on 28 June 2012. A “bio data interview” was conducted with the applicant on his arrival[1]. At that interview, he stated that he was born on 20 January 1986 in Jaffna in Sri Lanka, that he is of the Hindu religion and Tamil ethnicity. Question 20 of the bio data interview form asked, “Are you seeking protection?” to which the applicant answered, “Yes”. Question 21 asked, “Why? (one sentence)”. The applicant answered, “I was a refugee in India for 22 years, unable to get citizenship to have a life. I don’t want that for my children. I want a better life”.
[1] Court Book (CB) 1-12
A more formal entry interview was conducted with the applicant later on 28 August 2012. In that interview, the applicant stated[2]:
[2] CB 14-33
Tamil Nadu INDIA
We left Sri Lanka because of the war and the situation in the country. My Parents decided to move to India and I was only four years at the time. After that, I spent 22 years in Tamil Nadu in India. I did my schooling in India, and once I completed my education, I couldn’t get a proper job. It is very hard for my family. I used to work as a labourer. Wherever I go, I am treated as a refugee. So I have decided that I don’t want my children to go through the same things I have been through, I wanted to give them a better life, that is why I came to Australia.
…
SRI LANKA
Q: Why didn’t you go back to Sri Lanka?
A: We didn’t return to Sri Lanka because of the country’s situation. My aunty (mother’s sister) lives in Sri Lanka. When we speak to her she advised us not to go back to Sri Lanka. She tells us that the situation is not good.
On 9 November 2012, the applicant lodged an application for a protection (Class XA) visa[3]. He appointed a solicitor to assist him in connection with his application[4].
[3] CB 40-65
[4] CB 34, 98-100
The applicant set out his written claims for protection in a statutory declaration dated 9 November 2012[5]. He claimed that in or around 1989, his father assisted the Liberation Tigers of Tamil Eelam (LTTE) because he became angry with the way the Sri Lankan Army (SLA) treated Tamil people. The SLA came to the applicant’s family home in early 1990 searching for his father but he was not at home at the time. The SLA questioned and abducted the applicant’s second cousin and he remains missing.
[5] CB 66-70
The applicant claimed that his family was forced to frequently move between houses to avoid the SLA before relocating to India in August 1990. His family lived a restrictive life in refugee camps in India and remained fearful that they would be forcibly returned to Sri Lanka. The applicant also claimed that in 2009 SLA officers came to his aunt’s home in Sri Lanka and interrogated his cousins about his father’s LTTE involvement[6].
[6] CB 66-68
The applicant claimed further that he did not own any property in Sri Lanka or possess a national identity card[7]. He claimed he would be harmed and/or mistreated by the Sri Lankan government and the SLA for reasons of his Tamil ethnicity, imputed political opinion as a person suspected of supporting the LTTE because of his father’s association with the LTTE and because he was a member of a particular social group comprising failed asylum seekers[8].
[7] CB 69
[8] CB 69
The applicant provided copies of a number of documents to the Department in support of his visa application[9]. The documents were his birth certificate[10], refugee identity card from India[11], certificate of marriage[12], Indian driving licence[13] and an educational document[14].
[9] CB 137
[10] CB 110-111
[11] CB 112-113
[12] CB 114-118
[13] CB 119
[14] CB 120
On 19 December 2012, the applicant was invited to attend an interview before a delegate of the Minister scheduled on 18 January 2013[15], which he attended[16].
[15] CB 121-123
[16] CB 141-142
On 14 February 2013, the delegate refused to grant the applicant a protection visa. Essentially, the delegate was not satisfied on the basis of country information about the prevailing situation in Sri Lanka that the applicant faced a real chance of any serious or significant harm for the reasons he advanced[17].
[17] CB 137-154
The Tribunal’s proceedings
On 22 March 2013, the applicant lodged an application for review of the delegate’s decision[18]. He appointed the same solicitors to represent him and act as his authorised recipient in connection with the review before the Tribunal[19].
[18] CB 155-161
[19] CB 158, 166, 179
On 28 October 2013, the Tribunal wrote to the applicant inviting him to appear at a hearing scheduled on 3 December 2013[20], which he accepted[21].
[20] CB 173-176
[21] CB 180-181
On 7 November 2013 and prior to the Tribunal hearing, the applicant’s representative provided the Tribunal with a written submission in support of the applicant’s claims for protection[22] and a copy of an internet article on banned terrorist organisations[23]. The submission was considered by the Tribunal[24].
[22] CB 183-214
[23] CB 215-216
[24] CB 293-296, [62]-[84]
The applicant attended the scheduled Tribunal hearing[25] and also gave the Tribunal a copy of his NSW identity card[26]. The Tribunal’s summary of the hearing is the only available record of what occurred at the hearing[27].
[25] CB 220-222; CB 296-305, [85]-[132]
[26] CB 223-224
[27] CB 296-305, [85]-[132]
Various references in the Tribunal’s reasons indicate that the Tribunal at the hearing put the applicant on notice of the concerns that it had with his evidence and his overall credibility[28].
[28] see, for example, CB 300, [107]; CB 301, [110]; CB 304, [127]
Further, on 5 December 2014, the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (Migration Act)[29] and invited him to comment in writing on particulars of information that he had provided to the Department in his biodata interview[30], entry interview[31] and delegate’s interview[32]. The Tribunal identified a number of inconsistencies and omissions in the various accounts given by the applicant and explained to him that these deficiencies might cast doubt on his credibility as a witness.
[29] CB 225-230; CB 306, [133]
[30] CB 1-12
[31] CB 14-33
[32] CB 141-144
On 19 December 2014, the applicant’s representative requested further time to respond to the s.424A invitation[33], which the Tribunal granted[34].
[33] CB 231-232, 236-239
[34] CB 233-235
In their response dated 8 January 2014, the advisors stated[35]:
a)“the biodata is a generally brief process (20 minutes in each case) without legal representation and with the understanding that the applicant will be provided with a further opportunity to provide a detailed response and explanation in the future.”;
b)the advisors then extracted question 21 of the biodata form;
c)“… Question 21 requires the Applicant to describe why he is seeking asylum in Australia within approximately one minute. Furthermore, the question box indicates in brackets that the response should be included in one sentence, significantly limiting the Applicant’s ability to detail his claims. It is also clear from the size of the box included in Fig 1.1. that no more than one sentence can be inserted into the box. Pragmatically, it is impossible for the Applicant to detail his complete claims, or even a significant amount of his claims, in that box”;
d)“Given that the Applicant was living in India prior to departing for Australia it is understandable that the Applicant would summarise that he was departing from that country because of an inability to obtain citizenship there. This is largely consistent with his claimed fear of persecution in India throughout his PV application.”
[35] CB 245
On 30 January 2014, the applicant’s representative wrote to the Tribunal requesting that it adjourn the review pending the resolution of other proceedings in the High Court[36]. The proceedings concerned the validity of clause 866.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations)[37].The request was supported by affidavit evidence from the applicant’s solicitors[38]. The Tribunal refused the request because it did not consider that clause 866.222 was relevant to the proceedings as the issue before it was whether the applicant satisfied s.36(2) of the Migration Act (and clause 886.221 of the Regulations)[39].
[36] Plaintiff S297-2013 v Minister for Immigration (2014) 309 ALR 209; (2015) 316 ALR 161
[37] CB 257-258
[38] CB 259- 280
[39] CB 281; CB 315, [136]-[137]
The Tribunal’s decision
In its decision, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa[40]. Essentially, the Tribunal found on the basis of the inconsistencies and omissions it identified in the applicant’s evidence that he had fabricated the majority of his claims for protection and was not a witness of truth[41]. The Tribunal considered, but did not accept, the applicant’s explanations for the identified deficiencies in his evidence[42].
[40] CB 286-352
[41] CB 313-317, [142]; CB 320, [153]; CB 325, [178]
[42] CB 317-325, [144]-[177]
On the basis of the identified concerns with the credibility of the applicant’s evidence, the Tribunal did not accept his account of why his family left Sri Lanka for India in 1990 or why he left India for Australia in June 2012. In particular, it did not accept as credible the applicant’s claims that:
a)his father supported the LTTE[43];
b)the applicant would be targeted by governmental or paramilitary groups because of his father[44];
c)the applicant was interrogated by security forces in India[45];
d)his family’s property was confiscated by the SLA[46]; or
e)his aunt or cousins were harassed by the authorities[47].
[43] CB 322, [164]
[44] CB 310-321, [157]
[45] CB 324, [171]
[46] CB 324-325, [172]-[178]
[47] CB 326, [183]
Accordingly, the Tribunal did not accept that the applicant would be suspected as an LTTE supporter or would otherwise face serious or significant harm for the reasons that he claimed[48].
[48] CB 326-327, [180]-[186]; CB 331-332, [202]-[206]
On the basis of its assessment of country information about the situation in Sri Lanka and his likely treatment on return, the Tribunal also did not accept that the applicant would face any serious or significant harm for reasons of his Tamil ethnicity[49], his status as a failed asylum seeker[50] or because he had departed Sri Lanka and/or India illegally[51].
[49] CB 327, [186]-[188]
[50] CB 328, [189]-[190]; CB 331, [200]
[51] CB 326, [184]; CB 328-330, [191]-[196]; CB 331, [201]
Essentially on the basis of the adverse view that it formed of the applicant’s credibility and its assessment of relevant country information, the Tribunal also provided reasons for finding that the applicant did not meet the complementary protection criterion[52].
[52] CB 330-332, [198]-[206]
For these reasons, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under s.36(2) of the Migration Act and it affirmed the decision under review[53].
[53] CB 333, [207]-[210]
The present proceedings
These proceedings began with a show cause application filed on 20 August 2014. An amended application was filed on 27 November 2014. The applicant now relies upon a further amended application filed in court by leave on 14 May 2015. There are three particularised grounds in that application:
GROUND ONE:
That the Tribunal made a finding so unreasonable and/or illogical that no reasonable person would have made it.
Particulars
By holding at paragraph [151] of the decision that the Tribunal “would expect an applicant with his set of particular claims to have identified something more substantial than being a refugee in India for 22 years, not being able to get Indian citizenship or wanting a better life for him and his children” despite the biodata interview only requesting a one sentence answer, the Tribunal made a finding so unreasonable and/or illogical that no reasonable person would have made it.
GROUND TWO:
That the Tribunal erred in failing to apply the reasoning of WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 – namely that having found that the Applicant would be processed at the airport, questioned, and being held on remand for a few days, the Tribunal failed to find that this would amount to serious harm under section 91R(2) of the Migration Act.
GROUND THREE:
The Tribunal misconstrued or misapplied ss.5 and 36(2A) of the Act.
Particulars
a. The Tribunal found that the applicant will be imprisoned upon his return to Sri Lanka;
b. The Tribunal found that prison conditions in Sri Lanka “are cramped, uncomfortable and unpleasant”.
[c]. The Tribunal erred in holding that poor prison conditions involving inadequate resources and overcrowding to not appear to give rise to significant harm under Australian law.
The applicant only presses the first ground in the further amended application.
During oral submissions, I raised a further issue concerning the Tribunal’s examination of the applicant’s claim based on his status as a returnee. I asked the parties whether the Tribunal considered the application of Sri Lankan laws to individuals who committed offences when they were children, noting that the applicant claimed to have left Sri Lanka illegally with his parents when he was four years old. I gave the parties the opportunity to make post hearing submissions on that issue as well as the first ground in the further amended application in light of oral argument about it.
I have before me as evidence the court book filed on 15 September 2014.
Consideration
The applicant’s contentions
In dealing with the applicant's evidence of LTTE involvement through a family member, the Tribunal made adverse credibility findings against the applicant which were ultimately fatal to his claims.
This turned on the Tribunal's rejection of the applicant's assertions regarding concern about being arrested and otherwise the brevity of the biodata forms.
Critically, the Tribunal outlined six propositions as to why the Tribunal ultimately concluded, at [153], that the “inconsistent evidence, implausible evidence, development of his claims an failure to provide significant claims at an earlier opportunity leads the Tribunal to find that the applicant has fabricated his claims for protection.”[54]
[54] CB 320
This ground concerns the “fifth” of these reasons, as stated at [151] of the decision:
Fifth, while the Tribunal accepts that the biodata interview indicates that an applicant should provide one sentence as to the reason for seeking protection, it would expect an applicant with his set of particular claims to have identified something more substantial than being a refugee in India for 22 years, not being able to get Indian citizenship or wanting a better life for him and his children.
The applicant submits[55]:
a)the applicant was unrepresented at the time of the biodata interview;
b)the applicant did not know that his claim would be assessed against Sri Lanka as opposed to India, where he had lived since the age of four;
c)there were significant limitations in terms of space and time in which the answer could be provided;
d)the biodata interview was predicated on the understanding that the applicant would be provided further opportunities to give detailed evidence;
e)in holding that the applicant's answers were not substantial despite those limitations imposed upon him, the Tribunal made a finding so illogical and/or unreasonable that no reasonable person would have made it.
[55] CB 245
Jurisdictional error is established if the process by which the decision maker assessed the claims failed to have regard to the actual nature of the legal inquiry it was required to undertake[56].
[56] Minister for Immigration v Yusuf (2001) 206 CLR 323 at [82]
A person whose interests may be adversely affected must receive a fair hearing by the use of an appropriate procedure in the circumstances[57]. In SZBEL v Minister for Immigration the Court said:
‘[W]hat is required by procedural fairness is a fair hearing, not a fair outcome’. As Brennan J said, in Attorney-General (NSW) v Quin [(1990) 170 CLR 1 at 35-36]:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or .error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.
[57] SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63 at 160 [25] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ
The Courts have declined to be prescriptive as to the procedures a decision-maker must employ in order to provide procedural fairness in any particular case. This is because what will be both sufficient and necessary to ensure a fair hearing will depend on, and vary with, the context in which the decision-maker acts, including any statutory or regulatory requirements or considerations[58].
[58] SZBEL at 160-161 [26], [29]: see too Saeed v Minister for Immigration (2010) 241 CLR 252; [2010] HCA 23 at 261 [19]-[20] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ
In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd[59], the Full Federal Court said:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
[59] (1994) 49 FCR 576
The applicant submits that the way the Tribunal dealt with the evidence before it was unreasonable and led the Tribunal to assess the applicant's credibility adversely. In part because the applicant was not put on notice as to the concerns about the material, the Tribunal has accepted a diagnosis and yet rejected the symptoms associated with the diagnosis.
The applicant relies on the decision of Logan J in SZRHL v Minister for Immigration[60] as authority for the proposition that considering evidence in an unreasonable manner can amount to jurisdictional error.
[60] [2013] FCA 1093
Guidance on how to interpret Minister for Immigration v Li[61] and the concept of legal unreasonableness was provided by the Full Federal Court in Minister for Immigration v Singh[62] where their Honours Allsop CJ, Robertson and Mortimer JJ stated at [44]-[48]:
In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court's supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: 297 ALR 225; [2013] HCA 18 at [27]- [28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225; [2013] HCA 18 at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li 297 ALR 225; [2013] HCA 18 at [105]):
“It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT [1969] HCA 5; (1969) 119 CLR 365 at 383-384; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221 [47].
In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law. This was the position in, for example, Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353: see at 359-360. Where there are reasons, and especially where a discretion is being reviewed, the court is able to follow the reasoning process of the decision-maker through and identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable.
There is then the question whether in assessing a contention of legal reasonableness, the court on review is confined to the reasons given by the decision-maker, where there are reasons. Certainly in Li the approach taken by the High Court was to examine the reasons, and justification, given by the Tribunal. In the present appeal, some of the justifications put forward by the Minister for the Tribunal's refusal of the adjournment were not matters mentioned by the Tribunal in its reasons, such as the submission that the first respondent could have sat the IELTS tests up to two years before his visa application, the use by the first respondent of the word “hope” in his letter asking for an adjournment, the absence of reasons advanced by the first respondent as to why the first mark for his 1 December 2012 test was incorrect, the inferences that might be drawn from the first respondent's failure to obtain the requisite marks in several previous tests and the absence of factors outside the first respondent's control (by comparison with the facts in Li). None of these matters was relied on by the Tribunal in its reasons.
This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power - at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King [1936] HCA 40; (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.
The standard of legal reasonableness will apply across a range of statutory powers, but the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case. As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be fact dependent. That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as “intelligible justification” must involve scrutiny of the factual circumstances in which the power comes to be exercised. (emphasis added)
[61] (2013) 249 CLR 332 (Li)
[62] [2014] FCAFC 1
The applicant draws an analogy between the issues in this case and the case of SZRHL v Minister for Immigration[63]. In that case the Tribunal found that the factual basis upon which the applicant advanced his protection visa claims was not credible. The fact that the applicant in that case had failed to mention a false case in his protection visa application was counted against his credit by the Tribunal. Logan J considered whether this was a peripheral issue for the Tribunal when considering the applicant's claims, or if it was a central issue determining the case. His Honour stated at [34]:
... “the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man's credibility by reference, materially, to a false factual premise”. That is this case. The process of reasoning that led to the damning of the first appellant's credibility by the Tribunal was premised upon the basis that a reference to a “false case” laid against him in the courts of Bangladesh had only emerged belatedly, as opposed to when the visa application was made. That premise was not peripheral.
[63] [2013] FCA 1093
The applicant accepts that credibility is usually an issue par excellence for the decision maker. However, in certain cases, assessment of credibility can amount to jurisdictional error[64], there is a non-linear nature to the way credibility is assessed, and therefore such errors can result in the applicant being deprived of a fair opportunity of presenting his case, and of correcting an erroneous and unfavourable factual assumption relevant to credibility.
[64] see Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 88-89. As explained in VAAD v Minister for Immigration [2005] FCAFC 117 at [79]
In SZRHL, Logan J stated at [36]:
... it was procedurally unfair to the first appellant for the Tribunal, when questioning him in the course of the hearing, to have put to him that he had failed to mention a “false case” in the statement in the statutory declaration which accompanied the protection visa application but to have failed to mention to him that he had mentioned that matter in the application itself. The answers which the first appellant came to make at the hearing to questions proceeding from this false premise in turn formed part of the reasoning that led to a conclusion that the first appellant was not credible.
In the present matter, the applicant submits that an applicant who:
a)had not lived in Sri Lanka since a young age and who had lived in India since then;
b)was unrepresented;
c)had limitations placed upon his capacity to answer
could not be expected to answer the questions in a more substantial manner.
The difficulties inherent in this field of jurisdictional error were addressed by the High Court in Minister for Immigration v SZMDS, in particular at [113]-[131] per Crennan and Bell JJ. At [124] their Honours said:
More recently it has been suggested that statutory tribunals must not only act reasonably as intended by the legislature, they must also act rationally. If rationality is a separate freestanding common law standard for good administrative decision-making it seems at least related to the implied standard of reasonableness following the articulation by Lord Greene MR of what has come to be known as “Wednesbury unreasonableness”. It appears closely allied also to the requirement in Avon Downs that extraneous reasons should not be taken into consideration but relevant considerations must be. It appears to be allied as well to the principle that fact finding must be based on probative material, one correlative of which is that a decision based on no evidence displays jurisdictional error. Accepting rationality, as a freestanding common law requirement in decision-making, with the consequence that irrationality may attract judicial review, is complicated by three considerations. First, describing reasoning as “illogical or unreasonable, or irrational” may merely be an emphatic way of expressing disagreement with it, and to describe a conclusion that a decision maker is not satisfied as “irrational” might mean no more than that, on the material before the decision maker, the court would have reached the required state of satisfaction.
Their Honours continued at [129]-[130]:
It can be acknowledged that the contemporary invocation of “illogicality” or “irrationality” as a basis for judicial review may well have first emerged in Australia, as intimated by Gleeson CJ in S20, as a reaction to the ouster of the review ground of “Wednesbury unreasonableness” in immigration law. Equally it may be that the development of “irrationality” as a basis for judicial review in England grew out of dissatisfaction with the inherent circularity of the Wednesbury test and the implicit suggestion in Wednesbury that there were degrees or grades of unreasonableness. Be that as it may, accepting that an allegation of “illogicality” or “irrationality” must mean something other than emphatic disagreement as explained above by reference to Eshetu and S20, and also accepting that a demonstration of bona fides will not save an illogical or irrational decision or finding on a jurisdictional fact as stated in SGLB, how do “illogicality” and “irrationality” fit with the clearly related body of law concerned with error, particularly jurisdictional error, in respect of reasoning which is “clearly unjust” “arbitrary” “capricious” or “Wednesbury unreasonable”? (footnotes omitted)
In the context of the Tribunal's decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
The Minister’s contentions
Ground 1 of the applicant’s further amended application alleges that, at [151] of the Tribunal’s decision, “the Tribunal made a finding so unreasonable and/or illogical that no reasonable person would have made it”. The finding was as follows:
Fifth, while the Tribunal accepts that the Biodata interview indicates that an applicant should provide one sentence as to the reason for seeking protection, it would expect an applicant with his set of particular claims to have identified something more substantial than being a refugee in India for 22 years, not being able to get Indian citizenship or wanting a better life for him and his children. The applicant has claimed that his family was driven out of Sri Lanka because his father was supporting the LTTE, they secured their passage because of his father’s connections to the LTTE, his uncle had been abducted and disappeared by the security forces, his cousins were detained and tortured in a notorious prison camp because they did not know the whereabouts of the applicant’s father, his family’s properties had been confiscated and sold to others, he had been interrogated by Indian security and suspected of having links to the LTTE and this information may have been passed to the Sri Lankan authorities, the authorities would not have forgotten his father’s name, or that he feared abduction or being held as a hostage by paramilitary groups associated with the government.
The applicant made oral and written submissions explaining this ground of review. Essentially, he contends that it was unreasonable for the Tribunal to make this finding in circumstances where:
a)the applicant had time limitations placed on his capacity to answer;
b)the applicant was directed to answer question 20 and 21 in the biodata questionnaire with “1 sentence”; and
c)the applicant had not yet been granted permission by the Minister to make an application for a protection (Class XA) visa.
The context of the Tribunal’s finding
The finding made by the Tribunal at [151] of its decision must be considered in the context of the Tribunal’s overall credibility findings.
At [142][65], the Tribunal did not accept the applicant’s account of what happened to him and his family in Sri Lanka and the reasons why he left India in June 2012. The Tribunal expressly considered the claims and submissions that the applicant advanced to explain the Tribunal’s concerns about his credibility and the credibility of his claims. The matters advanced by the applicant included:
a)inadequacies in the Minister’s Department’s interviewing process which focussed on the collection of biodata information rather than the claims for protection, and
b)the applicant feared disclosing his father’s LTTE association because he would be sent to a higher security detention centre.
[65] CB 316-317
At [142][66], the Tribunal was not persuaded that the applicant’s inconsistent evidence, failure to provide significant claims at an earlier opportunity and the development of his claims over the course of the application occurred for the reasons advanced by the applicant and his representative. Instead, it found that the applicant had fabricated his claims for protection and his fears of returning to Sri Lanka and that he was not a witness of truth. The Tribunal set out in detail[67] the reasons why it was not persuaded by the applicant’s various explanations.
[66] CB 317
[67] at CB 318-320, [145]-[153]
At [143] of its decision[68], the Tribunal expressed its concern about the manner in which the applicant had developed his claims over the course of his application for protection. Also at [143], the Tribunal outlined the chronological development and increasing level of detail of the applicant’s claims as his application progressed. This commenced with the applicant’s biodata interview when he first arrived, his entry interview conducted two months later, his written statement prepared four months after his arrival, his delegate’s interview, representative’s submission and Tribunal hearing.
[68] CB 317
At [144][69], the Tribunal considered the applicant’s explanations for not referring “to any of his claims at the time of the biodata interview and few in the entry interview”. These explanations included the applicant’s decision to not disclose his family’s involvement with the LTTE because, amongst other things, he feared he would be questioned further, this would reveal his father’s support of the LTTE and the applicant might be moved to a higher security detention centre.
[69] CB 317
Also at [144], the Tribunal expressly considered the submission from the applicant’s representative that the biodata interview was “quite brief” and only allowed for a short amount of information to be disclosed outlining the reasons for seeking protection. It also considered the submissions about the limitations of the entry interview.
At [145][70], the Tribunal rejected the applicant’s explanation for the development of his claims and outlined[71] six reasons for not accepting the applicant’s explanation. These reasons relate to the credibility of the applicant’s evidence, including inconsistent evidence given in support of his claims. The fifth reason is given by the Tribunal at [151][72], which the applicant now contends is unreasonable and/or illogical.
[70] CB 318
[71] at [145]-[153] inclusive
[72] CB 319
The Tribunal then made the following adverse credibility finding at [153][73]:
The inconsistent evidence, implausible evidence, development of his claims and failure to provide significant claims at an early opportunity leads the Tribunal to find that the applicant has fabricated his claims for protection relating to claimed events in Sri Lanka and India solely to enhance his application for the visa.
[73] CB 320
The Tribunal’s finding is “not unreasonable or illogical”
The Minister submits that:
a)it is not permissible, as the applicant seeks to do in ground one, to attack under the rubric of illogicality or unreasonableness particular factual findings made by the Tribunal or to suggest (as the applicant does in his written submissions, particularly at [26]) that the evidence suggested that different factual findings should have been made. What the applicant must demonstrate as illogical or unreasonable is the state of satisfaction reached by the Tribunal under s.65 of the Migration Act;
b)“Wednesbury unreasonableness” applies only to determining the validity of discretionary decisions rather than the fact finding leading to those decisions. The fact finding itself can only be impugned where the factual determination is “illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds”[74]. The test for illogicality or irrationality is to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based[75];
c)in other words, illogicality or irrationality sufficient to give rise to jurisdictional error must mean that the “decision” to which the Tribunal came (that is, in relation to the state of satisfaction required under s.65) is “one at which no rational or logical decision maker could arrive on the same evidence[76]. To establish jurisdictional error on this basis, the applicant would therefore have to establish that no reasonable decision-maker could have arrived at the Tribunal’s decision to refuse to grant him a protection visa on the same evidence that was before the Tribunal[77];
d)accordingly, even if the Tribunal’s articulation of how and why it went from the facts to the decision is not rational or logical, if another decision-maker could have done so on the evidence, the Court will not set aside the decision[78]. On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal[79]; and
e)in determining whether the applicant was a person in respect of whom Australia owed protection obligations, the Tribunal correctly turned its mind to the credibility of the applicant’s claims. It is well established[80] that the Tribunal is not required to accept an applicant’s claims at face value and that the weight to be given to his claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function.
[74] SZOOR v Minister for Immigration (2012) 202 FCR 1 at [83]
[75] Minister for Immigration v SZMDS & Anor (2010) 240 CLR 611 per Crennan and Bell JJ at [131]; see also at [78] where Heydon J characterised the issue before the Court as one on which “minds might differ”
[76] Minister for Immigration v SZMDS & Anor op. cit., at [130]
[77] Minister for Immigration v SZMDS & Anor op. cit., at [130]-[131]
[78] SZOOR v Minister for Immigration & Anor op. cit., at [15]
[79] Minister for Immigration v SZMDS & Anor op. cit., at [135]
[80] see Minister for Immigration v Wu Shan Liang & Ors (1996) 185 CLR 259 at [281] to [282]
The Minister notes that the Tribunal expressly considered the applicant’s explanation for developing his claims in the way that he did[81]. It also specifically acknowledged that the applicant was limited to providing “one sentence as to the reason for seeking protection” in the biodata interview[82]. It was, however, open to the Tribunal to identify and have regard to a concern about the applicant’s failure to mention at this earlier point in time what it regarded as significant aspects of his subsequent claims[83].
[81] see [144] at CB 317; [134] at CB 307-308
[82] [151] CB 319
[83] SZQOF v Minister For Immigration & Anor [2012] FMCA 261 at [50]
Credibility findings are a matter for the Tribunal par excellence[84]. While adverse credibility conclusions are matters upon which reasonable minds can differ, there is a rational and logical basis to the Tribunal’s reasoning in this case that the applicant’s claims were not credible[85].
[84] Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1 at [67] per McHugh J
[85] SZUFV & Anor v Minister for Immigration & Anor [2015] FCCA 564 at [66]
The Minister contends that the specific factors relied upon by the applicant in these proceedings (outlined at [6] above) fail to establish the claims of unreasonableness or illogicality.
The applicant’s contention that he had time limitations placed on his capacity to provide answers in the biodata interview repeats the substance of his response to the Tribunal’s s.424A letter addressing this issue[86]. His s.424A response extensively outlined the alleged time and other limitations associated with conducting a biodata interview. It also inferred[87] that the biodata interview was confined to 20 minutes.
[86] CB 245-255
[87] presumably from the start and finish times recorded at CB 1
In his s.424A response, the contention of the applicant’s representative that each question had on average the same amount of time and that the applicant had “approximately one minute” to complete question 21 was based on a stated assumption[88]. (The reliability of this assumption can be questioned by the existence of an untranslated biodata form that was completed with the applicant and an interpreter[89], as well as a translated version[90] of the same document.) In any event, these contentions were plainly considered by the Tribunal, as were the balance of the applicant’s contentions as outlined at [21] and [32] of his written submissions[91].
[88] see: CB 245, [7]
[89] CB 7-12
[90] CB 1-6
[91] see: CB 307-308; CB 317, [144]
In the Minister’s submission, it was critical that the Tribunal had regard to the various explanations that the applicant provided to explain why he did not mention at an earlier stage (or include in his biodata interview) more of the substantial claims that he made later in the protection visa application process. The applicant’s evidence to the Tribunal was that he also did not mention such claims earlier because[92]:
a)he was hindered by language difficulties;
b)he did not appreciate the importance of particular events until after discussions with his representative;
c)he decided not to disclose his family’s involvement with the LTTE as he feared he would be moved to a higher security detention centre; and
d)he only found out about his family’s history after contacting them after the entry interview.
[92] CB 316-317, [142], [144]
The Minister submits that it is difficult to see how the applicant’s various explanations can sit comfortably with each other. For example, the claimed time or space constraints in the biodata form, the absence of legal representation when the biodata interview was conducted, the applicant’s uncertainty about which country his claims would be assessed against or his expectation that he would elaborate on his claims at a later time cannot easily be reconciled with his explanation that he consciously decided not to disclose certain claims at the interview and only discovered important aspects of his family’s history after the entry interview was conducted. It is not surprising, therefore, that the Tribunal was not persuaded by the various excuses and reasons advanced by the applicant.
The Minister further submits that:
a)in making its adverse credibility findings, the Tribunal expressly acknowledged and accepted at [151][93] that the applicant was directed in his biodata interview to provide one sentence as to the reasons for seeking protection. The Tribunal acknowledged and considered the constraints and limitations associated with the conduct of the biodata and entry interviews[94]. It was entitled, as the sole arbiter of the facts and evidence, to assess the content of the applicant’s claims provided at various junctures over a period of time and to then make a qualitative assessment about the applicant’s overall credibility based, amongst other things, on the manner in which he had presented his claims;
b)the applicant was confronted squarely and comprehensively with the Tribunal’s concerns about why he had not provided information about significant claims at an earlier opportunity. This was a persistent concern for the Tribunal[95]. In addition, the Tribunal sent the applicant a s.424A letter and plainly confronted him with the specific concern about his limited response in the biodata interview[96], gave him an opportunity to respond[97] and considered his response[98]. Accordingly, there is no proper basis for the applicant’s assertion (at [26] of his written submissions) that the Tribunal did not put the applicant on notice of the concerns it had with this material; and
c)having particular regard to the various reasons that the applicant advanced to explain why he presented his claims in the manner that he did, it is of no consequence that at the time the biodata interview was conducted, the bar under s.46A of the Migration Act had not been lifted to permit him to lodge an application for a protection (Class XA) visa. Questions 20 and 21 of the biodata interview were squarely directed to establishing whether the applicant sought to engage Australia’s protection obligations and on what basis such protection was sought. It was not unreasonable or illogical for the Tribunal to assess the development of the applicant’s claims over time for the purposes of assessing his credibility. It was neither unreasonable nor illogical for the Tribunal, in assessing the credibility of the applicant’s claims, to make the finding that it would have expected him to identify at an earlier opportunity something more substantial regarding his ultimate and very extensive range of protection claims when asked the questions: “Are you seeking Australia’s protection?” and “Why?”.
[93] CB 319
[94] see [142], [144], [151]
[95] see [98], [103], [105], [106], [107], [110]-[116]
[96] CB 227
[97] CB 244-246
[98] CB 307-308, 317
In addition, the applicant’s reliance[99] on SZRHL is said to be misconceived. That case held that the Tribunal’s process of reasoning that led to the adverse assessment of the applicant’s credibility was premised upon a central false factual premise[100]. That is said to be “plainly not this case”.
[99] at [26]-[27], [29], [31] of his submissions
[100] SZRHL, particularly at [34]-[36]
In Li, French CJ[101] made clear that Wednesbury unreasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is traditionally open to the decision-maker. The plurality in Li (Hayne, Kiefel and Bell JJ) emphasised[102] that unreasonableness was not confined to an irrational or bizarre decision, or one so unreasonable that no sensible decision-maker would have made it, but rather, a decision would be vitiated by legal unreasonableness where it “lacks an evident and intelligible justification”. In the present case, the Minister submits that the Tribunal’s findings were open to it on the evidence before it and the finding at [151] did not “lack an evident and intelligible justification” when proper regard was had to the tasks to be performed in determining whether the applicant was a person in respect of whom Australia owed protection obligations under the Migration Act.
[101] at [30]
[102] at [76]
Consideration of the laws of general application in Sri Lanka
During the hearing, I asked the parties whether the Tribunal turned its mind to the applicant’s illegal departure from Sri Lanka as a child and how this affected its consideration of Sri Lanka’s laws relating to illegal departure.
The Minister submits as follows. At [191] of its decision[103], the Tribunal considered the applicant’s claims that he faced serious harm in Sri Lanka for departing Sri Lanka illegally as a child, he would be imprisoned for between one and five years and faced a substantial fine. The Tribunal noted that the applicant accepted at the hearing that he would not be prosecuted for his illegal departure as a child[104].
[103] CB 328
[104] CB 299, [104]; CB 328, [191]
The Tribunal also raised with the applicant at the hearing and found that it had been unable to locate any credible information that indicated children who accompanied their parents in an illegal departure from Sri Lanka were prosecuted or that there was any prospect of that occurring[105]. On that basis, the Tribunal did not accept that the applicant faced prosecution, imprisonment or a fine because he illegally departed Sri Lanka for India as a child.
[105] CB 304, [125]; CB 328-329, [191]
When considering the applicant’s claim that he would be returning to Sri Lanka as someone who entered Australia without a valid Sri Lankan passport, the Tribunal made the following key findings[106]:
The Tribunal is satisfied that the applicant travelled to India with his family as a child, departed India unlawfully for Australia by boat and without a passport and that the Sri Lankan authorities will have knowledge of this on his return to Sri Lanka. The Tribunal accepts that the applicant would be treated in the same manner as a person who had departed Sri Lanka directly by boat and travelled to Australia because he will be returning as a person without a passport and having entered Australia by boat. (emphasis added).
[106] at CB 329, [192]
Put simply, the Tribunal clearly acknowledged and accepted the distinguishing features of the applicant’s departure from Sri Lanka, but found that his treatment on his return to Sri Lanka was the same as other returnees who had entered Australia by boat and returned to Sri Lanka without a passport. That was a finding of fact said to be open to the Tribunal on the available materials.
The Tribunal proceeded to find[107] that the laws in relation to illegal departure were of general application and that all returnees were treated the same, regardless of race or ethnicity. Whether something amounts to a law of general application is a finding of fact for the decision-maker, based on the evidence[108].
[107] at CB 330, [194]
[108] Applicants in V722 of 2000 vMinister for Immigration [2002] FCA 1059 at [32]; SZRDWv Minister for Immigration [2012] FCA 1262 at [62]; (2012) 134 ALD 290; DZACW v Minister for Immigration & Anor [2013] FMCA 46 at [24]
Having considered the relevant country information, the Tribunal was not satisfied that the laws regarding unlawful departure were applied or enforced in a discriminatory way as they applied to all returnees who departed illegally or return without proper documentation[109].
[109] CB 330, [195]
Further, the Tribunal was not satisfied that the treatment faced by returnees amounted to serious harm or would give rise to a real chance of serious harm in the reasonably foreseeable future[110].
[110] CB 330, [195]
When read as a whole, [191]-[195] of the Tribunal’s decision record clearly indicates that the Tribunal considered:
a)the applicant’s claim that he would face serious harm for having departed Sri Lanka as a child[111];
b)the applicant’s claim that he would be returning to Sri Lanka after departing India unlawfully by boat and without a passport and as someone who entered Australia without a valid Sri Lankan passport[112]; and
c)the application of Sri Lanka’s laws regarding unlawful departure to returnees[113].
[111] [191]
[112] [192]
[113] [194]-[195]
Sri Lanka’s laws regarding illegal departure (the Immigrants and Emigrants Act 1945 (Immigrants and Emigrants Act)) were found by the Tribunal to be laws of “general application” that would not be applied in a discriminatory way for a Convention reason. The Tribunal found that the laws applied to “all returnees who departed illegally or returned without proper documentation”[114].
[114] CB 330, [195]
It is clear that this finding applied to the applicant, who departed Sri Lanka illegally as a child and would be returning without a valid Sri Lankan passport.
The Minister contends that, having found that Sri Lanka’s laws were of “general application”, any harm that the applicant might suffer as a result of such application is not “persecution for one or more [Convention] reasons” and the applicant cannot satisfy the threshold requirement in s.91R(1)(c) of the Migration Act[115]. Accordingly, the Tribunal was correct in finding that the applicant did not satisfy the criterion set out in s.36(2)(a) of the Migration Act.
[115] SZTFS v Minister for Immigration & Anor [2015] FCCA 100 at [31], citing SZTBW v Minister for Immigration [2014] FCA 1277 per Perry J at [20]
Resolution
I prefer the submissions of the applicant on the issue of unreasonableness. There is no doubt that the Tribunal’s decision turned on its adverse credibility conclusions. There is also no doubt that those adverse credibility conclusions turned critically on the Tribunal’s view on the way in which the applicant developed his claims over time. Further, a critical element of that concern was the failure by the applicant to identify his protection claims in the bio data interview on 28 June 2012. The Tribunal properly drew its concerns to the applicant’s attention and invited comment, pursuant to s.424A of the Migration Act. The Tribunal details those concerns and the applicant’s response at [133]-[135] of its reasons[116].
[116] CB 306-315
There can be no doubt that the Tribunal was fully apprised of the issues concerning the bio data interview. In its findings and reasons at [141][117] the Tribunal accepted that the applicant is a Tamil from Jaffna born there in 1986 and that he left for India in August 1990 with his parents and sister. The Tribunal accepted that the applicant resided in India thereafter until he left by boat for Australia in June 2012. However, the Tribunal rejected on credibility grounds the applicant’s protection claims as they were developed before it. At [143][118] the Tribunal recounted the information provided by the applicant at his biodata interview and later. At [144] the Tribunal stated[119]:
The Tribunal has considered the applicant’s evidence that he decided not to disclose his family’s involvement with the LTTE because he was aware it was considered to be a terrorist organisation, involvement with the LTTE could potentially lead to arrest and detention, his father did not tell him about his father’s political ideology or clandestine support for the LTTE after they went in India. The Tribunal has considered the applicant’s evidence that he was afraid that if he disclosed this to the Australian authorities, he may be moved to a higher security detention centre. The Tribunal has considered the applicant’s claim that he did not refer to any of his claims at the time of the biodata interview and few in the entry interview because he was concerned they would question him further which would reveal his father’s support for the LTTE. The Tribunal has considered the representative’s submission that the biodata interview is quite brief and only allows for a short amount of information as to the process without legal representation with the understanding that the applicant will have further opportunities and is focused on obtaining by information about travel, employment, education and family history with only one question relating to reasons for departure from home country or claims for protection.
[117] CB 316
[118] CB 317
[119] CB 317
The Tribunal continued at [145][120]:
The Tribunal does not accept these explanations for the following reasons. First, the claims relating to the applicant’s father’s support for the LTTE in India and reasons for the family’s departure from India first appeared in the statutory declaration, declared on 9 November 2012, which indicates it was declared in Sydney where the applicant was residing and not within the confines of a detention centre. Despite this, there is no reference in that statement to the reasons for the applicant’s failure to having mentioned almost all his claims for protection in the biodata interview or entry interview, including his more recent explanation that he was afraid that he would be put in a high security detention centre or that after the entry interview he realised that he knew very little about what happened to his family in Sri Lanka and ha dot contact them to find out more.
[120] CB 318
The Tribunal returned to the issue of the bio data interview at [151] where it stated[121]:
Fifth, while the Tribunal accepts that the biodata interview indicates that an applicant should provide one sentence as to the reason for seeking protection, it would expect an applicant with his set of particular claims to have identified something more substantial than being a refugee in India for 22 years, not being able to get Indian citizenship or wanting a better life for him and his children. The applicant has claimed that his family was driven out of Sri Lanka because his father was supporting the LTTE, they secured their passage because of his father’s connections to the LTTE, his uncle had been abducted and disappeared by the security forces, his cousins were detained and tortured in a notorious prison camp because they did not know the whereabouts of the applicant’s father, his family’s properties had been confiscated and sold to others, he had been interrogated by Indian security and suspected of having links to the LTTE and this information may have been passed to the Sri Lankan authorities, the authorities would not have forgotten his father’s name, or that he feared abduction or being held as a hostage by paramilitary groups associated with the government.
[121] CB 319
The Tribunal offered no explanation of how the applicant could have developed his claims more substantially at the bio data interview in a single sentence. Neither did the Tribunal make any allowance for the fact that the applicant had just arrived on a long sea voyage from India, where he had lived almost his entire life, and perfectly reasonably, had addressed the question on the basis of why he had left India. It is true that the Tribunal was also concerned about the way in which the applicant’s claims developed over time, both before the delegate and before it but, in my opinion, the issue of the bio data interview was a foundational element of the Tribunal’s adverse credibility conclusions and its reasoning in relation to it was inexplicable, apart from its other credibility concerns, which stemmed from the later development of the applicant’s claims.
In my opinion, on any view of the issue of legal unreasonableness, the Tribunal’s treatment of the bio data interview issue was objectively unreasonable. The Tribunal made no allowance for the circumstances in which the interview took place. The Tribunal made no allowance for the fact that the applicant plainly and reasonably interpreted the question as calling for an explanation of why he had left India. That was of course not relevant to the question of why he was seeking protection from Sri Lanka. Whether or not the applicant only had 60 seconds to provide an answer to the question, the time available was brief and the applicant was limited to a single sentence answer to the question.
Further, the Tribunal made no allowance for the fact that the bio data interview was not an opportunity for the applicant to make claims in relation to a protection visa (or any other class of visa) because the applicant, being a UMA, was unable to apply for any visa without the express permission of the Minister. It was, in my opinion, only when the applicant was given the opportunity to apply for a visa that he could be expected to provide a comprehensive statement of his claims in relation to that visa. Consistently with the decision of the Federal Court in SZRHL the Tribunal proceeded from a factual premise which was either objectively false or at least supported by no evidence and which was inexplicable: namely, that the applicant had an opportunity in the biodata interview to detail his protection claims. It strengthens, rather than detracts from that conclusion, that the falsity of the premise was expressly pointed out to the Tribunal.
I conclude that the Tribunal’s decision on credibility is vitiated by legal unreasonableness because of its treatment of the bio data interview issue. The applicant should receive the relief he seeks.
As to the irregular departure issue which I raised at the hearing before me, it suffices to say that the Tribunal’s decision appears to be either internally inconsistent or inconsistent with other Tribunal decisions. The Tribunal properly and reasonably found at [104][122] and [191][123] that the applicant would not be prosecuted for his illegal departure from Sri Lanka as a child of four years of age in the company of his parents. Nevertheless, at [192][124] the Tribunal accepted that the applicant would be treated in the same manner on return to Sri Lanka as a person who had departed Sri Lanka directly by boat and travelled to Australia because he would be returning as a person without a passport and having entered Australia by boat. The reasoning on that issue in other cases before the Tribunal has focused on illegal departure from Sri Lanka as involving a breach of the Immigrants and Emigrants Act. If the Tribunal was in this case reasoning that the applicant would be subjected to the Sri Lankan criminal law of general application on return because of his illegal departure, that was directly inconsistent with the finding that he would not be prosecuted because he left as a child. If, on the other hand, the Tribunal was reasoning that the law of general application applied not by reference to illegal departure from Sri Lanka but, rather, on return to Sri Lanka from Australia without a passport (but presumably with some form of travel documentation supplied by Australia) then the reasoning would be inconsistent with the reasoning in other Tribunal decisions dealing with the same issue.
[122] CB 299
[123] CB 328
[124] CB 329
In view of my conclusions concerning the Tribunal’s adverse credibility findings, it is unnecessary to make a finding on whether this aspect of the Tribunal’s reasoning discloses jurisdictional error. It is sufficient to say that the issue of the application of the criminal law of Sri Lanka to the applicant should he return there merits further consideration by the Tribunal.
Conclusion
The applicant has established that the decision of the Tribunal is vitiated by jurisdictional error. I will order that he receive relief in the form of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 26 June 2015
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