SZWAY v Minister for Immigration
[2017] FCCA 1814
•4 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWAY v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1814 |
| Catchwords: MIGRATION – Application for review of the former Refugee Review Tribunal – whether the Tribunal’s credibility findings were based on a false factual premise or were not grounded upon probative material and logical grounds – whether applicant was put on notice that the Tribunal would depart from findings of the delegate – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.425, 476, 477 |
| Cases cited: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 |
| Applicant: | SZWAY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 227 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 6 March 2017 |
| Date of Last Submission: | 6 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Lonergan |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 30 January 2015, amended on 25 August 2015 and further amended on 6 March 2017 is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 227 of 2015
| SZWAY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The matter before the Court was originally an application for an extension of time made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) on 30 January 2015, amended on 25 August 2015, and further amended on 6 March 2017, seeking an extension of time within which to make a competent application to the Court pursuant to s.476 of the Act, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 24 December 2014 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection (Class XA) visa to the applicant.
On 6 March 2017, I made an order granting the extension of time. I did so on the basis that, first, the Minister did not oppose the extension of time and did not press any prejudice if the extension were to be granted. Second, there was a satisfactory explanation on the evidence for the very short period of delay (two days). Third, I was satisfied, at that time, that there was some arguable case in the proposed substantive application.
The evidence before the Court was as follows:
a)Affidavit of Gillian Hawkins, Legal Secretary, sworn on 25 August 2015, annexing a transcript (“T”) of the hearing before the Refugee Review Tribunal. (It should be noted that the heading of the transcript is in error, as it states, “Migration Review Tribunal”. It appears that the transcript is, nonetheless, a transcript of the hearing of the applicant before the Tribunal relevant to these proceedings.)
b)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
The applicant is a citizen of Sri Lanka of Tamil ethnicity and Hindu religion (CB 11). He entered Australia as an unauthorised maritime arrival in July 2012 and applied for a protection visa on 11 December 2012 (CB 1 to CB 80).
As part of his application for the visa, the applicant provided a written statement to the Minister’s department dated 3 December 2012 (“Statement”), the significance of which is revealed below (CB 59 to CB 62). The applicant was invited to, and attended an interview with the delegate on 10 September 2013 (CB 81 to CB 82). The delegate refused his application on 27 March 2014 (CB 88 to CB 123).
The applicant applied for review to the Tribunal on 1 April 2014 (CB 125 to CB 130). The applicant was invited to, and attended a hearing before the Tribunal on 17 December 2014 (CB 140 to CB 149). The Tribunal affirmed the decision on 24 December 2014 (CB 154 to CB 170).
The Application to the Court
The grounds of the applicant’s further amended application (for which leave was granted to the applicant to file in Court on 6 March 2017), are in the following terms:
“GROUND ONE
The Tribunal decision involved jurisdictional error because its credibility findings at [14], [15], [27] and [31] of the Tribunal's reasons were based on a false factual premise and/or were not grounded upon probative material and logical grounds: SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093.
Particulars
The Tribunal found at [12] and [14], that the applicant had not previously made mention of his brother holding a senior role with Black Tigers or that the Applicant had attended functions held by the Black Tigers.
However, such findings are incorrect given the findings expressed by the delegate based on the interview with the Applicant.
The findings by the Tribunal that the applicant failed to previously mention that his brother had been involved with the Black Tigers or that the Applicant had attended functions held by the Black Tigers were relied on as a reason to make an adverse finding of credit against the applicant.
The finding was also relied on at [12], [14] and [15] of the Tribunal decision to characterise the applicant's claims as having 'changed significantly' and being 'substantially different' to the claims which were previously advanced.
GROUND TWO
In basing the applicant's credibility on the factor noted at [14] of the Tribunal’s decision, the Tribunal departed from the delegate's finding without warning for the purposes of s425 of the Act and contrary to the requirements described by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152.
Particulars
The applicant was not put on notice that the finding of the delegate may be departed from or that any failure to mention the brother's involvement in the Black Tigers in the statement dated 3 December 2012 would be relied on for an adverse credibility assessment.
GROUND THREE
The Tribunal further departed from the delegate's finding without warning for the purposes of s425 of the Act and contrary to the requirements described by the High Court in SZBEL v Minister tor Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR I 52.
Particulars
The Tribunal found at [39] that the applicant's other two brothers did not serve in the LTTE.
Further, the Tribunal dismissed at [28] of the ‘entirety of the applicant's claims concerning his dealings with the CID,’ in particular, that he was shown a list with names on it.
Further, the Tribunal dismissed at [28] the applicant's evidence relating to his and his family's association with the Black Tigers, including that the applicant had attended at activities of the Black Tigers for a number of years.
The above findings were at odds with the delegate's acceptance of them based on the delegate's interview with the applicant. The Tribunal's view that the applicant had not previously provided information relating to the above matters was incorrect.”
[Errors in the original.]
The three grounds put forward by the applicant essentially stem from claims made by the applicant concerning the extent of his, and his three brothers’ involvement, with the Black Tigers and the Liberation Tigers of Tamil Eelam (“LTTE”). These claims were initially raised by the applicant in his Statement.
The applicant’s written submissions to the Court dated 27 February 2017, summarise the claims as they appeared in the applicant’s Statement as follows ([13] of the applicant’s written submissions):
“In the Statement, the applicant stated, inter alia:
a. One of the applicant’s brothers was killed by the Sri Lankan Army in 2000 while fighting with the Liberation Tamil Tigers of Eelam (LTTE);
b. Three brothers, including the one that was killed, served with the LTTE during the civil war in Sri Lanka;
c. After being released from the refugee camp and returning to his home village, the applicant was visited by the Criminal Investigation Department (CID) and asked questions about a photo of his brother dressed in LTTE military uniform; and
d. He had been subject to reporting conditions since been taken away by the CID.”
[Footnotes omitted.] [Errors in the original.]
In his written submissions, the applicant highlighted that the Statement was prefaced with the following note ([14] of the applicant’s written submissions and see [1] at CB 59):
“The following is only a summary of my claims for protection. It is not an exhaustive statement of the reason or reasons why I cannot return to my country of origin. I will provide further information in relation to my protection claims during my interview with the DIAC officer.”
The applicant submitted that, “consistent with the prefatory note in the Statement”, he then provided further information in relation to these claims at the interview with the delegate on 10 September 2013, and that this was reflected in the reasons and findings of the delegate ([16] of the applicant’s written submissions). Specifically, the applicant says his evidence, which was accepted by the delegate, was that ([17] of the applicant’s written submissions and see also CB 106.5, CB 109.6 and CB 109.9):
“a. The brother who had been killed was a member of the Black Tigers;
b. The applicant’s three brothers were members of the LTTE;
c. The applicant had attended a ceremony commemorating the Black Tigers every year.
d. The applicant’s family had links to the LTTE which, along with subsequent interest in the applicant, were the reasons for the CID refusing the applicant permission to travel outside of his local area and apply for a passport; and
e. The applicant had been shown a list of people by the CID and asked questions regarding his connection with these people.”
[Footnotes omitted.]
The applicant also submitted that the further information provided orally by the applicant to the delegate at the interview, and the findings of the delegate outlined above at [11] ([18] of the applicant’s written submissions):
“… assume significance when considering the reasons of the Tribunal in the Decision, particularly as they underpin the findings of credit and the rejection of much of the applicant’s evidence as to facts.”
Consideration
Ground one asserts that the Tribunal’s decision was based on a “false factual premise” and/or was “not grounded upon probative material and logical grounds”.
It is convenient, given the difference in emphasis between the applicant’s written and oral submissions before the Court, to deal separately with the “explanations” of the applicant’s ground one.
In written submissions, and drawing on what is actually stated in ground one, and the particulars to it, the complaint is as follows. The Tribunal fell into jurisdictional error because its adverse credibility findings at [14] (at CB 156 to CB 158) and [15] (at CB 158), were based on a “false factual premise” and/or were “not grounded upon probative material and logical grounds”.
The particulars assert that at [12] (at CB 156) and [14] (at CB 156 to CB 158) the Tribunal found that the applicant had not previously made mention of his brother holding a senior role in the Black Tigers, or that the applicant had attended functions held by the Black Tigers.
The assertion now is that the Tribunal relied on these findings to make an adverse credibility finding against the applicant. Further, the particulars assert that the Tribunal relied on these findings (as at [12] (at CB 156), [14] (at CB 156 to CB 158) and [15] (at CB 158)), to characterise the applicant’s claims as having “‘changed significantly and being ‘substantially different’ to the claims which were previously advanced” by him.
In this context, the applicant’s written submissions explain that the reasons of the delegate reveal that, at the interview with the delegate, the applicant provided information about his family’s association, and the applicant’s involvement, at functions relating to the Black Tigers.
I agree with the Minister that the applicant’s initial premise as to what the Tribunal is said to have found concerning the applicant’s involvement with the Black Tigers is not derived from a fair reading of the Tribunal’s decision record (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
Contrary to the applicant’s assertion now, the Tribunal did not find that the applicant had not previously raised the “Black Tiger” claim. Rather, the Tribunal’s analysis contains “layers” or “nuances” which the applicant does not now recognise.
The Tribunal’s finding as to the “substantial” differences in the applicant’s claims, were based on a specific comparison of the applicant’s claims in his initial application to the Minister’s department for the protection visa (in context, the applicant’s written Statement which accompanied the protection visa application, see CB 59 to CB 62), and his oral evidence to the Tribunal. Further, the Tribunal also found that the applicant’s claims had “substantially escalated during the application process” ([14] at CB 157).
The applicant’s Statement is dated 3 December 2012 (CB 62). It was submitted with his application for the protection visa on 11 December 2012. The application form also makes various specific references to “see attached statement” (see CB 36 to CB 39). The Statement was prepared at a time when the applicant was represented by a registered migration agent (CB 25), who also witnessed the applicant’s signature on the Statement (CB 62).
Relevantly, that Statement makes a number of assertions. One, that the applicant is a Tamil from an area previously controlled by the LTTE, and that the Sri Lankan authorities are suspicious of Tamils from that area ([8] – [9] at CB 59).
Two, that three of his brothers served with the LTTE, and one of them served voluntarily ([10] at CB 59 to CB 60).
Three, one of his brothers was killed while fighting for the LTTE, and the other two brothers were imprisoned by the Sri Lankan government after the civil war ([13] at CB 60).
Four, the applicant was subsequently confronted by the Sri Lankan Criminal Investigation Department (“CID”), who showed him a photograph of his brother in LTTE military uniform, and insisted that this was a photograph of the applicant. The applicant claimed he was detained, beaten and tortured and subsequently released ([16] - [18] at CB 60).
Five, in summary, the applicant claimed that he would be harmed on return to Sri Lanka by the Sri Lankan authorities because
([24] – [25] at CB 61):
“[24] The CID believe that I am a member of the LTTE because my family has a long association with the LTTE through three brothers who have served in the LTTE.
[25] I fear that the CID suspects that I might have been a supporter of the former LTTE because I am a Tamil from an area that was once controlled by the LTTE and my three of my brothers were members of the LTTE.”
[Errors in original.]
There is no mention in the Statement of the Black Tigers, or that the applicant or any of his brothers, were involved or associated with the Black Tigers.
The applicant’s claim to fear harm on return to Sri Lanka was said to arise because the Sri Lankan authorities believed he was a member of the LTTE, because of the activities of his three brothers. There is no claim by the applicant in his Statement, that he, himself, was actually a member of the LTTE.
The delegate’s decision record is in evidence before the Court (CB 98 to CB 123). The applicant was interviewed by the delegate. The delegate’s references to what occurred at the interview are found variously in that decision record. The following is of note for current purposes.
One, in his decision record, the delegate reproduced the applicant’s Statement which the delegate described as “the applicant’s detailed written claims” (CB 101.9 to CB 104.5).
Two, the delegate noted that at the interview, the applicant provided further details about his brothers’ membership to the LTTE. This included the applicant referring to his brother who had been killed, and claiming that that brother “had been a member of the ‘Black Tigers’, which he described as being ‘suicide fighters’” (CB 105.5).
Three, the delegate accepted that all of the applicant’s three brothers were members of the LTTE, and that one brother was a “Black Tiger” (CB 106.5).
Four, the delegate reported that at the interview, the applicant had said that he told the Sri Lankan authorities that the person shown in the photograph in the military uniform was his brother (CB 107.4).
Five, the delegate reported that the “applicant’s claims were somewhat inconsistent throughout the PV [protection visa] interview and his reasons for being questioned by the CID varied considerably” (CB 108.5).
In its decision record, the Tribunal made various references to what the applicant had told the delegate at the interview as follows.
One, the Tribunal noted that the applicant had provided a photograph of one of his brothers in uniform to the delegate. The Tribunal noted the applicant’s evidence that “he did refer to his brother’s involvement with the Black Tigers in his application” for the protection visa ([14](b) at CB 157.5).
The Tribunal accepted that the applicant provided this photograph of his brother in uniform to the delegate. However, the Tribunal also found that the applicant’s representative’s written submissions of 19 September 2013, which accompanied that photograph, referred to the brother being an active member of the LTTE. The written submissions did not refer to him as being a “Black Tiger”. Further, there was also no mention in those written submissions of the applicant being involved with the “Black Tigers” ([14](b) at CB 157.6).
Two, the Tribunal noted that the representative’s written submissions referred to the applicant’s brother wearing the LTTE uniform in the photograph, while the applicant’s evidence to the Tribunal was that it was a Black Tiger uniform ([14](b) at CB 157.7).
The representative’s written submissions to the delegate are reproduced at Court Book page 83. There is no reference in those submissions to the Black Tigers. The only references are to the LTTE. The Tribunal’s finding in relation to what was in the applicant’s representative’s written submissions, was therefore reasonably open to it on what was before it.
As set out above, there are two limbs to the Tribunal’s impugned findings.
First, the Tribunal compared the applicant’s written claims (including the Statement) for the protection visa and written submissions “throughout his application” ([14] at CB 156 to CB 158), to his oral evidence before the Tribunal. In relation to his brother’s claimed involvement with the Black Tigers, the Tribunal compared what the applicant said in oral evidence before the Tribunal, with the written Statement. There is nothing in the applicant’s written submissions in support of his protection visa application to say that either he, or his brother, were involved with the Black Tigers as he told the Tribunal at the hearing.
The Tribunal’s reference at [14] (at CB 157.1) to “the applicant made significant new claims for the first time in his evidence to the Tribunal” was, in context, a reference to the comparison between his written claims and submissions, and oral evidence before the Tribunal. This again was reasonably open to the Tribunal.
Second, the Tribunal’s reference to the applicant’s claims having “substantially escalated during the application process” is explained by what follows at [14] (at CB 157 to CB 158) and [15] – [16] (at CB 158).
In its analysis, the Tribunal did have regard to what the applicant told the delegate at the interview. The Tribunal reported in its decision record, that the applicant told it at the hearing, that he had told the delegate, that his brother was involved with the Black Tigers ([14](b) at CB 157.5). The Tribunal made specific reference to, and accepted, that the applicant’s brother was involved with the Black Tigers, as the applicant had stated to the delegate at the interview ([31] at CB 162 and see CB 108.7).
The relevant features of the Tribunal’s analysis in answer to the applicant’s ground one are as follows. First, that the Tribunal sought to compare the applicant’s initial Statement of his claims with his oral evidence to the Tribunal, and the Tribunal’s subsequent finding that there were “significant new claims” raised by the applicant at the hearing, was reasonably open to it as between those two events. This is in circumstances where no mention is made of the Black Tigers in the applicant’s Statement.
Second, while the applicant did claim at the interview with the delegate that one of his brothers was a Black Tiger, he made no claim that he was a member of the Black Tigers himself. The applicant did make this claim to the Tribunal ([12] at CB 156). In the circumstances, this provides the basis (amongst other matters), for the Tribunal’s finding that he made a “significant new [claim] for the first time in his evidence to the Tribunal” ([14] at CB 157.1), and that he “made no reference to his own involvement with the Black Tigers, at any time previously” ([14](b) at CB 157.4).
It is important to note that at the interview with the delegate, the applicant did state “that he used to attend a ceremony every year commemorating the ‘Black Tigers’” (CB 107.4). The Tribunal found that the applicant’s evidence before it, on this matter, was “extremely vague” and “not consistent” with his “claims that he had been attending such functions annually for a number of years” ([14](c) at CB 157).
However, this claim, as with all of the applicant’s claims ultimately considered by the Tribunal, must be seen in the context in which each of these claims were made.
In his initial written application for the protection visa, the applicant’s claim to fear harm essentially, and relevantly, was that he would be perceived to be an LTTE member because of his family’s involvement with the LTTE. There was no claim that he was actively an LTTE member. There was also no mention in that application of his, or any of his brothers’, involvement with the “Black Tigers”.
At the interview with the delegate, the applicant stated that one of his brothers had been a member of the Black Tigers. The applicant also produced a photograph, which he said was of his brother (with an untranslated document), in a military uniform, which was said to be an LTTE uniform.
The applicant also stated, for the first time at the interview before the delegate, that part of the reason for the Sri Lankan authorities’ interest in him, was because of their concern that the photograph was a photograph of the applicant, and that he had attended a ceremony every year commemorating the Black Tigers.
At the hearing before the Tribunal, the applicant stated, for the first time, that his brother had a “prominent role” in the LTTE, and a “senior role” with the Black Tigers. While he had earlier told the delegate that his brother was a member of the Black Tigers, there was no reference to the brother’s prominence in the LTTE and his seniority in the Black Tigers.
Further, at the hearing before the Tribunal, the applicant claimed, for the first time, that he had attended various functions of the Black Tigers to represent his family after his brother’s death, and that he himself was involved with the Black Tigers.
It must be said, in light of the above, it is difficult to see the basis for the applicant’s underlying contention in his ground. It was reasonably open to the Tribunal to find that the applicant’s claims had “substantially escalated during the application process”, and that he had made “significant new claims for the first time in his evidence to the Tribunal” ([14] at CB 157).
In this light, the applicant’s reliance on SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093; (2013) 136 ALD 641 does not assist him given that no “false factual premise” is evident in the Tribunal’s decision. The applicant, in written submissions, also relied on WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568, SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113, SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 and Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390. In light of the above, none of them assist the applicant in making out his ground.
In oral submissions before the Court, the applicant submitted that the Tribunal failed to understand that the Black Tigers was a “subset” of the LTTE. The claim was that in its analysis, the Tribunal proceeded to see the Black Tigers as a “completely separate” entity to the LTTE.
For this reason, it was submitted that the Tribunal’s decision was “irrational” because the applicant’s credibility was adversely affected by the Tribunal’s finding that the applicant’s account had “substantially escalated” to a claim that his brother was a member of the Black Tigers and not the LTTE.
I pause to note that the applicant’s ground as written refers to the decision being “illogical” rather than “irrational”. It appears the applicant has used these terms interchangeably. The term “illogical” connotes something devoid of, or contrary to logic. “Irrational” connotes something lacking reason. However, I proceeded on the basis that the applicant’s complaint was that the Tribunal’s decision lacked reason, an element common to both concepts. For the purposes of this judgment, I have used the term “illogical”, as pleaded.
The applicant’s submission raises a number of matters. First, I cannot see, on a fair reading of the Tribunal’s decision record, that it made any finding that the LTTE and the Black Tigers were distinct and separate organisations.
Second, the Tribunal’s approach was to rely, literally, on the applicant’s own explanation of his claims in this regard. The applicant’s own evidence to the delegate was that while all his brothers were members of the LTTE, only one was also a member of the Black Tigers (see for example at CB 106.5). Further, the delegate’s decision record stated that the Black Tigers were a part of the LTTE, see for example “had been a Black Tiger in the LTTE” (at CB 108.7).
Third, and however, the applicant, at the interview with the delegate, referred to the “Black Tigers”, which he described as being “suicide fighters” (CB 105.5). This was not a claim that he made about other members of the LTTE.
At the hearing before the Tribunal, the following is of relevance (T10.9 to T12.2):
“[Member]: And what kind of uniform was your brother wearing there?
[Applicant]: That is the Black Tiger uniform.
[Member]: Not the LTTE uniform?
[Applicant]: LTTE Suicide Squad.
[Member]: Sorry.
[Applicant]: LTTE Suicide Squad.
[Member]: So is it the LTTE uniform or was it the Black Tigers have a different uniform?
[Applicant]: Different.
[Member]: So is this the LTTE uniform or is the Black Tiger uniform?
[Applicant]: The first uniform they issued was ... black. Now, the Tigers uniform also have black on black.
[Member]: That’s not what I’m asking you. In that photo is this the LTTE uniform or is it the Black Tiger uniform?
[Applicant]: This uniform is particularly for Black Tigers.
[Member]: So anyone looking at this photo or the CID looking at this photo will recognise this as a Black Tiger uniform, not the LTTE, not the general LTTE uniform?
[Applicant]: They may know that there’s no way that we could explain to them or tell them because we … see them we can’t talk. They may not, yes they certainly know.
[Member]: The reason I’m asking … The reason I’m asking you is because in your statement you said that they showed you a photo of your brother dressed in LTTE military uniform as a commando, not in the Black Tiger uniform?
[Applicant]: This is for the suicide team LTTE uniform has got stripes but this one hasn’t got stripes, just …
[Member]: I’m confused so – In your written statement you said he was dressed in LTTE uniform, you are now telling me he was dressed as a black tiger which is different from the LTTE uniform?
[Applicant]: I was asked whether he was wearing the … uniform. I said yes to the uniform, both of them are LTTE uniforms. I didn’t know that you will have this differences.
[Member]: Well you’ve just told me they’re different uniforms, he is wearing the black tiger uniform not the LTTE uniform.
[Applicant]: To whom was that said?
[Member]: You’ve told me a moment ago sir that this is a different uniform to being an LTTE uniform, this is recognised as the commando uniform or a Black Tiger uniform which is different from being an LTTE uniform.
[Applicant]: I don’t know how many uniforms the … wears, this is not the normal soldiers there, … soldiers there. But this black uniform is specifically for Black Tigers … there are commando uniforms as well.”
[Errors in original.] [Emphasis added.]
In the circumstances, it was reasonable for the Tribunal, in its analysis, to proceed on the basis that while the Black Tigers were a part of the LTTE, their “elite” status and functions was such as to distinguish them from the general membership of the LTTE. That distinction can be seen, for example, with the annual commemoration for the “suicide fighters” of the Black Tigers. It was therefore reasonable, and not illogical, or for that matter irrational, for the Tribunal to find that the applicant had significantly escalated his claims.
In all therefore, it was open to the Tribunal to rely on the differences in the applicant’s initial written claims, and what he ultimately told the Tribunal at the hearing. It was also reasonably open to the Tribunal to find that the claims had “substantially escalated during the application process” ([14] at CB 157) given what he had told the delegate at the interview.
I cannot see that the Tribunal’s approach, and therefore the decision, was illogical or for that matter irrational or unreasonable (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 and ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 154 ALD 221), let alone that it exhibits “extreme” illogicality (with reference to the principles set out in CGQ15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 70 AAR 413 at [59] - [61]).
I should also note that in his Statement that accompanied his protection visa application, the applicant made reference to what was set out there as being a “summary” of his claims for protection (see CB 59.2). Before the Court, the applicant submitted that notwithstanding that what was put in that Statement was only a “summary” of his claims, the Tribunal nonetheless found that there were significant new claims advanced by the applicant at the hearing before it.
In my view, when read in context, the word “summary” as it appears in the Statement, would reasonably imply that the Statement contained the totality of the applicant’s claims, but lacking detail. This view is available, given the otherwise comprehensive nature of the Statement. Importantly, the reference to “only a summary of my claims to protection” is followed by “I will provide further information in relation to my protection claims” ([1] at CB 59). It was reasonable for the Tribunal to take the view that the applicant had provided the totality of his claims, at that time (in the drafting of the Statement), but would provide “further information” about those claims at a later time. Therefore, the Tribunal’s finding that the applicant made “new claims” at the hearing was reasonably open to it. In all, ground one is not made out.
In his written submissions, the applicant addressed grounds two and three together. Both grounds refer to a breach of s.425 of the Act and rely on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 (“SZBEL”)). Ground two asserts that the Tribunal did not put the applicant on notice that it would “depart” from, or make different findings to, the delegate’s findings. That is, that the applicant’s failure to mention earlier the brother’s involvement in the Black Tigers would be a basis for the Tribunal’s adverse credibility finding. Ground three appears to be a general assertion similar to the first element in ground two.
Before the Court, the applicant identified the “issue” (with reference to s.425 of the Act), as being the Tribunal’s finding that the applicant’s Statement, and his evidence to the Tribunal, were inconsistent in relation to the applicant’s failure to initially mention that his brother (who was killed) was a member of the Black Tigers. Further, the Tribunal’s finding that his other two brothers were not members of the LTTE (the applicant claimed to have three brothers).
The applicant’s argument was that the applicant was denied procedural fairness because the delegate “accepted” these matters, yet the Tribunal rejected them “without warning”. That is, the applicant’s evidence, and ultimately his credit, were rejected by the Tribunal in circumstances where the delegate had accepted his evidence. [That is, the delegate found that one brother was found to be a member of the Black Tigers, and the other two brothers’ were members of the LTTE].
The applicant relies on SZBEL at [32] as follows:
“In Alphaone the Full Court rightly 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.’”
[Footnotes omitted.]
The essence of the applicant’s complaint is that the Tribunal did not deal fairly with him. That is, it failed to put him on notice in certain respects, that it would make different findings to those made by the delegate. This contention must be rejected on the evidence before the Court.
Before the delegate, the applicant variously claimed that his brother was a Black Tiger, that his other two brothers had served with the LTTE, that the applicant had been the subject of adverse dealings with the CID, and that the applicant had attended at activities of the Black Tigers over a number of years.
The submission was that the delegate accepted all of these claims, but that the Tribunal, without fair warning, did not accept all of these claims.
Taking each of these items in turn. First, at the interview with the delegate, the applicant did claim that his brother was a Black Tiger. The delegate accepted this (CB 106.5). But so did the Tribunal (see [31] at CB 162). The applicant’s complaint that the Tribunal departed from the delegate’s finding without warning in this regard, is not made out.
To the extent that the applicant’s ground relies on what the Tribunal set out at [14] (at CB 156 to CB 158), this is not a fair reading of the Tribunal’s decision as a whole. At [14] (at CB 156 to CB 158) the Tribunal did not reject the applicant’s claim that his brother was a Black Tiger, but rather, set out its analysis in support of its finding that the applicant’s claims had “substantially escalated” during the application process, and that before the Tribunal, he made claims which were not in his initial Statement.
Second, the applicant claimed that his other brothers were members of the LTTE. The delegate accepted this (CB 106.5). The Tribunal did accept that one of the applicant’s brothers held a senior rank in the Black Tigers and therefore the LTTE. The Tribunal did not accept that the other two brothers held senior ranks with the Black Tigers ([31] at CB 162) or that the other two brothers served in the LTTE [39] at CB 164). These findings were based on the Tribunal’s adverse view of the applicant’s credit and the failure by the applicant to provide documentary evidence to support this claim.
The applicant was put on notice at the Tribunal hearing of the Tribunal’s concerns in this regard (see T14 at lines 5 -8, T17 at
lines 1 - 17 and T18 at line 26 to T19 at line 9). Specifically, the Tribunal questioned the applicant about his brothers’ involvement with the LTTE (the two whom he said were not killed by the Sri Lankan authorities). At the hearing, the applicant would have been aware of the Tribunal’s concerns. The Tribunal’s findings that the applicant’s other two brothers did not hold senior rank in the Black Tigers or that they did not serve in the LTTE were reasonably open to it. In short, the applicant was given relevant notice at the hearing of the Tribunal’s concerns which underpinned its ultimate findings.
Third, the applicant claimed to the delegate that he had come to the adverse attention of the CID, and was asked whether he was the person in a photograph wearing a “military” uniform. The photograph was of his brother. Further, the applicant claimed that he had been tortured and beaten (see CB 106.7).
The delegate did not accept that the applicant had been accused of being his brother, or the person in the photograph. The delegate gave reasons for this (CB 108.7 to CB 109.1).
Further, the delegate found that the applicant’s evidence regarding being tortured and beaten was “vague and inconsistent”, and that “this aspect of his claims has been embellished in order to enhance [his] claims for protection” (CB 109.4).
The contention in the applicant’s ground is that the delegate, contrary to the Tribunal, accepted the applicant’s claims. In relation to contact with the Sri Lankan police, and in relation to the photograph of the applicant’s brother, the delegate found that (CB 109.5):
“… Based on the information provided by the applicant and my earlier negative credibility findings in relation to the photograph and questions asked about the photograph, I do not accept that the applicant was seriously harmed by the CID or did he was beaten approximately 30 to 40 times.”
The applicant would have been squarely on notice from the delegate’s decision that this central part of his claims was at issue as a result of the delegate’s finding (SZBEL at [ 35] – [37]).
Fourth, the claim that he attended a Black Tiger commemoration ceremony every year was put by the applicant in the context of, and as part of his claims, of being questioned by the CID about the photograph and being beaten. The delegate did not accept that this had occurred, and concluded that “[i]t is my opinion that the aforementioned findings reflect adversely on the credibility of the applicant’s overall claims” (CB 109.2).
Contrary to the applicant’s contention now, he would have been on notice, as a result of the delegate’s decision, that the credibility of his entire central account (“overall claims”) to fear harm was at issue (SZBEL at [47]).
In any event, the evidence before the Court reveals that the Tribunal did raise with the applicant, at the hearing, its concerns that the applicant’s evidence had changed, and importantly, that the Tribunal had concerns as to whether the applicant was telling the truth. This included its concerns about the matters particularised in the applicant’s grounds two and three (see for example T7 at line 3 to T8 at line 13, T12 at lines 4 to 17, T14 at line 5 to T15 at line 3 and T19 at lines 7 to 32).
The applicant’s grounds assert he was not put on notice that the Tribunal was going to “depart” from findings made by the delegate. To the extent that the Tribunal did make different findings to that of the delegate (for example the applicant’s claim that he was questioned by the CID), the Tribunal did put him on notice of its concerns.
Further to the transcript references above, it is important to note the following (T24.8 to T24.9):
“[Member]: Sir I must admit I have considerable concerns about whether you’re telling the truth in your protection visa applications, the claims that have been mentioned today are completely different to the claims that you have initially put in your protection visa application. I find it quite difficult to explain?
[Applicant]: I mean, you have given me an opportunity to elaborate, the only first time I am having an opportunity to elaborate on issues and tell you more things. At the same time I have commented to you even the government is actually making allegations that that the Tigers are going to regroup or they are regrouping, so if they are saying if any, that happens, definitely I will be in danger.
[Member]: I don’t think it’s quite true that you have never in the past 2 ½ years had the opportunity of elaborating, had an opportunity to elaborate. When you initially made the application, when you were interviewed at the time when you entered Australia and in your interview with the Immigration officers, I think you’ve had plenty of opportunity to put forward your claims.”
Grounds two and three are not made out.
Conclusion
There is no jurisdictional error arising from the grounds of the application. It is appropriate therefore that the application be dismissed. I will make the appropriate order.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 4 August 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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