FEDERAL COURT OF AUSTRALIA

AFZ15 v Minister for Immigration and Border Protection [2018] FCA 869

Appeal from:

AFZ15 v Minister for Immigration & Anor [2017] FCCA 2864

File number:

VID 1324 of 2017

Judge:

NORTH J

Date of judgment:

31 May 2018

Date of hearing:

31 May 2018

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

No Catchwords

Number of paragraphs:

19

Counsel for the Appellant:

Mr A Krohn

Solicitor for the Appellant:

Ambi Associates

Counsel for the Respondents:

Mr J P W Maloney

Solicitor for the Respondents:

Sparke Helmore

ORDERS

VID 1324 of 2017

BETWEEN:

AFZ15

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

NORTH J

DATE OF ORDER:

31 MAY 2018

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant to pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

NORTH J:

1    Before the Court is an appeal from orders made by the Federal Circuit Court of Australia on 23 November 2017. The Federal Circuit Court dismissed an application for review of a decision of the Administrative Appeals Tribunal, then the Refugee Review Tribunal, made on 27 February 2015. The Tribunal affirmed the decision of a delegate of Minister for Immigration and Border Protection, the first respondent, not to grant the appellant a Protection (Class XA) visa.

2    The appellant is a citizen of Sri Lanka, of Tamil ethnicity and Hindu religion. His father is a fisherman and his claims revolve around his efforts in assisting his father in that occupation. He claimed that in early 2012 his father had a dispute with the Sri Lankan army when his father refused to hand over the fishing catch of the day to members of the army. As a result, he said that he was detained at an army camp and mistreated before being released on the same day.

3    Several months later in May 2012, he was again detained, but, again allowed to leave after having been mistreated. Shortly afterwards, a high-ranking army officer came to his house with seven or eight other officers and questioned the appellant. They told him that he was required to return to the camp for questioning. He told the Tribunal that the army was still looking for him.

4    The Tribunal recorded part of the evidence given by the appellant at the hearing as follows:

18.    When asked at the hearing why he believes these people are so interested in him and advised that the Tribunal has some difficulty understanding why they want to harm him, the applicant stated that he does not know why, but the influential person from the village and the senior army officer are on "good terms". The Tribunal commented that the influential officer was responsible for his release and it is difficult to understand why this would have resulted in the army being interested in him. The applicant stated that he does not know why, but all he knows is that the senior officer and the village leader are on good terms. The applicant then stated that he does not know whether they are interested in him. When advised that he has claimed that the officers were interested in him, the applicant stated that the soldier who caught him must have "said something" and told him he had to go to the army camp to be "interrogated". The Tribunal commented that it has difficulty understanding what he would be interrogated about, given that he has only claimed to have failed to have a pass and not given the army his fishing catch. The applicant stated that he does not know why or what the problem was and the soldier must have said something against him, and that is the reason he was taken to the camp. When asked if he knows what the officer said about him, the applicant indicated that he did not know. The applicant stated that they were very angry and they came and searched his house thoroughly.

5    That discussion is relevant to the reasoning of the Tribunal which is subject to the grounds of appeal. The essential reasoning which has been criticised in this appeal is contained in the following paragraphs of the Tribunal’s decision:

21.    The Tribunal accepts that there is continuing animosity between Sinhalese and Tamils after a brutal and protracted civil war which ended in 2009 and that this would inevitably have continued until at least 2012. The Tribunal has had regard to information provided by the representative in relation to continuing suspicions of Tamils by the Sri Lanka authorities and accepts that even after the end of the civil war there was continuing harassment and intimidation of Tamils who were perceived to have threatened or failed to abide by the SLA officers requests. The Tribunal accepts that the applicant and his father may, at some time, been asked to provide cigarettes, alcohol and fish to Sri Lankan Army (SLA) officers and there was a minor dispute with officers in relation to this issue. The Tribunal does not accept that this resulted in the extreme and ongoing actions taken by the SLA officers as claimed by the applicant. The Tribunal does not accept it is credible that the applicant and his father's refusal to hand over their fishing catch in March 2012 resulted in the extreme action claimed by the applicant such that he was beaten, officers came to his home and he was then required to report regularly. The Tribunal also does not accept that in May 2012 a high ranking officer would consider it necessary to come to the applicant's home on the night he had reportedly agreed to release the applicant from detention. The Tribunal considers that had the applicant been of any ongoing interest to the authorities that he would not have been released from detention and the actions of the village leader in coming to the camp would not have been sufficient to secure his release.

22.    The Tribunal also considers that the applicant's evidence that his home was searched and he was required to report for questioning to be not credible. The Tribunal does not accept the applicant has satisfactorily explained why he was wanted for questioning or why his home was being searched, in circumstances where he did not have a fishing pass and his father had previously refused to provide the army his fishing catch. The applicant has confirmed that he was not associated with the LTTE and his evidence does not indicate he was being questioned or accused of LTTE involvement. The Tribunal does not accept that there is any reason as to why the SLA and a high ranking officer would consider it was necessary for the applicant to be questioned in relation to his failure to have a fishing pass. Nor does the Tribunal accept that there is any reason for the applicant's home to be searched in relation to his failure to have a fishing pass or as a result of his refusal to provide fish. The Tribunal has accepted as stated above that there may well have been ongoing intimidation and harassment of Tamils for no reasons and this would have included being asked to give SLA officers cigarettes alcohol and goods, but considers that the applicant's evidence as to why he was of such serious ongoing interest to the authorities due to his/ his father's failure to provide this in March 2012, as he told the Tribunal during the hearing, to be highly unpersuasive. The evidence indicates that the persons of interest to the authorities are those who are engaged in adverse political activities, particularly those involved in the LTTE, or criminal activities. The applicant has no such connections and has not indicated that he has been involved in any criminal activities, apart from apparently being accused of assaulting an SLA officer. The Tribunal does not accept that the applicant would not know if this was the reason he was sought and considers his evidence that he was never told and did not know the reason for his home being searched to be unpersuasive. The Tribunal also considers the applicant's claims that he "can only suspect" that it was because of the relationship between the senior officer and the village leader to be not credible and indicative of the fact that this claim has been manufactured. The Tribunal does not accept that the village leader who had come to help the applicant to be released from detention would then "tell something" to the officer. The applicant was unable to explain why or what he believes that the village leader would have told the officer such that it would generate the extreme level of interest in the applicant and his family that he has claimed.

23.    In addition to the above, the Tribunal does not accept that the applicant has given consistent evidence as to the incident in relation to the senior officer whilst he was at the camp in May 2012. As indicated above, whilst the recent submission, which is signed by the applicant indicating it was read and explained to him, states that the applicant was verbally abused by the senior officer, when asked during the hearing about this, the applicant stated that the officer only stared at him and did not talk to him, and confirmed this when asked again. When advised of the inconsistency the applicant altered his evidence and claimed that the high ranking officer said something to him but he could not understand him. The Tribunal does not accept that the applicant has been truthful in relation to this issue and considers that he has altered his evidence during the hearing in response to the inconsistency. The Tribunal has not accepted that the applicant has satisfactorily explained why the officer would be motivated to continue to want to question him, or search his home with six or seven other officers, or why the high ranking officer would release him yet on the same day come to his home with a number of other officers. The inconsistency in relation to whether or not the SLA officer verbally abused him, or simply stared at him, prior to his release from the army camp in Udappu is further indicative of the fact that the applicant's claims are manufactured.

24.    The Tribunal's findings as set out above are strengthened by the applicant's evidence during the Entry Interview, which is discussed in the delegate's decision record. The representative has referred in the submission to the Tribunal to this issue. It is submitted that the Department has provided advice in relation to using an applicant's Entry Interview as an indicator of credibility. The Department's advice cautions officers on using discrepancies between the Entry Interview and the Protection visa interview in order to undermine an applicant's credibility. The advice also indicates that claims given in the Entry interviews are not for the purpose of obtaining details of asylum claims or investigating those claims. The representative also refers to comments by the Canadian Courts who have stated that when evaluating a claimant's first encounter with Canadian Immigration authorities, the Board should be mindful of the fact that most refugees have lived experiences in their country of origin which give them a good reason not to trust authority. It is submitted that although the delegate noted that undue weight should not be given to the Entry Interview, these factors were considered and used to undermine the applicant's credibility. It is submitted that although the applicant did not provide specific details of the reasons he left Sri Lanka, he did indicate he had experienced problems with the SLA and for these reasons "the Tribunal should not make an adverse finding in relation to the applicant's credibility on the basis of the statements made in his entry interview". When the applicant was asked about this during the hearing, he stated that he was in a new country and he was very scared that the information may be relayed to Sri Lanka as he did not know what would happen to the information at that time.

25.    The Tribunal accepts that the applicant was told to be brief in relation to his claims to fear harm in Sri Lanka. The Tribunal also accepts that it must be mindful of the factors outlined by the representative, and as discussed in the Department's guidelines and Canadian court decisions. The Tribunal also accepts that, on its own, any discrepancies between the Entry Interview and subsequent claims are insufficient to undermine the credibility of those claims. The Tribunal has, however, raised considerable doubts about the credibility of those claims, based on other factors, which are set out above. Additionally, as discussed during the hearing, the Entry Interview was conducted some two months after the applicant's arrival, and after he had been in detention for some time. The Tribunal accepts that the requirement for brevity would have prevented him from providing details of his claims. The Tribunal does not accept that this would have prevented the applicant from at least referring to the fact that he had been detained and mistreated by the Sri Lankan authorities, and does not accept that he was fearful that his claims would be reported to the Sri Lankan authorities. In the Tribunal's view, the applicant's failure to mention during his Entry Interview claim that he had been twice been detained is further indicative of the fact that the applicant's claims have been manufactured.

26.    The Tribunal has had regard to the submission that the interest has "built up" over time. The applicant's evidence was that there was immediate interest and harassment in him after his father refused the request to provide him fish and this resulted in him being required to sign weekly and he was then again detained, beaten and his father also beaten after he did not have a fishing pass. When asked at the hearing whether his father had previously refused to give fish to the officers, the applicant indicated that he does not know. The applicant has not previously claimed that there was any conflict between his father and army officers prior to March 2012 and his claims are not that the interest in him arose when he failed to report, but that it occurred before he failed to report to the authorities. The Tribunal does not accept, therefore, that the interest "built up" given that he claims all of the interest occurred between March and May 2012 or that this explains why the SLA were interested in the applicant such that they needed to take such serious action against him even before he claims to have failed to report to them.

27.    Having considered the totality of the applicant's claims and evidence, the Tribunal is not satisfied that the applicant has given a truthful account of his experiences or his reasons for leaving Sri Lanka. The Tribunal does not accept that the applicant was detained by the SLA in March and May 2012 or that he was required to report to the authorities. The Tribunal does not accept that the applicant or his father were beaten or mistreated by the SLA. Nor does the Tribunal accept that at the time the applicant left Sri Lanka was required to report to the authorities or that his father has ever been questioned or beaten or asked about the applicant's whereabouts or that the applicant's father has been unable to work due to the beatings. Although not mentioned at the hearing, the Tribunal is prepared to accept that his sister's father in law was taken away several years ago by persons in a white van, but does not accept that the applicant was genuinely fearful of harm from the SLA or other persons associated with the authorities or in ''white vans". The Tribunal also does not accept the applicant's claims that he stayed with a friend of his father for a month before he left Sri Lanka and was essentially in hiding during that time. When this issue was discussed during the hearing, the applicant indicated that he did not know that person's name, and this was because even though he would bring him supplies every few days, he did not see him. The Tribunal does not accept that the applicant would not know the name of the friend of his father whose house he was essentially hiding in. As stated above, the Tribunal is drawn to the conclusion that the applicant has manufactured the totality of his claims regarding his experiences in Sri Lanka and his reasons for leaving.

[Footnotes omitted.]

6    Following an unsuccessful review in the Federal Circuit Court on 5 December 2017, the appellant filed a notice of appeal in this Court.

7    At the hearing of the appeal, only the first ground of appeal was pursued. That ground is as follows:

1.    The Federal Circuit Court erred in not finding that the Second Respondent ("the Tribunal") fell into jurisdictional error in that it made findings without probative evidence or otherwise acted illogically, irrationally, unreasonably, or so unreasonably that no reasonable Tribunal would so have acted.

Particulars

(a)    The Tribunal had evidence of brutality and abuse by the authorities in Sri Lanka, and it had no evidence or reasonable basis for its findings that they would not have abused the applicant and his father in the way he claimed, including its findings that it:

(i)    " .. . does not accept that it is credible that the applicant and his father's refusal to hand over their fishing catch in March 2012 resulted in the extreme action claimed by the applicant such that he was beaten, officers came to his home and he was then required to report regularly." (Decision Record [21], Court Book ("CB") 214)

(ii)     " ... does not accept that in May 2012 a high ranking officer would consider it necessary to come to the applicant's home on the night he had reportedly agreed to release the applicant from detention." (Decision Record [21], CB 214)

(iii)     " ... considers that the applicant's evidence that his home was searched and he was required to report for questioning was not credible. The Tribunal does not accept the applicant has satisfactorily explained why he was wanted for questioning or why his home was being searched in circumstances where he did not have a fishing pass and his father had previously refused to provide the army his fishing catch . . " (Decision Record [22], CB 214)

(b)    The Tribunal had evidence of brutality and abuse by the authorities in Sri Lanka, and it had no evidence or reasonable basis for its findings or assumptions that the applicant would know the motives of the authorities for questioning him, searching his house, or seeking for him. (Decision Record [22], CB 214-215)

(c)     the Tribunal was unreasonable in seeing a critical inconsistency between the applicant saying that a senior officer did not talk to him, and saying that a senior officer said something to him or abused him (in Sinhalese) but he could not understand what was said. (Decision Record [23], CB 215)

(d)     the Tribunal was unreasonable in concluding that the failure of the applicant to mention his detention at the Entry Interview supported the finding that he had manufactured his claims, despite the brevity of the Entry Interview, its different purpose from the assessment of protection claims and the fact that personal information at the Entry Interview was said possibly to be given in future to the Sri Lankan authorities. (Entry Interview, CB 1, 9; Decision Record [24]-[25], CB 215-216.)

(e)     The Tribunal was unreasonable in concluding that it was "prepared to accept that his [the applicant's] sister's father in law was taken away several years ago by persons in a white van but does not accept that the applicant was genuinely fearful of harm from the SLA or other persons associated with the authorities or in "white vans"." (Decision Record [27], CB 216.)

(f)     The Tribunal was unreasonable in not accepting that the applicant would not know the name of the friend of his father whose house he was essentially hiding in ." (Decision Record [27], CB 216.)

8    The essence of the appellant’s arguments are conveniently stated in the following paragraphs from the appellant’s written submissions:

14.    The Tribunal is obliged to act rationally and according to logically probative evidence. The question of the satisfaction of the Tribunal as to a matter of fact is in general a matter for the Tribunal provided it proceeds reasonably and on the basis of some evidence.

15.     An administrative decision maker falls into jurisdictional error if it makes findings which are illogical or irrational in the sense of being unsupported by any probative evidence, or in the sense of being truly not reasonable. (Minister for Immigration and Citizenship v SZMDS) Unreasonableness, however, in proceeding without evidence for a finding, or in the sense of Wednesbury unreasonableness, indicates a failure by the Tribunal to discharge its statutory task, and therefore jurisdictional error. (Minister for Immigration and Citizenship v SZMDS.)

16.     In order to understand the Tribunal’s process of making the decision, the Court has regard to the written statement prepared by the Tribunal pursuant to section 430 of the Act, setting out its decision, reasons, findings on material questions of fact and referring to the evidence on which those findings were based.

17.     As Gleeson CJ said in Minister for Immigration and Multicultural Affairs v Yusuf:

“When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal's decision, in the light of the statutory requirements contained in s 430. The Tribunal is required, in setting out its reasons for decision, to set out "the findings on any material questions of fact". If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material.”

18.     Similarly, if the Tribunal refers to no evidence as the basis for a finding of a material question of fact, a fair reading of the Tribunal’s reasons may lead to the inference that the Tribunal had no evidence for the finding.

19.     In the present matter, the Tribunal made a number of findings critical to the decision, but, as discussed below, the Tribunal’s reasons refer to no evidence on which those findings logically stand. Rather, on a fair reading of the Tribunal’s written statement, those findings can be based only on the Tribunal’s unsupported assumptions and presumptions about the way that things work and don’t work in Sri Lanka. This proposition is made in relation to each of the particulars of this Ground of Appeal.

[Footnotes omitted. Emphasis in original.]

9    The same arguments which the appellant pursued in this Court were pursued in part in the Federal Circuit Court. In essence, the Federal Circuit Court rejected the arguments on the basis that they amounted to a challenge to findings on the merits of the Tribunal’s fact findings. The criticism of the reasoning of the Tribunal, in particular Ground 1(a), is that there was no evidence or reasonable basis for the findings that the appellant was not detained and beaten in March or May 2012 or that his home was searched and he was required to report for questioning.

10    As can be seen in [21] of the Tribunal’s decision, the process of reasoning adopted by the Tribunal was to relate the reason provided by the appellant for the actions of the army to the extreme action taken by the army. The dispute which the appellant said was the reason for the army’s action was, in the Tribunal’s assessment, essentially a minor dispute and, hence, the consequences said to have followed were not persuasive to the Tribunal.

11    It is a mischaracterisation to claim that this process of reasoning displays a lack of evidence for the finding. A more likely basis for the argument seems to be that the reasoning lacks a reasonable basis, in that there was no intelligible justification for the conclusion. That argument cannot be sustained. Whether another Tribunal member would have taken the same approach is not in issue. The question is whether there was line of reasoning which made sense to lead the Tribunal to its rejection of the happening of those events. It was a method open to the Tribunal to compare the reason suggested by the appellant for the actions of the army, against the severity of the result taken by the army and to find that there was such a disconformity that the story should not be accepted. Ground 1(a) is, therefore, not made out.

12    Ground 1(b) criticises the Tribunal, again, on the basis that there was no evidence or reasonable basis for the finding that the appellant would know the motives of the authorities for questioning or searching his house or seeking him. Again, it is not possible to understand this argument as a no evidence argument. Treating it as a question whether there was an intelligible justification for the conclusion, again, it was open to the Tribunal to determine from all of the circumstances that if the events had happened as the appellant suggested, then it was likely that he would know why the army had done what he said. That follows as a matter of internal logic of the story. It was open to the Tribunal not to be persuaded that the events happened without the appellant understanding from the army why they were taking the action against him. Ground 1(b) is not made out.

13    Ground 1(c) points to an inconsistency in the evidence about whether the senior officer said something to the appellant or not when the appellant was detained in May 2012. It is accepted by the appellant that there was such an inconsistency, but Mr Krohn, who appeared as counsel for the appellant, argued that the inconsistency was of such a minor nature as to be an insecure foundation as an indication “of the fact that the applicant’s claims are manufactured”. Given that the evidence of the appellant was lacking in significant detail, it was open to the Tribunal to draw attention to the inconsistency and use it, not as a foundation for a finding that the story was manufactured, but supportive of the conclusion which by that time in the decision of the Tribunal much of the evidence relating to the conclusion had already been considered. The contention that reliance by the Tribunal on the inconsistency was unreasonable, as put in Ground 1(c) is not made out.

14    Ground 1(d) criticises the Tribunal’s reasoning in relation to reliance on the absence in the entry interview of the essential events later relied upon by the appellant as supportive of his claim to fear persecution. It is said that that reliance was unreasonable. The entry interview did not record the critical events upon which the appellant later relied in the hearing before the Tribunal.

15    The Tribunal concluded from the failure to mention these events that the omission was “further indicative of the fact that the applicant’s claims have been manufactured”. However, it is important to understand the careful way in which the Tribunal dealt with this matter. Firstly, it referred to the departmental advice about the use of entry interviews and accepted the caution about utilising discrepancies to undermine an applicant’s credibility. It recorded that the advice explained that purpose of the entry interview is not for obtaining details of an asylum claim or investigating a claim. Then the Tribunal referred to some comments by Canadian courts about the limitations on which first entry interviews should be treated. The Tribunal had noted that the appellant had been told to be brief in relation to the responses to that interview. It continued at [25]:

The Tribunal also accepts it must be mindful of the factors outlined by the representative, and as discussed in the Department’s guidelines and the Canadian court decisions.….

The Tribunal observed that the discrepancies were, on their own, insufficient to undermine the credibility of the claims. But it then had regard to the doubts about the credibility of the claims based on other factors. It observed that the entry interview was conducted two months after the arrival, after the appellant had been in detention for some time. In the end, the Tribunal did not accept that the circumstances would have prevented the appellant from referring to the fact that he had been detained and mistreated by the authorities. Further, it did not accept that he had a fear of the authorities which would have prevented him making mention of those matters.

16    The process adopted by the Tribunal in utilising the entry interview was careful and cautious. In the end, the entry interview was utilised to support conclusions which it had already come to about the appellant’s credibility. In these circumstances, it was not unreasonable for the Tribunal to rely upon the entry interview in the way that it did. Ground 1(d) is, therefore, not made out.

17    Grounds 1(e) and (f) can be dealt with together. Mr Krohn rightly accepted that these two matters were dealt with at the end of a discussion about the appellant’s claims and after having come to the conclusion that the appellant had not given a truthful account of his experiences or his reasons for leaving Sri Lanka. After having stated its conclusion and repeated its rejection of the events of detention in March and May 2012 and the events associated with them, the Tribunal went on to deal with the issue of the white vans and the name of the father’s friend.

18    Reference to the white vans was a matter not mentioned at the hearing and, hence, was clearly not central to the claims made by the appellant. The failure of the appellant to know the name of his father’s friend’s name is a matter of almost no significance in the reasoning of the Tribunal. Indeed, it is difficult to find in the decision of the Tribunal any significant reference to the event of hiding. Neither of these two issues formed any part in the central reasoning of the Tribunal. Even if, which is not the case, there was some unreasonableness in the conclusions reached on those subjects, they would not have affected the final conclusion of the Tribunal. Consequently, Grounds 1(e) and (f) have not been made out.

19    It follows that the appeal must be dismissed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:    31 May 2018