FEDERAL COURT OF AUSTRALIA

DWA17 v Minister for Immigration and Border Protection [2019] FCAFC 160

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant must pay the first respondent's costs of the appeal, to be fixed in the sum of $7,241.

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

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority. The Authority affirmed a decision of a delegate of the first respondent (the Minister) to refuse the appellant's application for a safe haven enterprise visa, which is a class of protection visa.

2    The appellant is a Sri Lankan national from Jaffna District, and a Tamil. The grounds of appeal raise two main issues. The first is whether the Authority misunderstood the nature of its statutory task of review, because of its reliance on a record of interview that officers of the Department of Immigration and Citizenship had conducted with the appellant. The second issue is whether it was open to the Authority to find that the Sri Lankan authorities would not identify the appellant as a supporter of the Liberation Tigers of Tamil Eelam (LTTE), in view of two news articles about a boat on which he had travelled from Malaysia to the port of Merak in Indonesia in 2009 (the Merak Boat).

Background, protection claims and procedural history

3    In order to understand the grounds of appeal, it is necessary first to describe some aspects of the appellant's journey to Australia, the interviews that were conducted after he arrived, his claims to protection, and the review of the adverse decision on those claims which the Authority conducted.

4    The appellant left Sri Lanka in 2007 and at first travelled to Singapore, and then Malaysia (Authority reasons para 10). In October 2009 he travelled from Malaysia to Merak, Indonesia, on the Merak Boat. There were other Tamils on the Merak Boat. The Indonesian authorities detained the boat in Merak for four months, during which time the appellant remained on the boat. He was then transferred to immigration detention in Indonesia.

5    In December 2009 News Corporation published two articles about the Merak Boat, respectively entitled 'LTTE cadres identified on Aussie asylum-seeker boat' and 'Tamil Tigers identified on asylum-seeker boat' (paras 8-9). Those articles were not in evidence before the primary judge and are not in evidence in this appeal. After referring to the articles, the Authority indicated that it did not accept that the Sri Lankan government has ever imputed actual LTTE involvement to all or most or many people on the Merak Boat in 2009 or since (paras 34-35).

6    The United Nations High Commission for Refugees recognised the appellant as a refugee in August 2010 (para 10). He was released from detention in Indonesia in March 2011. In 2013 he left Indonesia by boat, and he arrived in Australia, at Christmas Island, on 1 May 2013.

7    He was classified as an 'Irregular Maritime Arrival' and officers of the Department interviewed him on that basis. A written record of the interview was produced (Interview Record). It indicates that the interview took place in two parts. An officer of the Department conducted the first part at Christmas Island on 16 June 2013. The second part was conducted, by a different officer, at the Curtin Immigration Detention Centre on 23 August 2013. The Interview Record indicates that the appellant consented to the interview being recorded. It also contains, on its second page, certain explanatory notes which include the following:

Important Information

I need information about you and your arrival in Australia. This interview will be recorded. This Interview is your opportunity to provide any reasons why you should not be removed from Australia. If you do not answer questions a decision may be made on the basis of the information we have.

You are expected to give true and correct answers to the questions I ask. You should understand that if the information you give at any future interview is different from what you tell me now, this could raise doubts about the reliability of what you have said.

8    The notes end with the questions, 'Do you understand what I have said?' and 'Do you understand the interpreter?', each of which had a tick against it in the box marked 'Yes'. The appellant appears to have written his name in boxes provided under that, over date and time stamps showing that this occurred on 16 June 2013. There are also notes on the preceding page stating that in both parts of the interview the appellant indicated his understanding of these notes.

9    The form that was completed in order to comprise the Interview Record contained some 75 questions about various biographical details, family information and information about the interviewee's travel to Australia. There were two questions that were directly relevant to protection claims. The questions, and the appellant's answers in so far as they were recorded on the form, are as follows:

Reason to Leave

32.    Why did you leave your country of nationality (country of residence)?

In 2005, he was in football team which won tournament in Jaffna sponsored by LTTE.

Had photo taken with someone high up in LTTE; kept photo in house. Tell me about photo - in football tournament, I was given best prize for tournament. Photo taken in tournament. Who was photo with - one of the members of LTTE. Do you know who that was -I can't remember his name exactly but I think his name was Priyan.

2006 - unknown people decorated clubhouse for National Heroes Day. Next day Army asked who did decorations. Because I was club treasurer I was arrested and taken to Army camp, tortured, and asked to sign document written in Sinhalese (client unable to read Sinhalese). Then told he would be arrested if same happened again. Army accused him of being trained by LTTE. Left Sri Lanka end June 2007.

Kept in Army camp 3 days. Who kept you in Army camp - people in uniform.

First day tortured me; second day sexually harassed.

First day they beat me, on the second day they asked me to take off all my clothes and people who don't say who they are beat me again, and the next day I was asked to take of all my clothes and I have to sleep without my clothes even.

Principal Reason

Specific threat or incident

Reasons Not To Return To Country of Nationality

33.    What do you think will happen to you if you return to your country of nationality (residence)?

There won't be any protection for my life. Why do you think that - I thought of going to Sri Lanka in 2011 and one of my friends he went there and at the airport they saw the photos and asked who are these people and where are they living right now. So he told them they were with us in Malaysia but I don't know where they are living at the moment and he has been investigated by the CID once a month as well and he is now missing. Everyone's saying he has been kidnapped. It happened at the end of 2011.

10    The Interview Record does not reveal whether these questions were asked and answers were given in the first part of the interview, or the second part, or both. There was also a question at the end, 'Is there anything I have not asked you that you would like to say?', against which the 'No' box is ticked.

11    In around June 2016 the Minister lifted the bar under s 46A(1) of the Migration Act 1958 (Cth) which had prevented the appellant from applying for a protection visa, and the Department invited him to apply for one of two classes of such visa. He did so on 16 November 2016, supported by a statement in which he made the following claims which are relevant to the grounds of review:

(a)    In November 2005 the appellant played in a football tournament in Jaffna that the LTTE had organised. He was selected as best player and a photograph was taken of him with an LTTE member. On 27 November 2006 some members of the Sri Lankan army came to his house and found the photograph. This led them to accuse the appellant of being a member of the LTTE and to arrest him. They took him to an army camp where he was detained for three days and tortured and beaten. He was told to sign two documents, one of which was written in Sinhalese, which he could not read, and the other was blank. The appellant was told that the army would use the documents 'as a confession to any future crimes committed by the LTTE because they said I was trained by the LTTE'. The statement does not say in terms that the appellant signed the documents, but the implication is that he did.

(b)    In January 2007, scared after the incident just described and feeling that he 'may need to leave Jaffna in the future', the appellant applied for permission to travel from Jaffna. He said that an unspecified 'Commanding Officer' never gave him permission to travel.

(c)    In February 2007 there was a bomb blast close to his house. The day after, the president of the football club was summoned to the army camp. But the army shot the president dead before he entered the army camp. The appellant heard about this from people who had witnessed it. The next day the army sent a message to a friend of the appellant to the effect that the appellant needed to go to the army camp. The appellant ran away to an aunt's house in Colombo. After four months there, he left for Singapore.

12    Of these three claims, only the first is mentioned in the Interview Record, and in relation to that claim there are discrepancies between the two sources. Central to this appeal are the issues of the extent to which the Authority relied on those discrepancies and on the absence of the other claims from the Interview Record, and whether that reliance was a jurisdictional error.

13    The delegate refused the protection visa application on 16 May 2017. It is not necessary to go into detail as to why; suffice to say that while the delegate accepted that the incident in November 2006 had occurred, he did not accept that since that incident, the appellant had been of any interest to the Sri Lankan authorities.

14    The delegate's decision was a 'fast track reviewable decision' for the purposes of Part 7AA of the Migration Act, so it was automatically referred to the Authority for review. As a result the Department sent its file to the Authority. On 19 May 2017 the Authority sent an email to the Department attaching a 'post-referral request for documents' which said that the 'documents listed below' appeared to be missing or incomplete and saying that there were three 'Arrival interview recordings referred [sic] titled Part 2' and asking if Part 1 of that recording existed for the Department to send a copy. The email was sent to and received by generic email addresses for the respective organisations, that is, not email addresses of individuals, and the post-referral request was signed 'Immigration Assessment Authority', although the body of the email gave the name of an individual as the sender. That individual was not the member of the Authority who subsequently affirmed the delegate's decision.

15    Shortly after the request from the Authority, the Department forwarded to the Authority an email from the Department case officer indicating that he had not been able to locate any audio recordings of Part 1 of the interview.

16    On 2 August 2017 the Authority affirmed the delegate's decision to refuse the protection visa. We will describe parts of the Authority's reasons in more detail when we come to consider the grounds of appeal. As we have indicated, the decision was based, at least in part, on discrepancies between the record of interview and the subsequent protection claims, including the omission of certain claims from the record of interview. The extent to which the Authority relied on the Interview Record in coming to its decision to affirm the delegate's decision was in controversy in the appeal.

The proceedings in the Federal Circuit Court

17    The primary judge heard the application for judicial review of the Authority's decision on 18 February 2019. The appellant was represented by counsel. Only two grounds of review were pressed, namely that the Authority misunderstood its statutory task by rejecting the three claims summarised above 'solely on the basis that they were allegedly not raised in the entry interview', and that it was not open to the Authority to conclude on the basis of the articles about the Merak Boat that there was no real risk that the appellant would be identified as an LTTE supporter.

18    At the hearing before the primary judge, counsel for the appellant made an oral application under s 136 of the Evidence Act 1995 (Cth) for the use to be made of the Interview Record to be limited so that it would not be used as evidence of everything that was said in the interview. Section 136 reads as follows:

General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

(a)    be unfairly prejudicial to a party; or

(b)    be misleading or confusing.

19    The application was made on the basis both that the Interview Record might be unfairly prejudicial to the appellant and that it might be misleading or confusing. It was said to be unfairly prejudicial because its authors were not available for cross-examination. It was said to be misleading or confusing because there was no evidence of its purpose, because the fact that the interview was audio recorded suggested that the Interview Record was not a complete record and nor did the document itself purport to be complete, and because there were said to be internal inconsistencies in the document.

20    The primary judge dismissed the application under s 136 of the Evidence Act. His Honour found that the Interview Record was plainly a summary, the limitations of which were obvious, and that it did not purport to be comprehensive and exhaustive. He said that no copy of the transcript of the record of interview had been adduced into evidence. In circumstances where the Interview Record was a summary and it was signed by both the applicant and the interviewer and the interpreter, his Honour did not accept that there was any danger that the written record might be unfairly prejudicial to a party or misleading or confusing. There is a ground of appeal challenging the decision not to place any limitations on the use to be made of the Interview Record.

21    At the Federal Circuit Court hearing, counsel for the appellant also sought to read into evidence an affidavit of the appellant affirmed on 4 February 2019. In it, the appellant deposed that the first interview covered by the Interview Record lasted a few hours, including two breaks. The interviewer was typing during the interview and 'not really paying attention'. It is said that she told the appellant not to go into so much detail, that he only needed to give a short account of why he left Sri Lanka, and that he would have the chance to tell the whole account at a later date to another person. According to the affidavit, the appellant nevertheless told her about each of the three claims we have summarised above. That included, in relation to the November 2006 incident when he was detained, the claim that he had been forced to sign a confession that would later be used against him. In the affidavit the date of the visit from the Army to the appellant's house had shifted to December 2006 and the claim about being forced to sign at the army camp only appears to refer to one document, not the two mentioned in the protection visa application.

22    The Minister objected to the relevance of this affidavit. At the hearing the primary judge admitted it, subject to relevance (see [36]). However in his ex tempore reasons delivered at the end of the hearing, his Honour rejected the tender of the affidavit because it was not relevant (at [42]-[44]). His Honour held that it could not be relevant to procedural fairness or legal unreasonableness, as neither was alleged. Nor was it relevant in the sense identified in Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540, that is, to show that on the true facts of the case, the decision could not have been lawfully made. The primary judge also rejected what he said had been a submission that the affidavit was admissible as secondary evidence of a destroyed record, namely the audio recording. The appellant says that the relevance of the affidavit was never supported in that last way. The primary judge held that the affidavit was not relevant to any jurisdictional issue, but was an attempt to adduce evidence on the merits of the application. There is a ground of appeal concerning the primary judge's decision not to admit the affidavit.

23    In terms of the substance of the challenge to the Authority's decision, the primary judge did not uphold either of the grounds of review which we have identified. His Honour rejected the first, concerning reliance on the Interview Record, because he found that the Authority did not rely solely on that document, but also on questioning by the Minister's delegate as well as the implausibility of the appellant's statement (at [39]-[41]). His Honour noted that the Authority acknowledged in its reasons that there was a need for caution in the use to be made of entry interviews, which are not for the purpose of an assessment of an applicant's protection claims. In relation to the second ground of review, asserting illogicality in the Authority's treatment of the claim concerning the Merak Boat, his Honour found that the Authority's finding was not illogical and was open to it.

Ground 3 - the claim that the Authority misunderstood its statutory task

24    It is convenient to commence with the third ground of appeal. It asserts that the primary judge erred in failing to find that the Authority misunderstood its statutory task by rejecting the appellant's claims on the basis that they were not raised in the entry interview, being the two-part interview that resulted in the Interview Record. This reflected something of a change of position, because in the ground of review before the Federal Circuit Court the appellant alleged that the Authority erred in rejecting the appellant's claims solely on the basis that they were not raised in that interview. In the ground of appeal in this court, and in his submissions, the appellant only maintained that position in respect of the first claim we have identified above, concerning the November/December 2006 incident. In relation to the other two claims, counsel submitted that it would be an error if the Authority relied principally on the absence of those claims from the Interview Record, even if it might have also relied on other matters. The Minister did not raise any objection as to this shift of position and we will deal with the ground on the basis put in submissions on this appeal.

The Authority's statutory task

25    In advancing the third ground of appeal, the appellant relied on two authorities: MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436 and Minister for Home Affairs v AYJ17 [2019] FCA 591. In MZZJO, a Full Court comprised of North, Bromberg and Mortimer JJ commented on the reliance that should be placed on interviews of the sort that resulted in the Interview Record here. The appellant in MZZJO had attended what was called an 'entry interview', at which he was given initial information similar if not identical to the 'Important Information' appearing at the beginning of the Interview Record which we have set out above: MZZJO at [3]-[6]. The Court referred to this in the course of considering a ground of appeal in which the appellant, an Iranian national, asserted that the Refugee Review Tribunal failed to sufficiently disclose a rational basis for concluding that answers given by him in relation to a ground of his protection claims (agnosticism) were insufficient (see [36]). That ground centred on questioning about the applicant's religious beliefs which the Tribunal had conducted. The Court held (at [53]-[55]) that the conclusions that the Tribunal reached were open to it, having been partly based on the questioning, and partly based on inconsistencies between various accounts that the applicant had given, and also on his failure to mention certain matters at his entry interview.

26    Their Honours then made the following observations (at [56]-[57]):

On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called 'people smuggling'. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.

Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review. However, the Tribunal relied on inconsistencies arising from information presented by the appellant after the entry interview as well, including inconsistencies between the delegate interview and what he said to the Tribunal, and the somewhat inexplicable reluctance of the appellant to have his childhood friend, who arrived on the same boat, give evidence to corroborate aspects of his account. We consider its approach was open to it as a merits decision-maker, and the Federal Circuit Court was correct to so find.

27    The appellant here submits that the Authority's reliance on the Interview Record did involve a misunderstanding of its task on review, and thus jurisdictional error.

28    The second case on which the appellant relied, AYJ17, is a decision of Moshinsky J exercising the appellate jurisdiction of the court as a single judge. The respondent in that case had attended two interviews before he made his application for a protection visa, one called an 'arrival interview' and one called an 'entry interview'. At the second of these, introductory information identical to the 'Important Information' in the Interview Record here was provided.

29    The respondent's claim to protection had centred on an allegation that a bomb had destroyed his car while his brother was driving it, killing his brother, in an attack that was in fact aimed at the respondent. The delegate of the Minister refused to grant a protection visa, which decision was reviewed by the Authority. Moshinsky J found (at [3]) that the principal reason that the Authority affirmed the decision was because the respondent did not mention his brother's death in the arrival interview when he did mention it in the entry interview, the protection visa application and the protection visa interview.

30    Moshinsky J held that it was illogical or irrational, in the sense described by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, for the Tribunal to reject the claim about the death of the respondent's brother on the basis that he did not mention it at the arrival interview. His Honour did so because the purpose of the arrival interview was primarily to obtain details about biodata and travel to Australia, not to obtain a detailed description of the respondent's claims, and also because the very brief note of the respondent's protection claims that was made in the record of the arrival interview was capable at a high level of encompassing the claim about his brother's death.

31    This, counsel for the appellant here submitted, is enough to resolve the appeal in his client's favour. The appellant submits that it was a jurisdictional error for the Authority to place similar reliance on the absence of claims from the Interview Record. Counsel submitted that it does not matter in the end whether the error is characterised as a failure to understand the statutory task, or as illogicality or irrationality.

32    We agree that decision-makers would do well to apply the caution expressed by the Full Court in MZZJO at [56]. But it is just that - a caution. It is something which often, but not always, should be borne in mind in order to reach the correct decision.

33    We also accept that in some circumstances, a decision maker may rely on an interview record in such a way as to indicate a misunderstanding of the statutory task, or illogicality or irrationality, and thereby to fall into jurisdictional error. But jurisdictional error is notoriously dependent on the facts of the particular case and the proper construction of the statute. MZZJO does not stand for any proposition that, regardless of the circumstances, relying solely or primarily on the absence of claims from an entry interview is a jurisdictional error.

34    It is not useful to focus the inquiry around such formulations. It is also significant that the decision maker in MZZJO was the Refugee Review Tribunal. In this appeal, we are dealing with the Authority. The respective statutory tasks of those two bodies were and are different. One cannot simply transpose the observations in MZZJO into the present case.

35    It is necessary instead to describe the jurisdiction conferred on the Authority, and to compare that with the way the Authority came to its decision in respect of the appellant, as demonstrated by a consideration of its reasons as a whole.

36    The nature of the Authority's task is to be discerned from the provisions of Part 7AA and other relevant provisions of the Migration Act (for example, s 65, which empowers the Minister to make the decisions on visas which the Authority is required to review). The task has been described in several authoritative decisions: see e.g. Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111; and Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534. So the summary we give here need only be brief.

37    The task of the Authority is to review a fast track reviewable decision that has been referred to it under s 473CA: s 473CC(1). It can then either affirm the decision or remit it for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation: s 473CC(2). In Plaintiff M174/2016 (at [17]), Gageler, Keane and Nettle JJ summarised the nature of the task that results as follows:

Notwithstanding the inability of the Authority to set aside a fast track reviewable decision and to substitute its own decision, the Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.

38    Nothing inherent in that task limits the extent to which the Authority can make use of the materials before it. But those materials are themselves limited by statute. There is no suggestion in this appeal that the Authority erred in failing to obtain or consider new information. So it was required to make its own decision on the basis of the materials before it, which included the Interview Record and, as has been demonstrated, audio recordings of the second part of the interview but not of the first part. Doubtless, the Authority would fall into jurisdictional error if its decision was illogical or irrational in the sense explained in SZMDS: see e.g. BTW17 v Minister for Immigration and Border Protection [2018] FCAFC 10; (2018) 353 ALR 657. But nothing in that, or in the statutory task that we have summarised, places set limits on the extent to which the Authority may rely on a record of entry interview.

39    It was therefore open to the Authority and, in our view, required of it, to give the Interview Record the weight that, in the Authority's view, it deserved in the context of the rest of the necessarily limited information on which it was required to base its decision. We agree with Perry J in Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28; (2014) 219 FCR 504 at [105] that:

Provided, therefore, that such judgments as to relevance are made by the decision-maker within lawful boundaries, the question as to whether particular evidence can be given any, and, if so what, weight falls within the exclusive province of the administrative decision-maker. Weight may be affected by such matters as provenance … credibility, completeness, context or lack thereof, and the capacity of the interested party to respond to the material particularly if it is adverse.

The Authority's reliance on the Interview Record

40    We now turn to consider the Authority's reasons in light of these principles. The Authority accurately summarised the appellant's claims, including the relevant claims we have described above (para 10). It accepted the appellant's identity as claimed, including that he was a Tamil from Jaffna District (para 13).

41    In relation to the November 2006 incident where the appellant claimed he was taken to an army camp and beaten, the Authority accepted most aspects of the claim. That is, the Authority accepted that the incident occurred after the army searched the appellant's home and found the photograph of the appellant with an LTTE member. It accepted that he was then taken to an army camp, held there for three days, questioned and assaulted. It accepted that he was forced to sign one document in Sinhalese. In accepting all this, the Authority relied on consistency between the 'entry interview', which we take to mean the interview recorded in the Interview Record, the protection visa application and country information (paras 14-15).

42    However the Authority did not accept that the appellant had been forced to sign a second, blank document, or that he had been told that the two documents would be used against him as a confession. That is because the Interview Record recorded him as having said he signed a 'document written in Sinhalese' and that he was 'told he would be arrested if the same thing happened again'. The Authority was satisfied that the claim about the blank document and about the use of the documents as a confession were not true and that they had been provided in order to enhance the appellant's claims for protection (para 16). So in the result, the Authority largely accepted the claim, but did not accept certain details which it seems to have found were fabricated enhancements to the protection claims.

43    The Authority did not accept the other two claims we have summarised at all (para 17). It gave several reasons for this. The first was as follows (para 18):

The applicant's claims regarding these events were not made at the applicant's entry interview. While I acknowledge the entry interview is not for the purpose of an assessment of the person's protection claims, the applicant was asked why he had left Sri Lanka and in response, the applicant made mention of his participation in the football tournament, the photograph with the LTTE member and the detention by the SLA after they discovered the photograph. In contrast there was no mention of these events which were said to have occurred shortly thereafter. I do not accept that the applicant would fail to mention these claims emanating from bomb blast given that his later evidence was that it was this event which was the catalyst for him going into hiding and his move to Colombo prior to his departure from the country.

44    The Authority also referred to the delegate's questioning of the appellant at the protection visa interview, where his answers were consistent with the claims, but it was not satisfied that consistency alone meant that the claims were true (para 19).

45    The Authority then considered in more detail the claim that the appellant had not been allowed to travel from Jaffna (para 20). It had regard to the questions the delegate asked him and the answers he gave. One of the questions was why, if the appellant believed he was of interest to the Sri Lankan Army, he would seek to register with the government. The appellant sought to explain that it was only after the bomb blast that he did not feel safe and decided to leave. The Authority's conclusion on this claim was (para 20):

… I have considered the applicant's explanation but I remain unconvinced that the applicant was being targeted by the authorities at this time. I consider it not plausible that had the applicant been of adverse interest to the Sri Lankan authorities as claimed that he would go to government officials and advise them of his plans to travel from Jaffna.

46    It is relevant to note that the Authority also considered a claim that, while the appellant was staying with his aunt in Colombo, he was threatened by a man called Ratnam. The appellant did not submit there was any error in the way that the Authority dealt with this claim. The Authority found these claims to be convoluted and implausible and noted that the first time they were mentioned was at the protection visa interview with the delegate (paras 21-23).

47    It is also relevant that the Authority concluded that the other evidence the appellant gave, that in 2007 he left Sri Lanka legally on his own passport, was inconsistent with his claim that he was a person of interest to the Sri Lankan authorities. On the basis of country information, the Authority was satisfied that had the appellant been of interest to the authorities, he would have been stopped at the airport (paras 24-25).

48    The Authority stated its conclusions on the protection claims arising from the appellant's time living in Sri Lanka as follows (para 26):

Having regard to the evidence as a whole, including the absence of the claims from his entry interview, the implausibility of the claims and a consideration of the country information before the delegate, I am not satisfied these claims are true. I do not accept that in January 2007, the applicant's application for permission to travel was ever denied; rather I accept it was granted and he later travelled from Jaffna to Colombo by ship. I do not accept that in February 2007, after a bomb blast the President of the Kalavani Sports Club was killed and the applicant was requested by the SLA to go to the camp. I do not accept the applicant went into hiding in order to avoid being questioned by the SLA about the bomb blast. I do not accept the events involving Ratnam ever occurred. I do not accept the applicant was of interest to the Sri Lankan authorities, any other groups or individuals for any reason at the time of his departure from Sri Lanka in 2007.

49    The Authority then went on to summarise certain claims that the appellant made arising out of his time in Malaysia and Indonesia and what would happen if he returned to Sri Lanka (paras 27-46). It accepted some aspects of the claims but remained of the view that the appellant was not of interest to the Sri Lankan authorities. Save for the claims about the Merak Boat, which we address below, it is not necessary to go into detail.

50    Counsel for the appellant made several criticisms of the Authority's reasoning, centred around its reliance on the Interview Record. The written submissions characterised the appellant's complaint as being that the Authority treated the written record as if it were a complete statement of the appellant's protection claims, even though it was not administered for that purpose, had no statutory nexus with the protection visa application, and in any event was incomplete. To reject the claims in this way could not be a proper understanding of the statutory task of review. The interview did not serve any statutory purpose and it took place at a time when the appellant was barred from applying for a protection visa (not that there is any evidence that the appellant appreciated that fact at the time). Counsel submitted that the information statement on the Interview Record which we have quoted above would not indicate to someone in the appellant's position that he had to be comprehensive in his protection claims during the interview.

51    The Authority's request for the audio recordings of Part 1 of the interview showed that it knew it did not have a complete record of the interview. This, it was said, followed from the request for the audio recording of the first part. Then, knowing that the written record might not have been exhaustive, the Authority proceeded as if it were. The appellant claimed that the statutory task of review did not authorise the Authority to rely on the written record as if it were an exhaustive transcript.

52    We do not accept that there is any jurisdictional error in the reasoning of the Authority as we have described it. As we have said, nothing inherent in the statutory task prohibits the Authority from relying, even relying heavily, on the absence of a claim from the record of an initial interview in order to reject a particular claim. Any formulation to that effect would go further than the dicta in MZZJO allow, and such formulations are to be avoided. The Authority's task was to review the materials provided to it and (with limited exceptions) no more than those materials, and to come to its own decision as to the appellant's protection claims. For the following reasons, that is what the Authority did here, and it did so in a manner that discloses no jurisdictional error of the kind asserted by the appellant.

53    First, it is axiomatic that the reasons of the Authority need to be read as a whole. The appellant's arguments rely instead on dissection of those reasons, and taking certain aspects of them out of context to support its characterisations of what the Authority did. That is clearest in the criticism the appellant makes of the Authority's findings about the November 2006 incident, when the appellant was detained in an army camp. The appellant focuses on the Authority's rejection of certain aspects of his claims about that incident. But that overlooks the fact that the Authority accepted that the incident had occurred. It accepted that the appellant was detained, that he was assaulted, and that he was forced to sign one document that he did not understand and threatened with detention in future.

54    In that context, the Authority's reliance on the interview was appropriate and displayed no misunderstanding of its task. The Authority accepted what the appellant is recorded to have said in the interview. He said he was asked to sign 'document written in Sinhalese' (the indefinite article is missing, but in any event this could not have been referring to a blank document). It accepted that he was threatened with arrest. Even assuming that the Interview Record was not complete, and that the Authority knew that it was not, it was open to the Authority to accept the account that was recorded in the Interview Record as correct.

55    The suggestion that it was necessary to the Authority's conclusion about the November 2006 incident that it assumed that the Interview Record was a complete record of the appellant's protection claims is wrong. Rather, the only logical step the Authority was required to take was that the record correctly stated what the appellant had said to the interviewer about what happened at the army camp. It was open to the Authority to take that step. Even in the absence of the audio recording for Part 1, there was no reason to believe that the interviewer had not faithfully recorded what the appellant did say. It was also open, then, for the Authority to find, as it did, that the aspects of the claims which it did not accept were given 'in order to enhance the appellant's claims for protection'. The weight to be accorded to this was a matter for the Authority.

56    Second, the Authority was aware that the purpose of the interview was not for an assessment of the appellant's protection claims. We have quoted the passage in which it says so. This was not just lip service. It was a preface to the Authority's rejection of the claim about 'claims emanating from the bomb blast'. That encompasses the claimed explosion, the assassination of the president of the appellant's football club, the summons of the appellant by the army and the resulting flight of the appellant into hiding in Colombo and, ultimately, away from Sri Lanka. On a fair reading of the reasons, the reason the Authority did not accept these claims was because it was unlikely that anyone who had actually experienced them would fail to mention them at the interview, even in view of its limited purposes and scope. That is especially so since these events were said to have been the catalyst for the appellant's departure from Sri Lanka. It is also, as a matter of common experience, unlikely that an interviewer would fail to record such dramatic claims if they were made. That does not require the Authority to make any broad assumption that the Interview Record was a complete statement of the appellant's protection claims. It merely required it to infer, as a matter of fact, that if those things had happened, the appellant would have described them and some record of that would have appeared in the Interview Record. Whether it was correct or not, that was an inference that it was within the Authority's statutory authority to make. It displays no misunderstanding of the statutory task.

57    Third, the Interview Record was but one of several bases on which the Authority did not accept the appellant's claims. We have referred to the Authority's finding that it was not plausible that the appellant would go to government officials and tell them about his travel plans if he was indeed being targeted by the authorities at the time. That finding was informed by consideration of the protection visa interview. It does not rely on the Interview Record. It is a course of reasoning that discloses no error.

58    Fourth, the appellant's evidence on other issues can be taken to have informed the Authority's overall view of the appellant's credibility. We have given the example of the 'convoluted and implausible' claims about 'Ratnam', which were absent not just from the Interview Record but also from the written protection visa application. We have mentioned the inconsistency between the claim that the appellant was permitted to leave Sri Lanka on his own passport, and the country information indicating that the authorities maintained a database of persons of interest. The appellant complains of no error in these aspects of the Authority's decision. They may not be quarantined from the Authority's assessment of other claims.

59    Fifth, we have quoted the Authority's conclusion on the relevant claims, and the other claims we have mentioned, which indicates that it did not quarantine them. The Authority said it had regard to the evidence as a whole and on our analysis above, that is reflected in its reasons. It referred to the absence of claims from the entry interview, the implausibility of the claims and the country information. It is not correct to dissect the reasons in order to link these foundations of the Authority's reasoning with specific aspects of its decision, so as to treat each aspect in isolation so that it can be more easily impugned. For reasons we have given, we are unpersuaded that there was jurisdictional error even when that is done, but in any event it should not be done.

60    Sixth, it is not to the point that there was no statutory nexus between the interview recorded in the Interview Record and the protection visa application. The Interview Record was a piece of information which s 473DB required the Authority to consider. For the reasons we have given, the way in which the Authority dealt with it discloses no jurisdictional error. The reasons expressly acknowledged the need for caution in how it was used and, in our view, they demonstrated such caution. The Authority did not rely on the Interview Record as if it were a complete transcript of the interview,

61    Seventh, while we acknowledge that the information statement which we have quoted from the Interview Record does not by itself strengthen the inferences that were available to the Authority based on the lack of mention of claims in the Interview Record, for the reasons we have given such inferences as the Authority made were open to it.

62    Eighth, it does not follow from the Authority's request for audio recordings of the first part of the interview that the Authority was aware that the Interview Record was incomplete. Counsel for the appellant submitted that there would have been no reason to ask for the recordings if the Authority had not been concerned that the Interview Record was incomplete. But the circumstances as we have described above make it at least equally likely that the request was merely a routine one made by officers of the Authority for the purposes of ensuring it had received all the information that the Secretary of the Department was required to give it. Those circumstances include the way the relevant emails passed between generic addresses, and do not appear to have been sent by the author of the Authority's review. In any event, there are other explanations for the request that the Authority made. Counsel accepted it as possible that the Authority wanted to make its own assessment of the credibility of the applicant from listening to the interview, or to see whether there were problems with the interpreter, or simply to obtain more detail on the claims. We do not find that the Authority was aware that the Interview Record was incomplete, or should have been aware.

63    Turning now to the authorities, we have already indicated the limited extent to which MZZJO supports the appellant's case. In the circumstances as we have described them, the caution expressed in that case has less force than it may have in other cases, because the first interview covered by the Interview Record occurred on 16 June 2017, some six weeks after the appellant's arrival on Christmas Island. While we do not doubt that the interview was still a stressful occasion for the appellant, it was not conducted shortly after he arrived in Australia in cramped and difficult conditions, so he had more time to adjust to his new surroundings and recover from the voyage than the appellant in MZZJO did.

64    As for AYJ17, we consider that it is distinguishable. There, the Authority had relied on the absence of the crucial claim from the 'arrival interview', which was relatively brief. But the crucial claim was made in the 'entry interview', which was longer and, judging from the information provided to the applicant at the outset, comparable in scope and purpose to the interview with the appellant here that resulted in the Interview Record: see AYJ17 at [3], [11]. It was also relevant that the answer box for the relevant part of the arrival interview record could only accommodate three lines of text, which in itself suggests that the information in the box might be incomplete or so truncated as to be unreliable: AYJ17 at [10]. In any event, what was recorded there was capable of encompassing the claim that the applicant later made in more detail: AYJ17 at [3], [42]. There was ample support for Moshinsky J's conclusion that the Authority's rejection of the claim was illogical or irrational, but the facts of the case were materially different.

65    The appellant referred to other decisions of single judges of this court where their Honours have declined to apply MZZJO in order to find that the Authority fell into error in misunderstanding the nature of its task. The appellant submitted that these cases were distinguishable. It is not necessary to examine the cases in any detail; while they are indeed based on different facts, they nevertheless demonstrate an understanding of the limited use to which the dicta in MZZJO should be put, and they are further support for our view that the appellant's reliance on that case here is misplaced: see EBC17 v Minister for Immigration and Border Protection [2018] FCA 1836 at [22]-[23] (Farrell J); BIR17 v Minister for Immigration and Border Protection [2019] FCA 850 at [43]-[45], [51] (Charlesworth J).

66    The Authority's reasons disclose no jurisdictional error. We do not uphold ground 3.

Grounds 1 and 2 - the asserted errors as to evidence

67    We have described the appellant's tender of his affidavit of 4 February 2019 and the application to the Federal Circuit Court under s 136 of the Evidence Act. The primary judge's rejection of both of these are the subject of grounds of appeal 1 and 2 respectively. We can deal with these grounds briefly.

68    In relation to the tender of the affidavit, even if it had been accepted into evidence, it would have made no difference to the conclusion that the Authority did not fall into jurisdictional error. As we have explained, the Authority's reasons do not proceed on the basis that the Interview Record was evidence of everything that was said in the interview. So even if evidence that other claims were made in the interview had been admitted, it would not follow that the Authority committed any jurisdictional error.

69    It is not necessary to embark on a survey of the categories of case in which evidence not before the original decision maker can be adduced in an application for judicial review. Here, the appellant submitted that the fact in issue, to which the affidavit went, was whether the Authority's use of the Interview Record was consistent with a proper understanding of the Authority's task. We doubt that is a purely factual issue; rather it is a mixed issue of fact and law which is to be answered by construing the reasons of the Authority in the context of what was known to the Authority. In any event, we fail to see how a fact unknown to the Authority can shed any light on the resolution of that issue. It is not possible to show that the Authority misunderstood its task by failing to deal with a matter that was unknown to it. It could be that evidence of such a matter is relevant to the question of the materiality of a jurisdictional error, but since in our view there was no jurisdictional error, the question does not arise. We do not uphold ground 1.

70    In relation to ground 2, concerning the application under s 136 of the Evidence Act, even if the primary judge had granted the application that the Interview Record not be used as evidence of everything that was said at the interview, that would not have made any difference to the finding that the Authority did not commit jurisdictional error. As we have explained, the Authority did not proceed on that assumption.

71    It is not necessary to deal further with ground 2. There was some discussion at the hearing as to whether the primary judge's dismissal of the s 136 application was an interlocutory decision so that leave to appeal and possibly an extension of time were required. But we do not need to determine whether that is so given our view that ground 2 cannot lead to success for the appellant in any event. We do not uphold the ground.

Ground 4 - the Merak Boat

72    The appellant claims that it was not open to the Authority to conclude, on the basis of the news articles about the Merak Boat we have mentioned above, that there was no real risk that the appellant would be identified as an LTTE supporter. The appellant focusses on the Authority's summary of the articles as indicating that the Sri Lankan authorities had 'identified a small number of Merak boat passengers as known LTTE combatants or supporters', but that the material 'did not allege that all passengers were considered LTTE supporters because they were Tamil'. The appellant submits that the Authority's finding that he would not face any real risk because of an imputed political opinion does not follow from the fact that not all passengers were considered LTTE supporters. The appellant's submissions sought to illustrate this by making numerical comparisons between a situation when all but one of the passengers was aligned with the LTTE and a situation where only one of the passengers was so aligned. He submitted that making findings about the extent of risk in the latter situation depended on how many people were on the boat. The implication in the submissions is that the Authority did not know that.

73    Once again, this ground of appeal relies on taking an isolated statement in the Authority's reasons out of context. The appellant then applies abstract logical arguments to that fragment of evidence, in an attempt to demonstrate error.

74    The dispositive passages about the Merak Boat appeared in the course of the Authority's consideration of the appellant's claims that if he returned to Sri Lanka he would be harmed by the Sri Lankan authorities because he is perceived to have been involved with the LTTE on the basis of his Tamil ethnicity, his past circumstances and because he was a former passenger on the Merak Boat (paras 31-37). The Authority's reasoning about the Merak Boat was (paras 34-35, footnote omitted):

The material before me indicates that the Sri Lankan authorities alleged they had visually identified a small number of Merak boat passengers as known LTTE combatants or supporters, and asserted the importance to the Sri Lankan government of containing illegal migration of such people in order to avoid a resurgence of the LTTE. The statements do not allege that all passengers were considered LTTE supporters because they were Tamil.

I accept the applicant was a former passenger of the Merak boat. However I do not accept that that the Sri Lankan government has ever imputed actual LTTE involvement to all or most or many Merak boat in 2009 or since. Rather, I have found that the applicant was not of interest to the Sri Lankan authorities when he departed Sri Lanka in 2007, and I am satisfied that the chance of the Sri Lankan authorities visually identifying the applicant as a known LTTE combatant or supporter from any visual media footage to be remote. While I accept that there may be a possibility that the applicant's name may have appeared on a list held by the Sri Lankan authorities regarding the Merak boat, I do not accept that this would alter knowledge or perception of him by the authorities, or compound the risk to him.

75    Reading these passages as a whole, there is nothing illogical about them. It is open to read 'a small number of Merak boat passengers' to mean a small proportion of the passengers on the boat. That is confirmed by the finding in the next paragraph that the Sri Lankan authorities has not 'ever imputed actual LTTE involvement to all or most or many' on the Merak Boat. The Authority then finds that the chance of the Sri Lankan authorities visually identifying the applicant from media footage is remote. These findings are logically coherent and consistent with each other. The observation that the 'statements [presumably, the articles] do not allege that all passengers were considered LTTE supporters because they were Tamil' is not the sole premise that led to the Authority's conclusion. It merely excludes one logical possibility that might have led to a different conclusion. The appellant's submissions seek to elevate this sentence to a position where it was the sole basis of the Authority's findings about the Merak Boat. It was not.

76    In any event, without the articles in evidence, it is not possible to find that they provided no support in logic for the Authority's conclusions. It may be that the Authority based its views on photographs that accompanied the articles. Those photographs may have shown faces as indistinct, and may have indicated that there were a lot of people on the Merak Boat. The last sentence of paragraph 35 of the Authority's reasons, concerning the existence of a list, may also have relied on the contents of the article. It is not possible to say. The need to speculate about these matters demonstrates why it is incorrect to separate the Authority's findings from their context and from the evidence, and then subject them to close analysis in order to demonstrate error. That is the kind of over-zealous scrutiny of administrative decisions that the authorities repeatedly counsel against. We do not uphold ground 4.

Conclusion

77    The appeal must be dismissed with costs.

Associate:

Dated:    13 September 2019