FEDERAL COURT OF AUSTRALIA
BQQ15 v Minister for Home Affairs [2019] FCAFC 218
ORDERS
Applicant | ||
AND: | First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The applicant’s application for an extension of time to file a notice of appeal be refused.
2. The applicant pay the first respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
Introduction
1 By application filed on 27 April 2018, the applicant seeks an extension of time under rule 36.05 of the Federal Court Rules 2011 (Cth) in which to appeal a decision of the Federal Circuit Court made on 23 March 2017 in BQQ15 v Minister for Immigration & Anor [2017] FCCA 3412. The application is more than one year out of time.
2 The applicant is a citizen of Sri Lanka. He arrived by boat at Christmas Island on 12 August 2012 as an unauthorised maritime arrival. On 17 December 2012, the applicant applied for a protection visa under the Migration Act 1958 (Cth) (Act). On 24 March 2014, a delegate of the first respondent (Minister) refused to grant the protection visa pursuant to s 65 of the Act.
3 On 27 March 2014, the applicant applied to the second respondent, the Administrative Appeals Tribunal (Tribunal), for review of the delegate's decision. The applicant appeared at the hearing to give evidence and make submissions, with the assistance of a Tamil interpreter. The applicant was also represented by a registered migration agent. On 21 July 2015, the Tribunal dismissed the application and affirmed the delegate’s decision not to grant the visa.
4 On 13 August 2015, the applicant filed an application for judicial review of the Tribunal's decision in the Federal Circuit Court of Australia pursuant to s 476 of the Act, which grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to assessing jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The applicant was unrepresented before the Federal Circuit Court and, in the absence of an interpreter, addressed the Court with the assistance of a friend who spoke English. Delivering its reasons for judgment ex tempore on 23 March 2017, the Federal Circuit Court dismissed the application for review.
5 The application for an extension of time was listed to be heard by a Full Court of this Court on 14 May 2019, with the intention that argument on the application for leave and, if leave were granted, the appeal would be heard at the same time. Timetabling orders to facilitate the hearing were made on 12 April 2019, including the filing of any amended draft notice of appeal with particularised grounds of appeal.
6 On 1 May 2019, the applicant filed an amended draft notice of appeal that contained a single ground of appeal in the following terms:
The Federal Circuit Court erred by failing to find that the Tribunal’s decision was infected by jurisdictional error by reason that the Tribunal relied on findings adverse to the credibility of the Appellant which findings were legally unreasonable.
7 The particulars of the ground were provided in the applicant’s written submissions that were filed at about the same time.
8 Counsel for the applicant acknowledged that the proposed ground of appeal differs in form from the ground of review raised before the Federal Circuit Court, but submitted that it did not differ in substance. We disagree. The ground of review before the Federal Circuit Court was in the following terms:
The AAT erred in not giving consideration to the evidence that the Applicant being myself will suffer and will be persecuted in the hands of the offenders who had already caused harm to me before fleeing to Australia upon my return to my home country. I provided evidence to that regard in support but the Tribunal Member disregarded such evidence and or did not give consideration to that evidence. Accordingly the Tribunal Member has erred as a matter of law.
9 It is apparent from the reasons of the Federal Circuit Court that the Court understood the ground of review as being an alleged failure to consider evidence and submissions advanced by the applicant. The Court did not understand the ground of review as alleging unreasonable credibility findings. The Court’s approach was correct given the formulation of the ground of review. We return to that issue below.
10 At the hearing on 14 May 2019, the applicant made a further application to tender in evidence an audio recording of the hearing before the Tribunal. The audio recording was not in evidence before the Federal Circuit Court. It was common ground that no transcript of the hearing before the Tribunal had been made. The Court heard submissions about the tender and, for the reasons explained below, ruled that the audio recording was not admissible.
11 For the reasons that follow, the applicant’s application for an extension of time to file a notice of appeal is refused.
Background
12 In making his application for a protection visa, the applicant has been required to articulate his claims on a number of occasions. In light of the amended notice of appeal on which the applicant seeks to rely, it is relevant to set out the various claims made by the applicant on each of those occasions, as they bear upon the Tribunal’s adverse credibility findings.
13 In his entry interview on 23 August 2012, the applicant stated that:
(a) He was born in Negombo in 1993.
(b) His ethnicity is Tamil, his preferred language is Tamil but he also speaks Sinhalese.
(c) He resided in the following locations at the following times: 14-19 Luis Pardesha, Negombo between 1993 and 2005; 337 Point 8 Adiarpara Katuri, Negombo between 2005 and 2010; Mannar (address not known) working as a fisherman between 2010 and 2012; and 14-19 Luis Pardesha, Negombo between June and July 2012 (after which the applicant departed Sri Lanka).
(d) Between 1998 and 2008, the applicant was educated to year 10 at a Sinhalese school in Negombo.
(e) Between 2010 and 2012, the applicant worked as a fisherman in a family fishing business owned by his paternal aunt in Mannar and, when he came home to Negombo on holidays, worked as a kitchen hand in Silvas restaurant and hotel.
(f) His mother and father reside in Mannar and his father works as a fisherman. His younger brother resides with his parents in Mannar and his older brother resides in Negombo.
(g) He left Sri Lanka because he was bullied at school. The school was a Sinhalese school and the applicant was the only Tamil student in the school. He was sent to a Sinhalese school because his father is Sinhalese. He has been targeted by Sinhalese boys as a Tamil and bullied and attacked. As a result, he left Negombo and went to Mannar.
(h) He left Sri Lanka on 27 July 2012.
14 In a written statement dated 4 December 2012 made in support of his application for a protection visa, the applicant made the following claims:
(a) The applicant was born in Negombo in the Western Province of Sri Lanka. His father is Sinhalese and his mother is Tamil. He grew up in Negombo with his parents and two brothers.
(b) He attended a Sinhalese school and speaks, reads and writes Sinhalese. He nevertheless identifies as being of the Catholic religion and Tamil ethnicity on the basis that Tamil is his primary language.
(c) His problems began in 2010. At that time, his family lived in a thatched hut on the island of Batalan Gunduwa off the coast of Negombo where the family worked as fishermen. The family built a hut seasonally when the fishing was on. There were Sinhalese inhabitants on the island who could speak Tamil, one of whom asked the applicant’s father for a loan. His father refused and instead loaned money to a friend. Two or three days later, his family’s hut was burned down and his father suspected that this was done by the person who asked for the loan. His father complained to the police but no action was taken. His father suspected that the person(s) responsible for burning down the hut may have bribed the police.
(d) Shortly after the hut burned down, the inhabitants who were responsible threatened his father that if he informed the authorities of the incident, he would be killed. The applicant recalled two separate occasions on which he and his father were fishing when Sinhalese locals approached them shouting abuse and threatening to ram their boats. When this was reported to the local navy guard, an officer told the applicant and his father that if they pursued their complaint with a higher authority, they would be abducted.
(e) When the applicant and his father learned that other Tamils had encountered similar issues, a meeting of the local fishing co-op was called. A Sinhalese person said at the meeting that there was discrimination against Tamils because the Tamils supported the LTTE (which the applicant and his father denied). The president and secretary of the fishing co-op were both Sinhalese and they told the attendees not to complain to the police about discrimination against Tamils.
(f) The applicant’s father confronted the people who were threatening them and they hit his father on the chest with an engine shaft.
(g) Due to the applicant’s association with Tamils, he received threats to his life from young Sinhalese who lived on the island and who claimed they knew people in positions of power within the police force. Consequently, the applicant did not complain to the police.
(h) Due to the threats, the applicant’s mother sent him to Negombo, which was far from the island. The applicant then travelled to Mannar to stay at his aunt’s house. While there, army officers inspected the applicant’s ID card and told him not to “go around this area”. The applicant feared that the officers may have been sent by people back on his home island of Batalan Gunduwa.
(i) In February 2012, the applicant attended a protest against rising fuel prices in Chilaw, a town in the Puttalam District in the North Western Province of Sri Lanka. He claimed that he feared harm from the authorities after he accidentally hit a navy officer at the protest. This led the applicant to decide to leave Sri Lanka.
15 At an interview held by the Department of Immigration and Border Protection on 9 September 2013, the applicant made an additional claim which he had not raised in his written statement. He claimed that the men whom he suspected had been responsible for burning down his family’s hut had later returned to their home threatening to kill the applicant. His mother had begged them not to kill him and had sex with one or more of them so that they would not harm the applicant.
16 At the Tribunal hearing, the applicant gave the following further evidence, which altered parts of his previous evidence and introduced a further claim of mistreatment by his father’s relatives:
(a) He said that he finished school in 2009 or 2010. While he was at school, he worked at the Silva hotel in Negombo at weekends and, during school holidays, he went to the island of Batalan Gunduwa to fish. Following school, for about a year and a half, he worked with his father six months a year, from January to May or June, fishing on the island and for the other six months or so he worked at the Silva hotel in Negombo (Tribunal reasons [59]).
(b) The hut that was burned down was a permanent hut (not built seasonally). The applicant stated that the hut was burned down in 2012, but later said 2011 (whereas his earlier statement indicated 2010) (Tribunal reasons [63]).
(c) The applicant claimed that his problems included that his father’s side of the family were not supporting him because his father had married a Tamil. At some stage, his parents had lived separately because his father’s relatives had given the family trouble, although the applicant claimed that they were living together when he left Sri Lanka (Tribunal reasons [64] and [65]).
(d) The applicant claimed that when he was working at the hotel in Negombo in 2012, his father’s relatives caused him problems and said things to him. At that time, he was staying with his paternal aunt’s son and daughter at a house that had belonged to his paternal grandmother. Nine or ten of his father’s siblings lived close by and his father’s relatives stayed at the house. He said that he could not return to Negombo because of trouble from his father’s relatives, and he could not return to the island of Batalan Gunduwa because of the trouble there (Tribunal reasons [66] – [68]).
(e) The applicant claimed that, to save him from problems on the island, his mother was having an affair with the person who attacked the applicant and his father. The applicant claimed that this was the only way his mother could save his life. His father does not know of the affair. The applicant does not know what will happen if he returns to the island (Tribunal reasons [73]).
Tribunal decision
17 The Tribunal hearing was conducted on 3 July 2015 in Sydney and Melbourne with the use of videoconference facilities. The Tribunal member presided in Sydney; the applicant appeared in person in Melbourne; the applicant’s migration agent attended the hearing in Sydney. The applicant gave evidence and made submissions with the assistance of a Tamil interpreter over the telephone.
18 In its reasons for decision, the Tribunal set out the applicable criteria for the grant of a protection visa in paragraphs 36(2)(a) (the refugee criteria) and 36(2)(aa) (complementary protection criteria) of the Act as those provisions stood at the relevant time. Relevantly for the present application, the key questions for decision were whether the Tribunal was satisfied that:
(a) the applicant was outside Sri Lanka owing to a well-founded fear of being persecuted for reasons of race or membership of a particular social group; or
(b) there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he will suffer significant harm.
19 The Tribunal set out in some detail the claims that had been made by the applicant in his entry interview, in his written statement accompanying his visa application, in the Departmental interview and at the Tribunal hearing. In the course of its reasons, the Tribunal highlighted what it considered to be inconsistencies in the claims made by the applicant, as well as the making of new claims over time. It is apparent that those matters were a significant reason for the Tribunal making adverse credibility findings in respect of the applicant’s claims.
20 The Tribunal rejected the applicant’s claims for protection because it found the applicant’s evidence about what happened to him in Sri Lanka not credible. The following claims made by the applicant were not accepted by the Tribunal:
(a) the applicant’s claim that he had been mistreated by his father’s relatives (at [69] of its reasons);
(b) the applicant’s claim concerning the request made to his father for a loan and the subsequent burning of the family’s hut, physical attack on his father and his mother’s affair with the attacker (at [74] of its reasons);
(c) the applicant’s claim that he was present in Chilaw during the fuel price protest on 15 February 2012 (at [80] of its reasons).
21 The Tribunal also found that the applicant’s claim that he identifies as Tamil, or is identified as Tamil, was not credible (at [91] of its reasons).
22 As a result of the foregoing findings, the Tribunal did not accept that the applicant had suffered any harm in the past because of his actual or imputed Tamil ethnicity or that there was a real chance that he would suffer serious harm or a real risk that he would suffer significant harm because of his actual or imputed Tamil ethnicity if he returns to Sri Lanka (at [91] of its reasons). The Tribunal also found that there was not a real risk that the applicant would suffer serious harm or a real risk that he would suffer significant harm because he has left Sri Lanka illegally (at [96] and [97] of its reasons).
23 The reasons given by the Tribunal for the foregoing findings are the subject of the proposed ground of appeal and are considered in some detail below.
Federal Circuit Court Decision
24 The applicant sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia pursuant to s 476 of the Act. The ground of review was that the Tribunal erred in not giving consideration to the evidence that the applicant will suffer and will be persecuted in the hands of the offenders who had already caused harm to him before fleeing to Australia upon his return to Sri Lanka.
25 The primary judge noted that the Tribunal had set out in detail the applicant’s evidence and claims, much of which had been extracted from the documents submitted to the Tribunal by the applicant (at [15]).
26 The primary judge observed that a significant part of the Tribunal’s decision dealt with the reasons why it did not accept the applicant’s claims as credible (at [16]).
27 The primary judge found that the applicant had been unable to identify any particular evidence that the Tribunal failed to address or failed to consider (at [20]). The primary judge noted that the Tribunal had identified the persons from whom the applicant said he feared harm (at [22]) and the Tribunal had had regard to the applicant’s claims made in respect of those people (at [23]). The primary judge found that the Tribunal had set out its findings in a comprehensive and detailed way and had not disregarded any evidence provided by the applicant (at [23]).
28 The applicant submitted that the central reason that the primary judge dismissed the application for judicial review was that the Court was not able to review credibility findings, relying on the following two passages from the reasons of the primary judge (at [23] and [26]):
[23] …A fundamental point in this case is that the Tribunal did not accept the Applicant as credible and its decision followed that finding. The Tribunal was not bound to accept the Applicant’s claims and ultimately, the issue of the credibility of the Applicant’s claims is one for the Tribunal….
[26] Ultimately, the application is an invitation to review the merits of the Tribunal’s decision in relation to the findings of credibility, which is beyond the scope of this Court. In those circumstances I dismiss the application.
29 The applicant submitted that those passages display error in suggesting that findings of credibility are not amenable to judicial review.
30 It is well-established that credibility findings are not immune from judicial review. However, the applicant’s submission that the central reason that the primary judge dismissed the application for judicial review was that the Court was not able to review credibility findings is incorrect and mischaracterises the reasons of the primary judge. The primary judge understood, with respect correctly, that the ground of review raised by the applicant was that the Tribunal had failed to give consideration to, and had disregarded, the applicant’s evidence. The primary judge found that that ground of review was not made out and that is why the primary judge dismissed the application for review. The primary judge’s remarks concerning the Tribunal’s credibility findings were to explain that the reason that the Tribunal refused the application for a visa was not because the Tribunal failed to consider the applicant’s evidence but because the Tribunal did not believe that evidence. Those remarks were not the reason for the primary judge’s decision.
31 By the proposed amended notice of appeal, the applicant now seeks to review the Tribunal’s decision on a new basis that was not raised before the primary judge: that the Tribunal’s credibility findings were legally unreasonable.
Application for extension of time
32 At the relevant time, rule 36.03 of the Federal Court Rules 2011 (Cth) required a notice of appeal to be filed and served within 21 days after the date when the order or judgment was pronounced. Accordingly, a notice of appeal should have been filed by 13 April 2017, being 21 days after the primary judge pronounced the orders on 23 March 2017. When the applicant filed his application for an extension of time on 17 April 2018, the applicant was more than one year out of time.
33 Under rule 36.05, the Court may grant an extension of the time within which an appeal is to be filed. The principles applicable to the exercise of the Court’s discretion were set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, which were adopted by the Full Federal Court in Parker v R [2002] FCAFC 133 at [6]:
(a) Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored.
(b) There must be some acceptable explanation for the delay.
(c) Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension.
(d) The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.
(e) The merits of the substantial application are to be taken into account in considering whether an extension is to be granted. Leave will not be granted where there are no reasonable prospects of success on the appeal: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]. The applicant will have no real prospects of success where the case is devoid of merit or clearly fails; is hopeless; or is unarguable. In making an assessment the Court is not required to go into too great a detail, but is to “assess the merits in a fairly rough and ready way”: Jackamarra v Krakouer (1998) 195 CLR 516 at [7] – [9].
(f) The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties. Special circumstances often arise in immigration cases. Where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7]. This will be so particularly if the applicant is in immigration detention, requires the assistance of an interpreter and has limited knowledge of law and practice including the time for any appeal: Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 at [14]; N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 at [12] (N1202/01A). Further, where an applicant is an asylum seeker, the gravity of the circumstances that may confront him or her may be a reason for not applying the time rule too strictly: Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 FCR 441 at [5]. Nevertheless, the merits of the appeal will remain a relevant factor: N1202/01A at [13].
34 The applicant explained the reason for the delay in his affidavit sworn 23 April 2018. He said that he became a father 12 days before the Federal Circuit Court hearing. When the appeal was due to be filed in this Court, the applicant’s son was 1 month old and he did not have legal representation. The applicant also gave evidence that his relationship with his son’s mother broke down within several months of his son’s birth and that this contributed to the delay in bringing the present application for an extension of time.
35 The applicant submitted that leave should be granted because there is a satisfactory explanation for the delay in bringing the application and because the proposed ground of appeal arising from the decision of the Tribunal is not only sufficiently arguable but a basis upon which the appeal should ultimately be allowed.
36 Largely for the reasons advanced by the Minister, we consider that an extension of time should not be granted.
37 First, the length of the delay is substantial. As was noted by Gyles J in Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9 at [62], there is a significant public interest in the timely and effective disposal of litigation and delays in dealing with applications for protection visas are to be avoided if possible.
38 Second, the circumstances referred to by the applicant as his explanation for the delay are unexceptional in that they involve matters (including lack of legal representation) that are shared by many litigants in this Court in the migration jurisdiction. Those reasons are not exculpatory of the delay. Indeed, while the applicant’s affidavit refers to events occurring in his life during that year (the birth of his son and breakdown of the relationship with the child’s mother), the affidavit does not provide any direct evidence about the cause of the delay. The applicant’s ability to remain in Australia must have been in the applicant’s mind throughout the period of the delay, and yet the applicant did not act. In the absence of direct evidence, it is open to infer that the applicant must have given up on any thought of an appeal but then changed his mind. That is unsatisfactory.
39 Third, in considering the merits of the underlying appeal, a compounding factor is that the applicant also requires leave to raise a new ground of appeal that was not raised before the primary judge. There are sound reasons why leave to raise a new ground of appeal is not given freely. As the plurality observed in Coulton v Holcombe (1986) 162 CLR 1 at 7:
It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.
40 This Court has recognised that special circumstances frequently arise in immigration cases. The usual approach of the Court in such cases was described by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 in the following terms (at [48]):
The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.
41 The applicable principles were recently discussed by the Full Court in CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [35] – [38].
42 In considering whether leave to raise a new ground of appeal should be given in the present case, two factors are in the applicant’s favour: the failure to take the point below can be explained by the fact that the applicant was not legally represented; and the point raises an issue of law, whether the decision of the Tribunal was legally unreasonable. However, a number of factors are against leave being given. First and foremost, we are of the view that the proposed ground would not succeed. That is explained below in some detail. Second, the new ground does not involve a reformulation of an issue agitated below. It is a wholly new ground and the issue agitated below has been abandoned. It renders the proceeding below an entirely wasted exercise.
43 Weighing all the factors referred to above, we consider that it is in the interests of justice to refuse the extension of time: the delay is excessive; the explanation is unsatisfactory; the proposed ground of appeal was not raised before the court below; and the proposed ground of appeal would not succeed.
Application for leave to tender recording of Tribunal hearing
44 Counsel for the applicant made a further application at the hearing, which had been foreshadowed in written submissions filed before the hearing, seeking the Court’s leave to have a recording of the Tribunal hearing held on 3 July 2015 admitted into evidence. Counsel for the applicant also sought to hand up, in the form of an aide memoire, a transcript which covered approximately the first 27 minutes of the Tribunal hearing. The application was opposed by the Minister.
45 Counsel for the applicant submitted that the application was being made at the hearing because the Minister had only recently provided a copy of the recording to the applicant, in response to a request made by the applicant on 12 April 2019. Counsel for the Minister did not contest that a copy of the recording had been provided recently in response to the applicant’s request, but also noted that the evidence showed that an audio recording of the Tribunal hearing had been provided to the applicant by the Tribunal on 3 July 2015, immediately after the hearing and before the decision was made.
46 Counsel for the applicant submitted that the true cause of the problem was the failure by the Minister to include the recording in the evidence that was adduced before the Federal Circuit Court. If that had occurred, the recording would have formed part of the relevant evidence and the application would not have been required.
47 It is unnecessary to say anything about the lateness of the application. At the hearing, we ruled the recording to be inadmissible because it had no apparent relevance to the applicant’s proposed ground of appeal as particularised in the applicant’s written submissions. Counsel for the applicant submitted that he wished to use the transcript for two purposes: first, to show that the interpreter at the hearing had difficulty in understanding the applicant; and second, to show that were a couple of instances where the findings of the Tribunal were based on an “unsafe” version of the evidence from the applicant. However, neither the proposed ground of appeal nor the written submissions raised those matters as grounds to review the Tribunal’s reasons.
Proposed ground of appeal
48 The sole ground of appeal on which the applicant seeks to rely in its proposed amended notice of appeal is that the Federal Circuit Court erred in failing to find that the Tribunal’s decision was affected by jurisdictional error because the Tribunal relied on adverse credibility findings and its reliance on those findings was legally unreasonable.
Applicable legal principles
49 In written submissions, the applicant advanced ten “legal principles” (designated with the letters (a) to (j)) concerning the judicial review of adverse credibility findings. While many of the propositions advanced by the applicant are uncontroversial and are supported by decisions of the courts, there is a danger in attempting to elevate the propositions into rigid formulations of legal principle. There was a tendency in the applicant’s submissions to treat findings as to how reasons are to be understood in other cases as being of universal application. A number of the propositions involved cautionary judicial statements about the receipt of evidence in migration cases where an applicant for a visa is required to provide an account of their claims on multiple occasions and through an interpreter: see for example W375/01A v Minister for Immigration and Multicultural Affairs (2002) 67 ALD 757 at [11] – [15], SAAK v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 185 at [21] – [31] and WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597 at [17] – [18], on which the applicant placed considerable reliance.
50 Adverse credibility findings are not immune from judicial review, but to establish jurisdictional error it is ordinarily necessary to show that the findings were legally unreasonable, for example by being based on illogical or irrational findings or inferences of fact: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 per Gleeson CJ and McHugh J and at 657 per Gummow J; Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 73 ALD 1 at [5] per Gleeson CJ; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 at [37] – [38] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS). However, judicial review does not involve mere merits review – it is not enough for the question of fact to be one on which reasonable minds may differ: SZMDS at [96] and [130] per Crennan and Bell JJ; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at 122.
51 The principles which guide judicial review of adverse credibility findings have been discussed by the Full Court of this Court in a number of recent decisions including CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [36] – [38]; DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30]; and AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83 (AVQ15) at [41]. The principles included the following:
(a) Whether or not a credibility finding is affected by jurisdictional error is a case specific enquiry and should not be assessed by reference to fixed categories or formulae.
(b) Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reason or finding of fact was immaterial, or not critical, to the ultimate conclusion or end result (such as, for example, where it is by one of several findings that independently may have led to the ultimate decision).
(c) Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review: SZMDS at [96]. Even emphatic disagreement with the Tribunal’s reasoning is not sufficient to make out illogicality: SZMDS at [124].
52 Adverse credibility findings are most commonly made on the basis of inconsistencies in an applicant’s claims, implausibility of the claims, the manner in which the claims are made (particularly the claimant’s demeanour as a witness) or the time at which the claims are made (which is related to, but separate from, the consistency of the applicant’s claims).
53 In AVQ15, the Full Court expressed the following cautions about the assessment of inconsistencies in an applicant’s claims (at [27] and [28]):
Secondly, the term “inconsistency” should be used with appropriate caution and an appreciation of the danger of using labels or formulae which mask the need for deeper analysis. As we have noted above, adverse credibility findings might be based on a variety of matters, including inconsistencies between, for example, evidence or claims made at different stages of the decision-making process or differences between oral evidence and contemporaneous documents. In some circumstances a visa applicant may raise a claim for the first time at an advanced stage of the decision-making process and the failure to raise the claim previously may well be relevant to credibility, but that is not to say that this is correctly described as an inconsistency.
Thirdly, even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.
54 Similar observations were made by the Full Court in ASB17 v Minister for Home Affairs [2019] FCAFC 38 at [39] – [45].
55 The applicant submitted that a finding that evidence is implausible can only be sustained when the circumstance is “beyond human experience of possible occurrences”, which was an incomplete reference to a statement made by Lee J in a dissenting judgment in W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [21]; [2001] FCA 679. In the same paragraph, Lee J also equated “implausible” with “inherently unlikely”. The applicant submitted that the High Court adopted a similar statement of principle in Republic of Nauru v WET040 (No 2) (2018) 362 ALR 235 (WET040 (No 2)) at [35]; [2018] HCA 60. We do not accept that submission. In WET040 (No 2), the High Court observed at [35], in finding no error in a decision of the Refugee Status Review Tribunal of Nauru:
It was to recognise that, when all these matters were taken together, the respondent's version of events so ill-accorded with the probabilities of ordinary human experience as to be implausible.
56 A finding that an alleged event is implausible is ordinarily a finding that it is inherently unlikely to have occurred; adopting the language of the High Court in WET040 (No 2), the event does not accord with the probabilities of ordinary human experience. It is not necessarily a finding that that event is beyond human experience of possible occurrences in the sense that it could not have occurred: that formulation tends to overstate what is ordinarily meant by “implausible”.
57 The applicant submitted that a court cannot find proven the opposite of that which a witness has asserted because the court disbelieves the witness, citing Djuraj v Minister for Immigration & Multicultural Affairs [2001] FCA 986 at [30]. However, that principle cannot be accepted in such broad terms and as being of universal application, because inferences can arise or be supported by the fact that a witness, or an applicant for review, has told a false story. Further, there may be cases involving only two possible alternative states of affairs, and the rejection of one may support the existence of the other. These possibilities were identified by Gibbs J in Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 694:
The fact that a witness is disbelieved does not prove the opposite of what he asserted: Scott Fell v. Lloyd (1911) 13 CLR 230 at p 241; Hobbs v. Tinling (C.T.) & Co. Ltd. (1929) 2 KB 1 at p 21. It has sometimes been said that where the story of a witness is disbelieved, the result is simply that there is no evidence on the subject (Jack v. Smail (1906) 2 CLR 684 at p 698; Malzy v. Eichholz [1916] 2 KB 308 at p 321; Ex parte Bear; Re Jones (1945) 46 SR (NSW) 126 at p 128), but although this is no doubt true in many cases it is not correct as a universal proposition. There may be circumstances in which an inference can be drawn from the fact that the witness has told a false story, for example, that the truth would be harmful to him; and it is no doubt for this reason that false statements by an accused person may sometimes be regarded as corroboration of other evidence given in a criminal case: Eade v. The King (1924) 34 CLR 154 at p 158; Tripodi v. The Queen (1961) 104 CLR 1. Moreover, if the truth must lie between two alternative states of fact, disbelief in evidence that one of the state of facts exists may support the existence of the alternative state of facts: Lee v. Russell [1961] WAR 103 at 109.
58 The applicant submitted that an adverse credibility finding must be supported by reasons. That may be accepted on the assumption that the credibility finding is a material component of the reasons for the Tribunal’s decision such as to be within the statutory obligation in s 430(1)(b)-(d) of the Act to give a written statement: see, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [33] – [34], [67] – [69]. But the content of that requirement will depend on the nature of the finding, the issue being determined, the material before the Tribunal, and any relevant arguments put forward: Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53 (Kaur) at [166] – [177], noting that the issue in Kaur concerned the adequacy of the reasons of a court.
Challenges to the Tribunal’s findings
59 By his proposed amended notice of appeal, the applicant wishes to challenge almost all of the Tribunal’s adverse credibility findings on the ground that the findings were legally unreasonable, relying on the principles and cautionary statements referred to above. We consider each of the challenged findings below. For the reasons explained below, we reject those challenges. While we accept that one aspect of the Tribunal’s findings was not legally reasonable, we are of the view that the Tribunal’s error was not material in the sense of depriving the applicant of a realistic possibility of a successful outcome. As a result, the error does not constitute jurisdictional error: see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29] – [31] per Kiefel CJ, Gageler and Keane JJ (Hossain); Minister for Immigration and Border Protection v SZMTA (2019) 163 ALD 38 at [45] per Bell, Gageler and Keane JJ. For that reason, even if leave were granted to extend time and allow the applicant to introduce a new ground of appeal, we do not consider that the proposed appeal would succeed.
Claim of mistreatment by his father’s relatives
60 At paragraph 69 of its reasons, the Tribunal said:
[69] The Tribunal does not accept that the applicant’s claim about mistreatment by his father’s relatives is credible. He raised it for the first time before the Tribunal. His parents have three children ranging in age from 25 to about eight. He claimed that there were no problems in Negombo or on the island with marriage between Tamils and Sinhalese. His parents were living together on the island when he left and at the time of the hearing. He has given no reason why concerns about his parent’s inter-ethnic marriage should have become serious in 2010. He was quite unable to say when his parents had lived separately. That he was living in a house belonging to his paternal relatives in an area where many of them lived while he was working at the hotel is inconsistent with the claimed antipathy which caused him to leave his hotel job in 2012.
61 As can be seen from that paragraph, there were multiple reasons given by the Tribunal for not accepting the applicant’s claim of mistreatment by his father’s relatives. The first was because the applicant had raised it for the first time at the Tribunal. That must be understood against a background in which the applicant’s claims for a protection visa had changed substantively over time. In his entry interview, the applicant claimed to have suffered persecution from other children while he was at school in Negombo, saying that he had been targeted by Sinhalese boys as a Tamil and bullied and attacked. In his application for a protection visa, the applicant claimed that he and his family had suffered persecution on the island where they worked as fishermen from Sinhalese fishermen on the island and that he feared harm from a navy officer as a result of an incident in Chilaw. Another claim, raised for the first time at the Tribunal hearing, concerned mistreatment from his father’s relatives in Negombo. In our view, the Tribunal’s reliance on the time at which the claim was made as affecting the applicant’s credibility was open to it, and was not legally unreasonable.
62 The second matter relied on by the Tribunal concerned the overall coherence of the applicant’s claim. On the one hand, the applicant claimed that he suffered mistreatment at the hands of his father’s relatives because they disapproved of his father’s marriage to a Tamil woman, but on the other hand the applicant gave evidence that there were no problems in Negombo or on the island with marriage between Tamils and Sinhalese and that his parents were living together on the island when he left and at the time of the hearing. While those facts of themselves are not determinative of the credibility of the applicant’s claim, they are logically relevant to that issue. They suggest a conclusion contrary to the applicant’s claim: that there was no family tension arising from the marriage. While reasonable minds might differ on the weight to be given to those facts, it was not legally unreasonable for the Tribunal to rely on them in making a finding on the claim.
63 The third matter relied on by the Tribunal was that the applicant had given no reason why concerns about his parent’s marriage should have become serious in 2010 and that the applicant was unable to say when his parents had lived separately. The applicant submitted that the Tribunal’s reasons show that the applicant had given an explanation: the applicant said that his father had told him that there was family trouble when the applicant was growing up (at [65]). However, the applicant ignores the further evidence given by the applicant, as recorded by the Tribunal, that “It became worse later on” (also at [65]). The Tribunal asked the applicant why the asserted problems had become worse. The Tribunal’s reasons show that the Tribunal considered that the applicant’s evidence about the circumstances and cause of the mistreatment was vague; the applicant was unable to explain when the problem had been experienced in the past and why the problem had escalated in 2010. Again, while reasonable minds might differ on the weight to be given to those matters, it was not legally unreasonable for the Tribunal to rely on them in making a finding on the claim.
64 The fourth matter relied on by the Tribunal was the apparent incompatibility between the applicant living in a house belonging to his paternal relatives in an area where many of them lived and his claim that the antipathy from the relatives caused him to leave his hotel job in 2012. The applicant submitted that the Tribunal’s reasons show that the applicant had given an explanation of why he was living in the house belonging to his paternal relatives - the applicant said that there was no other option but to stay there (at [68]). However, it is apparent from the Tribunal’s reasons that the Tribunal did not find that explanation persuasive in circumstances where the applicant had previously lived at his maternal grandmother’s house (while working at the hotel) and his younger brother was still living at that house. Again, while reasonable minds might differ on the weight to be given to those matters, it was not legally unreasonable for the Tribunal to rely on them in making a finding on the claim.
65 For the foregoing reasons, we are not persuaded that the Tribunal’s finding with respect to the applicant’s claim of mistreatment by his father’s relatives was legally unreasonable.
Claim of risk of harm on the island
66 At paragraphs 74 – 77, the Tribunal said:
[74] The Tribunal does not accept his [the applicant’s] account of the loan and consequential attack, burning of their house, reports to the police, navy or society on the island or attack on their boat or his mother’s having an affair or having sex with the attacker or attackers. The Tribunal finds that his parents have continued to live on the island since 2010 or 2011 or 2012, whenever the claimed attack first happened, about which the applicant made inconsistent claims. That they continue to live on the island is inconsistent with there being a real chance that they will suffer serious harm or a real risk that they will suffer significant harm from the attacker or attackers or could not seek protection from the police. The Tribunal also finds it implausible that the applicant would be targeted because of his father’s failing to give someone a loan, rather than his father’s being targeted. That his father was able to give a loan to someone, indicates that he was a man of some means and worth targeting.
[75] Further the applicant told the Tribunal that when he was fishing with his father, they used one of his paternal aunt’s boats that had an outboard motor, but recently he had heard that his father had got his own boat. His paternal aunt lives in Mannar. She owned two or three boats. She had given his father the responsibility of one boat. That his father was able to get his own boat is inconsistent with his having problems on the island. To the contrary, he was apparently prospering.
[76] In making those findings, the Tribunal has taken into account the medical report about his father's injury to his chest due to an assault around 8 December 2010. When the Tribunal asked the applicant if he wished to comment about the document, he had no comment. The report is from a Negombo clinic and states that the father’s address is Lewis Place, Negombo. The applicant said that his father is mostly on the island and rarely comes to Negombo. He said that Kalpitya is about three to four hours by motor vehicle from Negombo. The island is a further three to four hours by a big boat or 45 minutes by a small boat from Kalpitya. Given that Chilaw is much closer to the island and (sic) Kalpitya, the Tribunal finds it implausible that the applicant’s father would travel all the way from the island to Negombo for treatment of an apparently serious injury. Both Chilaw and Negombo have a District General Hospital according to the Sri Lankan Ministry of Health and Indigenous Medicine. Although the document supports a finding that the applicant's father suffered an injury to his chest, the Tribunal does not accept that it relates to any of the claims the applicant made in relation to incidents on the island. The applicant did claim in his visa application that they confronted the people who did "that", and they hit his father with an engine shaft on the chest. Once again they were quarrelling. They went to the police who hit him that time. However, what "that" was is not apparent from the context of the claim. It is an example of a general deficiency in the applicant's claims. They do not make a coherent whole.
[77] The Tribunal also asked the applicant about the psychiatric report relating to his mother, after commenting on the poor English, which was incomprehensible in the third paragraph, the poor spelling, "Madicine' for "Medicine", particularly noting that the doctor was apparently claiming to have two qualifications from the UK. The applicant said that he does not know about that document. "They" just sent it to him. For the reasons the Tribunal referred to, it does not accept it is a genuine report and gives it no weight.
67 Again, as can be seen from those paragraphs, there were multiple reasons given by the Tribunal for not accepting the applicant’s claim of the risk of harm on the island. The first was because his parents had continued to live on the island since 2012. The applicant submitted that the fact that his parents continued to live on the island is not probative of the conclusion that there was no risk of harm. We disagree. The fact is not determinative of that conclusion, but it is logically probative. The evidence was that the applicant had grown up with his family in Negombo and both his parents had relatives in Negombo. That evidence was capable of suggesting that the applicant’s parents did not continue to live on the island as a matter of necessity. It was therefore legally reasonable for the Tribunal to conclude that the fact that they continued to live there suggested that they did not face a serious risk of harm at that location.
68 The second matter relied on by the Tribunal was that it was implausible that the applicant would be targeted, rather than his father, because of his father’s failing to give someone a loan. The applicant submitted that that circumstance was not implausible in the sense of “beyond human experience of possible occurrences”. For the reasons explained earlier, the applicant’s submission is based on an understanding of the term “implausible” that we do not accept. In our view, the Tribunal’s finding that it was implausible that the applicant rather than his father would be targeted is to be understood in this case as a finding that it was inherently unlikely. In our view, there was no legal error in the Tribunal’s conclusion that it was inherently unlikely, in the circumstances of the applicant’s claim that the applicant was at risk of harm from persons to whom his father refused a loan.
69 The third matter relied on by the Tribunal was that the applicant’s father had acquired his own boat and appeared to be prospering on the island. The applicant submitted that the Tribunal erred in reasoning (at paragraph 75) that the fact that “his father was able to get his own boat is inconsistent with his having problems on the island”. It may be accepted that the fact that the applicant’s father had acquired his own boat was not incompatible with his father facing the risk of harm on the island. However, we do not believe that, in the passage referred to, the Tribunal was using the word “inconsistent” as meaning incompatible with. Read fairly and without an eye keenly attuned to the perception of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272), the Tribunal’s finding was that the fact that the father’s fishing activities appeared to be prospering (in the sense of improving, reflected in the acquisition of his own boat) was evidence that undermined the applicant’s claim concerning the risk of harm on the island. In our view, there was no error in that finding.
70 The fourth matter referred to by the Tribunal was the medical report from a Negombo clinic that stated that the applicant’s father was treated in December 2010 for an injury to his chest due to an assault. The Tribunal was not satisfied that the injury referred to in the report related to any of the claims the applicant made in relation to incidents on the island. The Tribunal gave three reasons for its lack of satisfaction: first, the applicant made no comment on the document; second, the applicant said that his father rarely went to Negombo; third, Chilaw, a town with a District General Hospital, was much closer to the island than Negombo, making it implausible that the applicant’s father would travel all the way from the island to Negombo for treatment of an apparently serious injury sustained on the island. The applicant criticised the Tribunal’s reasoning, submitting that the fact that the applicant’s father was mainly on the island supported a finding that the injury was sustained on the island and that the fact that Negombo was further from the island was a peripheral matter. In our view, different minds may reach different conclusions based on the medical report. The report was only evidence that an injury had occurred and that the injury was attributed to an assault. The report could not locate the assault. It was an available inference that a person who suffers a serious injury would receive treatment in a hospital that is proximate to the place of injury. We do not consider that the Tribunal was in error to find that the report did not establish that the applicant’s father was assaulted on the island.
71 The fifth matter referred to by the Tribunal was the psychiatric report relating to the applicant’s mother. The Tribunal was not satisfied that the report was a genuine document principally for two reasons: first, the applicant said that he did not know about the document; and second because of the poor use and spelling of English, with the third paragraph being incomprehensible, in circumstances where the doctor writing the report claimed to have two qualifications from the UK. The applicant submitted that the spelling in the report was a peripheral matter and the poor English in the report could be explained if the doctor practised psychiatry in Sri Lanka but had been admitted to the Royal College of Psychiatry in the UK. We disagree that the poor use and spelling of English in the report was a peripheral matter. It was reasonably open to the Tribunal to find that the third paragraph of the report, which contains the purported diagnosis, is incomprehensible. The third paragraph stated:
This is it certify that Mrs Elisbath Morin Selladurai is a mental disorder person misery due to a human clash met with his husband waruna kulasooriya kelister Fernando had a heart disease person due to the clash and his son waruna kulasooriya suranga pradeep Fernando was lost this incident.
72 The applicant’s submission also ignores the Tribunal’s observation that the letterhead on which the report was written claimed that the doctor had received a Diploma of Psychiatric Medicine (DPM) from the UK, which was difficult to reconcile with the extremely poor English expression in the document. In our view, there was no error in the Tribunal’s finding that the report was not genuine.
73 The sixth matter relied on by the Tribunal was that, in relation to the claim that the family’s hut had been burned down, the applicant had given different dates for when the alleged event occurred (in his written statement he had said 2010, but in the hearing he had said 2012 and then later said 2011) and he had also given inconsistent evidence about whether the hut was seasonal or permanent (having said in his written statement that it was seasonal but in his evidence to the Tribunal he said it was permanent). The applicant submitted that the Tribunal was wrong to find that the applicant’s written statement said that the hut was burnt down in 2010. We disagree. Paragraph 5 of the statement says that the applicant’s problems began in 2010, paragraph 6 describes the problem as the father’s refusal to make a loan to a Sinhalese man and paragraph 7 says “at that time” the family was living in a thatched hut on the beach and it burned down. Those paragraphs of the written statement convey that the hut was burned down in 2010. The applicant also submitted that the date on which the hut was burned down and whether it was seasonal or permanent were peripheral matters. While the permanency of the structure may in isolation be regarded as peripheral (and may be subject to difficulties of communication through an interpreter), we do not regard the date as peripheral. It is an important part of the applicant’s overall narrative as to the reasons he fears harm. The sequence of events is important to the overall credibility of the applicant’s claims. We do not consider that the Tribunal’s finding that it was not satisfied that the applicant’s family’s hut was burned down was legally unreasonable.
Claim concerning the Chilaw protest
74 At paragraph 80 of its reasons, the Tribunal made the following finding in respect of the applicant’s claim that he attended a protest in Chilaw:
[80] The Tribunal does not accept that the applicant was in Chilaw during the protests by fisherman. He told the Tribunal that he attended the protest in the third month of 2012, that is, in March. Country information shows that that incident occurred on 15 February 2012. In his application he had claimed that he had attended on 22 February 2012. Neither of his versions is consistent with the country information. Further, his evidence about why he was there and who had raised the petrol price meandered before giving a plausible response. His evidence does not support a claim that the army person had shown any further interest in him after pointing at him and telling him to go.
75 As can be seen from that paragraph, there were two principal reasons given by the Tribunal for not accepting the applicant’s claim of attending the protest in Chilaw. The first was because the applicant gave incorrect and inconsistent dates for the protest. The applicant submitted that his error in dating the protest was marginal and that the Tribunal’s reliance on the error was legally unreasonable. The applicant’s errors in dating the protest may be relatively inconsequential. But in order to determine whether it was legally unreasonable for the Tribunal to rely upon the differences in dates, the issue needs to be evaluated together with the second matter relied on by the Tribunal.
76 The second, and in our view more important, matter relied on by the Tribunal was that the applicant’s evidence as to why he was in Chilaw meandered. The applicant submitted that that finding should be understood as referring to the applicant’s demeanour in giving evidence, about which the Court has often made cautionary statements (in recognition of the difficulties faced by asylum seekers in giving evidence through an interpreter in a foreign environment). We disagree that it is a reference to the applicant’s demeanour. In our view, the finding is an obvious reference to the preceding paragraph in which the Tribunal recorded that, when the Tribunal asked the applicant why he was in Chilaw, he first said that his uncle lived there; he then said that the fishermen's society which decides the price of fish was reducing the price and he went there with other fishermen to object to the reduction; he then said that he went there because the government increased the fuel price. The applicant submitted that the Tribunal erred in failing to consider the reasons that the applicant’s evidence may have meandered, such as the difficulties in communicating through an interpreter; the fact that the applicant was recalling events some 3 years prior; his lack of education; and the fact that he was participating in an unfamiliar formal environment. In our view, the applicant has failed to establish a proper basis for its criticisms of the Tribunal’s finding. If the events during the protest in Chilaw formed part of the reasons that the applicant left Sri Lanka fearing for his safety, it is reasonable to expect that the applicant would be able to recall and recount the reason that he was in Chilaw and the reason for the protest that was the catalyst for his fears. His failure to do so bears upon his credibility. For that reason, we do not consider that the Tribunal’s finding that it was not satisfied that the applicant was in Chilaw during the protests was legally unreasonable.
77 It should also be noted that, in the final sentence of paragraph 80 of its reasons, the Tribunal also finds that the applicant’s evidence does not support a claim that the “army person” had shown any further interest in him after pointing at him and telling him to go. In our view, that is a further finding justifying the Tribunal’s overall conclusion that the applicant does not have a well-founded fear of harm if returned to Sri Lanka. The applicant submitted that that finding does not support such a conclusion because the applicant left Sri Lanka shortly after the Chilaw incident. That submission overstated the position. The applicant did not leave until late July 2012, more than 5 months later.
Claim about Mannar
78 In his written statement (provided with his application for a protection visa), the applicant also made a claim that after leaving the island he went to stay at his aunt’s house in Mannar. He claimed that there, army officers came to check his ID, making him fear that the officers were sent by the people causing him trouble on the island. That episode was given as one of the reasons that the applicant left Sri Lanka.
79 At paragraph 81 of its reasons, the Tribunal made the following finding concerning that episode:
[81] The Tribunal pointed out to the applicant that he had not mentioned the claim in his application that he had gone to his auntie’s house in Mannar, which is in the north-west of Sri Lanka. He said the Tribunal had not asked him and that is why he did not say. The Tribunal does not accept that explanation. The Tribunal asked him several times and in several different ways what had happened to him in Sri Lanka and why he left to come to Australia.
80 The applicant submitted that the Tribunal erred because the applicant had previously mentioned the claim in his written statement. The submission misstates the Tribunal’s finding. The Tribunal was aware that the applicant had made the claim about the event in Mannar in his written statement, because that is recorded at paragraph 35 of the Tribunal’s reasons. At paragraph 81, the Tribunal recorded that, during the hearing, it asked the applicant to say what had happened to him in Sri Lanka and why he left to come to Australia. The applicant did not mention the episode in Mannar (despite it being part of his claims in his written statement). The Tribunal then put to him the fact that he had not mentioned the episode and the explanation offered by the applicant was that the Tribunal had not asked him about it. The Tribunal did not accept that explanation, with the implicit inference that the Tribunal considered that the inadequate explanation reflected adversely on the truth of the claim. We do not consider that the Tribunal’s finding was legally unreasonable.
Claims about work history
81 In his entry interview, the applicant stated that, between 2010 and 2012, he worked as a fisherman in a family fishing business owned by his paternal aunt in Mannar and, when he came home to Negombo on holidays, worked as a kitchen hand in Silvas restaurant and hotel. In his written statement made in support of his application for a protection visa, the applicant stated that he lived with his family on a small island called Batalan Gunduwa “off the coast of Negombo, where we used to practice our living as fisherman”, although later in the statement the applicant indicated that the island was “far from” Negombo. The applicant also stated that his aunt lived in Mannar.
82 At paragraph 64 of its reasons, the Tribunal concluded that the island of Batalan Gunduwa referred to by the applicant in his written statement is also known as Baththalangunduwa and lies between Kalpitiya to the south and Mannar to the north off the north-west coast of Sri Lanka. There was no challenge to that conclusion. The applicant gave evidence that Kalpitiya is 3 to 4 hours north of Negombo by road (at [64]) and the island is about 45 minutes to the north of Kalpitiya by small boat (at [76]).
83 At paragraphs 83 to 85 of its reasons, the Tribunal made the following findings concerning the applicant’s claim about fishing in Mannar:
[83] The Tribunal put to the applicant his statement during the entry interview that he had been fishing at Mannar from 2010 to 2012 pursuant to s 424AA saying that it was relevant because it was inconsistent with his claim to have been fishing at the island and working in Negombo and would be the reason or part of the reason for affirming the decision to refuse his protection visa. He said that he wished to comment but did not want further time to comment or respond.
[84] He said that Mannar was close to the island. As far as he remembers he said he was fishing at the island. He said that it takes about an hour by sea to travel from the island to Mannar. The Tribunal pointed out that his visa application stated that the island was off Negombo. That claim was inconsistent with his evidence at the hearing that is (sic) near Kalpitya, which the Tribunal accepts is true.
[85] According to a Google map, the island is two or three times further from Mannar than it is from Kalpitya [a footnote gives the URL for the Google Maps search]. The Tribunal does not accept that it is only an hour by sea, given the applicant's evidence about the time it takes to travel between the island and Kalpitya.
84 The applicant submitted that the Tribunal’s findings of inconsistencies in these aspects of his evidence were legally unreasonable. While we agree that aspects of the Tribunal’s findings at [83] to [85] appear to be doubtful, we do not consider that the errors in this part of the Tribunal’s reasons constituted jurisdictional error; in our view, the Tribunal’s findings of inconsistency at [83] – [85] did not deprive the applicant of a realistic possibility of a successful outcome, having regard to the other findings made by the Tribunal: Hossain at [29] – [31].
85 At paragraphs 83 to 85, the Tribunal found that there were inconsistencies in statements made by the applicant about where he worked as a fisherman (the Tribunal having accepted that the applicant was a fisherman on the island of Baththalangunduwa at paragraphs 59 and 60). In our view, the inconsistencies are more apparent than real. As noted above, the applicant said in his entry interview that he worked as a fisherman in a family fishing business owned by his paternal aunt in Mannar and, when he came home to Negombo on holidays, worked as a kitchen hand in Silvas restaurant and hotel. Although the entry interview records that the applicant said he had been fishing in Mannar, it is quite plausible that the applicant had either referred to Mannar because that is where his paternal aunt’s fishing business was located, or he had attempted to describe where he was fishing as close to Mannar and the detail had been lost in translation. While the applicant’s written statement said that the island was off the coast of Negombo (at paragraph 5), the statement also said that Negombo was far from the island (at paragraph 18). Overall, there was no material geographic misdescription. Further, while Google maps appears to show that Kalpitiya, to the south, is closer to the island than Mannar, to the north, the island of Baththalangunduwa is long and the difference in distances to the island from Kalpitiya and Mannar are difficult to measure. Accordingly, we do not think that there was a rational basis for the Tribunal to find that there were inconsistencies in the applicant’s statements about where he worked as a fisherman.
86 Although we accept the applicant’s submission that the foregoing findings of inconsistency by the Tribunal appear to be in error, we do not consider that the Tribunal’s overall decision is affected by jurisdictional error. We consider that the foregoing findings of inconsistency were peripheral to the Tribunal’s assessment of the applicant’s claims. As discussed in earlier parts of these reasons, there were numerous reasons why the Tribunal did not accept the applicant’s claims that he had been mistreated by his father’s relatives, that his family’s hut had been burned down and his father had been assaulted because his father had refused a loan request, that his mother was forced to maintain a sexual relationship with the person who attacked the family and that the applicant was present in Chilaw during the fuel price protest on 15 February 2012. Given the findings made by the Tribunal about those claims, which we consider were open to the Tribunal, we do not consider that the Tribunal’s findings of inconsistency at [83] – [85] deprived the applicant of a realistic possibility of a successful outcome: Hossain at [29] – [31].
Claim about ethnicity
87 At paragraphs 86 to 91 of its reasons, the Tribunal made the following findings concerning the applicant’s claim about his Tamil ethnicity, including his fluency in Tamil and Sinhala:
[86] When asked about his ethnicity, the applicant said that he did not know. He used to identify as Tamil. He does not know much about it. When asked about his father's ethnicity, the applicant said his father speaks Sinhala and Tamil and mostly Tamil at home. His father is Sinhala and his mother is Tamil. He claimed that mixed marriages were common and not a problem in Negombo and on the island. There is a mixture of Tamils and Sinhala on the island and they speak both languages. If you speak Tamil you are Tamil and if you speak Sinhala, you are Sinhalese.
[87] During the applicant's evidence about the Chilaw protest, the interpreter raised an ambiguity in an answer the applicant gave about when he was leaving. The word could mean a bomb or a shot. During the exchange, the Tribunal asked the applicant if he was speaking Sinhala and Tamil at the same time. He said that it is because he is not fluent and speaks mostly to Sinhalese people but he is not fluent in Sinhala.
[88] When the Tribunal said that it was not credible that he was educated for ten years in a Sinhalese school but could not speak Sinhala fluently, the applicant claimed that after he finished his schooling in 2010 he was mostly living with Tamil people and after coming to Australia he was living with Sinhalese people. He denied choosing a Tamil interpreter to improve his chances of being granted protection in Australia.
[89] The Tribunal finds the applicant's claim not to speak Sinhala fluently is inconsistent with his father being Sinhalese, that he attended a Sinhalese school for ten years and has been living with Sinhalese in Australia. It finds that he requested a Tamil interpreter to strengthen his claims for protection and does not accept his denial of that proposition. His vague evidence about his ethnicity is unpersuasive.
…
[91] Given his paternity, education, that he is living with Sinhalese in Australia and not Tamils and his vague evidence about his ethnicity, the Tribunal does not accept that he identifies as Tamil or is identified as Tamil. He said you are Sinhala if you speak Sinhalese and Tamil if you speak Tamil. The Tribunal accepts that he speaks Tamil and Sinhala but finds he is more fluent in Sinhala. While his mother may be Tamil, the Tribunal does not accept that affects his identification as Sinhala or his being so identified. It does not accept that he has suffered any harm in the past, including when he was small, because of his actual or imputed Tamil ethnicity or that there is a real chance that he will suffer serious harm or a real risk that he will suffer significant harm because of his actual or imputed Tamil ethnicity if he returns to Sri Lanka.
88 The applicant submitted that the following findings made by the Tribunal about his fluency in Sinhala were legally unreasonable:
(a) the finding at paragraph 89 that the applicant’s claim not to speak Sinhala fluently was inconsistent with his father being Sinhalese, that he attended a Sinhalese school for ten years and he had been living with Sinhalese in Australia; and
(b) the finding at paragraph 91 that while the applicant speaks Tamil and Sinhala, he is more fluent in Sinhala.
89 The Tribunal’s findings about language fluency were relevant to the applicant’s claim as to the ethnicity with which he identified. In turn, that claim was relevant to his claim of persecution on account of his race. Ultimately, the Tribunal was not satisfied that the applicant identifies as Tamil or is identified as Tamil (at [91]). The applicant submitted that that finding was legally unreasonable for two reasons: first, it rested in part on the Tribunal’s finding as to language fluency, which was unsound; second, it also rested on evidence from the applicant in circumstances where the Tribunal disbelieved the applicant’s evidence and yet used his evidence against his claim, which was said to be illogical.
90 We do not accept that the Tribunal’s finding, that it was not satisfied that the applicant identifies as Tamil or is identified as Tamil, was legally unreasonable. The finding was based partly on the objective facts which were not in dispute that the applicant’s father was Sinhalese (while his mother was Tamil) and that the applicant was educated at a Sinhalese school. It was also based on the Tribunal’s assessment of the applicant’s evidence about his ethnicity. The Tribunal summarised the evidence by recording that, when asked about his ethnicity, the applicant said that he did not know; he used to identify as Tamil; and he does not know much about it. Reasonable minds might differ as to the assessment to be made of the evidence overall but, in our view, the Tribunal’s conclusion that it was not satisfied that the applicant identifies as Tamil or is identified as Tamil was not legally unreasonable.
91 As to the specific findings about language fluency, we consider that the Tribunal’s principal finding is encapsulated at paragraph 89: the Tribunal did not accept the applicant’s claim not to speak Sinhala fluently. The Tribunal made that finding on the basis that it was inconsistent with his father being Sinhalese, that he attended a Sinhalese school for ten years and that he had been living with Sinhalese in Australia. It was also based on the Tribunal member’s observation of the applicant’s discourse with the Tamil interpreter during the hearing, during which the applicant conversed in Tamil and Sinhala (at [87]). In our view, it was not legally unreasonable for the Tribunal not to accept the applicant’s claim not to speak Sinhala fluently. While the basis for the Tribunal’s finding at paragraph 91 that the applicant was more fluent in Sinhala than Tamil is, in our view, somewhat thin, we do not regard that finding as rising, in a practical sense, above the finding that the Tribunal did not accept the applicant’s claim not to speak Sinhala fluently. We reiterate that the Tribunal’s reasons are not to be read with an eye attuned to the perception of error.
Conclusion
92 In conclusion, we consider that it is in the interests of justice to refuse the extension of time sought by the applicant to appeal the decision of the Federal Circuit Court given on 23 March 2017. That is for four primary reasons. First, the delay in making the application, being slightly more than a year after the decision, is excessive. Second, the explanation for the delay, that the applicant was pre-occupied with family matters, is both unpersuasive and unsatisfactory. Third, the proposed ground of appeal was not raised before the Federal Circuit Court. Fourth, in our view the proposed ground of appeal would not succeed.
93 We therefore refuse the application and order that the applicant pay the Minister’s costs.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Yates, Wheelahan and O'Bryan. |
