FEDERAL COURT OF AUSTRALIA

SZQUR v Minister for Immigration and Citizenship [2012] FCA 906

THE COURT ORDERS THAT:

1.     The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

1    This appeal is concerned with the question of whether a decision made by an independent merits reviewer, that the appellant did not meet the criterion for the grant of a protection visa under s 36(2) of the Migration Act 1958 (Cth), was affected by legal error. The appellant sought review of that decision by the Federal Magistrates Court, which dismissed the proceeding with costs.

2    The appellant is a citizen of Sri Lanka. He arrived at Christmas Island by boat on 11 May 2010. On 7 August 2010, he lodged an application for a Refugee Status Assessment (RSA), in which he asserted that he was a refugee and, as such, was a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 (the Refugee Convention). On 6 September 2010, an officer of the Department of the first respondent, the Minister for Immigration and Citizenship (the Minister), informed the appellant that he had been assessed as not meeting the definition of refugee for the purposes of the Refugee Convention. On 28 September 2010, the appellant requested an independent merits review of the determination that he did not satisfy the definition of refugee. On 19 September 2011, the second respondent (the Reviewer) found that the appellant did not meet the criterion for the grant of a protection visa. The appellant then commenced a proceeding in the Federal Magistrates Court seeking judicial review of the Reviewer’s decision. On 13 April 2012, the Federal Magistrates Court ordered that the proceeding be dismissed. On 4 May 2012, the appellant lodged a notice of appeal to the Federal Court of Australia from that order. There has been no determination that the appeal be heard by a Full Court.

3    In his second further amended application to the Federal Magistrates Court, the appellant raised seven grounds. One of those was not pressed before that court. Two of those grounds have not been pressed in the appeal. The appellant contends that the Federal Magistrates Court erred in not upholding one or other of the remaining four grounds. Before stating the grounds, and dealing with the contentions of the parties, it is desirable to summarise the reasons given by the Reviewer for his decision. I shall summarise the reasons only in so far as is necessary to make the grounds of review intelligible.

the reviewer’s decision

4    The Reviewer summarised the claims made at various stages by the appellant. Claims were made as follows:

    the appellant’s entry interview, conducted on 31 May 2010;

    the statutory declaration made by the appellant on 7 August 2010;

    the appellant’s interview for the purposes of his RSA;

    the submissions made by the appellant’s advisor; and

    the interview conducted by the Reviewer.

5    In his entry interview, the appellant stated that he was a Tamil born in Jaffna in 1987, that he lived in Colombo from 1995 to 1999 and that he travelled legally to India, where he lived until April 2010 when he left for Australia. He said that his father was abducted by the army in 1995 and has not been heard of since; and that he did not know why that happened as he was very young at the time and his mother could not tell him, as she became mentally ill. He said that his mother and brother remain in India and that he has aunts in Canada, one of whom supported the family after his father’s disappearance. He said that, after the abduction of his father, the family moved to Colombo and that, sometime before 1999, the police came to their home about 8 to 10 times and questioned the family about where his father was and whether he had joined the Liberation Tigers of Tamil Eelam (LTTE). He said that they told the police his father had been abducted but the police did not believe them. He said that the police hit him.

6    The appellant claimed that he left India because he could not stay longer than 10 years and he could not obtain a job. He said that his family’s registration in India was due to expire in November 2010 and that a people smuggler arranged for his travel to Australia. He said that the money he paid to the people smuggler was provided by his aunt in Canada. He claimed that, if he returned to Sri Lanka, he would be arrested and tortured for not having lived there for a long time. He said that they will ask him about his father and he will not have an answer. He said that he will be beaten by Sinhalese people, which he said happened 2 or 3 times when he was at school because he was a Tamil.

7    In his statutory declaration, the appellant made expanded or new claims. He left Sri Lanka in 1999 because he feared he would be arrested and killed by the police and the army. After his father’s abduction, his mother became mentally ill and the family moved to Colombo so that she could get medical help. He repeated his claim about the police coming many times to the family’s house in Colombo to ask about his father. He said that they also asked what he was doing. They lived in a Sinhalese majority neighbourhood in Colombo and the appellant and his brother were harassed and beaten by local Sinhalese when they went to school. In 1999, his aunt came from Canada and urged the family to leave Sri Lanka, as Colombo was dangerous. She arranged Indian visas for the family.

8    The appellant said that they could not remain in India as they had only a six month visa that had to be extended by the police. He left India because he could not live there any more. He said that the Sri Lankan authorities would not protect him because he does not have an ID card and he has heard that Tamil boys without ID cards have been abducted and killed.

9    In his RSA interview, the appellant said that, in Colombo, after there were bomb blasts, the authorities came at night to the house where he was living for about an hour and a half and questioned the house owner and then the other occupants, including the appellant and his mother. Neither the appellant nor his family members were detained or mistreated.

10    The submission made by the appellant’s advisor stated that the appellant feared that, if he returned to Sri Lanka, he would be seen as an LTTE supporter and would be persecuted. The submission said that the Department’s case officer did not give sufficient weight to the ongoing harassment and detention of suspected LTTE members. The submission cited several country information reports about the security situation in Sri Lanka, particularly about abuses and persecution of suspected LTTE members and supporters.

11    At the interview with the appellant conducted by the Reviewer on 9 April 2011, the appellant said that he had new information. He said that he had not revealed in his RSA interview that the army had arrested his father, which his aunt had told him recently. He said that he did not fully understand that at his RSA interview. In addition, he was scared to reveal it. The Reviewer asked whether he did not fully understand or was scared to reveal it. The appellant replied that, at the interview, he had known that his father was arrested but did not know the details, so he did not think he should mention it. He said that, later, his aunt explained what had happened. The Reviewer pointed out that the appellant had mentioned his father’s abduction in his entry interview and asked why he was worried about mentioning it at the RSA interview. The appellant responded that he had mentioned at the RSA interview that his father had been arrested by the army. When asked by the Reviewer why his aunt had not brought that up previously, the appellant said that it was because he did not ask her about it. He was not thinking about it when he left Sri Lanka because he was then very young.

12    The Reviewer referred to the appellant’s claim that the police had come many times to his home in Colombo to ask about his father. The Reviewer said that it sounded like a standard check by the police. The appellant said that there were just the three of them in his family and, as the police kept asking about his father, they became fearful. When asked what they told the police, the appellant said he was very small and that the owner of the house had answered the questions of the police. When asked whether the police had told them why they were interested in his father, the appellant said he did not know. He agreed that the police had not harmed him or his family.

13    The Reviewer referred to the appellant’s claim that he could not stay in India because he had only a six month visa. The Reviewer put to the appellant that, nevertheless, he remained there for over 10 years. The appellant replied that he and his brother and mother were registered as refugees. The Reviewer asked the appellant to clarify what his status was in India and he repeated that they were refugees. When asked why he left India, the appellant said that the Indian government had announced that it would send Sri Lankan refugees home. When the Reviewer put to the appellant that his mother and brother were still in India, he agreed, without further comment.

14    The Reviewer asked the appellant why he claimed the police would arrest him for not being in Sri Lanka for a long time, given that it was not against the law. The appellant responded that, if he went back, they might suspect that he was an LTTE member as he is a young Tamil male and had been away for so many years. When the Reviewer said that he did not see why they would suspect the appellant, just because he had been away for so long, the appellant said that they might think he had some problems or had links with the LTTE and that that was why he had been absent for such a long time. He said that that was why he escaped from Sri Lanka.

15    The advisor then submitted that the appellant had the profile of someone who may have LTTE links, based on the possible activities of his father. If he returned, he may come under scrutiny, which may uncover a history of which he had only a sketchy memory. He had some memory of his father having some dealings with the LTTE. His aunt had confirmed that. Therefore, the appellant’s experience and risk was over and above that experienced by the average young Tamil male.

16    The Reviewer put to the appellant that his claims that his father had some dealings with the LTTE and that his aunt had confirmed it were completely new. When asked to explain that, the appellant responded that he had stated it previously. He said that he could not confirm it previously but now he could. He said that he had asked his aunt and she had told him that his father had been forced to do some work for the LTTE.

17    The Reviewer referred the appellant to his replies to questions in the entry interview and statements in his statutory declaration. The Reviewer repeated that the appellant had not mentioned before the interview with the Reviewer that his father had connections with the LTTE. The appellant replied he had not previously known. He had suspected it, but it was clarified recently by his aunt. The Reviewer referred to the appellant’s statement, at the beginning of the interview, that the army had arrested his father and that his aunt had told him recently. He had made no mention of an LTTE connection. The appellant asserted that he had mentioned it at the beginning of the interview and that he had clarified with his aunt the reason for the arrest. The Reviewer asked the appellant’s advisor why the appellant would be suspected of being an LTTE member when he had left Sri Lanka at the age of 12 and had not been back. The Reviewer said that he did not accept that the authorities suspect all young Tamil men from the north and the east of having LTTE affiliations.

18    The advisor said that the appellant had told her about the moment of arrest of his father. When asked to explain, the appellant repeated that, on account of the arrest, the family went to Colombo. His mother had been mentally ill and could not explain the arrest to her children. The advisor prompted the appellant to mention what had happened on the day of the arrest. The appellant said that, on that day, he had been in a neighbour’s house and the neighbour said he could hear the appellant’s mother screaming. They went to his house and he saw people arresting his father. The appellant said that he had memory problems and sometimes he could not recall things quickly. He repeated that he saw his father being arrested. The Reviewer said that he would have to think about whether he accepted that claim.

19    The appellant repeated that he feared returning to Sri Lanka because he had been away for more than 10 years and the authorities would ask him many questions and might harm or arrest him. He said that he was suffering because of his father’s links with the LTTE and his mother’s illness. The advisor submitted that having an association with the LTTE was not something a person disclosed readily. The advisor contended that there was a question of how soon the appellant would come to the authorities’ attention if he returned.

Findings and Reasons of the Reviewer

20    The Reviewer accepted that applicants for refugee status are rarely able to prove every aspect of their claims and should frequently be given the benefit of the doubt, provided that the examiner is satisfied with the applicant’s general credibility. The Reviewer appreciated that he should be mindful of a claimant’s likely state of mind, possible lapses of memory and inexperience in interview situations and in providing written statements. Hence, a degree of latitude is appropriate when faced with confusion, lack of detail and minor discrepancies.

21    However, taking those caveats into account, the Reviewer did not find the appellant to be a credible witness. The Reviewer said that the appellant’s evidence contained contradictions, inconsistencies and implausibilities that he was not able to explain to the Reviewer’s satisfaction, including a new, very late, claim. The Reviewer said that, considered cumulatively, those anomalies caused him to doubt the credibility of the appellant’s claims.

22    The Reviewer summarised the appellant’s principal claims as follows:

    He claimed that his father had been abducted/arrested by the army in 1995 but he did not know why.

    He feared that, if he returned to Sri Lanka, he would be arrested and tortured for not having lived there for a long time: the authorities would ask him about his father and he would not have an answer.

    He had left Sri Lanka in 1999 because he had feared he would be arrested and killed by the police and army: according to his advisor’s submission, he feared that, if he returned, he would be seen as an LTTE supporter and would be persecuted.

    If he returned, the Sri Lankan authorities would not protect him because he did not have a national ID card.

    After they moved to Colombo, so that his mother could receive medical attention, the police came 8 to 10 times to the house where they were boarding, to ask where his father was and whether he had joined the LTTE: they told the police that he had been abducted but the police did not believe them; after that, the family applied for visas to India and left.

    In Colombo, after there were bomb blasts in the city, the authorities came at night to the house where he was living and questioned the house owner and the other occupants, including the appellant and his mother, although he and his family members were not detained or mistreated.

    The appellant and his brother, when they were at school in Colombo, were harassed and beaten by Sinhalese people because they were Tamils.

23    The Reviewer said that, during his interview with the appellant, the appellant referred to the arrest of his father and to other reasons why he feared returning to Sri Lanka several times, but only towards the end of the interview did the claim emerge that the appellant’s aunt had recently told him that the reason for his father’s arrest was that he had had an LTTE link. The Reviewer said that the appellant did not mention that new claim at the beginning of the interview, despite telling the Reviewer that he had “new information”. The Reviewer said that the new information was confused and contradictory. First, the appellant stated that he had not mentioned the arrest at the RSA interview. Then he stated that he had mentioned it. Nevertheless, he did not claim, at that point, that he knew the reason for his father’s arrest.

24    The Reviewer said that, when he asked the appellant why he had claimed that the police would arrest him for not being in Sri Lanka for a long time, which was not against the law, the appellant responded that they might suspect that he was an LTTE member as he was a young Tamil male and had been away for so many years. He made no mention there of the claimed LTTE connections. When the Reviewer said that he still did not see why they would suspect him, the appellant said that they might think he had some problems or had links with the LTTE and that that was why he had been absent for such a long time.

25    The Reviewer said that, late in the interview, the appellant’s advisor stated that the appellant had the profile of someone who may have LTTE links, based on the possible activities of his father. If he returned, he may come under scrutiny that may uncover a history of which he has only a sketchy memory. He had some memory of his father having some dealings with the LTTE and his aunt had confirmed this. The Reviewer said that, when he put to the appellant that that claim was completely new and asked him to explain, he responded that he had stated it previously. The Reviewer said that that was not so. The appellant said that he had asked his aunt and she had told him that his father had been forced to do some work for the LTTE. The Reviewer said that he referred the appellant, at the beginning of the interview, to his statement that the army had arrested his father and that his aunt had told him recently. The Reviewer pointed out that the appellant had made no mention then of an LTTE connection. The appellant said that he had mentioned it at the beginning of the interview. The Reviewer said that, too, was not correct. The appellant subsequently claimed that he had witnessed his father’s arrest and that he had not previously mentioned that because of memory problems.

26    The Reviewer said that he was prepared to give the appellant the benefit of the doubt and accept that his father was arrested in 1995. However, the Reviewer did not accept that the arrest was because the appellant’s father had links with the LTTE or was perceived to have had such links. The Reviewer considered that the appellant had invented that claim in an effort to bolster his case. The Reviewer said that, having made that finding, he had no need to consider what the actual reason was for the arrest of the appellant’s father. The Reviewer noted that the appellant had not suggested that his father was arrested for any other Refugee Convention reason and that there was insufficient evidence for the Reviewer to be satisfied that the arrest was related to a Refugee Convention reason.

27    The Reviewer said, in summary, that he made that key finding for the following reasons. He found it implausible that the appellant would not have asked his aunt about the reasons for his father’s arrest until the very last stage in the progress of his application. Given the importance to his case, if his father really had had links to the LTTE, the Reviewer did not accept that it did not occur to him, at a much earlier stage in the progress of his application, to raise with his aunt the question of why his father was arrested, particularly if, as he claimed, he had previously suspected that his father had some sort of LTTE connection. The Reviewer said that, moreover, even at the hearing, the new claim emerged only towards the end, despite several earlier references to his father’s arrest and to reasons why he feared returning to Sri Lanka. The Reviewer noted that, even if he were to accept the claim that the appellant witnessed the arrest, it did not provide any support to his claim that it was due to his father having LTTE connections.

28    The Reviewer said that his adverse view of the appellant’s credibility in relation to that claim was also due to other anomalies in his evidence at the interview. He contradicted himself about having mentioned his father’s arrest at the RSA interview and made two erroneous statements about having mentioned the claim about his father’s LTTE links earlier.

29    After dealing with the appellant’s other claims, the Reviewer said that his adverse view of the appellant’s credibility was compounded by inconsistency in his claims about his stay in India and why he left. The appellant claimed in his entry interview that he left India because he could not stay longer than 10 years, could not obtain a job and that his family’s registration there was to expire in the previous November. In his statutory declaration, however, the appellant contradicted that claim, saying that he and his family could not remain in India as they had only a six month visa, which had to be extended by the police. The Reviewer said that that was clearly not so, as the appellant had lived in India for about 11 years and his mother and brother were still in India. The appellant stated that he and they were registered there as refugees. While the Reviewer was prepared to accept that the appellant had difficulties in finding long-term employment in India, he observed that that had no Refugee Convention connection.

the decision of the federal magistrates court

30    The grounds of review relied on by the appellant before the Federal Magistrates Court may be summarised as follows:

1.    The Reviewer fell into jurisdictional error by failing to consider the appellant’s claim that his father was arrested by the army in 1995. The Reviewer accepted that the appellant’s father was arrested in 1995, but did not consider what the actual reason for the arrest was and found that there was insufficient evidence before him to satisfy him that the arrest was Refugee Convention related. In so finding, the Reviewer failed to consider the appellant’s claim that the powers of arrest were exercised by the army and not local law enforcement.

2.    The Reviewer fell into jurisdictional error by finding that the appellant contradicted himself about having mentioned his father’s arrest at the RSA interview, in circumstances where there was no evidence upon which the Reviewer could have made such a finding. The Reviewer found that the appellant stated at the beginning of his interview that he had not revealed in his RSA interview that the army had arrested his father. The Reviewer failed to distinguish between the appellant’s new evidence as to the circumstances, as opposed to the fact of, his father’s arrest, which were separate matters. The finding of contradictory evidence was a critical step in the making of the credibility findings that formed the basis of the Reviewer’s ultimate decision that the appellant did not satisfy the criterion for the grant of a protection visa, but there was no evidence upon which the Reviewer could make such a finding.

3.    The Reviewer fell into jurisdictional error and failed to act judicially by making an adverse credit finding, in part because of a purported delay by the appellant, during the interview, in raising new evidence, when such delay was the result of the Reviewer’s conduct at interview. The appellant sought to raise new evidence at the commencement of the interview. The Reviewer failed to distinguish between the appellant’s new claim as to the factual circumstances giving rise to the arrest of his father, as opposed to the factual circumstances of the arrest itself. The Reviewer precluded the appellant from providing particulars of that new claim by changing the subject area of his questions before such evidence could be given. The fact that the appellant had allegedly not raised that new claim until the end of the interview was a critical step in the Reviewer’s credibility findings and his key finding that the appellant’s father was not arrested for reasons relating to the Refugee Convention.

7.    The Reviewer fell into jurisdictional error by failing to take into account a material consideration in making an adverse credit finding on the basis of the inconsistency as between the appellant’s entry interview and his statutory declaration, in that the Reviewer failed to have regard to an answer in the entry interview that was consistent with the claim made in the statutory declaration. The Reviewer was bound to take the whole entry interview into account before making an adverse credibility finding against the appellant, based on an inconsistency between the entry interview and the statutory declaration.

31    In dealing with ground 1, the primary judge observed that, in his reasons, the Reviewer recorded that the appellant said that he had new information to provide, namely, that he had recently been told by his aunt that the army had arrested his father. The claim that it had been the army that detained the appellant’s father was made as early as the entry interview on 31 May 2010. His Honour considered that, in the circumstances, it was not necessary for the Reviewer to describe that it was the army that had detained the appellant’s father. The Reviewer had already referred to the army’s involvement in the detention when he summarised what the appellant had said at his entry interview. His Honour considered that there was nothing in the Reviewer’s reasons to suggest that he had approached his consideration of the issue on any basis other than that it had been the army who detained the appellant’s father. His Honour referred to a passage in the Reviewer’s reasons where he expressly referred to the fact that he did not accept that the arrest of the appellant’s father was because he had links with the LTTE or because he was perceived to have had such links. His Honour considered that the Reviewer plainly considered the claim and had rejected it as an invention.

32    The primary judge referred to the appellant’s submission that, in that connection, the Reviewer should have considered the army’s power of arrest, whether it was dependent on a person having LTTE connections and whether the claimed arrest of the appellant’s father would have suggested that he had LTTE links. The primary judge did not accept the appellant’s submission that, although such a claim had not been articulated at the review, it was nevertheless one that emerged sufficiently clearly from the material that was before the Reviewer that it should have been considered by him. His Honour said that the appellant did not point to any material before the Reviewer, such as country information, that supported any particular conclusion concerning what powers of detention the Sri Lankan army might have had at the relevant time and, thus, what detention by the army might have signified. His Honour considered that the evidence before the Reviewer did not suggest that, in a non-combat situation, the army had power to arrest or even a propensity to detain, lawfully or unlawfully, people in general or anyone in particular, such as persons with LTTE associations. His Honour concluded there was no claim concerning the significance of arrest by the Sri Lankan army, unarticulated but nevertheless tolerably obvious on the materials, that the Reviewer failed to consider.

33    In dealing with ground 2, the primary judge referred to the appellant’s submission that his statement to the Reviewer, that he had mentioned in his RSA interview that his father had been arrested by the Sri Lankan army, was correct and that the Reviewer’s finding that he had contradicted himself was a finding for which there was no evidence. The primary judge pointed out that, at no point prior to the interview with the Reviewer had the appellant described his father’s disappearance as an arrest. Rather, he had always described it as an abduction, a distinction that the primary judge considered to be of some significance, on the basis that arrest implied the existence of a real or purported de jure power, while abduction meant a kidnapping. His Honour considered that it was significant to that distinction that the appellant’s allegation, that his father had been abducted, was coupled with an assertion that his family did not know why that had happened. In both his entry interview and in his statutory declaration he said that he did not know why his father had been abducted.

34    The primary judge considered that the appellant’s characterisation of his father’s disappearance as an unlawful abduction, rather than a potentially lawful arrest, was borne out by his assertion in his statutory declaration that, when the police and army questioned his family at their home in Colombo, they wanted to know where his father was, implying that his father had been the subject of some action that lacked legal sanction and of which the army would have been formally unaware. His Honour observed that the RSA assessor’s summary referred only to the appellant saying that his father had been abducted by the Sri Lankan army for unknown reasons and made no mention of the appellant having said that his father was arrested.

35    The primary judge observed that, in his interview with the Reviewer, the appellant was aware that his characterisation of the disappearance of his father as an arrest was new information. The appellant asserted that the Reviewer failed to recognise that his new evidence concerned the circumstances giving rise to his father’s arrest, not the fact of the arrest. His Honour considered that that assertion misconceived the Reviewer’s findings and reasons, and did not point to any relevant error on the Reviewer’s part. The finding of contradictory evidence was concerned only with the nature of the detention of the appellant’s father, not with the reasons for it. His Honour concluded that it was not true for the appellant to say that he had mentioned in his RSA interview that his father had been arrested by the army: he had not said that. Rather, he had said that his father had been abducted. His Honour considered that the evidence indicated that the appellant knew that those were different things. His Honour concluded that the Reviewer’s finding that the appellant contradicted himself on that point was open on the evidence.

36    In relation to ground 3, the primary judge observed that the appellant relied on an exchange between the Reviewer and the appellant in the course of the interview. The appellant submitted that, on any view of that exchange, he would be understood to have been attempting to inform the Reviewer that his aunt had recently provided him with information concerning the circumstances of his father’s arrest, rather than giving evidence about the fact that his father had been arrested. The appellant asserted that the Reviewer had failed to recognise that distinction. The passage referred to by the appellant is as follows:

A: You know, in my RSA interview I didn’t reveal about my father’s arrest. You know, army arrested my father that time I was small. I spoke to my auntie in recent months and she told me the details about his arrest.

R: Are you saying that at the time of the RSA interview, you were not aware of this fact?

A: Okay. During my RSA interview I didn’t have full understanding about this incident and the second thing is I was scared. I was worried and upset whether I can reveal this or not. That’s why I didn’t give the man the idea about this arrest.

R: How do you mean you didn’t have a full understanding of it?

A: Because I was small and at that time I was very small and my auntie only explained me about this arrest over the phone in recent months so I wanted to explain you about that.

R: And you said that during the RSA interview you were also scared to reveal this fact, but you’ve just said that you weren’t fully aware of it at that time. Could you explain please.

A: Yes.

R: Let me explain my question in just a moment. You just said that during your RSA interview you were scared to reveal this information but you also said that you only found out a few months ago. I assume you mean after the interview, so I’m not quite clear of what you are saying.

A: Okay, you know when I had my RSA interview I knew that my father got arrested but I didn’t know anything about it and I was a bit worried to mention that because I didn’t know that I had to tell that or not. And then, I had a discussion with my auntie and she explained what happened.

R: You did say in your first interview and also in your written statement that your father had been abducted, so that was already on your file. I’m wondering why you were worried about mentioning it at the RSA interview. I’m just not quite clear on this could you clarify please.

A: I have mentioned in my RSA interview that my father got arrested by the army.

R: Why didn’t your auntie mention this to you earlier, before you left Sri Lanka?

A: Because I didn’t ask her anything about this I didn’t have any thoughts about this when I left from Sri Lanka. I was very small that time and I didn’t think about it.

37    The appellant pointed to his use of the word “about” in the above passage and submitted that that indicated that he was attempting to address the reasons for his father’s arrest, and that he had been unable to expand on that issue because of the direction the Reviewer’s questioning had taken, which effectively prevented him from discussing the issue. He submitted that it was only later in the interview that he had an opportunity to give evidence about why his father had been arrested. The primary judge considered that, when the passage in question is considered in the context of the transcript as a whole, that factual assertion is probably correct. His Honour had particular regard to the appellant’s advisor’s comments to the effect that, based on recent instructions, it was arguable that the appellant had a profile of someone who might be suspected of having a link with the LTTE, based on the possible activities of his father. His Honour accepted that the implication in the Reviewer’s reasons, that the evidence concerning the reasons for the detention of the appellant’s father was invented during the course of the interview, was incorrect. However, his Honour observed, it was based on the fact that the appellant did not articulate that aspect of his claim until towards the end of his interview with the Reviewer. Consequently, it was open to the Reviewer to conclude, albeit indirectly, that it was an invention devised during the interview. His Honour did not consider that an incorrect conclusion of that sort amounted to legal error.

38    The primary judge did not consider that the evidence supported a conclusion that the Reviewer was attempting to prevent the appellant from giving the evidence he wanted to give. Rather, it was a case of the interview going in a particular direction at a particular time and the appellant not saying all that he had to say until later. His Honour did not consider that that amounted to a denial of procedural fairness. In any event, his Honour said, the duty to act judicially was, in the circumstances, a duty to afford procedural fairness, which, in turn, involves a duty to act rationally and reasonably. The law is concerned to avoid practical injustice and the Reviewer’s incorrect conclusion did not represent illogicality or unreasonableness in the relevant sense.

39    The primary judge accepted that an applicant who has established a want of procedural fairness on the part of an independent merits reviewer is entitled to succeed, unless the court is satisfied that it could have had no bearing on the outcome. His Honour considered that the Reviewer’s factual error had no bearing on the outcome of the review. The Reviewer’s rejection of the appellant’s claim that his father was arrested because he had links with the LTTE, or because he was perceived to have had such links, had a number of bases. One of those bases was that the Reviewer considered that it was implausible that the appellant had not asked his aunt about the reasons for his father’s arrest until the very last stage of his application for protection. His Honour considered, therefore, that the mistaken inference that the Reviewer drew about the point in the interview, when the appellant gave evidence about the claimed reason for his father’s arrest, was mentioned only to give emphasis to the conclusion that the Reviewer had expressed in the immediately preceding sentences. It did not form part of the reasoning and did not render the reasoning legally erroneous. Accordingly, although the appellant had identified a finding that his Honour found was incorrect, his Honour did not consider that it was legally erroneous or a finding on which any conclusion that was material to the decision was based.

40    In relation to ground 7, the primary judge found it difficult to conclude that the Reviewer would have found the appellant’s statutory declaration to be inconsistent with what had been said in his entry review questionnaire if the whole of that questionnaire had been taken into account. His Honour considered that a particular answer provided a factual bridge between the appellant’s answer to an earlier question in his entry interview questionnaire and what he said in his statutory declaration. His Honour considered that, if regard had been had to the earlier question, the Reviewer would not have been able to find that the statutory declaration contradicted what had been said in the questionnaire. His Honour concluded that the answer to the earlier question had been overlooked by the Reviewer.

41    However, the primary judge considered that that oversight was of no real significance. His Honour considered that the Reviewer’s comments concerned an issue that was entirely peripheral to the matter that he had to decide. Had he concluded that the appellant had not made inconsistent statements in relation to his stay in India, that would, in his Honour’s opinion, have had no effect on the Reviewer’s findings concerning whether the appellant had a well-founded fear of persecution in Sri Lanka, in so far as those findings depended on intermediate findings as to the appellant’s credit. His Honour considered that the Reviewer’s view of the appellant’s credibility was determined by his evidence and claims concerning the events in Sri Lanka, not what he said about the terms on which he had been able to stay in India and when and why he had to leave. Accordingly, his Honour concluded that the Reviewer’s failure to consider the information set out in the earlier question in the entry interview questionnaire could not possibly have deprived the appellant of a successful outcome, because the evidence was so insignificant that the failure to take it into account could not have materially affected the decision.

the appeal

42    In his notice of appeal of 4 May 2012, the appellant relied on five grounds. He asserted that the primary judge erred by:

1.    Finding that the Reviewer had considered the claim that the appellant had a well-founded fear by reason of the arrest of his father, a Tamil man, by the Sri Lankan army during the conflict in 1995: while the Reviewer rejected the opinion of the appellant’s aunt as to the reason for the father’s arrest, he did not deal with the claim in so far as it was based on the accepted facts that the father had been arrested by the Sri Lankan military in 1995 in Jaffna, a prime LTTE area, during the conflict; the alternative basis for the Reviewer’s conclusion posited by the primary judge was not part of the Reviewer’s reasons and did not provide the basis for the conclusion reached by the primary judge.

2.    Rejecting ground 2, by finding that the Reviewer’s finding that the appellant had contradicted himself concerning the arrest of his father was open on the evidence: the finding made by the primary judge as to the appellant having contradicted himself was based on a distinction between the words arrest and abduction, in circumstances where such a distinction was not before the Reviewer and did not form any part of his reasons for recommendation and only arose as an issue before the Federal Magistrates Court; the primary judge failed to consider ground 2 by failing to consider whether the contradiction identified by the Reviewer was open on the evidence.

3.    Finding that the mistaken inference that the Reviewer drew did not form part of the reasoning and did not render it legally erroneous: the mistaken inference accepted by the primary judge cannot be disaggregated from the Reviewer’s adverse findings of credit against the appellant and consequent rejection of his claims; the erroneous inference of the Reviewer, as found by the primary judge, was clearly relevant to the apparent rejection by the Reviewer of the credibility of the appellant’s claimed fear of persecution based on the arrest of his father by the Sri Lankan military in 1995 during the conflict; the error identified by the Federal Magistrates Court involved the Reviewer’s mischaracterisation of the evidence given by the appellant to him and thereby demonstrates a failure by the Reviewer to consider or understand the evidence of the appellant at the hearing, the quality of such error being different to a mere error of fact about a particular matter.

4.    Finding that an answer in the interview questionnaire was overlooked but that the oversight was of no real significance.

5.    Finding that the Reviewer’s view of the appellant’s credibility was determined by his evidence and claims concerning the events in Sri Lanka, not what he said about the terms on which he had been able to stay in India and when and why he had to leave.

43    The Minister filed a notice of contention on 25 May 2012. While the Minister did not seek to cross appeal from any part of the orders made by the Federal Magistrates Court, the Minister contended that the orders of the Federal Magistrates Court should be affirmed on grounds other than those relied on by the primary judge. The grounds relied on by the Minister are as follows:

1.    The primary judge erred in holding that the appellant was unable to expand on the reasons for his father’s arrest at the commencement of the interview with the Reviewer because of the direction that the Reviewer’s questioning had taken, which effectively prevented him from discussing the issue, and that it was only later in the interview that the appellant had an opportunity to give evidence about why his father had been arrested: the primary judge ought to have held that the appellant was afforded sufficient opportunity to give any evidence he wished to give about the issue of the reasons for his father’s arrest at the commencement of the interview and no conduct of the Reviewer prevented the appellant from giving timely evidence about that issue.

2.    The primary judge erred in holding that the Reviewer overlooked the earlier answer given in the appellant’s entry interview questionnaire and that, if regard had been had to that evidence, the Reviewer would not have been able to find that the appellant’s statutory declaration contradicted what he had said in the entry interview questionnaire: the primary judge ought to have held that the Reviewer had regard to the evidence given in the appellant’s entry interview questionnaire and that it was open to the Reviewer to find that the appellant’s statutory declaration contradicted what he had said in that questionnaire.

44    In substance, the questions that fall to be determined in the appeal are, in the light of the Minister’s notice of contention, the four grounds relied on by the appellant before the Federal Magistrates Court. It is convenient to deal with the four grounds separately.

Ground 1: Failing to consider the claim that the appellant’s father was arrested by the army

45    The appellant contends that it was an integer of his claim that it was the army, and not the civilian police, who arrested his father, a private citizen. He says that that issue was not addressed by the Reviewer and that that was a jurisdictional error, because ignoring component integers of a claim amounts to a constructive failure to exercise jurisdiction.

46    The appellant’s father was a shopkeeper in Jaffna. The appellant claimed that he himself had the profile of someone who may have LTTE links, based on the activities of his father. He claimed that, in 1995, his father was abducted or arrested by the army. The Reviewer accepted that the army arrested the appellant’s father in 1995. Therefore, the appellant contends, the Reviewer was required to go on to consider whether the abduction or arrest was lawful or was for some Refugee Convention related reason. He says that that integer of his claim was never considered.

47    The Reviewer did not accept that the arrest of the appellant’s father was because he had links with the LTTE. That finding was based on a rejection of the evidence given by the appellant that his aunt had recently confirmed the reasons for the arrest. The Reviewer said that he had no reason to consider what the actual reason for the arrest was. The appellant says that, by doing so, the Reviewer failed to consider a central component of his claim that the abduction or arrest was by the Sri Lankan military in 1995 in Jaffna, a prime LTTE area. The Reviewer found that the Sri Lankan army arrested the appellant’s father, but failed to consider what the power of the army was to arrest a private citizen. The appellant contends that, in the absence of any rational explanation for the arrest by the army of a civilian Tamil, or the power of the army to arrest a civilian Tamil, an inference clearly arises that the arrest was for a Refugee Convention reason. The appellant says that that was therefore an integer of his claim and that the failure to consider that integer amounted to a constructive failure to exercise jurisdiction.

48    However, the question whether the appellant’s father had been arrested by the army or by the police was not a factual issue before the Reviewer. The Reviewer clearly understood that the appellant’s evidence was to the effect that his father had been arrested by the army. There was nothing in the reasons of the Reviewer to suggest that he approached the consideration of that question on a basis other than that it was the army that had detained the appellant’s father. The appellant did not ever assert that it was because it was the army that arrested his father that the arrest must have been for a Refugee Convention reason, on the basis that the army had only limited powers of arrest. The appellant has not referred to anything in the material before the Reviewer that would give rise to such a suggestion. It is conceivable that such an inference might have arisen, had the appellant pointed to country information to suggest that the army had only limited powers of arrest. That was not done.

49    The fact that the contention was not advanced in the appellant’s written submissions to the Federal Magistrates Court, and was only developed in oral argument during the course of the hearing, supports the Minister’s contention that no such claim had been made to the Reviewer and that the appellant did not himself understand that such a claim had been made. The decision of the Reviewer must be considered in the light of the basis upon which the application was made. There is no jurisdictional error in failing to deal with an application on a basis that occurs to an applicant, or the applicant’s lawyers, at some later stage in the process (see Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1]).

50    I do not consider that a basis has been established for contending that it should have been apparent to the Reviewer that the appellant was claiming that the fact that his father had been arrested by the army indicated some perceived connection with the LTTE. The primary judge made no error in rejecting the first ground.

Ground 2: Contradictory evidence about the arrest of the appellant’s father

51    The appellant contends that, in circumstances where the primary judge accepted his contention that he had tried to raise the reason for his father’s arrest by the army early in the interview, his Honour erred by seeking to justify a finding of inconsistency on an alternative basis not agitated before the Reviewer, where the alternative inconsistency was not an inconsistency at all. At the beginning of the appellant’s interview by the Reviewer, he said (see [34] above) as follows:

In my RSA interview I didn’t reveal about my father’s arrest…

The appellant contended before the Federal Magistrates Court that the use of the word about indicated that the appellant was attempting to give evidence as to the reasons for the arrest of his father, not the fact of the arrest itself. That was accepted by the primary judge. Later in the interview with the Reviewer, the appellant said:

I have mentioned in my RSA interview that my father got arrested by the army.

The Reviewer found that the appellant gave contradictory evidence as to having mentioned his father’s arrest at the RSA interview. That finding was significant in forming an adverse view of the appellant’s credibility and was a critical step in the Reviewer’s decision.

52    The appellant contends that there was no inconsistency or contradiction between the statements in question, because they were not on the same subject matter. A finding of contradiction required that there be two statements as to whether or not the father’s arrest was mentioned at the RSA interview, with one statement being inconsistent with the other. The appellant contends that the Reviewer had no basis for making a finding of contradiction between the two statements.

53    The substance of the appellant’s contention is that his use of the word about should be read as meaning the reasons for the arrest of his father, rather than the fact of the arrest. There may be some ambiguity in the use of the word about. However, it would not be unreasonable to understand the word to refer to the circumstances in which the arrest took place, which is the meaning that the Reviewer appears to have placed on the word. The Reviewer’s understanding of the evidence given by the appellant was one that was open on the language used. It was open to the Reviewer to make a finding, on the basis of the word used before him, that there was inconsistency between the two statements in question. There was no error on the part of the Federal Magistrates Court in rejecting ground 2.

Ground 3: Delay in raising new evidence

54    The primary judge accepted that the inference drawn by the Reviewer that the appellant invented evidence as to the reason for his father’s arrest during the course of the interview, based on the fact that the appellant did not articulate that aspect of his claim until towards the end of his interview, was mistaken, because the appellant sought to give that evidence at the outset of the interview. The appellant contends that the primary judge erred by failing to find a denial of procedural fairness in those circumstances. That is to say, he says that the Reviewer denied him the opportunity to give evidence on a relevant issue at a relevant time, and then proceeded to draw an adverse inference against him from the fact that he did not give the evidence at that time.

55    Specifically, the Reviewer found that the appellant had failed to raise the fact that his aunt had told him that his father had links to the LTTE until very late in the interview. That was significant in the Reviewer’s forming an adverse view of the appellant’s credibility and was a critical step in the Reviewer’s conclusion that the arrest of the appellant’s father was not because he had, or was perceived to have had, links to the LTTE. The appellant contends that the Reviewer’s conduct denied him a hearing at the relevant time. He does not deny that he was ultimately offered the opportunity to give evidence as to the circumstances of his father’s arrest. However, he says, where the Reviewer proceeded to draw an unfavourable conclusion based on the purported delay, the failure to afford an opportunity to give evidence on the relevant issue at the relevant time constituted a denial of procedural fairness that gave rise to a practical injustice.

56    The appellant does not contend that the Reviewer cut him off or interrupted him in the course of giving evidence. Rather, he contends that the Reviewer in some way steered the appellant away from giving relevant evidence. I do not consider that such a reading of the transcript is fairly open. At the beginning of the interview, the Reviewer said that he understood that the appellant had some further information that he would like to convey to the Reviewer and asked him whether he would like to do that now. The appellant’s advisor, who was present at the interview, then said that she could assist, because she was privy to the information. The advisor then told the appellant that the Reviewer would like the appellant to explain what had happened in recent months, in the same way that the appellant had explained it to the advisor when she met the appellant on the previous day and on the day of the interview. The advisor referred to conversations that the appellant had had with relatives. The interview then continued as set out in paragraph [36] above.

57    The appellant contends that he was, at that point, in some way steered away from telling the Reviewer everything that he had been told by his aunt concerning the details of his father’s arrest. He says that, instead of asking the appellant what his aunt had told him in recent months, the Reviewer steered him in a different direction, by asking whether at the time of the RSA interview, the appellant was not aware of “this fact”. He says that it is not clear what the Reviewer meant by “this fact” and that that question distracted the appellant from saying, at that stage in the interview, that his aunt told him that his father had been arrested because of perceived connections with the LTTE.

58    The answer given by the appellant to the invitation to explain his conversations with his relatives did not include any hint of his father’s alleged links with the LTTE. Subsequently, the Reviewer asked the appellant why he feared going back to Sri Lanka, to which the appellant responded:

They might think that I have some connection with the LTTE because I am a young Tamil boy and I was away from Sri Lanka for so many years.

No mention was made at that time of any link between the appellant’s father and the LTTE. The appellant’s failure to provide that connection at that point was relied on specifically by the Reviewer as a basis for his adverse credit finding.

59    The following exchange then occurred:

Reviewer:    I still don’t quite see why they would suspect you of being LTTE just because you were away for a long time?

Appellant:    You know they would consider why did he leave form Sri Lanka for so long, and why he was away for more than 10 years so they might think I had some problem or I have some links with LTTE, that’s why I escaped from the country.

That exchange and the failure to mention any connection between the appellant’s father and the LTTE at that stage was also relied on by the Reviewer.

60    Subsequently, the Reviewer asked the appellant about the basis for his fears. The following exchange occurred:

Reviewer:    In your written statement you said that you left Sri Lanka in 1999 because you feared that you would be arrested. But you were only 12 years old at that time, so I am wondering why you feared arrest at the age of 12?

Appellant:    You know we didn’t have our father, only myself and my brother and my mum, you know, we didn’t get any support from anyone so they wouldn’t consider whether I am 12 years or how many years old you know they consider us as Tamils so they might arrest anyone.

It was only after the Reviewer made clear the difficulty that he had in understanding what were said to be the LTTE links referred to in the advisor’s submissions that the appellant’s advisor raised the information allegedly obtained from the appellant’s aunt about his father’s links with the LTTE.

61    I consider that the primary judge erred in concluding that the appellant had been unable to expand on the reasons for his father’s arrest because of the direction that the Reviewer’s questioning had taken. I do not consider that a fair reading of the transcript suggests that the appellant was effectively prevented from saying at the beginning of the interview that his aunt had told him about the reasons for his father’s arrest. There was no error on the part of the Federal Magistrates Court in failing to uphold the third ground.

Ground 7: Inconsistency between entry interview questionnaire and statutory declaration

62    The primary judge accepted that the Reviewer failed to take into consideration an answer in the appellant’s entry interview questionnaire and that, had he done so, he would not have been able to find the inconsistency that he found. However, the primary judge found that that was of no real significance. The appellant contends that that conclusion was erroneous because it was not possible to disaggregate the Reviewer’s adverse findings of credit.

63    The Reviewer said that his adverse view of the appellant’s credibility was compounded by inconsistencies in his claims about his stay in India and why he left India. He claimed, in his entry interview, that he left India because he could not stay longer than 10 years and could not obtain a job and that his family’s registration in India was to expire in the previous November. The Reviewer considered that the appellant had contradicted that claim in his statutory declaration, by stating that he and his family could not remain in India as they had only a six month visa that had to be extended by the police. The Reviewer found that that was clearly not so, as the appellant had lived in India for about 11 years and his mother and brother were still there.

64    In the appellant’s entry interview questionnaire, the following was recorded:

Q:    Why did you leave India?

A:    We couldn’t stay longer than 10 years. What can I say, we had nothing to stay for.

Q:    Who left?

A:    Just me, I can’t get a job, but we can’t stay, there are problems, problems from the police once our registration finishes in November.

65    In the appellant’s statutory declaration, he said:

We could not remain in India as we had only a six month visa which had to be extended by the Indian police.

A copy of a police registration certificate was attached.

66    The entry interview questionnaire also contained the following question and answer:

Q:    What status did you have (if lawfully resident what documentation did you hold and where is it now)?

A:    Lawful for six months, then we registered with the police and stayed, they gave us registration papers, so my mother can get treatment, we were legal for 10 years.

67    The primary judge found that it would be difficult to conclude that the Reviewer would have found the statutory declaration to be inconsistent with what had been said in the entry interview questionnaire if that further question and answer had been taken into account. His Honour considered that it provided “a factual bridge” between the earlier answer in the entry interview questionnaire and the statement in the statutory declaration. His Honour therefore concluded that the material had been overlooked. However, his Honour found that the oversight was of no real significance.

68    The reasoning of the primary judge is based on a question concerning the status of the appellant in India. The question was not directed to the reasons for the appellant leaving India. It was open to the Reviewer, on a reasonable reading of the material, to conclude that there was contradiction between the two statements. First, the appellant claimed that he could not stay longer than 10 years in India, that he could not get a job and that his family’s registration was due to expire in November 2010. Subsequently, he asserted that he and his family could not stay in India because they only had a six month visa. It was open to the Reviewer to find that both of those explanations were inconsistent with the fact that the appellant had lived in India for 11 years and that his mother and brother were still there. I consider that the primary judge erred in drawing the inference that the Reviewer had overlooked the question concerning the status that the appellant had in India. It was open to the Reviewer to conclude that the answer to the earlier question and the statement in the appellant’s statutory declaration were inconsistent. It follows that there was no error in rejecting ground 7. Even if the primary judge’s finding of an oversight were correct, there was no error in rejecting ground 7, because it was indeed of no real significance.

conclusion

69    I do not consider that the appellant has established any of the grounds of appeal in his notice of appeal. The Federal Magistrates Court did not err in concluding that there was no jurisdictional error on the part of the Reviewer in concluding that the appellant does not meet the criterion for the grant of a protection visa under the Act. It follows that the appeal must be dismissed with costs.

Associate:

Dated:    24 August 2012