FEDERAL COURT OF AUSTRALIA

SZTVU v Minister for Immigration and Border Protection [2015] FCA 1449

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the costs of the first respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

1.    INTRODUCTION

1    This is an appeal from the Federal Circuit Court (Court below) dismissing an application for judicial review of a decision by the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal). By its decision on 8 January 2014, the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Border Protection (the delegate) to refuse the applicant’s application for a Protection (Class XA) visa (a protection visa) under the Migration Act 1958 (Cth) (the Act). In line with the grounds pleaded in the application for judicial review in the Court below, the appellant alleges that the primary judge erred in that his Honour ought to have held that the Tribunal failed to provide him with a fair hearing where:

(1)    the application by the appellant for the Tribunal hearing to be adjourned was refused in circumstances where the appellant’s advisor was not prepared for the hearing (particular (a) of ground 1); and

(2)    a psychological report provided to the Tribunal by the appellant was only considered in relation to the appellant’s general credibility and not with respect to its bearing on the appellant’s capacity to participate in the hearing (particular (b) of ground 1).

2    It appeared from the appellant’s oral submissions that the second alleged error was relied on in the appeal as demonstrative of the practical injustice that the appellant was said to have suffered as a result of the Tribunal’s failure to allow the adjournment application. As such, particular (b) was not relied upon as a ground independent of particular (a), and the appellant appeared to accept that the point did not arise unless the Court upheld the complaint in particular (a). Nonetheless I have also considered whether the Tribunal’s consideration of the report might otherwise reveal jurisdictional error.

3    The third particular of ground 1 of the notice of appeal, namely that there was no regard to the evidence led by the appellant’s migration agent that the appellant had intellectual limitations, was abandoned at the hearing.

4    For the reasons set out below, the appeal should be dismissed with costs.

2.    BACKGROUND

2.1    The application for a protection visa and decision of the Minister’s delegate

5    The applicant is a citizen of Sri Lanka of Tamil ethnicity and applied for a protection visa under ss 36 and 45 of the Act on 29 April 2013. A delegate of the Minister refused to grant the visa on 23 September 2013.

6    On 26 September 2013, the appellant applied to the Tribunal for review of the delegate’s decision.

2.2    The invitation to a Tribunal hearing and related documents

7    On 1 November 2013, the Tribunal wrote to the appellant inviting him to a hearing “to give evidence and present arguments relating to the issues arising in relation to the decision under review” in accordance with the requirements of s 425 of the Act. The letter advised that the hearing was to be held on 4 December 2013 and stated that any request to postpone the hearing must be made in writing as early as possible, including the reasons for the request. It cautioned that the Tribunal would only change the date if satisfied that there was “a very good reason”. The letter enclosed a Response to Hearing Invitation form.

8    That letter and its attachments were sent under cover of a letter bearing the same date to the appellant’s nominated migration agent (the appellant’s representative). The covering letter stated that the appellant’s representative “should provide a written submission setting out all claims made and maintained by [sic] applicant by 27 November 2013”. The covering letter also stated that, if the appellant proposed that a witness give evidence at the hearing, a witness statement should be provided to the Tribunal by 27 November 2013.

2.3    Requests for an extension of time within which to provide a written submission and for the Tribunal hearing to be postponed

9    On 15 November 2013, a case note apparently prepared for the Tribunal Member who decided the appellant’s review, recorded that:

The applicant’s representative called to enquire whether he would be able to get [sic] extension of the due date by which he needs to provide a written submission. He explained that he had not yet had a chance to speak to his client who is in detention and he is not sure whether he will be given access. He is planning to meet his client on Monday. He is also planning to arrange some documents as evidence from Germany and Sri Lanka which may take some time. He is proposing that the applicant’s wife give evidence as witness over the phone at the hearing. He is also willing to provide response/comments on the department’s finding that the UNHCR document which was provided with his client’s protection visa application was found non-genuine. I advised him that if he cannot meet the deadline he would need to request the tribunal in writing to push back the due date and the member will then make a decision whether to grant him extension.

10    At this stage, while the appellant’s representative apparently referred to the possibility that evidence might need to be led, an extension of time within which to provide the written submission only was sought. There was no proposal at that stage that the hearing be adjourned.

11    On 20 November 2013, the appellant’s representative rang the Tribunal again and on this occasion asked whether the hearing could be postponed, as well as requesting an extension of time within which to provide a submission to the Tribunal. In the case note recording that conversation, the Tribunal officer stated that the appellant’s representative had advised that he had met the appellant in person the day before at the detention centre and had clarified his position in this review application. The appellant’s representative also said that the representative’s mother had been diagnosed recently with a serious medical condition and he had to spend some time with her which had “caused some delay in preparing this case”. The Tribunal officer advised the appellant’s representative to put his request in writing.

12    On 20 November 2013, the appellant’s representative wrote to the Tribunal referring to the earlier invitation to appear and the deadline of 27 November 2013 stated in the invitation for any written submission. The representative then requested an extension of time within which to lodge the submission together with a postponement of the hearing. The reasons given for the request were that:

Due to circumstances beyond my control (noting that my mother has been diagnosed with cancer, and is undergoing various treatments – see attached eDischarge) I have taken a few weeks off from work and as a result, I now have a huge backlog of urgent maters to deal with, including [the appellant’s] matter.

As a result of this unforseen personal matter mentioned I have not been able to visit [the appellant] in the Villawood Detention Centre until yesterday and discuss DIAC’s PROTECTION (CLASS XA) VISA DECISION dated 23 September 2013 with him in details.

Having now discussed the DIAC’s decision with him in details and explained what other evidences that [the appellant] may require I have been instructed to seek an extension of time to lodge the submission (if possible by mid. December 2013) with the RRT (together with any additional information/evidence [the appellant] may have in support of his claim) and have the hearing postponed until early [sic] later December 2013 or early January 2014 (if possible).

Having regard to the circumstances please kindly consider providing the requested at your earliest convenience.

2.4    The Tribunal’s decision to refuse the request for an adjournment

13    The Tribunal responded to the request for a postponement on the same day by letter. In the letter, the Tribunal explained that the Tribunal Member had considered the request carefully but had decided not to postpone the hearing. The letter continued:

Given the applicant is in detention, the Member intends to continue with the hearing as planned. Please be advised that the Member is not expecting written submissions on 27 November 2013 and this paragraph has only been inserted if the agent intends to make prehearing submissions.

The hearing will therefore proceed as set out below [i.e. on 4 December 2013 as previously advised].

…

If you are not able to attend the hearing you should advise the Tribunal as soon as possible. Please note that the Tribunal will only change this date if satisfied that you have a very good reason for being granted an adjournment. If the Tribunal does not advise you that an adjournment has been granted, you must assume that the hearing will go ahead. If you do not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.

2.5    Subsequent correspondence

14    The appellant’s Response to Hearing Invitation was faxed to the Tribunal at 5.13pm on 20 November 2013 according to the fax header which appears at the top of the form although the form itself is dated 25 November 2013. Even if the fax header correctly records the date on which it was faxed, I would infer that it was sent after the letter from the Tribunal on 20 November 2013, given, among other things, that the header records that it was faxed after business hours. Nor in any event did any party suggest that the Tribunal had received the completed Response to Hearing Invitation form before making its decision not to accede to the adjournment request and had taken it into account.

15    In the completed Response to Hearing Invitation form, the appellant through his representative indicated that he would take part in the Tribunal hearing and that his representative would be attending. However, in answer to the question on the Tribunal’s form as to whether a request was made to take oral evidence from another person, the box marked “No” was ticked by the representative on behalf of the appellant. The box marked “Yes” was also ticked. However, the tick was scribbled through and initialled indicating that that box had been ticked in error.

16    On 2 December 2013, the appellant’s representative sent an email to the Tribunal identifying the issues arising on the review before the Tribunal as follows:

(1)    whether the appellant’s brother was a member of the LTTE;

(2)    whether the appellant gave a lift to an LTTE member who was of significant interest to the Sri Lankan Army; and

(3)    whether the appellant was of significant interest to the SLA or the EPRLF.

17    The submission attached a substantial body of material in support of the appellant’s claims.

2.6    The hearing on 4 December 2013 before the Tribunal and allowance of further time within which to make a further written submission

18    The hearing proceeded as scheduled on 4 December 2013, with the appellant and his representative attending the hearing. An interpreter was provided as requested. At the commencement of the Tribunal hearing, the following exchange took place:

M[ember]:    The first thing I’m going to do. Madam, I’m going to get you to wait outside, thank you very much.

<Someone leaves the room as door closes>

M:    Alright, Mr S the first thing that I’m going to do is to swear in the interpreter. What the [sic] means is that the interpreter will tell me he will interpret to the best of his ability and not repeat anything.

<swearing on [sic] of interpreter>

M:    Mr interpreter please sit down. Alright now it’s your turn. When I talk to people I ask them to tell the truth, so I’m going to ask you to stand up and the hearing officer will say something to you. And if you agree with what the hearing office [sic] says then you agree to tell me the truth.

<swearing in of applicant>

M:    Thank you. Please do sit down.

Hearing Officer: Member I confirm the recording equipment is working correctly and all voices can be heard.

M:    Thank you. Alright, it is [the appellant’s agent], is it?

Agent: …is my first name.

M:    I did consider your request I think at the end of the day this is a detention case, if you want to make oral submissions at the end or you want to have further time for written submissions then that’s fine. We can talk about that. But my hearings, my schedule is quite booked up sometime in advance. I am quite booked up given that this [sic] a detention case was reluctant to delay it any further.

Agent:    Thank you.

M:    Mr [appellant] I was just talking to your advisor about the fact that I wanted to talk to you today and I didn’t want to delay this hearing. I have also indicated to your advisor that if he wants to make written submissions after the hearing, if he thinks that’s important he may like to do that. I will give him time to do that. The other thing I should say is that that letter that gets sent out, even though we ask for submissions before hearing that is only written for people who intend to put in submission before hearing. It is not obligatory under the law and I certainly don’t ask for submissions but what has happened in the past is that Members turn up to hearing and there is a [sic] extensive written submissions which they can’t absorb and hold the hearing so that’s the reason why that’s that direction as been given by the Principal Member. Mr [appellant] I was just talking to your advisor and I just wanted to explain to him that the letter does not have to be followed absolute or in complete detail.

(Emphasis added.)

19    Among other matters, attachment 2 to the Tribunal’s reasons explains that at the hearing the appellant stated that he had been arrested in 2008 and 2011 by the EPDP. The Tribunal however put to him that, in his written statement (being the statement dated 26 April 2013 which accompanied his application for the protection visa), he had mentioned that he had been arrested only once – a proposition with which the appellant is said to have agreed. The Tribunal’s description of the hearing continued:

The Tribunal put to him that if he had been arrested twice then that may be something he would put in his statement. The applicant stated he was sorry and did not say that because of his excitement.

2.7    The s 424A letter seeking the appellant’s response to particular information and the appellant’s response

20    Subsequently on 6 December 2013, the Tribunal sent the appellant’s representative an invitation to comment on, or respond to, particular information pursuant to s 424A of the Act. The particulars of the information which the Tribunal considered would, subject to the appellant’s comments or response, be the reason or part of the reason for affirming the delegate’s decision, included relevantly:

•    Whether you were arrested in 2011

You [sic] written statement dated 26 April 2013 does not mention that you were arrested in 2011. This is relevant because it may lead the Tribunal to find that it does not accept you were arrested in 2011 as subsequently claimed.

The above information is relevant to the review because if the Tribunal relies on this information in making its decision, it may affirm the decision under review.

21    By letter dated 10 December 2013, the Tribunal agreed to a request to extend the time within which to provide a comment or response to the s 424A letter to 24 December 2013. A further detailed submission in response was provided to the Tribunal by letter dated 2 January 2014 from the appellant’s representative which sought to explain relevantly the later claim to have been arrested in 2011 and attached further evidence, including a psychological assessment report of the appellant prepared by the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (the STARTTS report).

22    While the STARTTS report is dated 28 June 2013, it is not in issue that the Tribunal was not provided with the report before 2 January 2014: see also the reasons of the Court below at [64]. The report expressed the opinion that the appellant presented with features of depression, post-traumatic stress disorder (PTSD) and anxiety. Nonetheless, the report concluded that the appellant’s reported symptoms were currently not clinically significant although he would benefit from counselling support “that would focus on psycho-education and strategies to assist him connect with and express his feelings without them overwhelming him”. In argument the appellant emphasised that the opinions expressed in the STARTTS report indicated that the appellant was engaging in conscious or unconscious attempts to avoid reliving traumatic experiences and has difficulty in providing a compelling narrative of his past situation. For example, in the STARTTS report the author expressed the opinion that:

… [the appellant] appeared teary and distressed and was unable to provide details of his past traumatic experiences. He attempted to avoid details of his past and attempted to present that he was coping adequately. He maintained his major concerns related to the safety of his family and he was keen to put the past behind him. He attempted to justify his reluctance by explaining that the fears and pain aroused by memories of his past lead to an increase in his blood pressure which results in him going faint. This could also be a possible indicator that [the appellant] has a tendency to rely on dissociation as a coping mechanism.

23    The appellant placed particular significance on these views on the basis that they were required to be taken into account by the Tribunal in assessing his credibility.

2.8    The Tribunal’s decision

24    On 8 January 2014, the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa.

25    As to the request for the adjournment, the Tribunal recorded simply at attachment 2 to its reasons that at the hearing:

The Tribunal indicated to the adviser that although it had considered the request for an adjournment, the applicant was in detention and accordingly, the Tribunal had decided to proceed with the hearing.

26    While the Tribunal set out the appellant’s claims in attachment 2 to its reasons, it summarised the issues in its reasons as:

…whether the applicant is wanted by the Sri Lankan authorities either because of his brother or because he gave a lift to someone who was subsequently identified as an LTTE member and whether he will be persecuted as a result.

27    The Tribunal rejected these claims essentially on the basis that it did not believe the appellant, given inconsistencies in his evidence and the implausibility of certain of his claims, including his claim that he was arrested in late 2008 by the army following his brother’s escape from a detention camp. Specifically, based upon inconsistencies and changes in the appellant’s evidence, the Tribunal found that it had trouble accepting that the appellant’s brother was ever in the detention camp. In any event, even if the appellant’s brother had been detained and escaped, the Tribunal rejected on credibility grounds the appellant’s claim to have been arrested and detained. In so finding, the Tribunal rejected the explanations given in the further submission dated 2 January 2014 by the appellant’s representative for the inconsistency in the appellant’s evidence as to whether he had been arrested only in 2008 or also in 2011: see further at [42] below.

2.9    Decision of the Federal Circuit Court

28    As to particular (a) of ground 1, the primary judge found at [62]-[63]:

As submitted by the Minister with reference to Plaintiff M61/2010E v Commonwealth & Ors (2010) 243 CLR 319, an applicant being in detention is a relevant consideration when dealing with an adjournment application. It is common practice in migration matters before the various migration tribunals, this Court and the superior Courts that matters where an applicant (or respondent) is in detention are dealt with on a priority basis. To the extent that the Tribunal relied on the fact the applicant was in detention in reaching its decision not to grant the applicant an adjournment, no error is apparent.

It is not disputed that the Tribunal invited the applicant to prepare written submissions before the hearing, however, this did not occur. It is also apparent that, in order to overcome this, the Tribunal Member stated the applicant would be able to file submissions after the hearing. I accept the Minister’s submission that the applicant has not demonstrated what, if any, prejudice may have befallen the applicant by the Tribunal adopting this course. Accordingly, in this respect, I am of the view this raises no error.

29    With respect to the issue of the psychological report, the primary judge found that the evidence was not before the Tribunal when it decided not to grant the adjournment (at [64]) and therefore no error was revealed; nor did the primary judge consider that the appellant had demonstrated what he might have done differently if granted the adjournment (at [65]).

3.    CONSIDERATION

3.1    Particular (a), ground 1, notice of appeal: failure to accede to the request for an adjournment of the Tribunal hearing

30    Under s 425 of the Act, the Tribunal must invite an applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal has power for the purpose of the review of a decision to adjourn the review from time to time under s 427(1)(b). Whether that power is exercised is a matter within the Tribunal’s discretion.

31    Section 427 appears in Division 4 of Part 7 of the Act which deals with the conduct by the Tribunal of review proceedings. Division 4 is subject to s 422B, the effect of which is that the natural justice hearing rule at common law does not apply to the kind of information to which the operative procedural requirements in the Division apply: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at 267 [40]-[41] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). Nonetheless, the discretion to adjourn a hearing is one which was intended by the Parliament to be, and must therefore be, exercised within the bounds of legal reasonableness: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at 362 [63] and 363 [65]-[66] (Hayne, Kiefel and Bell JJ). Unreasonableness, in turn, is “a conclusion which may be applied to a decision which lacks an evident and intelligible justification” (Li at 367 [76] (Hayne, Kiefel and Bell JJ)).

32    The appellant submitted that the Tribunal had refused the adjournment application on the ground that the appellant was in detention and had thereby failed to have regard to the reasons why the appellant requested the adjournment. The question of detention was said to have been given “determinative significance” with no regard given to the representative’s lack of preparation by reason of his personal circumstances. Yet, the applicant contended, those in detention ought to have the same right to have their cases heard on their merits as anyone else. In effect, the appellant submitted that the Tribunal Member failed to consider the reasons given by the appellant’s representative for the requested adjournment and applied an arbitrary “rule” that, because the applicant was in detention, the request for an adjournment should be refused. Put differently, the appellant submitted that the Tribunal’s discretion in considering the adjournment application miscarried because those factors which should have been taken into account were not, namely, whether or not the appellant was able to give evidence and provide arguments in respect of the matter.

33    There might have been some force in these submissions if the only evidence of the Tribunal’s reasons for refusing the adjournment application was paragraph [28] of attachment 2 to its reasons: see above at [25]. However, evidence of the Tribunal’s reasons is also found in the letter dated 20 November 2013 and the explanation of its decision at the hearing on 4 December 2013. In my view this evidence ought also to be considered in ascertaining the Tribunal’s reasons for the decision to refuse the adjournment.

34    In my opinion, it can fairly be inferred from this evidence that the Tribunal Member had regard to three primary considerations.

(1)    First, she was concerned not to delay the hearing in circumstances where the appellant was in detention.

(2)    Secondly, the Tribunal Member’s concern that the appellant was in detention was compounded by the fact that, if the hearing were adjourned, it may take some time before the hearing could be relisted. Thus, the Tribunal Member said in the course of explaining her reasons at the hearing, “…my hearings, my schedule is quite booked up sometime in advance. I am quite booked up given that this [sic] a detention case was reluctant to delay it any further”.

(3)    Thirdly, both the letter and the explanation on 4 December 2013 make it clear that, contrary to statement in the letter dated 1 November 2013 requiring that a written submission be made setting out all of the applicant’s claims before the hearing by 27 November 2013, the Tribunal Member would allow a written submission to be made after the hearing and that, in this way, the concerns articulated by the appellant’s representative which underpinned both the request for an extension of time and an adjournment would be met. Fairly read, I read that as including evidence which may accompany any such further submissions, as foreshadowed by the appellant’s representative in his written request to adjourn the hearing. I am reinforced in the view by the fact that the Tribunal did in fact receive and consider the further written submission dated 2 January 2014 and the evidence attached to it.

35    It follows that I do not accept the appellant’s submission that there was no evidence that the Tribunal had regard to any matter other than the fact of the appellant being in detention. Rather, in my view the Tribunal had regard to a number of considerations which were logically and rationally relevant to the question of whether or not to allow the adjournment and together provided an intelligible and evident justification for the decision. In this regard, the affording of priority to matters where the individual concerned is in detention reflects a concern to ensure that those individuals remain in detention for no longer than is reasonably necessary, as the primary judge pointed out at [62] of his reasons. It is only logical that that concern is given greater weight where, as the Tribunal considered here, the delay may be extended. Furthermore, the Tribunal considered the disadvantage identified by the appellant’s representative in terms of his capacity to prepare his submission before the hearing, and its reasons addressed that concern. There was no suggestion made, for example, that an adjournment was required in order to enable inquiries to be made so as to determine whether other witnesses should be called to give evidence at the hearing. It follows that particular (a) of the ground of appeal must be dismissed.

36    Finally, I note that the Court below referred to the decision in House v R (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ) in the context of considering whether the exercise of discretion not to grant the adjournment was tainted by jurisdictional error. I note, however, that that decision is concerned with the approach by a court of appeal in determining whether an exercise of a judicial discretion has miscarried and is not concerned with jurisdictional error in the administrative law context even though analogies may be drawn. Nonetheless, for the reasons I have set out above, I have reached the same conclusion as the primary judge with respect to particular (a).

3.2    Particular (b), ground 1, notice of appeal: failure to consider the psychological report’s bearing on the appellant’s ability to participate in the hearing

37    It is not suggested by any party that the Tribunal had received a copy of the STARTTS report when it decided not to grant the adjournment; nor that the matters referred to in the report formed any part of the reasons given to the Tribunal for requesting the adjournment. As I mentioned earlier, at the hearing of this appeal it appeared that the appellant relied upon the STARTTS report in particular (b) of his ground of appeal as illustrative only of the practical injustice which was said to flow because of the Tribunal’s decision to refuse the adjournment request. As the appellant submitted in his outline of submissions:

15.    His Honour then accepted the Minister’s submission, at [63], that the applicant has not demonstrated what, if any, prejudice may have befallen him. The issue here is that His Honour has not had regard to the psychological evidence as respectfully raising matters which may have caused prejudice to the Appellant during the hearing.

…

19.     By refusing the adjournment, the Appellant was denied the opportunity of making representations to the effect that the ambiguities ought be weighed in the Appellant’s favour. He was denied therefore a hearing that could have resulted in his convincing the Tribunal that he was a witness of credit.

38    The submission that the appellant was denied the opportunity of making such submissions is, however, contradicted by the evidence not only of the Tribunal’s willingness to allow further submissions after the hearing, but by the extension of such an opportunity by the s 424A letter. The fact that that opportunity was expressly extended only after the hearing does not mean that the Tribunal Member’s mind was closed to persuasion contrary to the process which it engaged by the issue of the s 424A letter. Nor is any such allegation made which would amount in effect to an allegation of apprehended bias. Ultimately, therefore, the submission seems to amount to a contention that the appellant may have had a better opportunity to persuade the Tribunal of his credibility if it had been aware of the opinions expressed in the psychological report before conducting the hearing.

39    Whether or not that submission would have had any merit in establishing that the appellant was prejudiced by reason of the failure to grant the adjournment, the short point is that this particular was dependent upon the appellant succeeding on particular (a). As I have found against the appellant with respect to the error alleged in particular (a), it follows that particular (b) of the ground of appeal must also fail.

40    Nor, in any event, do I consider that any jurisdictional error is apparent in the Tribunal’s consideration of the STARTTS report and accompanying submission.

41    Contrary to particular (b) of the ground of appeal, the report was relied upon by the appellant only with respect to his credibility. It was not suggested in the written submissions to the Tribunal that the report had any bearing on whether the appellant was able to participate in the hearing and the psychologist did not, in any event, express any opinion on that subject. Rather, in the submission from the appellant’s representative dated 2 January 2014 in response to the s 424A letter, the appellant’s representatives submitted that:

3. Question: Whether the Applicant was arrested in 2011

Answer: Consistent with the evidence he provided at the PV interview on 17 May 2013 the Applicant claimed at the Hearing that he was arrested by the EPDP and tortured and detained for a week. Resulting from this arrest and the assault and torture that the Applicant experienced, he mentioned that he was experiencing severe back and leg [sic] since 2011 at the PV Interview on 17 May 2013. In support of this fact his wife has sent through a letter from his doctor who treated him (see attached letter from Dr. Leon Pusparany)

The Applicant claimed to have said this in Tamil when his statement of claim dated 26 April 2013 was prepared. However, it appears [sic] have been lost in translation and therefore, I note that there is a bit of inconsistency between the Statement of Claim dated 26 April 2013 and his evidences at the PV Interview and the Hearing.

In response to my question as to why he did not correct me when I was reading through the statement the Applicant said that he lost his concentration and also, he claims that day he had an anxiety attack and was not able to explain to me when I visited him in the Detention Camp. Having observed his personality for a period of time I do not doubt that the Applicant is telling the truth (see attached Psychological report).

42    The Tribunal specifically considered but rejected these explanations for the inconsistency. The Tribunal found that, even if the appellant’s brother had been detained and escaped, it was not convinced that the appellant was detained as a result given inconsistencies in his account as to when the army allegedly detained him and its assessment that his claim to have been released because of the intervention of his fellow villagers despite being of concern to the authorities was implausible. The Tribunal continued:

8.    Furthermore, the Tribunal does not accept that the applicant has been detained since that time. Whilst the applicant stated that he was arrested in 2011, his written statement dated 26 April 2013 does not mention this. After hearing, the adviser stated that the applicant claimed to have said he was arrested when his statement of claim dated 26 April 2013 was prepared and that it appears to have been lost in translation and that he lost his concentration and also had an anxiety attack and was not able to explain to the adviser when he visited him in detention. He has also referred to a psychological report. When asked at hearing, the applicant did not state that he had said he was arrested and had not done so because of his excitement. Given this, and given that the applicant confirmed at hearing that his application and statement had been read back to him in Tamil and were correct, the Tribunal is not convinced he did mention that he was arrested in 2011 when his statement was taken on 26 April 2013. Whilst the Tribunal has considered the psychological assessment report dated 28 June 2013, which states that the applicant presented with features of depression, post-traumatic stress disorder and anxiety, this does not mean that the applicant was arrested in 2011. The Tribunal does not accept that a second arrest, is insignificant or that the applicant would not have mentioned it in April 2013 if this had occurred. Whilst the applicant stated at hearing that he did not do so because of his excitement and the adviser has subsequently stated he said he lost his concentration and had an anxiety attack, the rest of the statement is detailed, coherent and does not suggest that the applicant had difficulty recounting other alleged instances such as his first arrest. The Tribunal has concluded that the changing nature of the applicant’s evidence is such that it does not accept he was arrested in 2011.

43    It follows, as the Minister pointed out, that the Tribunal did in fact have regard to the matters referred to by the psychologist and gave rational reasons as to why it did not accept that that evidence explained why the second arrest was not mentioned earlier. Ultimately therefore, to the extent to which particular (b) is relied upon separately from particular (a), no error is disclosed. The complaint is with the merits of the Tribunal’s finding on the issue of credit which is beyond the jurisdiction of this Court and the Court below to interfere.

4.    CONCLUSION

44    For these reasons, the appeal must be dismissed with costs. The Court expresses its appreciation to Mr Bodisco for his assistance as pro bono counsel for the appellant.

Associate:

Dated:    17 December 2015