FEDERAL COURT OF AUSTRALIA

BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to read, file and rely upon the third amended notice of appeal.

2.    Leave be granted to read, file and rely upon the three affidavits of the appellant affirmed 18 February 2018.

3.    The appeal be allowed.

4.    The orders of the Federal Circuit Court made in SYG 1647 of 2016 on 17 February 2017 be set aside and in lieu thereof it be ordered that:

(a)    the decision of the Administrative Appeals Tribunal dated 31 May 2016 be set aside;

(b)    the matter be remitted to the Administrative Appeals Tribunal for re-determination according to law; and

(c)    the first respondent pay the applicant’s costs.

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

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1    This is an appeal from orders made by the Federal Circuit Court dismissing an application for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) to affirm a decision of a delegate of the Minister to refuse to grant the appellant a Protection Visa.

2    The appellant is a Sri Lankan national and of Tamil ethnicity. He arrived in Australia on 18 May 2012 and first lodged an application for a Protection Visa on 22 August 2012. Prior to coming to Australia he had worked for over two decades as a nurse at hospitals run by the government of Sri Lanka in the east of Sri Lanka. In 1995, he commenced volunteering as a nurse with Médecins Sans Frontières, which he continued to do on a casual basis until around either 2003 or 2005. From February 2007 to May 2008 he worked in a government hospital in Vaharai, an area formerly controlled by the Tamil Tiger army, the LTTE.

3    The exact nature and scope of the appellant’s claim for protection is the focus of this appeal. He claimed to have been abducted, assaulted, tortured and detained due to an imputed association with the LTTE, due to the fact he had worked in an LTTE area and was a Tamil. Specifically, the appeal focuses on the identity of the claimed persecutor (whether paramilitary, army or other officers of the government of Sri Lanka) and whether this was sufficiently understood and considered by the Tribunal.

4    The appellant’s application for protection was refused by the Minister’s delegate on 18 October 2012. A review of that decision by the then Refugee Review Tribunal (the RRT) that affirmed the delegate’s decision was given on 23 September 2013. It was set aside by order of the Federal Circuit Court on 13 July 2015, with the consent of the Minister. The application was considered afresh by the Tribunal. A hearing was conducted on 16 February 2016 and, in a decision dated 31 May 2016, the Tribunal affirmed the Minister’s refusal to grant a Protection Visa. On 17 February 2017, the primary judge dismissed an application for judicial review of the Tribunal decision in the Federal Circuit Court: see [2017] FCCA 501.

The appeal to this Court

5    On the appeal to this Court, the appellant is represented by new counsel and seeks to rely on a matter not raised below. The appellant seeks leave to rely on what is entitled the “Third Amended Notice of Appeal”. The sole ground of appeal, with accompanying particulars, is as follows:

(1)    The learned primary judge erred by not finding that the Tribunal dealt with a claim on a basis different to that advanced by the appellant.

Particulars

(a)     At CB324[2] of its decision the Tribunal referred to the appellant’s claims in his application for protection that he was targeted by the Sri Lankan Army (SLA) and the paramilitary groups;

(b)     The basis of appellant's claim never changed when the application progressed through various stages later. However the appellant emphasised the paramilitary groups as the primary persecutor;

(c)     The appellant's claim was not that he was targeted by the Sri Lankan Government (GoSL) or the Sri Lankan Authorities. He was specific about the SLA but also SLA as the organisation that supported the paramilitary groups. By considering whether the appellant was persecuted by Sri Lankan Government or the Sri Lankan Authorities, the Tribunal dealt with the claim on a different basis.

(d)     The Tribunal focussed on the Sri Lankan authorities as the persecutor and only considered the paramilitary groups in a token sense.

(e)     This ground of review was not put forward by the appellant at the Federal Circuit Court and it is a new ground upon which the decision of the Tribunal and therefore the decision of the FCC is being challenged.

(emphasis in original)

6    The appellant submitted that his claim for protection was focused primarily on persecution by paramilitary groups, supported by the Sri Lankan army. In oral submissions, counsel for the appellant also accepted that persecution by the Criminal Investigation Department (CID) of the police should be taken to be part of the claim as well, as it was under the control of the army at the time. The Tribunal was said to have fallen into error by construing the claim as being that the appellant had been persecuted by the “Sri Lankan Government” or “Sri Lankan authorities”, focusing on that broader construct, and only considering paramilitary groups in a token sense. It was submitted that this construct of “Sri Lankan authorities” was broader and wider than that put forward by the appellant such that the claim the Tribunal dealt with did not reflect the claim that the appellant actually made. This misconstruction of the claim led, it was argued, to the Tribunal making adverse credibility findings regarding the appellant’s claims. It was asserted that the appellant’s claim did not relate to “Sri Lankan authorities” in a broad sense (which the appellant’s counsel accepted would include entities such as the hospital where the appellant worked, the police, customs, passport control and other government authorities the appellant may have interacted with). In construing the claim in this way, the Tribunal was said to have erred and failed properly to address the claim put forward that was focused on paramilitary groups supported by the Sri Lankan army.

7    In order to support the proposed new ground of appeal, the appellant also seeks to rely upon three affidavits under his own hand affirmed on 18 February 2018. These contain, respectively, the transcript of the hearing before the Tribunal in 2016, the transcript of his interview with the Minister’s delegate on 20 August 2016 and the transcript of the hearing before the RRT on 2 January 2013.

8    The Minister opposed the grant of leave to rely upon the new ground of appeal and any grant of leave to read the new affidavits. However, the prospects of success of any new ground of appeal are relevant as to whether leave should be granted. This was acknowledged by the Minister.

Relevant principles

9    The Tribunal is required correctly to construe and consider each claim made by an applicant for a protection visa: Dranichikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389; and NABE v Minister for Immigration and Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1.

10    As Gummow and Callinan JJ indicated in Dranichikov 197 ALR at 394-396 [24]-[34], a failure “to respond to a substantial, clearly articulated argument relying upon established facts” could be characterised as a constructive failure to exercise jurisdiction that could justify relief by way of the issuing of constitutional writs. Kirby J agreed that such an error by a Tribunal will amount to a constructive failure to exercise jurisdiction, noting at 197 ALR 407 [88] that “where … the mistake is essentially definitional, and amounts to a basic understanding of the case brought by an applicant, the resulting flaw is serious as to undermine the lawfulness of the decision in question in a fundamental way”.

11    The principle expressed in Dranichikov was cogently explained by Black CJ, French and Selway JJ in NABE at 144 FCR 20 [63]:

63    It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]):

‘If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.’

12    The significance of the requirement placed upon the Tribunal correctly to construe and understand an applicant’s claim, and the consequences of failing to do so, is evident from the extract from NABE quoted in the preceding paragraph, and also from the following passage in my judgment in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136 at 152 [42] (with which Spender J agreed, and which the Full Court endorsed in NABE at 144 FCR 18 [57]):

42    The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration … It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act … make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.

13    I later discussed Dranichikov and NABE in NAVK v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2004] FCA 1695 and said the following at [15]:

15    The Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [55] — [63] dealt with the question of what claims must be dealt with by the Tribunal to complete its statutorily required task (its jurisdiction) even though they may not be expressly articulated. See also Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 , 394 [24], 408 [95] and Applicant S 395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 112. From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

14     In oral submissions, counsel for the appellant submitted that the appellant’s arguments on the appeal used NABE in two ways: first, to contend that the appellant’s claim was focused on paramilitary groups as the primary agents of persecution and that the Tribunal failed to deal with this claim and focus on persecution by paramilitary groups; and secondly, to argue that the Tribunal erred in placing a wider and misdirected focus on a broader and wider construct of “Sri Lankan authorities” in general when the actual claim was focused on paramilitary groups supported by the Sri Lankan army.

15    As will become apparent when the Tribunal’s reasoning is considered, it is the latter argument that attracts the most significance in this case.

16    Given the focus of the proposed ground of appeal, it will be necessary to traverse the claim made by the appellant, how it has been expressed over the course of this matter, and how the claim has been construed and dealt with by the Tribunal in some detail.

The Tribunal’s conclusions

17    In order to give context to the discussion of the appellant’s claims to follow, it is useful at this point to set out the Tribunal’s conclusions about the credibility of the appellant’s claims, which are at [100] to [103] of the Tribunal decision. It will be necessary to discuss aspects of the Tribunal’s reasoning process in detail later in these reasons. Ultimately, the Tribunal concluded that the appellant’s claim that he was of adverse interest to “the Sri Lankan authorities and paramilitaries in Sri Lanka” was not credible due to his employment by the government of Sri Lanka as a nurse. The appellant submitted that the conclusion arose out of a broader concept of “Sri Lankan authorities” that had been adopted by the Tribunal, together with merely a token reference to paramilitaries. It was submitted that the Tribunal construed the appellant’s claim to relate to Sri Lankan government authorities, whereas his claims were directed to, primarily, the paramilitaries, the Sri Lankan army which supported them and the CID (which the appellant’s counsel asserted was to be taken to be part of the army at the relevant time).

18    The Tribunal’s conclusions as to the credibility of the appellant’s claims were relevantly as follows:

Conclusions about the credibility of the applicant’s claims

100. For all the reasons that are set out above, I have reached the conclusion that the applicant's claims that he was of adverse interest to the Sri Lankan authorities and paramilitaries in Sri Lanka for reasons relating to his work as a nurse are not credible. Specifically I do not accept that [BOZ16] was 'ever detained or mistreated by the Sri Lankan authorities as claimed. As noted above, his evidence about how, when and why he was detained and mistreated by the Sri Lankan authorities has shifted significantly over time. On the evidence before me, I do not accept [BOZ16] is of adverse interest to the Sri Lankan authorities for any of the reasons claimed. I do not accept that [BOZ16] was ever required by the LTTE to provide services for wounded fighters as claimed or that he ever knowingly provided treatment to LTTE members at Vaharai hospital or that he is now, or ever was, of adverse interest to the Sri Lankan authorities because they believed he provided medical assistance to members of the LTTE. I do not accept that [BOZ16] was detained and mistreated by the Sri Lankan authorities and associated paramilitary groups sometime between 2009 and 2011 for reasons relating to his work for MSF between 1995 and 2003.

101. I do not accept that [BOZ16] was, or is, or any adverse interest to the authorities or to paramilitary groups working in his area because of his work as a nurse at either Vaharai or Valaichenai hospital or because he worked with MSF between 1995 and 2003. I am of the view that his ongoing employment as a nurse in a government-run hospital and his ability to travel in and out of Sri Lanka indicates that the authorities did not have any adverse interest in his activities as a nurse. While it is possible that [BOZ16] may have faced delays and have been questioned at checkpoints he had to pass through on the way to work, I am of the view that he has embellished his evidence about the difficulties he faced at the checkpoints. I do not accept that [BOZ16] was ever personally targeted at the checkpoints because of the work that he was doing as a nurse at Vaharai hospital, which was a government-run hospital, or because of his previous work for the MSF, or because the authorities suspected he was involved in treating the LTTE, or because members of the community asked him about his work for MSF.

102. On the evidence before me, I do not accept the new claims that [BOZ16] has raised before the Tribunal are credible. As noted above, I do not accept he provided medical assistance to the L TTE as claimed. While it is possible that [BOZ16] has lost his sense of smell, I do not accept that he was detained for three hours and assaulted in 2008 with a gun butt as claimed for the first time before in the Tribunal hearing on February 2016. Further, as noted above, while I am prepared to accept that [BOZ16] worked at Vaharai hospital when it was under GoSL control, I do not accept that when he started working there he happened upon photographs of damage caused by shelling and provided these photographs to the media. Further, I note that, while the pre-hearing submissions suggest [BOZ16] was suspected of being an LTTE informant and courier, he did not maintain this claim at the hearing. On the evidence before me, I am not satisfied that [BOZ16] was ever of any interest to the Sri Lankan authorities or paramilitaries in his area for any of the reasons claimed.

103. During the hearing [BOZ16] told the Tribunal he would not have left his wife and children in Sri Lanka and kept fighting to stay in Australia, if he could simply return to Sri Lanka. However, while there may be reasons that [BOZ16] wants to stay in Australia, I do not accept that he has told the truth about the reasons he left Sri Lanka or the reasons that he does not want to return there now. I find that, at the time he left Sri Lanka in May 2012, [BOZ16] was not of any adverse interest to the Sri Lankan authorities or to any other groups (including paramilitary groups) or persons in Sri Lanka for any reason. I do not accept that [BOZ16] has ever been tortured or mistreated by the Sri Lankan authorities and nor am I prepared to accept his claims that he was detained by the Sri Lankan authorities between 2008 and 2012. I do not accept that [BOZ16] was 'hiding' from the authorities before he left Sri Lanka and I find, based on his own evidence to this Tribunal, that he had no difficulties travelling in and out of Sri Lanka in 2011 on his own passport. I find that, at the time he left Sri Lanka, [BOZ16] had no profile with the Sri Lankan authorities other than of an ordinary Sri Lankan citizen.

19    The Tribunal stated again at [104] of its decision that the appellant “did not have an adverse profile with the Sri Lankan authorities or paramilitary groups or anyone else in Sri Lanka at the time he travelled to Australia”. It then went on from [104] to [142] of its decision to consider other aspects of the appellant’s circumstances, including, among other matters, the abduction of his brother-in-law by the paramilitary in 2008, his Tamil ethnicity, actual or imputed political opinion, and his leaving Sri Lanka as an asylum seeker. The Tribunal then stated its ultimate conclusions that the appellant did not meet the refugee or complementary protection criteria in s 36(2) of the Migration Act 1958 (Cth) at [143] to [148] of its decision, as follows:

Conclusions with respect to the refugee criteria

143. For the reasons set out above, I do not accept that [BOZ16] has ever attracted the adverse attention of the Sri Lankan authorities or paramilitaries in the past for any of the reasons claimed. Having had regard to the available country information and what I have accepted of his claims and circumstances, I do not accept that, if he returns to Sri Lanka now or in the reasonably foreseeable future, there is a real chance that he will be persecuted for reasons of his race (Tamil), any political opinion imputed to him (in support of the LTTE or in opposition to the GoSL or the TMVP or paramilitary groups operating in his area) or because he is a Tamil originating from the east, or because he is a Tamil from the east and a failed asylum seeker who left Sri Lanka illegally, or because of his history of working for MSF in LTTE controlled areas between 1995 and 2003, or because of his work as a nurse who provided medical assistance to Tamils injured by conflict in areas that had been under LTTE control, or for any of the other reasons claimed. I acknowledge [BOZ16] is a person who has undertaken valuable work as a nurse in Sri Lanka and Australia. However, having carefully considered his claims singularly and cumulatively, I find that he is not a refugee. I find that he does not face a real chance of serious harm in Sri Lanka arising from his race, political opinion, and/or as a member of a particular social group of either failed asylum seekers and/or persons who left Sri Lanka illegally, now or in the reasonably foreseeable future. I find that he does not have a well-founded fear of persecution for a Convention reason.

Conclusions with respect to complementary protection criteria

144. Having found that the applicant not a refugee, I have considered whether he meets the criteria for complementary protection. For the reasons set out above, I have found that key elements of the applicant's claims are not credible. I do not accept that he was ever of any adverse interest to the Sri Lankan authorities or to paramilitaries operating in his area for any of the reasons claimed. I do not accept he ever attracted the adverse attention of the Sri Lankans authorities or paramilitaries for reasons relating to his work as a nurse (including for MSF) or for any other reason. While I am prepared to accept [BOZ16] is a Tamil man from the east who would be returning to Sri Lanka as a failed asylum seeker who departed Sri Lanka illegally, having regard to the country information and my findings of fact, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Sri Lanka, there is a real risk he would suffer significant harm for these reasons. Accordingly, having regard to my findings of fact set out above, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for any of the reasons claimed.

CONCLUSION

145. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

146. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

147. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

148. The Tribunal affirms the decision not to grant the applicant a Protection Visa.

20    It can be seen that the Tribunal’s finding that the appellant’s claim of persecution was not credible (that is, he lacked credibility) was an integral aspect of that conclusion. That finding was based on the claim as it was construed and understood by the Tribunal.

The nature of the appellant’s claim

Statement of Claims

21    The appellant articulated his claims for protection in a “Statement of Claims” annexed to his application for a Protection Visa, to which I was taken by his counsel. Relevantly, that document set out the following matters relating to the appellant:

4. I am a nurse by profession. Whilst I was working in Valachenai hospital in 1995, I volunteered to join Medicine San Frontier as a nurse and serve people in the troubled areas. From 1995-2005, I worked for this international organization on casual basis. The majority of my work for them was done in the LTTE-controlled areas. My involvement with MSF came to an end when the civil war started in Sri Lanka in 2005.

5. In the period of February 2007 to May 2008, I worked in Vaharai hospital which was formerly controlled by LTTE. I used to commute from Valechenai to Vaharai on my working days.

6. During this period, I was repeatedly targeted by paramilitary groups. It mainly occurred whilst I was travelling to and from work that the para-militants used to stop me and take me to their base. They mostly belonged to the Karuna group and Pillayan group as well as Sri Lankan Army. I was physically assaulted, interrogated and accused by them for having association with LTTE, simply because I was working in Vahari which used to be a LTTE dominated area. As a result of the constant harassments, I stopped working in Vaharai in May 2008.

7. It was on 28/10/2008 that my brother-in-law was abducted by the Karuna men in a white van. He was an accountant and a JP who had involvements in human rights activities. After one year, the Sri Lankan government issued his death certificate without his dead body being recovered. His wife and children have been living in my house since. That horrific incident which was in line with numerous other counts of forced abductions and targeted killings directed at the Tamil people following the civil war.

8. I suffered further harm from 2009 to February 2011. Because of my previous involvements with MSF and my services in ex-L TTE controlled areas, I was taken away from my house by the Sri Lankan army officers and other para-military groups more than 15 times. On each occasion, I was blindfolded, forcibly taken away to military camps, detained for 7-8 days, interrogated about my past activities and my medical clients, physically tortured (by plastic pipes filled with sand) and finally released.

9. The incidents continued to the point that from February 2011 I decided to stay in the hospital (where I was working) at nights and my wife would bring me food as my house was not too far from the hospital. I was confident that the SLA and other para-military groups would not raid the hospital to catch me. I was living with constant fear of harm at the hands of the Sinhalese military and para-military groups. After war, they were trying to oppress Tamil as harshly as they could in order to force us to leave our lands and homes.

10. I could not relocate to any other areas in Sri Lanka. Finally in May 2012, I decided to flee Sri Lanka and seek protection in Australia.

Who I think may harm/mistreat me in my country.

11. I believe that I will be harmed by the Sinhalese people in general and by the Sri Lankan army, their affiliated paramilitary groups in particular.

Why I will be harmed.

12. I believe that I will be harmed because I am Tamil by race and for that reason subject to general discrimination and persecution at the hands of the Sri Lankan authorities. My fear of harm is aggravated by the fact that I worked in LTTE controlled areas as a nurse and subsequently came to the attention of the Sinhalese authorities and was repeatedly detained, harassed, tortured and interrogated by them.

Do I think the authorities of my country can and will protect me and or my accompanying family members, where applicable, if I were to go back?

13. No, the Sri Lankan authorities would not provide me with any protection. They have made false promises which they have never fulfilled. In my case, the Sri Lankan government officers including the Sri Lankan army as well as the paramilitary groups who are committing their crimes against Tamil people with impunity, were the actual persecutors. I cannot ask them for protection and they would never provide me with protection if I asked.

…

(emphasis added)

22    The statement can clearly be seen to identify the paramilitaries as the alleged primary persecutors, supported and assisted by the Sri Lankan army at certain points. There is reference at [12] and [13] of the statement to “Sri Lankan authorities” and “Sri Lankan government officers”, though at [13] that was in response to a question referring to “authorities of my country”. However, the use of “Sri Lankan authorities” in the first sentence of [13] could be seen to be distinct to the reference to paramilitary groups earlier in the statement, though the appellant does appear to include the army and paramilitary groups in the phrase “Sri Lankan government officers”.

Interview before the Delegate

23    The next expression of the appellant’s claim was said to have occurred in the transcript of the interview before the delegate of the Minister on 28 August 2012, which was contained in the second affidavit of the appellant affirmed on 18 February 2018 sought to be relied upon on the appeal. Within that interview, the appellant spoke of being threatened by the “Sri Lankan security forces” and said “there are paramilitary groups plus the Tamil speaking security forces”. He identified two of the paramilitary groups by name, consistently with what appeared in his statement:

DELEGATE: Okay. Were you ever threatened by anybody during this time when you were doing this work?

INTERPRETER: Number of occasions they threaten me but they don’t talk long time because we are accompanied with the group of, the medical group (indistinct) so they don’t delay us.

DELEGATE: This is, who is this?

INTERPRETER: The Sri Lankan security forces, there are paramilitary groups plus the Tamil speaking security forces. They will be with ordinary clothes. You can’t identify them who they are.

DELEGATE: You said they would take you and speak to you but you were with the foreigners. Who would, at this point who would take you and speak to you? Who would do that?

INTERPRETER: Paramilitary group members as well as the civil clothes army.

DELEGATE: Do you know the name of the paramilitary group?

INTERPRETER: Pillayan, P-i-l-l-a-y-a-n, Pillayan Group and Karuna Group, K-a-r-u-n-a, Group. Two groups.

24    It was explained that the Pillayan and Karuna groups were submitted to be particular paramilitary groups.

25    The appellant also gave evidence to the delegate of being stopped at camps on the way to the hospital at which he worked. He asserted that the paramilitary groups were aligned with the army, but that the camps were operated by the paramilitary:

INTERPRETER: … coming back from (indistinct) hospital there’s a number of camps. Actually within half an hour you can reach your hospital but it will take about an hour to go because of the army blocking. They always say to me why do you go, where are you going but I am (indistinct) travel to the hospital for work. There are camps between 100 metres, 150 metres.

DELEGATE: These camps are in full military uniform?

INTERPRETER: Paramilitary. The civil clothes people only there. They’re part of the army. They are keeping this paramilitary groups, they don’t want to put the blame on the army. The army is acting good, serving good. That’s what they wanted to show the people. That’s the reason they are keeping. We can’t go and make any complaint with anyone. Once you make a complaint if they already come to know you will be targeted, your family will be target. This is big problem with whoever go and make a complaint if they are identified, they will have the curse.

26    He also spoke of a doctor being killed by a paramilitary group, and the hospital being given security by the police. This could perhaps be seen as supporting an understanding of the appellant’s claim as being focused on the activities of the paramilitary and army, rather than other government entities:

DELEGATE: How did living in the hospital protect you from being kidnapped? How did living in the hospital protect you from being kidnapped?

INTERPRETER: There was a doctor who was shortly killed by the paramilitary group. After that that area was given, all the hospital was given security by the policy. So this reason it’s relatively safe on that side when I was there. Two doctors were shot dead by the paramilitary group.

27    It was also submitted by the appellant’s counsel that the following, in relation to persons who had come to investigate about the appellant after he left Sri Lanka, was a reference to the paramilitary:

INTERPRETER: The people who came to my home by motorbike. They are the people who investigated. They always come with civil clothes and they have helmet. This type of people who only the garment, the government troops are using them for traitors.

28    Finally, I was referred to the appellant’s statement that he “…would like to basically draw a line between the security forces and (indistinct) groups in Sri Lanka and the local police stations”.

29    The statements by the appellant in his interview before the delegate do appear to support an understanding of his claim as focused on the conduct of paramilitary groups, albeit supported by the army, and distinct from other entities of the Sri Lankan government. The claim was focused on the actions of paramilitary groups.

Hearing before the RRT

30    Counsel for the appellant subsequently took me to the transcript of the hearing before the RRT, conducted on 2 January 2013, as the next manifestation of the appellant’s claim. This transcript was contained in the third affidavit upon which the appellant seeks to rely. There were a number of references to paramilitary groups in that transcript (p 9), including:

…

MEMBER: [BOZ16] we have just discussed when you were travelling to the other side it was with the full knowledge and approval of your employers and the government and the Sri Lankan army.

INTERPRETER: Yeah….even though with their knowledge only I travelled but the paramilitary group act as the investigators and they actually suspect and they pass the messages on to the authorities. It is not only for me...all the people who travelled to the other side confront this…being Tamil.

…

31    The statement by the appellant here can be seen to draw a distinction, in his claim, between the paramilitary and other aspects of the Sri Lankan government, having regard to the fact that he travelled with government and army approval. He states that the problem is with the paramilitary.

32    Later in the hearing, the appellant made reference to being targeted by paramilitary groups and the CID, stating “CID and paramilitary group all together”. It was submitted on the appeal that the CID was to be taken to be within the army, and so part of his claim.

33    The following statements were also said to include references to the asserted persecution being from paramilitary groups:

MEMBER: Previously you said it was Sri Lankan army officers.

INTERPRETER: Army officials will not do anything in uniform. They…they have a group on civil and still that group is active. They call them as white van group. Now also…now also they are doing the same acts because the government doesn’t want to get the blame. They are having these groups on civil.

…

MEMBER: Now in your statement you say that you were taken by the Sri Lankan army officers and other paramilitary groups.

INTERPRETER: Yes

MEMBER: So today you seem to be suggesting it wasn’t Sri Lankan army officers.

INTERPRETER: Yeah I mean the reason I didn’t mention that they are not army because they were not in uniform. They were they are on civil. So I can’t mention it as army. [unintelligible] if they come with the uniform only I can mention as army. When I say paramilitary group that is also people who are working with the army.

MEMBER: Yes. The reason I am asking you these questions [BOZ16] is that in your statement you said that they were Sri Lankan army offices.

INTERPRETER: They … they talk Sinhala and the look of them and their gesture everything suggest to me that they are army.

34    This exchange supports the contention that the appellant’s claim was focused on paramilitaries. He drew a distinction between the paramilitary groups and the army, but stated that they were working with the army. The focus remained on the paramilitary, supported by the army. This is consistent with the substance of his statement where the appellant focused on mistreatment by the paramilitary, but also by the army. He drew a distinction between the two.

35    In addition, the following discussion occurred:

MEMBER: You said that they took you to a military camps.

INTERPRETER: They will take us to military camp and question us. They will torture us and then they will leave us. That is military camp.

MEMBER: Yes but on these fifteen occasions when you claim you were taken were you taken to military camps?

INTERPRETER: It won’t be a particular camp. There will be a adjoining small small area I mean places they were take us. It won’t be in the main camp. Main camp they won’t take us.

36    It was submitted that this was a reference to the appellant not being taken to an army camp, but to a small camp around it, implying a paramilitary camp.

37    There were also a number of further references to paramilitary groups that I was taken to:

MEMBER: [In reference to country information] … It said that the groups like Karuna and Pillayan groups which served military function during the war are now increasingly taking the characteristics of criminal gangs … I don’t accept your claims regarding having been repeatedly taken by the Sri Lankan army or paramilitary groups. … I don’t accept that there is a real chance that you will be targeted by police or the army or the paramilitary groups …

…

INTERPRETER: My departure is actually [unintelligible] aware of among that group who is actually doing [unintelligible] thing in our area. They are very well aware of my departure. And my returning will definitely alert them. …

MEMBER: I am not sure I am following you … some … some … group in your area that is doing … [unintelligible].

INTEPRRETER: Paramilitary group is actually working as a network throughout the country.

MEMBER: Is there a particular paramilitary group or just paramilitary group in general?

INTERPRETER: I am not really sure but there are Karuna group, EPDP group, Pillayan group, government’s employees …

…

38    The appellant’s expression of his claim before the RRT appeared to support his claim as being focused, primarily, upon paramilitary groups, operating with the support of the army.

Hearing before the Administrative Appeals Tribunal

39    Counsel for the appellant also directed me to the transcript of the hearing before the Tribunal on 16 February 2016, which was contained within the appellant’s first affidavit of 18 February 2018 that was sought to be relied upon on the appeal. It was also said to illustrate that the appellant’s claim was focused on paramilitaries as the primary persecutor, and that the Tribunal failed to properly characterise the claim.

40    It was submitted by the appellant that the references in the transcript to “Sri Lankan authorities” could be seen to be coming primarily from the Tribunal, rather than the appellant. The passages to which I was referred included the following:

…

MEMBER: Who assaulted you?

INTERPRETER: Army intelligence people who wore civilian clothes

…

MEMBER: I understand from your evidence that you say you were detained on one occasion for six or seven days and then there were lots of occasions where you were held for a couple of hours, up to five hours, at a checkpoint. Is that an accurate summary of your evidence?

INTERPRETER: Yes

…

MEMBER: So just so I’m clear, was there only one occasion where you were detained overnight by the Sri Lankan authorities or paramilitary?

INTERPRETER: Yes

…

MEMBER: Right. Other than this occasion have you ever been tortured or mistreated by the Sri Lankan authorities or paramilitary?

INTERPRETER: No, I did not give them any further opportunity to get me and torture me so I was actually work; I actually stayed at work place or stay at home. I do not move around to give them the opportunity to get me.

MEMBER: Your evidence is that there was just one occasion that you were detained for more than a day and you were physically mistreated by the Sri Lankan authorities.

(emphasis added)

41    It can be seen from the above exchange that the Tribunal did make reference to the paramilitary groups. It was aware during the hearing that the appellant claimed persecution by paramilitary groups. However, it did also adopt the term “Sri Lankan authorities”. If the Tribunal’s use of this phrase is merely a convenient summary use of language to express an aggregation of the paramilitary, army and CID then it may not evidence that the Tribunal misconstrued the appellant’s claim. However, if it is used as more than a mere summary term but rather a broadening of the claim to include other government entities then it may indicate the Tribunal misconstrued the claim.

42    I was also taken to further references by the Tribunal in the hearing to “Sri Lankan authorities”, including:

…

MEMBER: You’ve said that you believe that if you go back to Sri Lanka the authorities will suspect you of having been involved with or being supportive of the LTTE.

…

MEMBER: One of the concerns I have, sir, is that you’ve said that you were tortured and mistreated by the Sri Lankan authorities and that you were of adverse interest to them because they perceive that you were in support of or have knowledge of the LTTE. The fact that after you say that these events occurred you travelled to India for a wedding and then voluntarily returned to Sri Lanka might indicate to me that firstly you were not at that time of the adverse interest to the Sri Lankan authorities because you were able to travel in and out of the country and secondly that you yourself were not afraid of being persecuted because you voluntarily returned to Sri Lanka.

…

MEMBER: Okay. Another issue that I need to consider is whether it’s plausible that you were of adverse interest to the Sri Lankan authorities at the same time as being employed by the Sri Lankan authorities as a nurse in Valaichenai Hospital over an extended period of time. I put that to you rather than press it. I may have some difficulty accepting that you were of adverse interest to the Sri Lankan authorities when you were engaged in ongoing employment as a government nurse at Valaichenai Hospital.

INTERPRETER: I actually, how can I describe that it’s, I mean I was safe because while I was in hospital I was safe. As an individual if I come out of the hospital I cannot guarantee my life or I’m not safe.

…

MEMBER: On one view, if you were in the adverse interest to the authorities they would easily have been able to find out that you were employed at a government hospital and gone to the hospital and arrested you.

…

MEMBER: You’ve said that you’re afraid of Sri Lankan authorities will perceive that you have pro-LTTE opinion or that you supported the LTTE. Do you have any fears in relation to facing harm because of your actual political opinion or activities?

INTERPRETER: Every Tamil is seen as having a political opinion against the government.

…

(emphasis added)

43    It is clear that in the transcript of the hearing before this Tribunal, the phrase “Sri Lankan authorities” is used heavily by the Tribunal member. Based on the Tribunal member’s questioning of the appellant’s claim, it appears to be used more than just as an aggregate label for the persecutors identified by the appellant. In the Tribunal’s testing of the appellant’s claims, however, the phrase “Sri Lankan authorities” appears to be being used in a way that broadens and widens the construct of “Sri Lankan authorities” to suggest the appellant has claimed harm from a broader aspect of the Sri Lankan government apparatus. This understanding of the claim then led to a suspicion by the Tribunal about the credibility of the appellant on the basis of concerns about how the appellant could be at risk of harm when employed in a government hospital.

44    The use of the term “Sri Lankan authorities” can be seen again in further statements by the Tribunal member during the hearing:

…

MEMBER: … I may find it difficult to accept as plausible that you would be of any adverse interest to the Sri Lankan authorities because you worked for MSF in the LTTE controlled area or because you worked for Verharai Hospital or because you worked as a nurse generally. Your earlier evidence indicated that you worked for MSF with the knowledge and approval of the Sri Lankan government who was at the time your employer.

You were in fact at that time employed by the Sri Lankan government. You continued to be employed by the Sri Lankan government until you left Sri Lanka in 2012. I can’t find country information that indicates that people who worked for MSF as nurses were targeted by Sri Lankan authorities or paramilitary groups. Of course you’re welcome to provide information does support this.

…

MEMBER: (indistinct) the other issue I have is today you have raised some new claims. You’ve said that the reason that the Sri Lankan authorities, you suggested the reason that the Sri Lankan authorities had an adverse interest in you is because you actually helped the LTTE and you were taken by the LTTE to provide medical assistance to their fights on two occasions.

…

MEMBER: I guess the question I need to consider is whether you have engaged in any activities that would then lead you to be of adverse interest to the Sri Lankan authorities. …

…

MEMBER: … in your entry interview you did not mention the claims that you made in your statement accompanying your protection visa application that you were taken away from your house by Sri Lankan army officers and other paramilitary groups more than 15 times and that on each occasion you were blindfolded, forcibly taken away to military camps, detained for seven or eight days, interrogated about your past activities and your medical clients, physically tortured by plastic pipes filled with sand and finally released.

…

The fact that you omitted to mention being detained between seven or eight days between 2009 and 2011 in your entry interview and the inconsistency between this information and the information you’ve provided in the course of your protection visa application may cause me to doubt that you were ever detained and tortured by the Sri Lankan authorities and paramilitary in the past as claimed as well as the genuineness of your claims to fear harm from Sri Lankan authorities and paramilitary in the future.

…

This information may cause me to doubt the credibility about your claims to have been detained by the Sri Lankan authorities between 2009 and 2011 or to have been detained by paramilitaries working with Sri Lankan authorities. This may cause me to doubt the genuineness of your claims to fear harm in Sri Lanka. Subject to your comments this would be the reason or part of the reason for affirming the decision of the review.

…

This information may indicate to me that while you might be identified as a failed asylum seeker and you may be questioned at the airport during processes and subject to various checks if I formed the view that you are not of any adverse interest to the Sri Lankan authorities at the time you left Sri Lanka it would be difficult for me to accept that you would be of any adverse interest to them when you return or that you would come to any harm as a result of this process.

…

MEMBER: The first item, the first three items I put to you were from the entry interview and what you said about why you left and when you were detained and your association with the Karuma and Pillayan groups.

INTERPRETER: I actually didn’t (indistinct) was very fresh when I arrived here and the interpreter was not good as this interpreter and I also, and then the questions were not clearly asked on me like you (indistinct) was asking me. I was in a confused state so whatever I said being recorded as (indistinct) today’s interview I feel very comfortable and very accommodated and I was able to have feelings of free and feeling very open to disclose information.

(emphasis added)

45    In fairness to the Tribunal member, I note that it is clear that the Tribunal understood that the appellant claimed persecution by paramilitary groups. There are numerous references to alleged persecution by paramilitary groups.

46    I am persuaded from the appellant’s expression of his claims, however, that the claims were focused upon allegations of persecution primarily by paramilitary groups, supported at times by the Sri Lankan army and the CID, and that he did not assert persecution by reference to a broader notion of “Sri Lankan authorities” that encompassed other government entities.

47    The question is whether the Tribunal, by its adoption and use of the phrase “Sri Lankan authorities” demonstrated that it had misconstrued the appellant’s claim as referrable to a broader range of Sri Lankan government entities than actually identified by the appellant and so failed properly to construe and consider his claim.

The Tribunal’s reasoning

48    The Tribunal’s decision was delivered on 31 May 2016 and runs for 148 paragraphs. The Tribunal’s ultimate conclusions as to the appellant’s claims are set out above at [14] of these reasons.

49    The Tribunal commenced its reasons with a discussion of the appellant’s application for review. Counsel for the appellant accepted that the Tribunal had accurately summarised the appellant’s claim at [2] of its decision (though it should be noted, as the Minister’s counsel submitted, that the appellant also referred to fears of harm from “Sinhalese people”), as follows:

2. In his application for protection [BOZ16] claimed that, as a result of his work for Médecins Sans Frontières (MSF) in areas controlled by the LTTE (the Liberation Tigers of Tamil Eelam) and his work at the Vaharai Hospital in what was previously an LTTE-controlled area, he was targeted by the Sri Lankan Army (SLA) and paramilitary groups. He has said that he fears that if he returns to Sri Lanka he will be harmed by the SLA, affiliated paramilitary groups and Sinhalese people because he is a Tamil and because he worked in LTTE-controlled areas.

(emphasis added)

50    The Tribunal noted at [4] of its decision that, at the hearing, the appellant “also gave evidence about his claims that he was detained and mistreated by the Sri Lankan authorities and paramilitaries between 2009 and 2011”.

51    It then went on, in a section entitled “Consideration of Claims and Evidence”, to note the following matters. First, in discussing the appellant’s entry interview by officers of the Department, the Tribunal summarised as follows at [24]:

At the entry interview [BOZ16] was asked about why he left Sri Lanka. He did not mention his claims, put forward in his protection visa application, that he was detailed and tortured by the Sri Lankan authorities between 2009 and 2010.

52    There was no reference to paramilitary groups here. However, the reference to “Sri Lankan authorities” here could perhaps be seen to used as a shorthand for army, CID and paramilitary groups, in fairness to the Tribunal. Indeed, at [26] of its decision the Tribunal set out the statement of the applicant’s claims (extracted above at [15] of these reasons). It summarised the claims as follows from [27] to [32] of its decision:

27. [BOZ16] said he believed would be harmed by the Sinhalese people in general and by the Sri Lankan army, [and] their affiliated paramilitary groups in particular. He stated this would happen because he was a Tamil and, for that, reason, subject to general discrimination and persecution at the hands of the Sri Lankan authorities. He stated that his fear of harm ‘is aggravated by the fact that I worked in the LTTE controlled areas as a nurse and subsequently came to the attention of the Sinhalese authorities and was repeatedly detained, harassed, tortured and interrogated by them’.

28. [BOZ16] said that the SLA and the paramilitary groups are committing crimes against Tamil people with impunity. As the Sri Lankan authorities are the persecutors he could not ask them for protection. There is nowhere in Sri Lanka that he could go to be safe. He is a Tamil man who cannot speak the Sinhalese language. He is darker than Sinhalese people and therefore will be easily identified and discriminated against in Sinhalese areas. He could not relocate to other Tamil districts because 'the same persecution is targeted against Tamils across all Tamil inhabited regions in Sri Lanka'. Also, it is a requirement to register with the local authorities when you move into a new area. He believes, if he did this, the authorities would become suspicious about his past and endeavour to find out why he relocated. This would place him at the same risk of harm.

29. I have listened to the interview [BOZ16] attended with the delegate on 28 August 2012. He told the delegate that when he travelled through SLA checkpoints on the way to LTTE controlled areas he did so with official papers and stayed close to the foreigners so he would not be mistreated by the SLA. He gave evidence that he did not knowingly have any contact with the LTTE but he was treating people generally for medical issues and it was possible they were LTTE members. From February 2007 to May 2008 he worked in Vaharai hospitals. His daily commute to work took him to a number of checkpoints operated by the SLA and other paramilitary groups such as the Karuna Group and the Pillayan. He claims that at those checkpoints he was routinely assaulted and questioned and accused of having an association with the LTTE because he was working in Vaharai in an area formerly controlled by the LTTE. As a result of this treatment he transferred to Valaichenai hospital in May 2008.

30. [BOZ16] told the delegate that between January 2008 and December 2011 he was taken from home more than 15 times. Each time he was held for 2-3 days at camp and on the last occasion he was kept for 8-10 days. His captors were plain clothed men but, from the way they spoke, he understood they were from the SLA. While he was detained he was beaten with a plastic pipe and threatened with death if he did not tell them the truth when asked about his association with the LTTE. He stated on each occasion he secured his release by begging and pleading with his captors and he was released.

31. [BOZ16] told the delegate that community leaders spoke to him about his work with MSF, asking about how many people were wounded and the number of casualties. He believes that he may have been targeted by the military to stop him from providing this information. One other staff member, an ambulance driver, was missing and suspects it was a result of his volunteering in the LTTE area.

32. [BOZ16] claimed that on 28 October 2008 his brother-in-law was abducted by Karuna men in a white van. He states that his brother-in-law was targeted because of his involvement with human rights activities. He claimed that, since leaving Sri Lanka, his wife had told him that their home has been visited by men in plain clothes who searched their home. [BOZ16’s] wife informed the men that he had left Sri Lanka and he was not coming back.

(emphasis added)

53    The Tribunal makes reference, variously, to the “SLA”, “paramilitary groups”, “the Karuna group”, the “Pillayan group” and “the military” in its summary of the appellant’s claims. There is therefore a recognition that the claim includes persecution by the paramilitary, supported by the army. However, the Tribunal also uses the phrase “Sri Lankan authorities” and states, at [28], that “[a]s the Sri Lankan authorities are the persecutors [the appellant] could not ask them for protection”. While the phrase “Sri Lankan authorities” is one adopted by the Tribunal, there is not enough in these passages alone to demonstrate that the Tribunal misconstrued the appellant’s claims, though the statement at [28] perhaps begins to indicate a conception of the claim by the Tribunal that it related to a broader notion of “authorities”. It is evident that the Tribunal was clearly aware that the appellant’s claim of persecution included paramilitary groups supported by the Sri Lankan army, but it may have taken a wider view.

54    The Tribunal then discussed the appellant’s previous application to the RRT for review (the decision which the Federal Circuit Court set aside). At [34] to [39], the Tribunal made multiple reference to “Sri Lankan authorities” and “paramilitary groups”, appearing to refer to them as distinct entities.

55    The Tribunal then turned to consider the current application for review (from [43] to[47]), the hearing conducted before the Tribunal on 16 February 2016 (from [48] to [70]) and the post-hearing submissions received (from [71] to [72]). The summary of the submissions noted that the appellant feared harm “at the hands of the police, Navy and Army and Karuna Group” and, later, the CID, military and militia groups.

56    At [59] of its decision, the Tribunal summarised an important aspect of its questioning of the appellant during the hearing. This passage is relevant to the course of reasoning that the appellant takes issue with on the appeal, and which also begins to appear at [29] of the Tribunal’s decision. Paragraph [59] is as follows:

59. I noted he kept working as a government employee after he stopped working for MSF and until he left Sri Lanka in 2012. The applicant said they restricted his travelling through the checkpoints: even though he was working, he was in hiding mode; he did not expose himself to the authorities. Sometimes he would stay in the hospital himself; his wife would bring food for him. I put to him that it was very difficult to accept the proposition that he was hiding from the authorities when he was, in fact, employed by the GoSL and working for them as a nurse. He responded that, even though he was an employee and working in the hospital, when he was outside on the street and was confronted by an army person or the authorities they would not give any respect for what he was doing and who he was. They would just look at him as a normal individual.

(emphasis added)

57    The Tribunal appeared to, through its use of a concept of “Sri Lankan authorities”, again conflate the government the appellant worked for and the entities that he claimed had persecuted him.

58    The Tribunal also summarised the following aspect of the hearing:

63. [BOZ16] confirmed that his evidence was that he was only detained on one occasion for 7-8 days and then there were lots of occasions at the checkpoints where he was held for a couple of hours. I asked whether there was only one occasion when he was detained over night by the Sri Lankan authorities and militaries – he said yes. This was the occasion that happened after the war ended and before he went to India….

(emphasis added)

59    From [73] to [147] of its decision the Tribunal made its assessment of the claims and evidence presented by the appellant. Under a heading of “Whether the applicant’s claims that he has previously come to the adverse attention of the Sri Lankan authorities and paramilitary groups are credible”, the Tribunal came to the view that the appellant’s claims were not credible as he had claimed persecution from “Sri Lankan authorities and paramilitary groups” while being employed as a nurse by the Sri Lankan government. The term “Sri Lankan authorities” came from the Tribunal. Although it could in the early part of the Tribunal’s decision be seen to be an aggregate term used to describe the entities alleged to be persecutors by the appellant, its use later in the reasoning process of the Tribunal evidences a misconstruction of the appellant’s claim by the Tribunal. The reasoning process as to the credibility findings shows, in my view, that the Tribunal developed and employed this construct of “Sri Lankan authorities” to a point where it took the appellant’s claim to be broader than it actually was. When the claim is considered in the way it was put by the appellant, there was a potential explanation for why he could have been the subject of persecution by paramilitary groups supported by the Sri Lankan army and still have been able to work in the hospital. While the acceptance or rejection of such an explanation is a matter for the Tribunal, in my view the Tribunal’s reasoning demonstrates that it misconstrued the appellant’s claim.

60    The critical aspects of the Tribunal’s reasoning are as follows:

77. While I accept that some aspects of the applicant’s account of his life in Sri Lanka are truthful, I have reached the conclusion that his claims to have attracted the adverse attention of the Sri Lankan authorities and paramilitaries in the past are not credible. In summary, I was concerned that the applicant’s evidence changed dramatically over time, his claims to be of adverse interest to the authorities were undermined by the fact he worked continuously as an employee of the GoSL over the two decades until shortly before he left Sri Lanka and by the fact that he travelled in and out of Sri Lanka on his own passport in 2011. Further, in my assessment the applicant's conduct in voluntarily returning to Sri Lanka after visiting India for a wedding in 2011 suggests that, contrary to his claims he was avoiding the Sri Lankan authorities, he had no fear of the Sri Lankan authorities at that time. I have considered the applicant's response to these concerns but, as discussed below, they do not overcome my concerns about the credibility of core elements of his claims. I was also concerned that, in his second appearance before the Tribunal, the applicant raised new claims, which had never been mentioned at any earlier stage in the protection visa application process. While I have considered his evidence about why he did not raise these claims at an earlier point in the protection visa application, as discussed below, I remain concerned that he failed to adequately explain why he did not raise these matters at an earlier point in the protection visa application process. I have formed the view that [BOZ16] is prepared to embellish his evidence in the hope of achieving a favourable immigration outcome.

78. I consider the applicant's claims to be of adverse interest to the Sri Lankan authorities are undermined by the fact that, up until he left Sri Lanka, he was continuously employed by the GoSL for over two decades. [BOZ16] has confirmed that when he worked as a nurse for Valaichenai hospital and Vaharai hospital he was employed by the GoSL. At the hearing [BOZ16] clarified that he had worked for MSF between 1995 and 2003, not 1995 and 2005 as previously stated in his statement of claims. His evidence indicates that he worked for MSF with the knowledge and approval of the GoSL and, at the time he worked for MSF, he was an employee of the GoSL. Despite claiming that he was tortured and mistreated by the authorities sometime between 2009 and 2011, [BOZ16]'s own evidence was that he continued to work as a nurse, employed by the GoSL, until shortly before he left Sri Lanka.

79. When asked whether he had any problems because he worked for MSF between 1995 and 2003, [BOZ16] gave evidence that if he had just been working as a nurse and not working for MSF he would have been a normal individual and nobody would have noticed. He gave evidence that because he worked for MSF he became someone - to civilians and the authorities. He said he became 'popular individual who had some medical expertise'. When it was put to [BOZ16] that working for MSF had enhanced his professional reputation, he agreed this was correct. When I observed that this seemed like a good thing, he said the side who were seeking his help were praising him and the other side identified him as someone who was helping someone who they oppose. I accept that members of his community may have asked [BOZ16] about his work for MSF; I am not persuaded he was ever of any adverse interest to the Sri Lankan authorities for this reason.

…

82. I put to [BOZ16] that couldn't find country information that indicated that people who worked for MSF as nurses were targeted by the GoSL or paramilitary groups and invited the applicant provide country information that did support this claim. [BOZ16] referred to a doctor Dr Varatharajah Thariajah and described him as a government employee who fled abroad. The Tribunal accepts that Dr Thariajah was amongst a number of doctors who were present in the north of the Sri Lanka who have since fled Sri Lanka after being detained and then forced by the Sri Lankan authorities to refute allegations. of war crimes in the final stages of the conflict between the LTTE and the GoSL." As I discussed with [BOZ16], while the situation of Dr Thariajah is clearly distinguishable from the circumstances of the applicant, I acknowledge the broad point that government employees providing medical services may become of adverse interest to the Sri Lankan authorities if their actions upset the Sri Lankan authorities. Further, as noted above, there were some tensions between MSF and the Sri Lankan authorities. However, as noted above, [BOZ16]'s evidence indicates he stopped working for MSF almost a decade before he left Sri Lanka and, when he worked for MSF, he was an employee of the GoSL and his employers knew about, and approved of, his work for MSF. Significantly, after [BOZ16] stopped working for MSF in 2003 he was continuously employed as a nurse by the GoSL until he left Sri Lanka in May 2012.

The applicant’s evidence about his attempts to avoid the Sri Lankan authorities is not plausible and it has also changed over time

83. I consider the applicant's evidence that he was actively avoiding the Sri Lankan authorities while he was working at Valaichenai hospital to be internally inconsistent and implausible. When I put to [BOZ16] that it was difficult to accept that he was of adverse interest to the Sri Lankan authorities at a time when' he was employed by the GoSL as a nurse at Valaichenai hospital, he gave evidence he was safe when he was in the hospital but when he was outside the hospital he could not guarantee his life and he was not safe. It was put to [BOZ16] that at the start of the hearing he told the Tribunal that before he left Sri Lanka he was living at Lions Centre Road. I noted that in his statutory declaration he said the situation was such that from February 2011 he decided to stay in the hospital where he was working at nights and his wife would bring him food. [BOZ16] responded that he said he lived in Lion's Centre Road before he left Sri Lanka because he had to provide the Tribunal with an address, he couldn't say he was in the hospital.

In my assessment, [BOZ16] gave clear evidence that before he left Sri Lanka he was living at Lion Centre Road in Valaichenai and that he lived at this address for about three years before he left Sri Lanka. Then, later in the hearing his evidence shifted and he repeated claims, which he also made before the Department and to the first tribunal, that, because he was afraid of being found by the authorities, he hid at the hospital where he worked and his wife brought him food. I have considered his claims that he experienced trouble passing through checkpoints and, even when he was working, he was in 'hiding mode', and did not expose himself to the authorities and that sometimes he stayed in the hospital and relied upon his wife to bring him food. I find these claims lack credibility.

85. I do not accept the applicant's claims that he avoided the Sri Lankan authorities by staying overnight at the government run hospital where he worked instead of his residential address are plausible. As I discussed with [BOZ16], I have great difficulty with the proposition that he was hiding from the authorities when he was, in fact, employed by the GoSL and working for them as a nurse. He responded that, even though he was an employee and working in the hospital, when he was outside on the street and was confronted by an army person or the authorities they would not give any respect for what he was doing and who he was; they would just look at him as a normal individual. While it is possible that when he encountered the Sri Lankan authorities [BOZ16] felt he wasn't treated with the level of respect he felt was due to him, I do not accept that [BOZ16] was avoiding the Sri Lankan authorities or that the Sri Lankan authorities targeted and mistreated him at the checkpoints as claimed.

86. I consider that if [BOZ16] was, as he claimed, of adverse interest to the Sri Lankan authorities then they would not have had any difficulty locating him, whether at his place of work, a govemment-run-hospital, or at his residential address, which he shared with his family members. Furthermore, [BOZ16]'s own evidence is that he travelled in and out of Sri Lanka without difficulty on a passport issued in his own name in 2011. It was put to him that, if he was of adverse interest to the Sri Lankan authorities, they could easily have. found out he was employed by a government hospital and arrested him. He responded that when they do not have official documents to arrest a person they wait for an opportunity; his brother-in-law was abducted in the night, nobody knew who came and took him. I do not find this evidence persuasive. While it is true that the Sri Lankan authorities and associated paramilitaries have engaged in extra-judicial abductions and torture, in my assessment, the fact that [BOZ16] remained living in his home area and working in the employ of the GoSL up until he left Sri Lanka in May 2012 supports the conclusion that, at the time he left Sri Lanka, he was not of any interest to the authorities or affiliated paramilitaries for any reason.

(emphasis added)

61    In my view, this reasoning, read with the decision as a whole, evidences that the Tribunal misconstrued the appellant’s claims by broadening the claimed persecutors into a construct termed the “Sri Lankan authorities” that was wider in scope than the persecutors actually identified by the appellant. When looked at in this broader way, the conclusions reached by the Tribunal in respect of the claim were potentially open. However, the Tribunal’s reasoning indicates that it misconstrued the appellant’s claim. The claim was not put in the way the Tribunal reasoned. The claim was focused upon paramilitary groups (supported by the Sri Lankan army), not “Sri Lankan authorities” in a broader sense that encompassed other government entities. The Tribunal failed to understand and consider the claim on the basis it was put by the appellant.

The Minister’s submissions

62    Counsel for the Minister focused on the submission by the appellant’s counsel on the appeal that what reference there was by the Tribunal to paramilitary groups was done only in a token sense. The Minister rejected that contention, referring to multiple instances where the Tribunal made reference to claimed persecution from paramilitary groups. As I have stated, I accept that in its decision the Tribunal made it clear that it was aware that the appellant feared persecution from paramilitary groups.

63    The concern I had at the time and which I raised with counsel for the Minister was that the Tribunal had used the construct of “Sri Lankan authorities” in the broad sense that I have described above, which evidenced a misconstruction of the appellant’s claim which was limited to persecution by, predominantly, paramilitary groups supported by the Sri Lankan army. It widened the claim to a greater range of government entities. The Minister rejected this contention and submitted that the applicant had not at any stage confined his claim in this way. I do not agree with this interpretation of the claim.

64    It was submitted that the use of the phrase “Sri Lankan authorities” was “necessarily a portmanteau expression” and was used to encompass “at least, the army”. I accept that, and I accept that in the earlier part of its decision the Tribunal was using the phrase in this aggregate way, such as in [27] to [32] of its decision, extracted above at [45] of these reasons. The problem, however, is that it becomes evident from later in the Tribunal’s reasons that it adopted this aggregate concept in a way so as to demonstrate a broader conception of the appellant’s claim. This demonstrated a misconstruction of the appellant’s claim for protection

65    Thus, while I accept the Minister’s point that the Tribunal did make reference to and consider potential harm from paramilitary groups, the broadening of the notion of “Sri Lankan authorities” developed by the Tribunal evidenced an impermissible misconstruction of the appellant’s claim such that the decision must be set aside and the matter remitted.

Leave to rely upon the third amended notice of appeal and further evidence

66    Leave to argue a ground of appeal not raised below where an appellant had an opportunity to make such an argument below is only to be permitted where it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural Affairs [2004] FCAFC 158 at 598 [46]; Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73 at [19]-[20]; Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213 at [31]. Gilmour and Mortimer JJ emphasised in Maharjan at [33] that the merit of the proposed ground of appeal is an “important consideration”, together with the question of prejudice to the respondent.

67    The Minister opposes the grant of leave to rely upon the new ground of appeal. However, for the reasons above, the proposed ground of appeal clearly has merit. The Minister has not been prejudiced, having had notice of the proposed ground of appeal, having had the benefit of written submissions by the appellant and having been able to put on his own responsive written submissions and make oral submissions today. Given these matters I am prepared to grant leave to read, file and rely upon the third amended notice of appeal.

68    Similarly, leave is required to adduce the further evidence that was not before the primary judge. This evidence is significant to the appellant’s argument. Counsel for the appellant submitted that the evidence was not led below as this ground was not being agitated and that, in his view, the evidence sought to be adduced did not prejudice the respondents as it consisted merely of transcripts of prior aspects of the matter. There is some merit in that submission, at least in the circumstances of this case and, considering the transcripts’ significance to the proposed ground of appeal. I am prepared to also grant leave in respect of the further evidence.

Disposition

69    For the reasons expressed above, I am persuaded that the Tribunal failed correctly to construe and consider the appellant’s claim for protection based on alleged persecution by paramilitary groups supported by the Sri Lankan army. It erroneously adopted a broader construct of “Sri Lankan authorities” that did not reflect the appellant’s claim.

70    For these reasons, I will make the following orders:

1.    Leave be granted to read, file and rely upon the third amended notice of appeal.

2.    Leave be granted to read, file and rely upon the three affidavits of the appellant affirmed 18 February 2018.

3.    The appeal be allowed.

4.    The orders of the Federal Circuit Court made in SYG 1647 of 2016 on 17 February 2017 be set aside and in lieu thereof it be ordered that:

(a)    the decision of the Administrative Appeals Tribunal dated 31 May 2016 be set aside;

(b)    the matter be remitted to the Administrative Appeals Tribunal for re-determination according to law; and

(c)    the first respondent pay the applicant’s costs.

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

Associate:

Dated:    29 March 2018