FEDERAL COURT OF AUSTRALIA
BEA15 v Minister for Immigration and Border Protection [2018] FCA 639
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. The orders dated 21 February 2017 made by the Federal Circuit Court of Australia be set aside.
3. The application for judicial review dated 25 June 2015 be remitted to the Federal Circuit Court of Australia for reconsideration according to law by a Judge of that Court other than the primary judge.
4. The first respondent pay the appellant’s costs of and incidental to the appeal and the proceedings in the Federal Circuit Court of Australia below.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BURLEY J:
[1] | |
[3] | |
[9] | |
[12] | |
[12] | |
[15] | |
[16] | |
[36] |
1 The appellant is a 24 year old male citizen of Sri Lanka of Tamil ethnicity who arrived in Australia as an illegal maritime arrival in July 2012. He applied for a Protection (Class XA) visa, claiming that he is a person to whom Australia has protection obligations pursuant to s 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (Act). On 3 January 2014 a delegate of the Minister for Immigration and Border Protection (Minister) refused to grant the appellant the visa. He then applied to the Administrative Appeals Tribunal (Tribunal) for a review of the decision of the delegate and on 28 May 2015 the Tribunal affirmed the decision of the delegate.
2 The appellant then applied to the Federal Circuit Court of Australia (FCCA) for an order that the decision of the Tribunal be quashed. On 21 February 2017 the primary judge heard and determined that application adversely to the appellant. He then filed a Notice of Appeal in this Court. The grounds of appeal were subsequently amended, and by the time of the hearing took the following form:
1. The primary court erred in failing to find that the second respondent (Tribunal) made findings based on a misstatement or a misunderstanding of the evidence and/or a failure to properly consider the evidence. The impact of those errors deflected from the Tribunal’s duty to review and it thereby fell into jurisdictional error. Further or in the alternative, the appellant did not have a meaningful opportunity to participate in the Tribunal hearing as required by s 425 of the Migration Act 1958 (Cth).
Particulars
a. The Tribunal’s finding (at D[27]) that the appellant gave inconsistent evidence about whether his family had moved addresses does not reflect the evidence, as the appellant had provided consistent evidence.
b. The appellant’s consistent evidence was that his family had lived in the same “town” for 5 years, but the Tribunal erroneously concluded that the appellant had said same “place” (first finding).
c. The Tribunal stated (at D[28]) that it had expressed doubt to the appellant at the Tribunal hearing that a letter by the Sri Lankan authorities calling upon the appellant would be addressed to him in English on the envelope and written in Sinhalese in the letter (second finding).
d. The appellant is alleged to have said that he did not know the reasons why, but that does not reflect the evidence.
e. Contrary to the Tribunal’s decision, there was never such a question put to the appellant and thus no such response was ever given by the appellant.
f. The Tribunal put one question to the appellant at the hearing, but erroneously reported the appellant’s response to a different question in its decision.
g. The Tribunal erroneously stated (at D[29]) that the “only” way that his family would have known that the letter was in Sinhalese would have been to open it (third finding).
h. But the Tribunal failed to consider the appellant’s evidence which included that his name was written on the front of the envelope in English, his sister could read English, the letter had been sent to his family’s previous address, and his family had not known about the letter for about two months until they had a reason to inquire at their previous address.
i. Further, the Tribunal’s conclusion (at particular (g) above) was never put to the appellant and accordingly he was denied an opportunity to comment or respond to it.
j. The above mentioned erroneous findings were used to make an unfounded adverse credibility finding against the appellant.
k. The Tribunal fell into jurisdictional error as it expressly relied on the groundless finding to place no weight on a letter that showed the appellant had been summoned by the Sri Lankan authorities or that they were looking for him (at D[26]).
2. The primary court erred in failing to find that the Tribunal failed to consider the appellant’s evidence and failed to consider other relevant country information.
Particulars
a. The Tribunal failed to give consideration to the appellant’s evidence that the kind of letter that he received from the Sri Lankan authorities were the norm in the North and East of the country.
b. The Tribunal failed to give consideration to the appellant’s insistence that if the Tribunal thought the document was fraudulent he gave his permission to check with the Sri Lankan authorities, when drawing its conclusion on his credibility and the authenticity of the letter.
c. The Tribunal relied substantially on DFAT country information about the treatment of failed asylum seekers and returnees who had illegally departed Sri Lanka.
d. However, the Tribunal fell into jurisdictional error by failing to consider the other sources of country information contrary to the DFAT information provided by the appellant in his written submissions.
e. The Tribunal also failed to provide reasons for rejecting the appellant’s contrary country evidence and to justify the cherry picking of the country information that it had before it.
3. The primary judge constructively failed to exercise jurisdiction by failing to provide adequate reasons for his decision and the reasons that were provided reveal that fundamental aspects of the appellant’s case had not been considered.
Particulars
a. The primary judge gave ex tempore reasons in which only 11 of the 55 paragraphs are directed to explaining why the three grounds of judicial review were rejected with the substantial remainder of his Honour's reasons directed to summarising the Tribunal’s reasons.
b. The primary judge’s reasons amounted to little more than assertions or conclusions.
c. The primary judge failed to grapple directly with important elements of each of the grounds claimed.
2. THE DECISION OF THE TRIBUNAL
3 In the hearing before the Tribunal the appellant made claims that he was a Tamil man who, in broad terms, feared harm if he were returned to Sri Lanka because:
(1) he has in the past been subjected to harassment, detention and interrogation by the authorities,
(2) his family has received threats and demands for money since his uncle was abducted in August 2008,
(3) of his faith as a Hindu,
(4) of his unlawful departure from Sri Lanka, and
(5) a letter was recently delivered to his family home demanding that he present himself to the Terrorist Investigation Division (TID) of the Sri Lankan police.
4 Much of the present appeal focusses on the Tribunal’s findings in relation to the letter identified in (5) above.
5 The Tribunal found that the appellant was not a credible witness. In particular, it rejected a claim made by the appellant that while he was attending college, he had been in close proximity of a bomb blast in a Sri Lankan army camp. He claimed that on the way home after the blast he and some other students had been intercepted by members of the army and were questioned and then set upon. The Tribunal rejected the evidence given by the appellant that this had happened (T[15]) . It also rejected claims made by the appellant that he had received threatening calls immediately after his uncle had been abducted, in 2008 (T[19]). Neither of these findings is the subject of challenge on appeal, and it is not necessary to discuss them further.
6 More relevant, however, is a claim made by the appellant that his family had received a letter from the TID dated 7 February 2015 that required the appellant to attend the local police station to give evidence on 24 February 2015. This evidence was of potential significance, because if accepted it would have the effect of tending to confirm the appellant’s claims that he was a person of interest to the Sri Lankan authorities because of imputed pro-Liberation Tigers of Tamil Eelam (LTTE) or terrorist connections.
7 The Tribunal did not accept that the TID letter was authentic. It found that the appellant’s evidence about how his family got the document and then informed him about it was inconsistent and lacked credibility. When pressed during the hearing on the inconsistencies, his explanations were regarded by the Tribunal also to be inconsistent and lacking credibility. The Tribunal said:
27. Initially, he claimed the letter was sent to their old home address and a neighbour gave it to his mother. The tribunal expressed concerns about inconsistent evidence that his family had moved address as at the outset he claimed they had been living in the same place for the last 5 years. The applicant said they were in the house two years before he left SL but he did not know when they moved. Later he added they moved 6 or 7 months ago but he did not know their address. The tribunal considers the applicant gave inconsistent evidence about whether his family had moved. The tribunal considers he was being evasive and making up answers to coincide with trying to explain the delay in receiving the police letter and his inconsistent evidence about whether the family moved address.
28. The applicant claimed his mother called the applicant and told him there was a letter in his name but it was in Sinhalese. He told them to get it read by someone who could read Sinhalese. When the tribunal expressed doubt how they knew it was for him if they did not read Sinhalese, he said his name was in English on the envelope and his sister can read English. When the tribunal expressed doubt that it would be addressed to him in English and written in Sinhalese, the applicant did not know the reasons why. The tribunal does not accept the police message, written in Sinhalese, would be addressed to him in his name in English on the envelope. Given many Tamils do not read Sinhalese or English that it would be addressed to him in English is not credible.
29. Further, while he said his family received the message two months ago, they did not tell him until two or three weeks ago. That his family would not tell him about it, given they are in contact daily lacks credibility. The applicant initially claimed when he called about sending his uncle’s ID card they told him about the letter for him. When the tribunal expressed concern that his family would hold onto a police document for two months and not tell him about it, he said they did not know it was from the police as it was in Sinhalese. When the tribunal noted the document said Sri Lanka police in English and his sister read English, the applicant said they did not open the letter but it had his name on it. However, this was inconsistent with the applicant‘s earlier evidence that his parents had told him there was a letter in his name and it was in Sinhalese. The only way they would have known it was in Sinhalese would have been to open it. The message headings of Sri Lanka police were written in Sinhalese and English and on the applicant’s evidence his sister reads English.
8 Ultimately, the Tribunal considered that the appellant was not telling the truth and was making up his story as he went along (T[31]). After hearing the appellant’s evidence, and having regard to country information as to the prevalence of fraudulent documents, the Tribunal considered that the TID letter was not genuine, and placed no weight on it (T[34]). The Tribunal did not accept that the police or the TID were looking for the appellant. It found that the TID would not summons him in 2015 when he had left Sri Lanka in 2012. The Tribunal rejected the appellant’s claim to protection.
9 The appellant applied to the FCCA for a judicial review of the decision of the Tribunal on three substantive grounds as follows:
Grounds of application
1. The second respondent (the "Tribunal") failed to comply with its obligation under the Migration Act 1958 to review the decision of first respondent by making erroneous findings or omissions based on a misstatement or miscomprehension of the evidence and/or failing to consider the evidence. The Tribunal expressly relied on those errors to place no weight on a letter that showed the Sri Lankan authorities had summoned the applicant or that they were looking for him, and to make an adverse credibility finding against the applicant (at D(261)).
Particulars
a. The Tribunal's conclusion (at D[27]) that the applicant gave inconsistent evidence about whether his family had moved addresses does not reflect the evidence as the applicant's evidence was consistent.
b. The Tribunal stated (at D[28]) that it had expressed doubt to the applicant that the letter would be addressed to him in English and written in Sinhalese and the applicant is alleged to have said that he did not know the reasons why, but that does not reflect the evidence. In fact, there was never such a question put to the applicant and thus no such response was ever given by the applicant.
c. The Tribunal erroneously stated (at D[29]) that the "only" way that his family would have known that the letter was in Sinhalese would have been to open it, but the Tribunal failed to consider that the front of the envelope may have been in Sinhalese, except for the applicant's name, which is consistent with the applicant's evidence. Further, that conclusion was never put to the applicant.
d. The Tribunal expressed the concerns it had about the authenticity of the document itself (at D[33]). However, those concerns were never put to the applicant at the hearing.
e. The Tribunal did not give consideration to the applicant's evidence that these kinds of messages from the authorities were the norm in the North and East of the country.
f. The Tribunal did not give consideration to the applicant's insistence that if the Tribunal thought the document was fraudulent he gave his permission to check with the Sri Lankan authorities, when drawing its conclusion on his credibility and the authenticity of the letter.
2. The Tribunal failed to comply with s.424A and/or s.424AA of the Migration Act (1958) and/or a denial of procedural fairness in the way the Tribunal dealt with the letter; and further or in the alternative, the applicant did not have a meaningful opportunity to participate in the hearing as required by s.425 of the Migration Act (1958) Cth.
Particulars
Repeat particulars 1.b to f. above.
3. The Tribunal relied substantially on DFAT country information about the treatment of failed asylum seekers and returnees who had illegally departed Sri Lanka. However, the Tribunal fell into jurisdictional error by failing to consider the other sources of country information contrary to the DFAT information provided by the applicant in written submissions, and/or the Tribunal failed to provide reasons for rejecting the applicant's contrary evidence and to justify the selective use of the country information that it had before it.
10 The appellant and the respondent were each represented by solicitors and counsel at the hearing. Each filed written submissions prior to the hearing date. The primary judge delivered an ex tempore judgment.
11 The primary judge’s reasons occupy 55 paragraphs, of which the first 43 set out the background materials, including a detailed summary of the reasons given by the Tribunal. Paragraphs 44 – 54 provide the reasons for rejecting the appeal. Those reasons are as follows:
Ground 1(a)
44. In relation to Ground 1, the adverse credibility findings made by the Tribunal were open on the material for the Tribunal and cannot be said to lack an evident intelligible justification. The proposition in Ground 1(a) that there was a consistency by the applicant in his evidence is not supported by the transcript and the adverse findings by the Tribunal were open. Counsel on behalf of the applicant sought to argue that there was a nuance in the evidence given by the applicant and that the applicant had only been referring to his family being in a particular town for five years and that there was no inconsistency in his evidence as found by the Tribunal.
45. On a fair reading of the applicant’s evidence, there was an obvious inconsistency in respect to which it was open to the Tribunal to make adverse credibility findings in respect of the applicant’s evidence about how long his family had been at a particular address. Ground 1(a) fails to make out any jurisdictional error.
Ground 1(b)
46. In relation to Ground 1(b), it is apparent that the Tribunal in the course of the hearing raised concerns with the applicant about the applicant’s evidence concerning the alleged summons or letter from the police and how it came to arrive at the address of the applicant’s family, how it was addressed and whether in English or otherwise on the envelope.
47. The proposition by counsel on behalf of the applicant was that although the Tribunal asked the applicant about the letter being addressed in English and asked the applicant about it being in Sinhalese, there was no particular question that reflected the Tribunal’s reasons where the Tribunal observed that the applicant did not know the reasons why. The Tribunal’s reasons are not to be read with a keen eye for error. That the Tribunal was expressing doubt in relation to the applicant’s evidence and his credibility in respect of the summons is manifest from the transcript.
48. On a fair reading of the Tribunal’s reasons, the Tribunal gave the applicant a real and meaningful opportunity to address the Tribunal’s concerns in respect of the letter. I do not accept that the reference by the Tribunal to the applicant not knowing the reasons why was an error by the Tribunal. The Tribunal plainly challenged the applicant’s credibility in relation to the letter, its address on the envelope and the explanation surrounding its delivery to the applicant. No jurisdictional error is made out by Ground 1(b).
Ground 1(c)
49. In relation to Ground 1(c), the Tribunal’s concerns in relation to the envelope and the letter were proper matters for the Tribunal to explore. Ground 1(c) is in substance an invitation to this Court to engage in impermissible merits review. It was open to the Tribunal to find that the applicant’s evidence was not consistent in relation to the envelope and the letter. No jurisdictional error is made out by Ground 1(c).
50. Further, I accept the submissions of the first respondent in relation to Grounds 1(a) - 1(c) that even if there was some error of fact in the present case in the Tribunal’s reasons, it was not an error of the kind that gave rise to any jurisdictional error.
Ground 1(e) and (f)
51. In relation to Ground 1(e) it is not necessary for the Tribunal to refer to all evidence before it. The Tribunal clearly dealt with the essential integers of the applicant’s claims.
52. It was not necessary for the Tribunal to refer to the applicant’s evidence in relation to his contention as to such messages of the kind the subject of the relevant letter being the norm. No case was advanced that the Tribunal had a duty to inquire. There was no obvious inquiry from an easily ascertainable source as to a critical fact. The proposition that the invitation by the application to check with others meant that there was some obligation on the Tribunal to accept the applicant’s credit is without substance. Ground 1(e) and 1(f) fail to identify any jurisdictional error.
Ground 2
53. In relation to Ground 2, this was dependent upon an alleged error being made out under Grounds 1(a) to (c). No such error was made out. I am satisfied that the applicant had a real and meaningful hearing. I find that there is no breach of s.425 of the Act. Ground 2 fails to make out any jurisdictional error.
Ground 3
54. In relation to Ground 3, it was submitted that there had not been a proper engagement by the Tribunal with the applicant’s submissions concerning the country information. It is apparent that the Tribunal’s reasons identify having had regard to the applicant’s submissions in two places in its reasons. There is no proper basis to infer that the Tribunal did not take into account the applicant’s submissions and the country evidence referred to by the applicant. Indeed, the reasons of the Tribunal reveal an intellectual engagement with those submissions and that country information. Ground 3 fails to make out any jurisdictional error.
12 The present appeal raises three substantive grounds, the first two of which were also raised before the primary judge. It will be recalled that ground 3 contends that the learned primary judge erred by constructively failing to exercise jurisdiction by failing to provide adequate reasons and failing to consider fundamental aspects of the appellant’s case. In support of this ground the appellant relied upon an affidavit sworn by his solicitor that exhibited the submissions of the parties as advanced before the primary judge and the transcript of the hearing.
13 After close consideration of the reasons of the primary judge I am of the view that ground 3 has been made out. In my view the supervisory role of the Federal Court exercising appellate jurisdiction is one which requires attention to the correction of error. In the present case the error of the learned primary judge was to fail to give adequate reasons and to fail to consider the case as advanced by the appellant. In light of those findings it is not necessary or appropriate to proceed to consider the substantive grounds 1 and 2 as advanced. This is a task which must be done by the FCCA.
14 In this regard I observe what Perram J said in AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 (AXL16) at [38]:
The Federal Court of Australia Act 1976 (Cth) confers appellate, not original, jurisdiction on the Court in cases such as the present: s 24(1)(d). The exercise of appellate jurisdiction is concerned with the correction of error: Branir Pty Ltd v Owston Nominees (No.2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [20]-[25]. It would erode the appellate nature of this Court’s jurisdiction if it were routinely to carry out the Federal Circuit Court’s work for it: SZKLO v Minister for Immigration and Border Protection [2008] FCA 735 (‘SZKLO’) at [41] per Flick J. On this basis I decline to decide the substantive ground.
15 The question of whether or not the failure to provide adequate reasons amounts to a constructive failure to exercise jurisdiction has been considered recently in several cases decided in this Court. In COZ16 v Minister for Immigration and Border Protection [2018] FCA 46 Griffiths J conducted a review of the relevant authorities at [31] – [56] which I respectfully adopt. In particular I note the following matters, as summarised by his Honour:
A failure to give adequate reasons may amount to an error of law (at [32]);
The obligation arises as a matter of judicial duty. It arises from the need to maintain public confidence, respect and faith in the judicial system, the need to provide reasons to the unsuccessful party who may otherwise not know or understand why the decision was made, and the need to enable an appeal court to determine whether or not the primary judge’s decision was or was not affected by error or law or an appealable error [32];
The standard required for the provision or reasons, including ex tempore reasons, is not a standard of perfection. Appropriate allowance should be given for the pressures under which judges are placed. Nevertheless, the prospect that ex tempore reasons may not adequately address the issues under consideration should sound a note of warning to the primary judge about the need to reserve a decision for greater consideration ([34]);
Failure to address fundamental aspects of a party’s case may give rise to procedural unfairness or, in an appropriate case, be characterised as a constructive failure to exercise jurisdiction ([38]).
Each case will necessarily turn on its own particular facts and circumstances. An important matter to be taken into account in considering the application of this ground relates to the nature of the jurisdiction being exercised by both the trial court and the appeal court ([46]);
Where a case, such as the present, is brought under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) the issue is whether the primary judge fell into appealable error in exercising the FCCA’s original jurisdiction under s 476 of the Act in dismissing the appellant’s claim that the Tribunal had fallen into jurisdictional error . It is relevant to take into account the fact that, because the FCCA was exercising a judicial review jurisdiction, it was not a matter for that Court to make findings of fact. Generally speaking that is the province of the administrative body whose decision is being judicially reviewed ([46]);
However, that is not to deny that the Tribunal’s fact finding may itself be amenable to judicial review on various grounds ([46]). In the present case, there is no dispute as to the principles applicable in the event that the Tribunal was in error as to it findings of fact.
The brevity of a primary judge’s reasons can form the basis for finding a constructive failure to exercise jurisdiction. As the Full Court found in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [48], to state a conclusion at such a high level of generality that the basis for the conclusion is not exposed (for example, by stating that adverse findings were open and cannot be said to lack an evident and intelligible justification) is not likely to be sufficient.
16 Ground 1 of the application before the primary judge was, in summary, that the Tribunal had failed to comply with its obligation under the Act to review the decision of the delegate by making erroneous findings or omissions based on a misstatement of the evidence, that the Tribunal erroneously relied on those errors to place no weight on the TID letter and that on the same basis it erroneously made an adverse credit finding against the appellant.
17 In order to give consideration to this ground it was necessary for the primary judge to have regard; first, to whether or not the appellant was correct in its submission that there was a relevant error of fact on the part of the Tribunal. To this end, the appellant’s submissions before the primary judge were directed to the transcript of evidence before the Tribunal. Secondly, to the extent that the primary judge found that there were any errors, he was obliged to consider whether or not the error was sufficient to vitiate the conclusion reached by the Tribunal. In this regard, the parties had drawn his attention to SZVHP v Minister for Immigration and Border Protection [2016] FCA 270 (SZVHP) at [38] where Rares J said:
Where a court makes a finding that a person’s evidence is not credible for a number of reasons that it then states, one of which is shown to be erroneous, an appeal court will consider whether the erroneous finding was a matter of central logical importance to the overall finding about credibility or whether it merely provided additional support for a conclusion as to credibility that the judge had reached on other grounds. Where the error is not one about some fact vital to the resolution of the case or is not of such a nature as to have a cascading effect on the judge’s resolution of the larger issues in the case, the error will not undermine the overall finding: Cordelia Holdings Pty Limited v Newkey Investments Pty Ltd [2004] FCAFC 48 at [60]-[61] per Black CJ, and French and Tamberlin JJ.
18 The application of the principles so stated then involve an evaluation of the relevance of any error in the context of the other findings of the Tribunal going to credit. Finally, consideration of the appellant’s submissions involved consideration as to whether or not any error as found was sufficiently central to undermine the Tribunal’s overall finding.
19 In considering the adequacy of the primary judge’s reasons it is appropriate to address, by way of example, the first three of the allegations made in the context of ground 1 raised before him.
20 Ground 1(a) was that the Tribunal’s conclusion at T[27] that the appellant gave inconsistent evidence about whether his family had moved addresses, inaccurately addressed the evidence given. In his submissions made to the primary judge the appellant contended that the Tribunal had mistaken the effect of aspects of the evidence given by the appellant at the hearing. Consideration of this ground necessarily involved consideration of passages from the transcript. As I have noted, the TID letter was a matter of significance to the appellant’s claims. The appellant submitted before the primary judge that the finding by the Tribunal that the appellant had earlier given evidence that his family had been living in the same house (“place”) for the last five years was factually incorrect. His evidence was that his family had been living in the same town for five years, but that it had moved address within that town three times. The appellant submitted that the evidence was that the TID letter had been sent to a first house, where his family had lived for about two years. Then they moved to another address, and about 6 or 7 months ago they moved to a third address. He submitted that there was no inconsistency to warrant the conclusion set out at T[27].
21 The reasoning of the primary judge is set out in [44], [45] but in reality occupies only the three emphasised sentences below:
44. In relation to Ground 1, the adverse credibility findings made by the Tribunal were open on the material for the Tribunal and cannot be said to lack an evident intelligible justification. The proposition in Ground 1(a) that there was a consistency by the applicant in his evidence is not supported by the transcript and the adverse findings by the Tribunal were open. Counsel on behalf of the applicant sought to argue that there was a nuance in the evidence given by the applicant and that the applicant had only been referring to his family being in a particular town for five years and that there was no inconsistency in his evidence as found by the Tribunal.
45. On a fair reading of the applicant’s evidence, there was an obvious inconsistency in respect to which it was open to the Tribunal to make adverse credibility findings in respect of the applicant’s evidence about how long his family had been at a particular address. Ground 1(a) fails to make out any jurisdictional error.
22 However, the primary judge does not engage with the issue put by the appellant, namely that the evidence did not in fact support the Tribunal’s finding. In the second sentence of the primary judge’s reasons at [44] he says that the proposition in ground 1(a) that there was a consistency by the applicant in his evidence “is not supported by the transcript and the adverse findings by the Tribunal were open”. But this sentence in reality amounts to no more than a conclusionary statement asserting the result of a reasoning process. Further, the conclusion in [44] that the Tribunal’s adverse credit finding “cannot be said to lack an intelligible justification” obscures rather than clarifies. Did the primary judge find that the transcript of evidence accurately reflects the facts as found by the Tribunal or not? My reading of the relevant passages of the transcript before the Tribunal suggests that this was open to doubt, and required some attention to the detail of what was said. The conclusion in [45] that it was “open to the Tribunal to make adverse credibility findings” could have been based on a finding that there was no factual error made, or that any error in the factual finding was not of central logical importance to the overall finding of credibility (SZVHP at [38]), but if the latter was the basis for the primary judge’s reasons, then the rationale for so concluding is also not stated.
23 In relation to ground 1(b) the argument advanced below was a little more detailed. It involved criticism of the Tribunal’s statement at T[28] where it claimed to have expressed doubt to the appellant that the TID letter would be addressed to him in English and yet its contents written in Sinhalese and that the appellant responded by saying that he did not know why this was so. The criticised sentence in the Tribunal’s reasons was: When the tribunal expressed doubt that it would be addressed to him in English and written in Sinhalese, the applicant did not know the reason why”.
24 In submissions before the primary judge, the appellant contended that this question was never asked. He submitted that in his evidence before the Tribunal, the following exchange took place (emphasis added):
A (THROUGH INTERPRETER): Okay. So I was not there, so when I was calling home, they said, “There was a letter for you in Sinhalese,” so then I told them to get it translated from someone who can speak- read- Sinhalese.
M: So they can read your name in Sinhalese?
A (THROUGH INTERPRETER): No.
M: But isn’t the whole document written in Sinhalese including your name, so how would they know it’s got to do with you?
A (THROUGH INTERPRETER): Okay. So on the – envelope of the letter the name was written in English, so my sister had read it and through that only they knew that it was my name.
M: So your name was written in English on the envelope?
A (THROUGH INTERPRETER): Yes.
M: Why would that – why would they do that when the document itself seems- says “you are to inform [name],” and it sounds like the actual message is not for you but for someone in the house to pass it on to you?
A (THROUGH INTERPRETER): Okay. The letter was posted to my name. That’s why they told me that it was in my name, for reasons I don’t know what’s the reason like that it be in the letter.
25 The appellant submitted before the primary judge that the question answered by the appellant was in response to the passage in bold. This amounted to a question about why the letter was addressed in third person, which the appellant responded by stating he did not know why. He submitted that the question as to why the letter was addressed to him in English, but the contents were in Sinhalese was not put to the appellant, contrary to T[28].
26 The totality of the reasoning of the primary judge in relation to ground 1(b) was:
46. In relation to Ground 1(b), it is apparent that the Tribunal in the course of the hearing raised concerns with the applicant about the applicant’s evidence concerning the alleged summons or letter from the police and how it came to arrive at the address of the applicant’s family, how it was addressed and whether in English or otherwise on the envelope.
47. The proposition by counsel on behalf of the applicant was that although the Tribunal asked the applicant about the letter being addressed in English and asked the applicant about it being in Sinhalese, there was no particular question that reflected the Tribunal’s reasons where the Tribunal observed that the applicant did not know the reasons why. The Tribunal’s reasons are not to be read with a keen eye for error. That the Tribunal was expressing doubt in relation to the applicant’s evidence and his credibility in respect of the summons is manifest from the transcript.
48. On a fair reading of the Tribunal’s reasons, the Tribunal gave the applicant a real and meaningful opportunity to address the Tribunal’s concerns in respect of the letter. I do not accept that the reference by the Tribunal to the applicant not knowing the reasons why was an error by the Tribunal. The Tribunal plainly challenged the applicant’s credibility in relation to the letter, its address on the envelope and the explanation surrounding its delivery to the applicant. No jurisdictional error is made out by Ground 1(b).
27 In the first sentence of [47] the primary judge incorrectly summarises the argument advanced before him. The ground advanced was that the Tribunal got the evidence wrong by inaccurately stating that it had asked the appellant a question about why the letter was written in Sinhalese, and yet addressed to him in English. The appellant contended below that no such specific question had been directly asked or answered. The first issue was whether, as a matter of fact, this was correct, which involved a review of the evidence.
28 In the first sentence of [48] the primary judge finds that the Tribunal afforded the appellant a “real and meaningful opportunity” to address its concerns. That finding missed the point of the submission made below. The appellant was submitting that the Tribunal had made a factual error as to the evidence given by the appellant such that the conclusion reached by the Tribunal in relation to the TID letter could not be regarded as justified. In the third sentence of [48] the primary judge said that he did not accept “that the reference by the Tribunal to the appellant not knowing the reasons why was an error by the Tribunal”. One is left to wonder whether the primary judge concluded that the allegation of factual error was not made out, or whether it was made out, but that the Tribunal did not fall into error because the error was not of central importance to the overall finding of credibility.
29 In ground 1(c) the appellant contended that the Tribunal had in error stated at T[29] that the only way that the appellant’s family would have known that the letter was in Sinhalese would have been to open it, but the Tribunal failed to consider, consistent with the appellant’s evidence, that other parts of the front of the envelope may have been in Sinhalese. Further, the appellant contended that the adverse conclusion expressed at T[29] was not put to the appellant.
30 The primary judge’s reasoning in this regard was at [49], [50]:
49. In relation to Ground 1(c), the Tribunal’s concerns in relation to the envelope and the letter were proper matters for the Tribunal to explore. Ground 1(c) is in substance an invitation to this Court to engage in impermissible merits review. It was open to the Tribunal to find that the applicant’s evidence was not consistent in relation to the envelope and the letter. No jurisdictional error is made out by Ground 1(c).
50. Further, I accept the submissions of the first respondent in relation to Grounds 1(a) - 1(c) that even if there was some error of fact in the present case in the Tribunal’s reasons, it was not an error of the kind that gave rise to any jurisdictional error.
31 The primary judge did not in these reasons engage with the appellant’s submissions, but rather expressed the conclusion at [49] that the Tribunal’s reasons were open on the evidence.
32 The primary judge’s reasons in [50] tend to amplify the criticisms that I have made of the primary judges reasons in relation to the aspects of the appeal identified in particulars (a) and (b) of ground 1 as advanced before the primary judge. There, the primary judge expressed the conclusion that “even if there was some error of fact”, it was not an error that gave rise to any jurisdictional error. This rolled up conclusion does nothing to elucidate the findings that must have underlain it. In particular, as I have mentioned above, in order to rule out jurisdictional error of the kind asserted by the appellant in ground 1, it was necessary, for a number of intermediate findings to be made; first, whether or not there was an error of fact on the part of the Tribunal. Secondly, a characterisation of the error in the context of the overall findings as to credit made by the Tribunal and thirdly, a finding as to whether or not the erroneous finding was a matter of central logical importance to the overall finding of credibility or whether it merely provided additional support for a conclusion as to credibility that the judge had reached on other grounds. The content of [50] provides no reasoning to support the conclusion that “even if” the errors alleged were made, they did not give rise to jurisdictional error.
33 Furthermore, the primary judge’s reasons as set out in [53] and [54], which provide the sole bases upon which he rejected grounds 2 and 3 of the application made before him do no more than state conclusions, without any reasoning offered.
34 I am conscious that appropriate allowance must be given for the pressures under which judges in the FCCA are placed in dealing with their busy lists and of the other matters to which I have referred in section 4.2 of these reasons. However, the grounds raised before the primary judge required attention to the detail of the asserted errors in the context of the transcript of the hearing before the Tribunal and suitable findings as to whether they were made out. In my view, the matters that I have highlighted above adequately provide a basis for the conclusion that the primary judge constructively failed to exercise jurisdiction by failing to provide adequate reasons and failing to consider fundamental aspects of the appellant’s case.
35 Accordingly, in my view ground 3 of the appeal is made out.
36 For the reasons that I have stated above, the appeal is allowed and in view of my finding that the primary judge failed to provide adequate reasons, it is not necessary for me to determine grounds 1 or 2.
37 The orders dated 21 February 2017 should be set aside and the first respondent should pay the appellant’s costs of the appeal and of the hearing below. The matter must be remitted to the FCCA for reconsideration according to law. In the circumstances, it is appropriate for the matter to be reconsidered by a judge other than the primary judge, who has expressed firm views about the outcome of the matter.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. |
Associate:
