FEDERAL COURT OF AUSTRALIA

BWC16 v Minister for Home Affairs [2018] FCA 1375

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Federal Circuit Court of Australia be set aside, and in lieu thereof:

(a)    there issue absolute in the first instance:

(i)    a writ of certiorari directed to the second respondent quashing the decision of 1 July 2018; and

(ii)    a writ of mandamus directed to the second respondent to exercise the power under s 473CC of the Migration Act 1958 (Cth) according to law.

(b)    order that the first respondent pay the applicant’s costs;

3.    The first respondent pay the appellant’s costs of the appeal to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

4.    Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the appellant’s costs.

5.    In the absence of any agreement pursuant to paragraph 4 of these orders, within 21 days the appellant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS).

6.    Within a further 14 days, the first respondent file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

7.    In the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the appellant’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia, delivered ex tempore on 21 March 2018, dismissing an application for judicial review of a decision of the Immigration Assessment Authority made on 29 June 2016. The Authority had affirmed a decision of a delegate of the first respondent (Minister) made on 5 May 2016 refusing the appellant’s application for a Safe Haven Enterprise (class XE) (subclass 790) visa (SHEV).

Background

2    The appellant is a Tamil male from the Northern District of Sri Lanka. He arrived in Australia on Christmas Island as an unauthorised maritime arrival on 17 August 2012.

3    The appellant lodged an application for a Protection (class XA) visa on 5 August 2013, which was supported by a statutory declaration dated 1 August 2013. This application was deemed to be invalid due to the statutory bar under s 46A(1) of the Migration Act 1958. On 20 August 2015, the Minister lifted the statutory bar and invited the appellant to lodge a valid application for either a Temporary Protection (subclass 785) visa or a SHEV. The appellant lodged a valid SHEV application on 10 September 2015, together with a second statutory declaration dated 8 September 2015. He attended an interview with the delegate in relation to his SHEV application on 20 November 2015.

4    The appellant claimed to fear harm at the hands of the Sri Lankan authorities, including the Criminal Investigation Department (CID) of the Sri Lanka Police, on account of his Tamil ethnicity and his alleged political activities as a member of the Tamil United Liberation Front (TULF).

5    In relation to his political activities, the appellant claimed to have been associated with the TULF since 2001, and to have become an active member in 2005. He stated he started working full time for the TULF in January 2011 and campaigned before the local council (district) election in May 2011. This involved him walking around the local neighbourhood and talking to people about the TULF and what the party would do if it won the election.

6    The delegate referred to the fact that the appellant had provided inconsistent details about his involvement with the TULF across his arrival interview, SHEV interview and in his two statutory declarations. At [68]-[71] of her decision record, the delegate stated:

68.     The applicant claims to have supported the Tamil United Liberation Front (TULF) party, working for the party during the Provincial Council elections, however inconsistent details have been provided by the applicant across his Arrival interview, Statutory Declarations and Safe Haven Enterprise visa interview.

69.    As part of his Arrival interview, the applicant claimed he joined the ‘Thamilar Viduthalai Group’ in 2009 following his boss being shot and killed by an opposition group. In his Statutory Declaration dated 1 August 2013, the applicant notes that in 2001, his boss … who was the then president of the “Tamil Viduthalai Kuttani Party” an opposition party to the Tamil National Alliance, was killed.

70.     At his Safe Haven Enterprise visa interview, when further questioned in regards to his employment history, he claimed he continued to work in the store following his boss’s death (in 2001) until 2006. In 2006, the applicant stated he worked part time for a similar business, as a storekeeper until he left for Australia in 2012. As part of his Safe Haven Enterprise visa application submitted to the department on 11 September 2015, the applicant’s Statutory Declaration notes; “In 2001 my boss … was shot as he was part of a political group (Thamilar Viduthalai Kootani or Thamilar Viduthalai Group (TVG), also known as the Tamil People’s Liberation Coalition”.

71.     In his Statutory Declaration submitted with his Protection visa application dated I August 2013, the applicant states “I supported and then worked for the Tamil Viduthalai Kuttani Party, an opposition party ‘in’ the Tamil National Alliance”. When questioned during his Biodata interview on 22 August 2012, why he was seeking protection in Australia, the applicant’s response recorded is due to his work for the [Tamil National Alliance]. In the applicant’s entry interview on 16/01/2013, the applicant stated he had been working for the ‘Thamilar Viduthalai Group’. At the Safe Haven Enterprise visa interview, the applicant presented supporting documents that he was a member and supporter of the ‘Tamil United Liberation Front’.

7    After the SHEV interview, the delegate wrote to the appellant on 14 January 2016 requesting additional information regarding his political activities. The appellant responded to the delegate’s request by email on 28 January 2016, stating:

    he had been a supporter of the TULF (also known as the “Thamilar Viduthalai Kootani”) from 2001 to 2012;

    he had never worked for the Tamil National Alliance (TNA); and

    he had not supported any other political parties during the period 2001 to 2012.

8    He explained that the discrepancies identified by the delegate were attributable to translation difficulties. He stated:

As a person with very limited English, I used my native Tamil language in interviews which were translated into English by translators and my situation was further aggravated by signing the translated texts without the capacity to check the correctness of the translations.

9    The delegate accepted that “the discrepancies in earlier interviews were due in part to misinterpretation or transliteration”. She found that references made by the appellant to “Thamilar Viduthalai Kootani” and “Thamilar Viduthalai Group” were properly to be understood as references to the TULF.

10    The delegate made a number of adverse findings in relation to the appellant’s claimed involvement with the TULF at [75]-[92] of her decision. At [84], the delegate found the appellant was unable to demonstrate a level of knowledge of the TULF that “one would expect of someone who had been involved within a political party, as claimed, from 2001-2012”. At [88], she found the appellant was unable to demonstrate past involvement in the TULF (actual or perceived) which would be likely to bring him to the adverse attention of the Sri Lankan authorities. Accordingly, she did not accept that the appellant had ever campaigned on behalf of the TULF, or that he had been a member of the TULF at any time.

11    The delegate’s reasons included:

81.    At his Safe Haven Enterprise visa interview, the applicant was questioned in regards to the origins of the TULF. The applicant stated that he was unaware of when the party was formed, however believed that it originated in Jaffna. The applicant stated that he joined the party in 2005; when the party’s leader was V. Anandasangaree and that the TULF went on to win the 2006 “Valikamam” electorate local council elections. At the Safe Haven Enterprise visa interview, the applicant did not provide information of significant changes within the TULF in January 2006, where the Anandasangaree wing (of the TULF), the anti-LTTE faction of the Eelam People’s Revolutionary Liberation Front (EPRLF), and the People’s Liberation Organization of Tamil Eelam (PLOTE,) formed a new Tamil electoral alliance, the Tamil Democratic National Alliance, to compete in regional elections.

…

83.    … At interview the applicant demonstrated a basic knowledge of the party’s policies and provided information on broad initiatives of the TULF party’s [sic] including the provision of assistance to displaced persons and those affected by internal conflict.

84.    I find the applicant was unable to demonstrate a level of knowledge regarding the party that one would expect of someone who had been involved within a political party, as claimed, from 2001-2012. At interview the applicant was not able to describe the party’s policies beyond basic statements nor was he able to provide any details of dates, times or significant incidents of note as a result of his participation in political protests against the government. Significant to this, various country information details the TULF party’s history in being the first Tamil political party to hold post since Sri Lanka’s Independence. In the 1977 parliamentary elections (held under the 1972 Constitution), the Tamil United Liberation Front (TULF) won 18 seats and its leader A. Amirthalingam held the post till 1983. Furthermore this electoral victory sparked anti-Tamil riots leaving more than 100 Tamils dead, and the destruction of sixteen places of worship. Ethnic tensions and violence continued following the election, leading to 13 soliders [sic] being killed in an LTTE ambush, resulting in anti-Tamil riots in 1983 which comes to be known as ‘Black July’ and is the start of what the Tigers call the ‘First Eelam War’. In 2001, the TULF was the prime mover in the formation of the TNA, which ran under the symbol of the TULF’s “rising sun” in opposition to President Kumaratunga. Following this election the TNA changed to run under the Sri Lankan Tamil Government Party (Ilankai Tamil Arasu Kachchi – ITAK) an original component of the TULF that had been revived due to an interparty split. Due to a leadership dispute the TULF did not contest the 2004 parliamentary elections. V. Anandasangaree offered a slate of independent candidates however won no seats.

…

87.    Giving regard to the conflicting statements provided by the applicant during his Arrival interview, Statutory Declarations, and Safe Haven-Enterprise visa interview, particularly in relation to the period of his involvement in the party, I have concerns in regards to the credibility of the applicant’s claims in regards to his involvement within the TULF party.

88.     The applicant lacked credible knowledge regarding the TULF’s party history, policies and stratagem that one would expect from political member of 10 years. The applicant has a broad knowledge of the TULF party, however was unable to demonstrate past involvement in the TULF (actual or perceived) which would likely to bring him to the adverse attention of the Sri Lankan authorities. Based on the above, I do not accept the applicant campaigned on behalf of the TULF, nor was he a member at any time of the TULF.

…

90.    As I do not accept the applicant’s assertion that he was a member of the TULF, I do not accept that the applicant was threatened by the CID on three occasions and then detained on 20 July 2012 on the basis of his work for the TULF political party.

12    The appellant also claimed to fear harm at the hands of the Sri Lankan authorities, including the Eelam People’s Democratic Party (EPDP), on the basis of his Tamil ethnicity. Based on the country information before her, the delegate was not satisfied the appellant had a well-founded fear of returning to Sri Lanka on the basis of his Tamil ethnicity. She considered the chance of the appellant facing serious harm from the EPDP if returned was remote. She also considered, and rejected, an “implicit claim” that the appellant feared harm on the basis of his religion as a Catholic.

13    Ultimately, the delegate was not satisfied that the appellant was a person to whom Australia owed protection obligations under ss 36(2)(a) or (aa) of the Act. Accordingly, she notified the appellant of her decision to refuse the appellant’s SHEV application on 5 May 2016.

Authority’s decision

14    The delegate’s decision was automatically referred to the Authority for review under Part 7AA of the Act on 6 May 2018.

15    In conducting its review, the Authority had regard to the material referred to it by the Secretary of the Department of Immigration and Border Protection under s 473CB of the Act. It is common ground that the sound recording of the appellant’s SHEV interview with the delegate on 20 November 2015 formed a part of the Part 7AA “review material”.

16    At the hearing of the appeal, I granted leave for the parties to file a document containing an agreed transcript of the sound recording of the SHEV interview, assuming the parties could so agree. The circumstances for this are referred to in more detail below. An agreed transcript containing a record of what was said by the interviewing officer (O), the appellant (A) and the interpreter (INT) was filed on 3 September 2018. Relevantly, the transcript showed the following exchange between the delegate and the appellant:

O:     So with your statement of claims you’ve put in reasons here in regards to the events that were leading up to you departing Sri Lanka. And that was in regards to your involvement with the Tamil United Liberation Front. So what I’d like you to do for starters, is to give me a history of the actual Tamil party, what it stands for and your knowledge about that actual political party.

A:    It’s a political party. Ok… This party, the Tamil United Liberation Front (TULF – T-U-L-F) works for the welfare of the Tamils who have been affected by internal conflict in the country for a long time.

INT:    That’s everything or you want any more information on that?

O:    Ahh, yeh, so, is that …

INT:    That’s the policy of the party.

O:     Ok so…

INT:    The welfare of the party… the members who have been affected by internal conflict.

O:    Ok, so can you tell me a bit about when it was formed?

A:     I don’t know. I don’t know.

O:     Ok, and, um, where abouts was the party started?

A:     Jaffna.

O:     Jaffna. And how many members does it have?

A:     There’s only 1 person left in the party as at today. There were 45 members then, with the support of the people around.

O:     And so, ahh, did they win… So you’re not sure when they were formed and there was only 45 people in the party. Have they won any local elections?

A:     Yes they have won.

O:     Which elections?

A:     The local council elections.

O:     Which ones?

A:     Valikamam (V-A-L-I-K-A-M-A-M). Yes, yes, Valikamam.

O:    And what year was that?

A:     The election that was held in 2006 with a win.

O:     Ok and so when did you join the party?

A:     2005… and continued to be in the party.

O:     Who was its leader?

A:     His name is V. I’ll spell it for you, A-N-A-N-A-N-T-H-A-S-A-N-K-A-R-I.

O:     Ok so can you just tell me also what were the party’s policies? What were their initiatives?

A:     For service to the, um mass, for service to the people.

O:     Can you provide me with a bit more detail with regards to their social policies or party initiatives?

A:     Resettlement of the displaced people into their own homes. The party would hold discussions with the government to get the army out of the residence of people at their own area. Does this make sense?

O:    Yes.

A:    The party would take it upon itself to have discussions with the related authorities to do some sort of service to the people.

O:     What sort of service?

A:     Helping and assisting the senior citizens, taking them to hospitals, sending them home, shopping. The party reps would hold talks with the army. If anyone was being tortured or detained, etc., and help them in whatever way we can.

O:     Ok and that, was that assisting local people or members of your party that were…?

A:     The party is for the people.

O:     For the people. That means anybody that is in detention or being threatened by the army, your party was representing them?

A:     The assistance is open to the public, not only for the members.

17    In relation to the appellant’s claimed involvement with the TULF, the Authority stated at A[7] to A[11] and A[14]:

7.     At the entry interview and at the SHEV interview, the applicant was inconsistent in the name used to describe the political party to which he claims to have belonged. After the SHEV interview the applicant was asked to clarify in writing the inconsistency and responded that due to his limited English proficiency he was reliant on interpreters at interviews and the discrepancies may have arisen from their lack of contextual knowledge of Sri Lankan politics. I accept that name discrepancies may have been caused by misinterpretation or transliteration and find that for the purposes of my decision, references by the applicant to the Thamilar Viduthalai Kootani or Thamilar Viduthalai Group are references to the Tamil United Liberation Front (TULF).

8.     At the SHEV interview the applicant stated that his involvement with the TULF commenced in 2001 and that in 2005 he became more active and registered with the party. When asked at to explain his role in the TULF, the applicant described it as campaigning, where he would ‘talk to the people for their support and their vote’ and ‘discuss with them about the service and garner their support’. When asked at the SHEV interview to describe the party’s polices and initiatives, the applicant spoke about service to the people, resettlement of displaced persons and helping and assisting senior citizens. The applicant was asked to outline the history of the TULF and what it stands for. In response the applicant stated that it started in Jaffna and works for the welfare of Tamils affected by internal conflict. He stated he did not know when it was formed and that he was unaware of the party’s history.

9.     While the applicant spoke broadly about the TULF’s aims, he did not demonstrate knowledge of the party’s history or any of its milestones, to the extent that would be expected of someone who was involved in a campaigning role and who claims to have been involved from 2001 to 2012. According to country information, the TULF was initially organized as the Tamil Liberation Front in 1976 by a number of Tamil groups, including the Ceylon Workers’ Congress, the All Ceylon Tamil Congress, the lllankai Tamil Arasu Kachchi, the National Liberation Front and the Muslim United Front. The TULF Secretary General was killed and the party President seriously wounded in a July 1989 attack attributed by some reports to a ‘rogue cell’ of the LTTE. In October 2000 it won five seats in Parliament and in 2001 it was a prime mover in forming the TNA in opposition to President Kumaratunga. If the applicant had been involved with the TULF from 2001 to 2012 to the extent that he claims, I consider it reasonable to expect that he would articulate some of these key events. As he did not, I do not accept as credible the applicant’s claimed involvement with the TULF. I find that the applicant was not a member of or involved with the TULF, as claimed and did not campaign on behalf of the TULF in elections.

10.     I note that the applicant has provided an undated letter of support purportedly signed by the Secretary General of the TULF attesting to the applicant’s TULF membership, describing him as ‘one of our longstanding active members in our party’ who has done ‘his utmost services to the entire satisfaction of the superiors of the party’. Country information from DFAT and the UK Home Office is that document fraud is prevalent in Sri Lanka. After considering my concerns about the credibility of applicant’s claimed involvement with the TULF, together with the prevalence of document fraud in Sri Lanka, I place little weight on this letter as evidence of the applicant’s membership of or involvement with the TULF.

CID threats

11.     The applicant claims that due to his TULF activities, he was harassed by CID officers. He claims also to have been beaten and kicked by CID officers who abducted him and took him to an abandoned railway station. I have found that the applicant was not a member of the TULF, as claimed and did not campaign on behalf of the TULF in elections. In light of this I do not accept that he was of any interest to the Sri Lankan authorities, including the CID, due to claimed TULF activities …

14.    I have found that the applicant was not a member of or involved with the TULF, as claimed and that he did not campaign on behalf of the TULF in elections. In light of this I have found that he was not of any interest to the Sri Lankan authorities, including the CID, due to claimed TULF activities. As a result I do not consider that the applicant has a well-founded fear of persecution from the Sri Lankan authorities, including the CID.

18    The Authority was not satisfied the appellant had a well-founded fear of persecution from the Sri Lankan authorities, including the CID, due to his claimed TULF activities or for any other reason.

19    Further, it did not accept that, as a necessary and foreseeable consequence of the appellant being returned to Sri Lanka, he would face a real risk of significant harm from the Sri Lankan authorities, including the CID, due to his claimed TULF activities or for any other reason. Accordingly, the Authority notified the appellant of its decision to affirm the delegate’s decision on 29 June 2016.

Federal Circuit Court’s decision

20    The appellant filed an application for judicial review in the Federal Circuit Court on 20 July 2016. The application identified the following grounds of review:

1.    Jurisdictional error.

2.    Bias based on conscious or unconscious prejudice by ignoring relevant materials.

3.    Identifying a wrong issue on a wrong question.

21    The appellant also filed an affidavit affirmed on 17 July 2018, which included:

I.    I am the Applicant in this case for judicial review from the decision of the Immigration Assessment Authority dated 29th June 2016 which is attached as document I.

II.    The said Immigration Assessment Authority made a judicial error by not following the correct procedure by failing to pay due diligence in not examining the evidence in relation to my credibility and in relation to the real situation faced by Tamils in Sri Lanka especially in the north and east of the country.

22    Annexed to the appellant’s affidavit were two media articles, dated 7 May 2016 and 10 May 2016, describing statements made by United Nations officials regarding torture in Sri Lanka, and an excerpt from the Prevention of Terrorism (Temporary Provisions) Act 1979 (Sri Lanka).

23    On 4 August 2016, the Minister filed a response to the application opposing the relief sought on the basis that the application did not establish any jurisdictional error in the decision of the Authority.

24    On 5 December 2016, the appellant filed an amended application, which was evidently prepared with the assistance of a lawyer. The amended application advanced a single ground of review:

The Immigration Assessment Authority’s (IAA) decision was vitiated by jurisdictional error in that the IAA, in reasoning that because the Appellant did not reflect the ‘history and milestones’ of the Tamil United Liberation Front … from 1976 to 2001 described in country information, the Appellant’s claim to membership of the TULF was not credible, and that a letter purporting to be from the TULF corroborating the Appellant’s membership could be given little or no weight, went about its task irrationally or illogically, and denied the Appellant procedural fairness.

Particulars

1.1    The Appellant’s central claim was that he had been an active member of the TULF from 2005, and associated with the TULF from 2001.

1.2     The Appellant was asked at interview a range of questions about the TULF, to which the Appellant gave an account of the TULF’s contemporaneous activities and its purpose, for the period in which he claimed to have been involved. To the question ‘when was [TULF] formed?’, the Appellant answered he did not know.

1.2     [sic] The IAA found the claim to be not credible because the Appellant did not demonstrate ‘knowledge of the party’s history or any of its milestones [from 1976 to 2001], to the extent that would be expected of someone who was involved’ in the TULF between 2001 and 2012, where the Appellant had simply been asked, and said he did not know, when the TULF was founded, and otherwise gave an account of the contemporaneous activities and purpose of the TULF.

1.3     The IAA then reasoned that because the Appellant’s claim to membership of the TULF was not credible, that a letter purporting to be from the TULF corroborating the Appellant’s claim could be given no or ‘little’ weight in light of general country information that document fraud is prevalent in Sri Lanka.

25    The amended application was supported by an affidavit affirmed by the appellant on 2 December 2016. Annexed to that affidavit was a transcript of the sound recording of the appellant’s interview with the delegate on 20 November 2015. The affidavit and transcript were admitted over objection from the Minister: J[8]. The objection was apparently taken on the basis that the delegate’s decision was not the subject of review. It was not suggested before the Federal Circuit Court that the transcript was in any way inaccurate. The Federal Circuit Court admitted the affidavit on the basis that it “was simply evidence that the IAA was permitted to, and did, assess”. It is difficult to see that it was appropriate to make the objection on the basis that it was made. The sound recording formed part of the “review material” and was clearly directly relevant to the ground of review put forward by the appellant. Indeed, it is difficult to see how the appellant could have made out his case for jurisdictional error without either the transcript or the sound recording in light of the particulars. Part 7AA contemplates a limited form of merits review to be conducted on the “review material” and without interviewing the “referred applicant” except in the exceptional situations provided for in Part 7AA. It was not appropriate to have sought to keep out a central part of the “review material” by objecting to the transcript.

26    As mentioned, an agreed transcript was filed on 3 September 2018. This arose because the Minister did not accept, on appeal, that the transcript was accurate. The Minister had not checked the transcript against the sound recording, either for the purposes of the judicial review application before the Federal Circuit Court or the appeal to this Court. Given the central role of the SHEV interview to the question of whether the Authority erred in a way which amounted to jurisdictional error, the Court allowed the parties to seek to reach agreement as to the content of the sound recording before the Authority by filing an agreed transcript if agreement could be reached.

27    At J[12], the Federal Circuit Court identified the question before it in the following terms:

The question then, before this Court, is did the IAA engage in some sort of jurisdictional error in doing what it did. Having regard to the amended grounds of review and the applicant’s written submissions, what this Court is being asked to do is determine whether the IAA engaged in some sort of jurisdictional error when it considered whether the applicant was a member of the TULF – as its ultimate rejection of the applicant’s claims and other evidence (in particular, a letter from a senior member within the TULF that the applicant says is proof of his membership) was done on the basis that he was not a member of the TULF.

28    The Federal Circuit Court summarised the statutory scheme under Part 7AA of the Act, pursuant to which the Authority was required to conduct its fast track review of the delegate’s decision. It then set out the Authority’s summary of the appellant’s claims at A[5], and the Authority’s findings at A[7] to A[11] in relation to the appellant’s involvement in the TULF (reproduced at [17] above). At J[23], the Federal Circuit Court quoted the Authority’s findings at A[14] (also reproduced at [17] above).

29    The appellant’s case before the Federal Circuit Court was that the Authority’s findings in relation to his involvement in the TULF were illogical and irrational, in the way identified in the particulars to ground 1, and thus affected by jurisdictional error.

30    The Federal Circuit Court found there was no jurisdictional error on the part of the Authority. At J[33] to J[35], the primary judge stated:

33.    In relation to the IAA’s assessment of the applicant’s involvement in the TULF and the credibility findings that flow from an assessment of whether the applicant was actually involved in the TULF, and noting that this application is a fast-track application, what the IAA did here was entirely reasonable in light of the evidence before it. The applicant here claimed to be an active member of the TULF for more than a decade. He also claimed to have campaigned for the TULF. That evidence stood next to country information that revealed an organisation of prominence in Sri Lanka. To paraphrase Jacobson J in Minister for Immigration & Citizenship v SZOCT [2010] FCAFC 159 at paragraph 65, the IAA took all of this evidence and then took the pragmatic approach of assessing whether the level of knowledge actually displayed by the applicant corresponded with the level of knowledge likely to be possessed by a person who, like the applicant, claimed to be an active member of the TULF and, importantly, whether the level of knowledge disclosed gave support to the applicant’s claims or, alternatively, suggested that he should be disbelieved. Here, on the evidence, the applicant was disbelieved. He was disbelieved because of his own evidence. This is best evidenced when the IAA says:

If the applicant had been involved with the TULF from 2001 to 2012 to the extent that he claims, I consider it reasonable to expect that he would articulate some of these key events.

34.     I find that there was a rational and logical connection between the IAA’s assessment of the applicant’s credit and the material upon which it relied to make that assessment. The IAA relied on the applicant’s own evidence of active involvement and the relevant country information and then assessed the significance of the applicant’s actual knowledge of the TULF. It found the applicant lacking in this regard. In so doing, the IAA conducted a legitimate exploration. It did not make a determination by reference to a preconceived minimum standard of knowledge.

35.     The IAA did not find that all people who say they belong to the TULF should know everything about that organisation. Rather, it found that someone, like the applicant, whose own evidence was that he was “active” in the TULF might reasonably be expected to know more about the organisation than the applicant ultimately claimed to. An assessment was made that the applicant was not credible and did not belong to the TULF. This credibility finding then allowed the Tribunal, rightly so, to reject the letter that purported to evidence his involvement in the TULF. It was entirely open to the IAA to reason that the applicant’s credibility was so damaged that the letter could also be rejected on the basis that it was fabricated.

THE APPEAL

31    The notice of appeal advanced a single ground of appeal. It was in substantially the same form as the ground advanced before the Federal Circuit Court:

The Federal Circuit Court erred in not finding that the Immigration Assessment Authority’s (IAA) decision was vitiated by jurisdictional error where the IAA, in reasoning that because the Appellant did not reflect the ‘history and milestones’ of the Tamil United Liberation Front (Tamil United Liberation Front) from 1976 to 2001 described in country information, the Appellant’s claim to membership of the TULF was not credible, and that a letter purporting to be from the TULF corroborating the Appellant’s membership could be given little or no weight, went about its task irrationally or illogically, or denied the Appellant procedural fairness.

Particulars

1.1     The axis of the Appellant’s claim was that he had been peripherally associated with the TULF from 2001, but an active member of the TULF from 2005.

1.2     The Appellant was asked at interview a range of questions about the TULF, to which the Appellant gave an account of the TULF’s contemporaneous purpose, leadership, composition and activities, for the period in which he claimed to have been involved. To the question ‘when was [the TULF] formed?’, the Appellant answered he did not know.

1.3     The IAA found the claim to be not credible because the Appellant did not demonstrate ‘knowledge of the party’s history or any of its milestones [from 1976 to 2001], to the extent that would be expected of someone who was involved’ in the TULF between 2001 and 2012, where the Appellant had simply been asked, and said he did not know, when the TULF was founded.

1.4     The IAA reasoned that the Appellant’s claim to membership of the TULF was not credible, that therefore a letter purporting to be from the TULF corroborating the Appellant’s claim could be given little or no weight in light of general country information that document fraud is prevalent in Sri Lanka.

1.5     Where there was an account of the contemporaneous leadership, composition and activities of the TULF satisfactory to the IAA, there was no logical connection between an absence of knowledge about the ‘history and milestones’ of the TULF almost three decades before the Appellant’s claimed involvement with the group and the finding that that the Appellant had therefore fabricated his claim to TULF membership.

1.6     Nor was there any evidentiary foundation for the latent premise that a person involved with the TULF would have the knowledge implicitly attributed to them by the IAA. The Appellant, a shopkeeper with a rudimentary education, did not claim to be a political historian.

32    On the hearing of the appeal, the appellant also accepted it was a part of his case that the last sentence of A[8] of the Authority’s reasons contained a finding which was unsupported by the “review material” before the Authority: the appellant had never stated he was “unaware of the party’s history”. This matter does not appear to have been pointed out to the primary judge.

33    The Authority’s adverse credibility findings, and its conclusion that the appellant’s demonstrated knowledge of the TULF party’s history from 1976 to 2001 was less than it should be, were materially based on its view that the appellant had stated he was unaware of the party’s history. The last sentence of A[8] was:

He stated he did not know when it [the TULF] was formed and that he was unaware of the party’s history.

34    The only evidence capable of supporting the Authority’s finding that the appellant stated he was unaware of the party’s history was the sound recording of the SHEV interview. The Minister did not identify any other material supporting that finding. The agreed transcript of the sound recording contained:

O:     So with your statement of claims you’ve put in reasons here in regards to the events that were leading up to you departing Sri Lanka. And that was in regards to your involvement with the Tamil United Liberation Front. So what I’d like you to do for starters, is to give me a history of the actual Tamil party, what it stands for and your knowledge about that actual political party.

A:    It’s a political party. Ok… This party, the Tamil United Liberation Front (TULF – T-U-L-F) works for the welfare of the Tamils who have been affected by internal conflict in the country for a long time.

INT:    That’s everything or you want any more information on that?

O:    Ahh, yeh, so, is that …

INT:    That’s the policy of the party.

O:     Ok so…

INT:    The welfare of the party… the members who have been affected by internal conflict.

O:    Ok, so can you tell me a bit about when it was formed?

A:     I don’t know. I don’t know.

35    As the above extract demonstrates, the delegate asked the appellant to provide a history of the TULF. The transcript demonstrates that this exchange was the only time the delegate directly raised the history of the TULF with the appellant. In the same sentence, she also asked the appellant for information about the policies of the TULF and other information. Perhaps understandably, the appellant responded to this broad question by offering broad information:

It’s a political party. Ok… This party, the Tamil United Liberation Front (TULF – T-U-L-F) works for the welfare of the Tamils who have been affected by internal conflict in the country for a long time.

36    The following exchange then occurred:

INT:    That’s everything or you want any more information on that?

O:    Ahh, yeh, so, is that …

INT:    That’s the policy of the party.

O:     Ok so…

INT:    The welfare of the party… the members who have been affected by internal conflict.

37    The delegate proceeded to ask individual questions. The first was:

Ok, so can you tell me a bit about when it was formed?

38    The appellant responded that he did not know. The delegate then proceeded to ask the appellant where the party was formed, to which the appellant answered, “Jaffna”. The delegate’s remaining questions were substantially directed to the appellant’s knowledge of the party’s policy initiatives, its membership and electoral successes. These questions were answered. The party’s past history was not revisited. In particular, the history of the party from 1976 to 2001 was not the subject of a single question.

39    Contrary to the last sentence of A[8], the appellant at no point stated he was unaware of the party’s history. There was no evidence before the Authority reasonably capable of supporting such a finding. It is true that the appellant did not outline the party’s history but the Authority’s conclusion just identified was that he positively stated he was unaware of it. If it had not made that error, the Authority may have found that the lack of detail provided by the appellant as to the party’s history was explained by the course of (and lack of) questioning. It did not consider that because it erroneously assumed that the appellant had stated he was unaware of the party’s history.

40    Immediately after reaching the erroneous conclusion in the last sentence of A[8], the Authority found at A[9] that the appellant “did not demonstrate knowledge of the party’s history or any of its milestones to the extent that would be expected of someone who was involved in a campaigning role and who claims to have been involved from 2001 to 2012”. The Authority then listed three events from 1976 to 2001 in the history of the TULF, which it apparently considered a person in the appellant’s position should have known and described in the course of the interview with the delegate.

41    The Authority’s reasoning in respect of the appellant’s claimed involvement with the TULF was, in summary, as follows:

(1)    First, it noted that the appellant had stated his involvement commenced in 2001 and that, in 2005, he became more active and registered with the party. The Authority stated that he described his role as campaigning and described the party’s polices and initiatives, in terms of service to the people, resettlement of displaced persons and helping and assisting senior citizens: at A[8].

(2)    Secondly, the Authority recorded that the appellant was asked to outline the history of the TULF and what it stood for and that, in response, the appellant stated that it started in Jaffna and worked for the welfare of Tamils affected by internal conflict: at A[8].

(3)    Thirdly, the Authority stated that the appellant had said he did not know when it was formed and that he was unaware of the party’s history: at A[8].

(4)    Fourthly, the Authority stated that the appellant spoke broadly about the TULF’s aims, but “did not demonstrate knowledge of the party’s history or any of its milestones, to the extent that would be expected of someone who was involved in a campaigning role and who claims to have been involved from 2001 to 2012”: at A[9].

42    As to the first matter above, although not referred to by the Authority, the two statutory declarations of the appellant contained in the “review material” stated that the appellant only started working full-time for the party in January 2011 and the relevant campaigning occurred in the lead up to elections in May 2011. He did not state otherwise at the SHEV interview. The Authority’s conclusion might be read as suggesting a lengthier campaigning role.

43    As to the second and third matters stated above:

(1)    whilst the appellant did not know when the party was formed, he did not state that he was unaware of the history of the TULF party at the SHEV interview and there was no basis for the Authority’s conclusion that the appellant had stated that he was unaware of that history;

(2)    whilst the appellant was asked about the party’s history at the SHEV interview, it was as part of a rolled up question and clarification was sought as to whether more information was required (whether everything in the broad question had been answered) which resulted in the delegate asking individual questions which did not address historical events between 1976 and 2001.

44    As to the fourth matter above, the “history and milestones” referred to by the Authority about which the appellant did not demonstrate a knowledge were the following three:

(1)    The TULF was initially organized as the Tamil Liberation Front in 1976 by a number of Tamil groups, including the Ceylon Workers’ Congress, the All Ceylon Tamil Congress, the Illankai Tamil Arasu Kachchi, the National Liberation Front and the Muslim United Front.

(2)    The TULF Secretary General was killed and the party President seriously wounded in a July 1989 attack attributed by some reports to a ‘rogue cell’ of the LTTE.

(3)    In October 2000 the party won five seats in Parliament and in 2001 it was a prime mover in forming the TNA in opposition to President Kumaratunga.

45    The Authority reasoned that “[i]f the [appellant] had been involved with the TULF from 2001 to 2012 to the extent that he claims, I consider it reasonable to expect that he would articulate some of these key events”. It then stated:

As he did not, I do not accept as credible the applicant’s claimed involvement with the TULF. I find that the applicant was not a member of or involved with the TULF, as claimed and did not campaign on behalf of the TULF in elections.

46    In many cases, a decision-maker’s reasoning on a particular issue can be seen to stand independently of its reasoning on another issue, whether the issue is one of credibility or not. Where a finding is made that a person has been dishonest on a particular issue, it is not difficult to see that such a conclusion may affect, consciously or subconsciously, the decision-maker’s assessment of credibility in relation to other issues. This was explained by Lee J in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [45]:

To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved is, to my mind, to underplay the complexity of the anatomy of decision-making. As Kirby J observed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 23 [81]:

…decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.

47    The same can be true where a decision-maker proceeds on a wrong finding of fact, particularly where that wrong finding of fact informs a credibility finding which in turn informs findings in relation to other facts. The Authority’s finding at A[9] that the appellant “did not demonstrate knowledge of the party’s history or any of its milestones, to the extent that would be expected of someone who was involved in a campaigning role and who claims to have been involved from 2001 to 2012” followed immediately after the incorrect finding at A[8] that the appellant had stated he was unaware of the party’s history. The appellant had never stated he was unaware of the party’s history and it was apparent on the material before the Authority that he had never been asked, at least in a fair way, to explain the history of the TULF. The conclusion at A[9], set out above, did not stand independently of its incorrect factual conclusion at A[8].

48    Even if the Authority did not approach its consideration of the appellant’s knowledge of TULF history from 1976 to 2001 with the incorrect understanding that the appellant had stated he was unaware of the party’s history, there were deficiencies in its reasoning.

49    In Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362, Kenny J addressed the question of whether jurisdictional error might arise in applying an “arbitrary standard” of knowledge which a person must have in order to be found to be a follower of a religion. If a decision-maker relies on a premise that every follower of a particular religion must have a certain knowledge or provide certain answers concerning an aspect of a religion, it may fail to engage with the question whether the particular applicant before it is in fact a follower of the religion. Her Honour noted at [37] that there is a difference between (emphasis in original):

(a)     operating from the premise that all believers will have certain specific knowledge; and

(b)    concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant’s lack of knowledge indicates that he is not a genuine adherent of a religion.

50    Her Honour cautioned, again at [37]:

Further, it must be remembered that the Tribunal’s written reasons typically represent a Tribunal’s concluded view after considering all the evidence. If a Tribunal ultimately finds that an applicant’s lack of particular knowledge is a reason to reject his claim, this finding does not necessarily mean that the Tribunal approached the matter from the outset on the a priori basis that the applicant was required to demonstrate that knowledge.

51    SZLSP was considered in Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577. The issue in that case was whether the evaluation of answers to questions given by the appellant on the topic of his knowledge of Christianity gave rise to jurisdictional error in the Tribunal’s determination. Jacobson J (who dissented in the result) summarised the principles as follows:

5.    A number of Full Courts of the Federal Court have considered the question of the standard of knowledge which the Tribunal is entitled to expect from, and explore with, applicants for protection visas. The relevant passages from the judgments are set out and discussed by Buchanan J.

6.    There are four essential principles which are relevant to the disposition of the appeal. Without seeking to depart from his Honour’s statement of the principles or the full exposition of the principles in the various authorities, I will endeavour to encapsulate them as follows.

7.    First, where an applicant applies for a protection visa on the ground of a well-founded fear of persecution by reason of religion, it is permissible for the Tribunal to explore the level of his or her knowledge and understanding of the religion: SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [45].

8.    Second, if the Tribunal questions the applicant about his or her beliefs, it is permissible for it to evaluate the applicant’s answers against probative material which evinces the doctrines of the religion. The weight to be given to the evaluation will ordinarily be a matter for the Tribunal: Minister for Immigration and Citizenship v SZLSP (2010) 272 ALR 115 (“SZLSP”) at [38].

9.    Third, where the Tribunal rejects an applicant’s claim to be a follower of a particular religion, there must be a sufficiently disclosed rational basis for concluding that the elements of which the applicant was ignorant were elements that an adherent to the religion might reasonably be expected to know: SZLSP at [39].

10.    Fourth, where the Tribunal’s rejection of the claim is based upon an evaluation of the way in which the applicant has expressed himself, or herself, on matters of emphasis or detail of the particular religion, the issue is a difficult one: SZLSP at [39]. The principle which appears to follow from the Full Court authorities, and from recent High Court authority referred to in [64] of the reasons of Buchanan J, is that the decision may be affected by jurisdictional error if it reveals a sufficient lack of rational or logical connection between the Tribunal’s assessment of the applicant’s credit and the material upon which it relied to make that assessment.

52    His Honour concluded that the first two principles (at [7] and [8] of his reasons) were satisfied in the case before him. His Honour concluded, however, at [22] to [24] (in passages quoted in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 at [48]):

22    The vice in the Tribunal’s reasons for failing to reach the necessary state of satisfaction is that there is, in my opinion, no rational or logical connection between an assessment of the visa applicant’s failure to reveal an encyclopaedic knowledge of verses from the Bible and what might be expected from a person who believed in and practiced Christianity in China between 2004 and 2008.

23    Nor, in my opinion, is the Tribunal’s finding based on any probative material in the sense referred to in the High Court authorities to which I have referred. This can be tested by asking whether there is any probative material disclosed in the Tribunal’s reasons to support its conclusion that it was not satisfied that he had a level of knowledge of the Bible that a person might reasonably be expected to have if they had been a believer in, or practitioner of Christianity in China during the period in question.

24    The approach taken by the Tribunal was not merely to make itself the arbiter of doctrine with respect to Christianity, but the arbiter of the level of knowledge to be expected by one who claimed to have practised Christianity in China from 2004 to 2008. There was no probative material put forward by the Tribunal to suggest any basis for its ability to fulfil that role.

53    Buchanan J, in the passage referred to by the primary judge in the present case, stated at [65]:

65    … However, in the present case the question under examination was whether the respondent’s claim to have been a practising Christian in China should be accepted … The way in which the question was examined by the RRT does not appear to me to have been whether the respondent’s knowledge of the Bible corresponded to some “particular level of doctrinal knowledge to justify being regarded as a Christian” … but was, rather, the more pragmatic approach of assessing whether the level of knowledge actually displayed by the respondent corresponded with the level of knowledge likely to be possessed by a person who had (as he claimed) studied the Bible two or three times a week in China over a period of four years (and nearly every day in Australia) and whether the level of knowledge disclosed gave support to the respondent’s claims or, alternatively, suggested that he should be disbelieved. Despite any criticisms which might be available about the approach taken by the RRT, in my respectful view the matters examined by the RRT were legitimate ones in the circumstances. The RRT did not ask itself the wrong question. It did not constructively fail to exercise its jurisdiction. There was a rational and logical connection between the respondent’s answers and the RRT’s assessment about the level of his knowledge, and between that assessment and the RRT’s conclusion that he was untruthful in his claim to have been a practising Christian in China.

54    Nicholas J agreed in the result with Buchanan J. His agreement was based on his conclusion that there were three other matters relevant to credibility (apart from the appellant’s inability to recite passages from the Bible from memory) which supported the Tribunal’s adverse credibility finding: SZOCT at [75]-[79]. However, significantly for present purposes, Nicholas J stated:

80    I respectfully agree with Jacobson J that it could not be logically or rationally concluded on the basis of the Tribunal’s exploration of the respondent’s knowledge of the Bible at the Tribunal hearing that the respondent did not have a level of knowledge which might reasonably be expected of a person who had believed in and practiced Christianity in China between 2004 and 2008. There are two further matters to which I would also refer in support of that conclusion.

…

82    The Tribunal stated (at para [74]) that the respondent “knew parts of a few stories from the Bible”. The implication seems to be that this was all the respondent knew. But the Tribunal did not explore the respondent’s knowledge of the Bible in any general sense. Rather, as the judgment of Buchanan J demonstrates, it tested the respondent on his ability to recite particular passages from memory. The idea that the respondent knew only parts of a few stories from the Bible had no evidentiary foundation in the material before the Tribunal.

83    If the Tribunal’s lack of satisfaction that the respondent was a person to whom Australia owed protection obligations was based on its assessment of the extent of the respondent’s knowledge of the Bible when compared to what might reasonably be expected of a person who believed in and practiced Christianity in China from 2004 until 2008, I would readily agree with Jacobson J that the Tribunal’s decision could not be permitted to stand. However, as its reasons for decision make clear, there were other matters which led the Tribunal to find that the respondent was not a credible witness. It drew upon these “singularly and cumulatively” in support of that finding.

55    SZLSP and SZOCT concerned a Tribunal’s testing of religious beliefs. However, the underlying point is not so confined – see: MZZJO at [47].

56    In both SZLSP and SZOCT the appellant was in fact tested in relation to the relevant matters before being found by the decision-maker to be wanting. Here the appellant was not tested by the delegate on his knowledge of TULF history from 1976 to 2001 in any fair way – the history of the TULF was asked about once, in a rolled up question, and clarification was sought as to whether the rolled up question had been sufficiently answered before the delegate proceeded to ask individual questions which did not test the appellant’s knowledge of TULF history from 1976 to 2001.

57    The Authority’s decision was affected by jurisdictional error. First, it found as a fact that the appellant had stated he was unaware of the TULF party’s history. He did not. The making of a critical finding of fact without probative evidence can give rise to jurisdictional error: SZNKV v Minister for Immigration and Citizenship (2010) 118 ALD 232 at [38] (Kenny J). Here the finding of fact was sufficiently material to result in the Authority’s decision being affected by jurisdictional error.

58    This error can be characterised in other ways:

(1)    a critical or dispositive finding of fact which is unsupported by probative material may be characterised as involving reasoning which is irrational or illogical such as to give rise to jurisdictional error in the way contemplated by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130];

(2)    a fundamental misunderstanding of the evidence which is sufficiently serious and material to the decision on review may give rise to jurisdictional error: SZSMR v Minister for Immigration and Border Protection [2015] FCA 655 at [56] (Gleeson J); Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309 at [71]-[72] (Griffiths and Moshinsky JJ).

59    Secondly, the Authority’s conclusion that the appellant failed to demonstrate sufficient knowledge of the TULF party’s history from 1976 to 2001 was arbitrary and formed on the basis of illogical reasoning:

(1)    in finding incorrectly and on the basis of no probative material that the appellant had stated he was unaware of the TULF party history;

(2)    without apparently taking into account that part of the “review material” before the Authority which showed that the appellant had not been asked to describe the TULF party history in any real or fair way and had not been questioned about his knowledge of the three events between 1976 and 2001; and

(3)    without considering why or on what reasoned or evidentiary basis a person in the appellant’s claimed position – namely a person who was born in 1976, educated to year 10 level, associated with the TULF from 2001, a member from 2005 and with a campaigning role in 2011 – might reasonably be expected to know the three specific historical events identified as occurring between 1976 and 2001 (as opposed to simply stating that such a person should have known those historical events). There was, for example, no suggestion that the events were notorious or that they were central events analogous to basic doctrine a member of a particular religion might be expected to know; and

(4)    without turning its mind to why the appellant should have demonstrated a knowledge of the particular events identified as having occurred between 1976 and 2001 in the absence of being asked, in any fair way, about the TULF party’s history generally or about the events specifically.

60    Thirdly, the Authority’s conclusions in relation to credibility were affected by the errors identified above. The Authority concluded that the appellant could not be believed in various respects because, contrary to his claim, he had no association whatsoever with the TULF. His association with the TULF was found to be non-existent because he stated he was unaware of the TULF party’s history and failed to demonstrate sufficient knowledge of its history. The adverse credibility finding also informed the Authority’s conclusion that it could not rely on a letter which might have been taken to corroborate his membership of the TULF: A[10].

61    The relevant principles concerning findings as to credit were recently explained by the Full Court of this Court (Kenny, Kerr and Perry JJ) in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] (citations omitted):

(1)    While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review. The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae. In each case it is necessary to analyse in detail what the decision-maker has decided.

(2)    Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis.

62    As Lee J further observed in CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260 at [14]:

In the light of these principles, references to a litany of cases which each turn on their own facts is not a useful exercise. It suffices to note that unwarranted assumptions or factual errors made by a Tribunal, regarding matters which are then relevant to the formation of a view on credibility, can demonstrate error. Equally, error may be found where a process of reasoning is undertaken by material reference to a false premise, which then causes a person’s credibility to be assessed as wanting. See, for example, SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at 126 [37]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at 648-649 [132]-[133].

63    As noted above, here, the adverse view of the appellant’s credibility stems in significant measure from the incorrect finding of fact that the appellant had stated he was unaware of the party’s history. It also stems from the conclusion that the appellant should have, but did not, demonstrate knowledge about matters which occurred from 1976 to 2001, about which he was not questioned in any real or fair way, a conclusion itself informed by the incorrect finding that the appellant had stated he was unaware of the TULF’s history.

64    The errors identified above were material. The Authority rejected that the appellant had any involvement in the TULF, as a member or otherwise. It rejected that he ever campaigned for the TULF. It therefore rejected that he was of any interest to the Sri Lankan authorities due to claimed TULF activities. The errors identified above (in particular at [39], [47], [57], [59] and [60]) were critical to the reason why the Authority rejected the appellant’s claim for protection and sufficiently serious to constitute jurisdictional error.

Conclusion

65    The appeal should be allowed.

Associate:

Dated:    5 September 2018