FEDERAL COURT OF AUSTRALIA
Table of Corrections
At [15(4)], “David Taylor” has been changed to “Daniel Taylor”
IMMIGRATION ASSESSMENT AUTHORITY
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The appeal be dismissed.
3. The appellant pay the first respondent’s costs as assessed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 This is an appeal from orders made by a judge of the Federal Circuit Court of Australia. The primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority. The Authority affirmed a decision of a delegate of the first respondent, then known as the Minister for Immigration and Border Protection, to refuse the grant of a particular type of protection visa known as a Safe Haven Enterprise (subclass 790) visa (SHEV) to the appellant.
2 The appellant seeks leave to rely upon four grounds within a further amended notice of appeal asserting jurisdictional error by the Authority on grounds that were not raised before the primary judge, the balance of the grounds having been quite properly abandoned at the appeal hearing. Broadly speaking, the proposed grounds that were pressed concern interpretation errors that are said to have taken place at the appellant’s entry interview upon arrival in Australia, a recording of which was listened to by the Authority.
3 For the reasons that follow, leave to rely upon the proposed grounds must be refused. Accordingly, the appeal must be dismissed.
4 The appellant is a Hindu Tamil from Western Province in Sri Lanka. On 17 August 2012, he arrived in Australia as an unauthorised maritime arrival. On 11 February 2016, he lodged an application for a SHEV protection visa. He claimed to fear harm on the basis of:
(1) his ethnicity;
(2) his illegal departure from Sri Lanka, and because he will be returning to Sri Lanka after seeking asylum in Australia;
(3) his political activities in support of a particular candidate for the Sinhalese People’s Alliance (PA), referred to as SS, who was opposing another PA candidate referred to as SU; and
(4) relatedly, not being offered any meaningful protection by Sri Lankan authorities from SU if he returns.
5 The only aspects of the appellant’s claims that are relevant to this appeal concern his political activities in support of SS, which give rise to his claim to have a well-founded fear of persecution by SU and SU’s supporters.
6 On 16 November 2016, a delegate of the Minister refused to grant the appellant a protection visa.
7 On 21 November 2016, the delegate’s decision was automatically referred to the Authority for a limited form of review. The Authority conducts reviews of protection visa refusals in relation to “fast track” applicants, being protection visa applicants who arrived by boat after 13 August 2012 and before 1 January 2014. The Authority does not have the power to grant protection visas, but only to either affirm the delegate’s decision or refer the case back to the Minister’s Department for further consideration, for example, after making a finding that the applicant is a refugee.
8 The Authority summarised the appellant’s claims at  as follows:
• The applicant is a Tamil who was born in Kalutra District in the Western Province of Sri Lanka.
• In 1988, due to conflict between Sinhalese and Tamils and an attempted abduction of the applicant’s father, the applicant and his family moved from Kulutra District to Negombo District.
• During the civil conflict period, the applicant and his family were subjected to harassment and “round ups” by the Sri Lankan authorities and taken to the police station where they were questioned before being released.
• In 2011, approximately two months before Election Day on 8 October 2011, the applicant helped SS, a PA candidate by distributing flyers, putting up posters and attending meetings. He also drove SS and his campaign materials to other villages in his van.
• On Election Day, the applicant was at an election booth in Kochchikade in Negombo District handing out pamphlets with other SS supporters when they were threatened and told to leave by supporters of another PA candidate, SU. They did not leave and continued distributing pamphlets. SU’s supporters then left the area but later returned with SU and were armed with machetes and sticks. SU pointed at the applicant and ordered his supporters to attack and kill him. The applicant was injured before he managed to escape the area. The applicant remained in hiding in Kurunegala district until July 2012 when he departed for Australia.
• The applicant fears on return to Sri Lanka he will be harmed on the basis of his ethnicity, his activities in support of SS political campaign, his illegal departure and because he will be returning to Sri Lanka after seeking asylum in Australia. He further fears that due to the entrenched culture of corruption he will not offer any meaningful protection by the Sri Lankan authorities from SU and his supporters.
9 Given the way this appeal unfolded, including a late claim having been made of an error in interpretation at the appellant’s entry interview conducted proximate to the time of his arrival in Australia, it is important to note that the second last dot point above makes reference to the appellant’s claim that he was told to leave an election booth by supporters of SU, and not by SU himself. Of significance to this appeal is that the Authority ultimately found that while the appellant was a low-level supporter of SS, and that incidents of violence had occurred between supporters of SS and supporters of SU during which the appellant was injured, it did not accept that SU had been personally involved, or had any interest in, the appellant.
10 On 23 August 2017, the Authority affirmed the delegate’s decision not to grant the appellant a SHEV protection visa. The appellant subsequently sought judicial review of the Authority’s decision by the Federal Circuit Court of Australia. His application was heard on 1 March 2018. He was represented by direct access counsel. The primary judge dismissed the application with costs on the day of the hearing, giving ex tempore reasons.
11 On 19 March 2018, the appellant filed a notice of appeal to this Court on his own behalf. On 20 April 2018, a registrar of the Court made procedural orders for the preparation of the matter for hearing, including a timetable for the filing and serving of submissions by reference to the appeal hearing date. On the same day, the registrar also listed the appeal for hearing at 10.15 am on 7 August 2018. No submissions were filed by or on behalf of the appellant. On 31 July 2018, the Minister filed written submissions in accordance with the timetable.
12 On Friday, 3 August 2018, a notice of acting for the appellant was filed by a solicitor, who had not previously represented the appellant in relation to this appeal. On Sunday, 5 August 2018, an affidavit from an interpreter was filed on behalf of the appellant by that solicitor. The affidavit deposed to certain interpreting errors having been made in the course of the entry interview on 25 October 2012. As the translation of the entry interview was incomplete, and as there was at least a possibility that there had been a material and hitherto undetected interpretation error, the hearing of the appeal was adjourned and a timetable fixed for the appellant to file and serve all the evidence required to advance his case, along with any proposed further amended notice of appeal (an amended notice of appeal having by then been furnished). That evidence was filed, along with written submissions for the parties, and a proposed further amended notice of appeal.
The proposed grounds of appeal
13 The appellant seeks leave to rely upon grounds 1 to 4 in the proposed further amended notice of appeal, it being common ground that none of those grounds were raised in the Court below. Grounds 5 to 14 were not pressed. The Minister opposes such leave being granted on the basis that there is nothing in the nature of the matters raised that could not have been detected and raised prior to the hearing before the primary judge.
14 The proposed grounds may be summarised as follows:
(1) ground 1 asserts error by the Authority in relying on a statement purported to have been made by the interpreter in the entry interview that “SU chased him with a big knife”, when an examination of the entry interview reveals that the interpreter did not say this;
(2) ground 2 asserts error by the Authority in relying on the entry interview in circumstances where the appellant was effectively prevented at that interview from giving evidence due to significant interpretation errors;
(3) ground 3 asserts error by the Authority in relying on the entry interview on the basis that it should have been apparent to it that there were significant breaches of interview and interpreting standards; and
(4) ground 4 asserts error by the Authority on the basis that, having regard cumulatively to the matters raised in grounds 1 to 3, the Authority made factual and credibility findings that were based on compound errors.
15 Certain passages having been excluded with the agreement of the appellant, the Minister did not oppose the following four supporting affidavits being read on the application for leave, and accepted that they could similarly be read on the appeal proper if leave was granted:
(1) An affidavit of the appellant, affirmed on 14 August 2018, in which the appellant provided evidence of the entry interview, including a description of the circumstances in which the interpretation errors were said to have occurred. The appellant also gave evidence that it was only after the Federal Circuit Court proceedings that he was given access to the audio recording of the entry interview, and subsequently identified any interpretation errors.
(1) An affidavit of a Tamil interpreter, Dr Ramesh Rajendra, affirmed on 5 August 2018, in which Dr Rajendra identified what he considered to be interpretation errors in the entry interview.
(2) A further affidavit of Dr Rajendra, affirmed on 14 August 2018, to which he annexed two English transliterations of Tamil portions of the entry interview.
(3) An affidavit of the appellant’s solicitor, Mr Daniel Taylor, affirmed on 14 August 2018, to which he exhibited a transcript of the English portion of the appellant’s entry interview.
16 The approach taken by the Authority to the issue that is raised by the four grounds of appeal for which leave is sought is best explained by reference to the relevant part of the delegate’s reasons, and the appellant’s submissions that were made to the Authority in response. At the protection visa interview, the appellant was asked why he had not mentioned SU at his entry interview. The appellant asserted that he had done so. This exchange was recorded by the delegate in the context of a finding that the appellant had embellished his claims of threat by SU to enhance his claims for protection. The delegate ultimately did not accept that the appellant faced any serious threat from SU.
17 Submissions were made on behalf of the appellant to the Authority by a migration agent. Those submissions addressed issues concerning SU under the heading “Errors within The Decision Making” as follows (emphasis in the original; footnotes omitted):
Attack at the Polling Station on (approx) 8th October 2011
[The appellant] describes how [he] was accosted at the polling station he was manning by members of the opposition party who subsequently summoned the notoriously corrupt politician [SU] to attend the polling station. [The appellant] then describes how [SU] pointed to [the appellant] and demanded his henchmen to ‘kill him’. [The appellant] and his group were then set upon but [sic] [t]he henchmen and [the appellant] sustained an injury to his neck caused by him being struck with a blunt object. The delegate then states in the PVDR that they accept that there was a clash between the rival groups but finds that this event has been ‘embellished’ to enhance the claims for protection. This finding importantly is not supported by any reasoning by the delegate. There is no suggestion as to how they concluded from the testimony given at interview of [sic] within the written statement that this account has been embellished. The applicant provided a medical report to the delegate supporting the presence of his injuries and also country information in the form of oral submissions and newspaper reports which support the violence and corruption which surrounds Sri Lankan politicians. Therefore with [the appellant’s] consistent and plausible account, and the presence of more supporting evidence that [sic] to the contrary, that [the appellant] should have been afforded the benefit of the doubt in this situation and his claims have been improperly assessed.
Claims Disclosed During Entry Interview
The delegate discusses the Entry Interview transcript and questions why [the appellant] failed to mention [SU]. [The appellant] responds by telling the delegate he did mention the issues he faced but was requested to keep his answers short which is why [SU] was not mentioned specifically. On review of the Entry Interview the applicant clearly states that he faced problems with the opposition party and gives this as his primary reason to depart Sri Lanka. Although he doesn’t mention [SU] by name he clearly identifies the reasons he was made to flee as arising from the [sic] [SU] and his associated political agents. We strongly dispute the delegates finding that this claim was not raised at Entry Interview and would request the reviewer have regard for the circumstances and purpose of the Entry Interview, in that [the appellant] was asked to be brief with his answers and also not advised that it would be for the purposes of exploring the applicants claims for protection. Policy Advice Manual [sic] states that ‘primary consideration should be given to claims provided in the RSA/PV interview as entry interviews are not for the purpose of obtaining details of asylum claims or investigating those claims. We submit that the delegate erred in using the Entry Interview as a method of assessing claims and also erred when they stated that [the appellant] had not mentioned that he feared persecution from the opposition party he campaigned against.
18 The passage of the Authority’s reasons that is affected by the asserted interpretation errors was , especially the impugned and emphasised last sentence:
The delegate asked the applicant why he had not referred to the involvement of SU when discussing why he had left Sri Lanka at his entry interview. He stated that at the entry interview he was not allowed to explain his claims but that he did mention SU. I have listened to the entry interview and I accept the applicant referred to SU. However, in contrast to his statements in the application at [sic] and the protection visa interview, the applicant stated at the entry interview that it was SU who had gone to the polling booth the first time and it was SU who had told him to leave and it was only after the police left that SU chased him with a big knife.
19 The delegate’s error appears to have been caused by reliance upon a departmental form, which recorded a summary of what had been said at the entry interview, rather than the sound recording of that interview that was listened to by the Authority. It is therefore appropriate to have regard to the fresh transcripts of the entry interview adduced on appeal by the appellant, at this stage confined to the question of leave. Regard to the fresh transcripts shows clearly the differences between what the Authority would have heard on the sound recording as attributed to the appellant by the interview interpreter, and what is now alleged to have been said by the appellant in Tamil in relation to what took place at the election polling booth when he was there assisting SS on election day.
20 The English interpretation of what was attributed to the appellant by the interview interpreter was as follows (verbatim as transcribed from the English on the entry interview recording, but with anonymity maintained):
[Applicant talking in Tamil]
Interpreter: [SU]. [SU’s surname] [applicant (speaking)] Ah Muslim alright. Because actually so at that time that’s another opposite kind of person actually it’s a Muslim person, called [SU] he was there and he’s a powerful person right and he was telling me, ‘don’t wait here, don’t do it, go away.’ The police was there. Then at that time he couldn’t do anything. After few hours the police left that place. Then he started harranging [sic] me and beating me and start fighting fight started and one person was chasing me with a big knife, I was running.
[Applicant in Tamil]
Interpreter: Because then I was running he was chasing me with big knife. I managed to escape and I went to [Tamil] I went to [indistinct] House my younger sisters house.
21 The fresh interpretation of what was said by the appellant in Tamil was as follows (verbatim from the transcript produced by the deponent, Dr Rajendra, in his second affidavit, but excluding what was said between the appellant and the entry interview interpreter, and with anonymity maintained):
Applicant: [SU] [refer] say
Applicant: [SU] [refer] say
Applicant: “Their group told us to go away from there. Then I said “we cannot go away from there”. We stayed there. Then the police was there at that place. Then they left the place. After that the police were not there [a little indistinct]. They returned again. They beat us, I was beaten on my neck, a person chased me with a knife.
Applicant: I was running by the side of the road and then by the side passageway over the stream through to my sister’s. [extra sentence indistinct, inaudible and very fast] … Trishaw
Applicant: To my little sister’s
22 A comparison between what the interview interpreter attributed to the appellant and what the appellant actually said in Tamil reveals that in relation to the events at the polling booth:
(1) the interpretation given at the time of the entry interview was that the appellant was saying that SU had told him to go away, and that a few hours later after the police left, SU had starting haranguing him and beating him and that a fight started, and that another person had chased him with a big knife; and
(2) the appellant actually said in Tamil that SU’s supporters told the SS supporters to go away (which he said they could not do), and that after the police left, SU’s supporters had come back and that they had beaten “us”, that he was beaten on the neck, and that a person had chased him with a knife.
23 The Authority, based on listening to what had been said in English, in the last sentence of  reproduced above, came up with a third version, namely:
(1) that the appellant had said at the entry interview that it was SU who had gone to the polling booth the first time, rather than just his supporters; and
(2) that it was SU who had told him to leave, rather than his supporters telling SS’s supporters, including the appellant, to leave.
The Authority’s version is said by the appellant to involve two interpretation errors, although it is not clear that the first was an error, as opposed to an ambiguity.
24 As reflected in the last sentence at , reproduced at  above, the Authority also apparently misheard the interpretation that was correctly given that another person had chased the appellant with a big knife, and instead understood that the appellant had said that SU chased the appellant with a big knife. The appellant describes this as a listening error.
25 The threshold question for determination is whether the erroneous premises underlying the fourth sentence at  of the Authority’s reasons:
(1) may have incurably tainted the conclusions reached by the Authority, especially at  of the reasons given, as asserted by the appellant; or
(2) had no operative effect on the Authority’s decision, as asserted by the Minister.
26 It is only if the appellant is able to make good his submission as to the possibility of a malign effect of the interpretation and/or listening errors that it is necessary to go further and consider whether such an error constituted a jurisdictional error. Resolving this threshold dispute requires careful consideration of certain parts of the Authority’s reasons following . The key paragraphs are as follows (verbatim and omitting footnotes):
21. I have considered the applicant’s evidence, representative’s submissions and the country information provided and I find the applicant’s evidence regarding the events involving SU to be implausible. The applicant’s explanation for why SU targeted him is speculative. The applicant stated that he believes he was targeted by SU because it was SU’s belief that he had damaged SU’s home, posters and banners, yet the applicant’s evidence is that he has not had any prior contact or association with SU before. He also stated he was new to SS campaign and had only been undertaking the activities for SS for a period of two months. Having regard to the applicant’s activities in support of SS and the absence of any involvement in any other incidents or contact with SU prior to Election Day I am not satisfied that he would have come to the attention of SU as claimed.
22. I also find the applicant’s explanation about how he was able to escape SU’s ten supporters to be far-fetched. The applicant stated he was standing approximately 20 feet away from SU, close enough to hear SU tell his supporters to go and kill him, yet after sustaining some initial injuries he was able to still escape SU’s ten supporters. I have considered the applicant’s explanation that he was able to escape because there were seven other people that were also there to be attacked, however I am not convinced that if the applicant had been of such interest to SU as claimed that his supporters would turn their attention to the seven other people rather than getting the applicant as instructed by SU.
32. I accept that for approximately two months prior to the Election Day in October 2011, the applicant supported SS, a PA candidate in the [village name] Municipal Council Elections, by distributing flyers, putting up posters, attending meetings and driving SS to other villages. I accept that on Election Day, the applicant was at an election booth with other SS supporters including his friend when they were threatened by SU’s supporters and told to leave. I accept the applicant and the other SS supporters including his friend did not leave the area and continued their campaigning activities. I accept that SU’s supporters later returned to the election booth and there was a violent clash between SS’s and SU’s supporters. I accept that during this violent clash the applicant’s neck was injured.
33. However, in light of the concerns I have with the applicant’s evidence discussed above, I do not accept that on Election Day, SU attended the election booth area where the applicant was distributing flyers with others SS supporters. I do not accept that SU gave a command to his supporters to target, assault or kill the applicant. I do not accept that after the violent clash the applicant or his friend were targeted by SU or his supporters and were in hiding. I do not accept after the violent clash, SU or his supporters sought the applicant’s or his friend’s whereabouts. Notwithstanding that I accept the applicant’s friend and father are both now deceased, I do not accept the applicant’s friend or his father was killed by SU or his supporters.
34. On the evidence before me, I am satisfied that the applicant’s activities in support of SS were low level in nature and undertaken for only a short period of time approximately six years ago. While I accept he was involved in a violent clash and sustained an injury, I am satisfied it was isolated in nature. The applicant has not claimed he would resume any activities in support of SS on his return, but even if he were to, I am not satisfied that it would lead to a real chance of harm. According to country information in the referred materials the PA (now known as the United People’s Freedom Alliance) and the United National Party are coalition partners in the Sri Lankan national government formed after the 2015 election. On the evidence before me, I am not satisfied that the applicant’s profile which would cause him to be targeted by SU or his supporters in the future.
35. I am not satisfied the applicant faces a real chance of serious harm due to his past low level PA political activities or imputed or actual pro-PA political opinion now or in the reasonably foreseeable future.
27 The appellant submits that the impugned fourth sentence of  of the Authority’s reasons, contrasting the appellant’s statements in his application for a protection visa and what he said at the protection visa interview with what the appellant stated at the entry interview, cannot be separated from the reasoning that follows and in particular from the conclusion reached at . He submits that the reference to his evidence at  of the Authority’s reasons included what he had said at the entry interview, and that this formed part of an adverse credibility finding that caused this aspect of the SHEV protection visa claim to fail.
28 The Minister submits to the contrary that:
(1) the sentence complained of in  of the Authority’s reasons was no more than a comment made after accepting that the appellant had mentioned SU at his entry interview, contrary to the finding by the delegate that no such mention had been made;
(2) the comment at  was not mentioned again, nor apparently relied upon by the Authority in the analysis that followed;
(3) the basis for the conclusion at the commencement of  to the effect that the appellant’s evidence regarding the events involving SU was implausible was set out in the balance of  and in , and then applied at ;
(4) the balance of  addressed the lack of any basis beyond speculation for SU targeting the appellant;
(5)  addressed the inconsistency between SU targeting the appellant and his supporters attacking both the appellant and seven other persons, rather than getting the appellant as he claimed SU had directed them to do;
(6) no other aspect of the appellant’s evidence was relied upon by the Authority to reach the conclusion that the claims made about SU were implausible; and
(7) if the Authority had also or instead been relying upon the comment at , the obligation to give reasons would be expected to reflect such a decision-making process, yet there was no such reference or reliance.
29 The Minister’s analysis substantially addresses the limited effect of the comparison made to by the Authority at , referring to the express reasons given by the Authority for rejecting the appellant’s claims. The Authority relevantly found at  that the appellant’s evidence regarding the events involving SU was implausible, which was based on the Authority’s view that the appellant’s explanation for why SU targeted him was speculative. This in turn was based on the appellant’s suggestion that SU might have believed him to be responsible for certain property damage, despite them having had no prior contact or association. In this regard, the Authority pointed out that the appellant was new to SS’s campaign and had only been involved for a period of two months, a further reason to doubt that SU would have singled the appellant out for attention. Thus, the Authority’s finding as to a lack of interest in the appellant on the part of SU was overtly made upon those bases, and not upon the basis of any comparison between the appellant’s entry interview claims, however erroneously understood, and his protection visa application and interview.
30 The Authority’s conclusion was reinforced by its express doubts, at , about the appellant’s explanation of how he was able to escape the attack on SS’s supporters that took place at the election booth. The Authority observed that if the applicant had been of such interest to SU as claimed, it did not make sense that SU’s supporters would turn their attention to the seven other people rather than singling out the applicant as instructed by SU. Again, no reference was made in this reasoning to the comparison noted at .
31 There is nothing to suggest that the comparison in question was taken any further by the Authority than a comment confined to , let alone used in any way to make any adverse finding, either generally or specifically, in relation to the issue of SU targeting the appellant. Neither the appellant’s submissions, nor my own independent analysis of the Authority’s reasons, establish that the mere recording of this comparison, albeit evidently erroneous, in some way infected the balance of the reasoning on this topic. The Authority accepted the appellant’s claims in relation to his activities in support of SS, but did not accept the additional claims made about SU for reasons that were open to it in carrying out its evaluative review task.
32 The Authority’s finding at  that it was not satisfied that SU was present at the election booth on election day meant that any mistake made in relation to the content of the claims as to what SU had directed to the appellant on that occasion fell away as a matter of logic. If SU was not shown to be present at the polling booth, he could not be shown to have given any command to his supporters, let alone one directed at the appellant. SU could not be shown to have himself done anything to the appellant, even if that was not what he in fact claimed took place, notwithstanding the interpretation and listening errors identified by the appellant. As those errors were not operative on the decision reached by the Authority, they could not be jurisdictional errors. Rather, because they were immaterial to the decision, they were errors of a kind that are permissible: see Hossain v Minister for Immigration and Border Protection  HCA 34; 92 ALJR 780 at -, but cf - and ; see also Shrestha v Minister for Immigration and Border Protection  HCA 35; 92 ALJR 798 at , .
33 Each of grounds 1 to 4 of the further amended notice of appeal depend upon the appellant’s asserted characterisation of the effect of the errors on the Authority’s decision being accepted. As the appellant must fail at that first hurdle, his proposed grounds of appeal cannot succeed. In those circumstances, there is no proper basis for granting the appellant leave to rely upon grounds 1 to 4 in the further amended notice of appeal.
34 There is no need to embark upon a hypothetical consideration of whether or not an error that was possibly operative on the result is nonetheless capable of lacking the character of a jurisdictional error by reason of the particular legislative scheme under which the Authority operates, as the Minister submitted the Court could conclude. Those complex issues are best addressed in a case that properly gives rise to their consideration.
35 Leave to rely upon the further amended notice of appeal must be refused and, accordingly, the appeal must therefore be dismissed with costs.