FEDERAL COURT OF AUSTRALIA

AVI16 v Minister for Immigration and Border Protection [2019] FCA 306

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

1    The appellants appeal a Federal Circuit Court of Australia judgment dismissing their application for judicial review of a decision of the Administrative Appeals Tribunal dated 17 March 2016: AVI16 and Ors v Minister for Immigration and Anor [2018] FCCA 2453. The Tribunal affirmed a protection visa assessment of a delegate of the Minister for Immigration and Border Protection.

2    The appellants are citizens of India. The first and second appellants are husband and wife; the third and fourth appellants are their children. The first and second appellants first travelled to Australia in October 2009 in order to allow the second appellant to pursue higher education.

3    On 2 January 2014, the appellants applied for protection visas. The first appellant made claims for protection; the other appellants made claims as members of the family unit (although the first appellant claimed the whole family was at risk). The Tribunal heard oral evidence from the appellants at a hearing on 9 December 2015 (the First Tribunal Hearing), as well as from individuals identified as the uncle and brother-in-law of the first appellant. The Tribunal held a further hearing on 24 February 2016 (the Second Tribunal Hearing).

4    The Tribunal confirmed the refusal of the protection visa applications.

THE CLAIMS

5    The first appellant claimed:

(a)    to have been born and lived in Kerala, India. He was brought up in the Catholic faith and all of his family were practising Catholics;

(b)    he was a fisherman, bought up in a Catholic Fishermen Society and the vice-president of an organisation known as the South Indian Fishermen Development Society (SIFDS);

(c)    he was active in assisting Catholic fishermen in Kerala in their dealings with a criminal gang involved in illegal money lending, known as the ‘Blade Mafia’. He reported members of the gang to the police. The Blade Mafia attacked him and threatened members of his extended family; and

(d)    he fears that if he returns to India, the Blade Mafia will continue to target him, attack him and make threats against his family members, including for his Christian charity work. As he is a Christian, he would be denied help or assistance from the police in India.

IN THE TRIBUNAL

6    The Tribunal did accept the first appellant was the vice-president of SIFDS, he was Catholic and that most of the members of the SIFDS may have been Catholic. It did not, however, find the evidence in relation to his claims to be credible, plausible, persuasive or consistent. There were several concerns.

7    First, the Tribunal was not satisfied that the first appellant had at any time engaged in mediation or negotiation with the Blade Mafia on behalf of fishermen or members of SIFDS.

8    Secondly, the Tribunal also considered that if the Blade Mafia were violent and ruthless as the first appellant contended, it was implausible that he would travel to their headquarters and attempt negotiations. Under s 424AA of the Migration Act 1958 (Cth), the Tribunal put to the first appellant various inconsistencies in his evidence regarding the asserted meeting with the Blade Mafia. Given the centrality of this event to the first appellant’s claims, the Tribunal considered he ought to have a better recollection of events.

9    There were various other matters that the Tribunal did not accept. It was not satisfied the first appellant had ever had ever been targeted or had any contact with the Blade Mafia or that he reported the Blade Mafia to the police. It did not accept that the first appellant had a profile of being engaged in preaching, evangelising or religious charity work. It noted that country information did not support the first appellant’s claim that Catholic Christians are subject to systematic and discriminatory persecution.

IN THE FEDERAL CIRCUIT COURT

10    The grounds of review verbatim in the Federal Circuit Court were:

1.    Interpretation wrong

2.    Inconsistancy do not exist

3.    Unfair Decision

11    The primary judge had a transcript of the hearings before the delegate and the Tribunal. After the hearing in the Federal Circuit Court, the first appellant filed further written submissions and a document setting out alleged errors in the interpretation. The first appellant was assisted by his wife, the second appellant, who has a better command of English.

12    The primary judge noted (at [35]) that a hearing before the Tribunal must be fair to give a person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. Therefore, any necessary interpretation or translation must be adequate to convey the substance of what is said at the relevant hearing to such a degree that the hearing can be described as both real and fair. The person concerned or affected at the hearing must be able to understand what is being said to her or him and to participate in the hearing in a way from which it can be concluded that the hearing was fair.

13    These points were extracted from the judgment of Allsop CJ in the Full Court’s decision in SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 (at [9] and [24]), in which Robertson J also pointed out (at [70]) that in considering the adequacy of translation or interpretation it will be important to distinguish between a case where the mistranslation or non-translation is frequent or continuous, on the one hand, and a case where the errors are intermittent. This is a fact sensitive inquiry.

14    The primary judge expressed the view that the appellants had to establish that the interpreter had mistranslated or failed to translate at either of the two Tribunal Hearings in a way that meant the Tribunal Hearings were not fair. His Honour concluded (at [37]) that the appellants had failed to do this, noting that no inadequacies or deficiencies were apparent from the transcripts of either of the Hearings before the Tribunal. Rather, there was a ‘coherent, responsive and consistent interchange of questions and answers at each hearing’ (at [38]). There was nothing in the transcripts exciting any degree of suspicion that mistranslation or non-translation occurred.

15    Although the second appellant had suggested that the interpreter had interpreted shorter answers than the first appellant had actually given, this was not to suggest that this resulted in any significant difficulty or problem.

16    The primary judge noted (at [38]) that the Tribunal member went out of her way at the Second Tribunal Hearing to stress that if the appellants had a problem about using the same interpreter, who had interpreted at the First Tribunal Hearing, they should say so. The Tribunal member was not told of any problem.

17    The primary judge considered it was relevant to have regard and give some weight to the Tribunal’s view, expressed in its decision, that there were no specific issues with the quality of the interpreting of the Tribunal Hearings: Perera v Minister for Immigration and Multicultural Affairs (1992) 92 FCR 6 per Kenny J (at [38]). The primary judge gave other reasons to which I will shortly allude.

18    The primary judge also noted (at [40]) that the appellants had not provided any independent expert evidence to support their claim of significant or material inadequacy of interpretation. The evidence relied upon was mere assertion by interested non-experts.

19    The primary judge preferred the Tribunal’s conclusion expressed after examining the transcripts of the Hearings. Further, his Honour noted that no complaint was made at either of the Hearings about problems with the interpreting, despite invitation to do so. Finally, his Honour noted (at [42]) that the appellants had not established that any error was material, significant or critical.

20    Additionally, as they do in this Court, the appellants in ground 2 and ground 3 before the Federal Circuit Court challenged the findings made by the Tribunal about inconsistencies in the appellants’ evidence and claims and the unfairness of the decision. The primary judge characterised those grounds as being general and unparticularised. The primary judge was of the conclusion that the Tribunal’s rulings could not be regarded as being arbitrary or irrational or exaggerated. His Honour concluded no jurisdictional error had been identified.

GROUNDS OF APPEAL

21    The appellants repeat the grounds of appeal concerning misinterpretation or inadequate translation and errors concerning inconsistencies in the evidence.

SUBMISSIONS IN SUPPORT

22    The appellants have jointly filed an outline of submissions in support of the contentions in their grounds of appeal. Those submissions are repeated verbatim below:

We would like to make an outline of submission regarding the dismissal of our application we filed in Federal Circuit Court on 12/04/2016.

There are some judicial error occurred in Tribunal hearing especially in second Tribunal which held on 24/02/2016 which affected the nature of the merit of the case of [appellants] and it caused to refuse to grant Protection for the [appellants] and also the Federal Circuit Court to dismiss our appeal on 07/08/2019.

The judicial error found in the hearings are given below:

1.    In Court Book: 414, Decision of Tribunal 22 says that at of its Decision Record the Tribunal accepted the first [appellant’s] claim at the Tribunal hearing that he had held the position of Vice President of of the SIFDS for several years prior to leaving India, which was inconsistent with the letter of [Uncle A] (see [9] above) which had stated that First [Appellant] had been Vice President for almost 20 years from October 1989 to June 2009, and the evidence of [Uncle B] to the Tribunal that the First [Appellant] had just been an ordinary member of the SIFDS.

Please see the two letters of [Uncle A] In the Court Book, Page - 82 and 246. In those letters [Uncle A] clearly mentioned that [the first appellant] was a Vice President of SIFDS for October 1989 to June 2009 in his first supporting letter in Court Book, Page - 82 (paragraph 1) and he also written that [the first appellant] was a Vice President of SIFDS where I held the position as the Vice President in his second letter in Court Book , Page - 246 (Parapraph 2).

[Uncle B] is not a member in SIFDS and he does know what position I held in SIFDS that is why he said that I been an ordinary member of SIFDS.

The Federal Circuit Court considered [Uncle B’s] statement saying that the [appellant] has been an “ordinary member” and dismissed our application for appeal we filed on 12/04/2016.

Usually in our place in Kerala, “the main activist”, we mean that the main members of the any organisation. It could be president, vice-president, secretary or treasurer. The Tribunal considered the words “main activist” in [Uncle A’s] first letter and trying to accept that the [appellant] is not a Vice President but a ordinary member of SIFDS to refused to grant protection visa for us.

And also please see the copy of my membership card of SIFDS in Court Book Page 83 to make out which position I held in SIFDS. It accurately shows that the [appellant] is a Vice President of South Indian Fishermen Development Society.

The Tribunal and Federal Circuit Court misunderstood above statements and considered it as to be an inconsistency to reject our application for protection visa.

2. In Court Book 413, 16, 5th line: “His delay in lodging Protection Vision application”.. The Federal Circuit Court just accepted the decision of Tribunal by not accepting the reasons why we got delay in lodging protection visa application:

In court book, page 413, 16::The reasons for the delay to apply for protection visa are given below:

• My husband and I wanted to find a way that would assist us to remain in Australia away from the threats of torture back in our home country

• Waited for sponsorship until the time apply for protection visa which was not an option

• Further Student Visa application was also not an option because of the international fees for Registered Nursing Bachelor course.

4. Again in CB 413, 16: The delay in leaving India. Please refer CB 155, for the reasons to delay to leaving India. is clearly given in CB155.

5. The transcripts of tribunal hearings filed by [the appellants’ counsel before the Federal Circuit Court] On 11 July 2016 does not contain all the transcripts of all conversations.. That is why as a second [appellant] I decided to listening to the audio hearing of the 2nd hearing and found interpretation errors and mistranslation occured in 2nd Tribunal hearing and filed the transcript of it on 26/09/2019. It can be seen in CB 391 to 394. But the Honourable Federal Circuit Court declined to admit it into evidence by not considering the whole transcript but by picking up some points of interpretation errors from here there (CB 393, 33) and saying that the transcript second hearing does not constitute any admissible expert evidence of any failure in translation or interpretation instead of going through the whole interpretation errors filed on 26/09.2019 that leads to the dismissal our appeal filed in Federal Circuit Court on 12/04/2016.

6. If the Federal Court would be able to check this audio hearing with any other Malayalam interpreter, the court can understand that what all the errors happened in this second hearing which held on 24/02/2016 So that I would like to request to the Honourable federal Court to check the Court Book Page 391 to 394 to understand the interpretation errors happened on second hearing. That is the transcript of the audio hearing of second hearing which held on 24/ 02/2016. It was made by me the second [appellant].

There were lots of interpretation errors and mistranslation found in that second hearing. Some of them are given below.

a.    In Court Book 393, Time 01 :0:33 to 01 :03:00 the [appellant] did not understand the meaning of “ inconsistencies” and the first [appellant] could not answer it In CB 393, Time 01:10:00 onwards and the first [appellant] was keep on asking, “What”?, “what”?

b.    And also in Court Book 393 the time in between 01:21 :00 to 01:21:46 the first [appellant] was also saying, ”I didn’t understand”. Instead of translating it to him in Malayalam language interpreter was using English words. For example, “legal proceeding”, “support letter”, “against”, etc. And also please see the Court Book Page 391 to 394 to understand interpretation and mistranslation of the interpreter Your Honour. Due to that the [appellant] could not make any comment over the questions asked by Honourable Member on second Tribunal hearing.

c.    In Court Book 394, time 1:59:37 the [appellant] said, “They (police) didn’t take any action. They just sent us back”.

d.    But In Court Book 394, time 1:59:40 Interpreter said, “ They just sent us back” (The interpreter didn’t say to the MEMBER that, “The police didn’t take any action”.

e.    Again in CB 376, 5: The [Appellant] said, “I did not understand fully”

The poor quality of the interpretation made by interpreter can be understood if we go through the CB page 391 to 394 which were occurred in the second hearing on 24/02/2016 that affected the merit review of our case and to not to grant protection visa for us.

7. And also inconsistencies happened due to 1st [appellant’s] lack of understanding of English as well. During second hearing the [appellant] keep on asking “What”, “What” and keep on saying that “I did not understand” and “ I did not understand fully”.

8.. ln Court Book 385, points20, 25, 30 & 35: The Tribunal gave an opportunity to our migration agent … to comment about the hearing. The conversation of TRIBUNAL MEMBER & MIGRATION AGENT are given below:

MEMBER: Okay, Now, did you have anything further you wish to say to me?

AGENT: I do but I can keep it nice and short.

MEMBER: Yes

AGENT: In terms of the [appellant], his lack of education is, I think, one of the questions that you need to look at in terms of his understanding and comprehension of question [2:14:50] English. And this could - I mean, I’m not saying that it does, but it could lead to inconsistency of stories, even between his own relatives, such as his uncle, and stories that he’s relating to you today, and the stories that he’s related to the Delegates [2:15:27] have inconsistencies in his story. Even my communication with him a similar [2:15:38] because he fails to understand what I’m saying, even though his wife is interpreting.

[The appellants’ migration agents] who knows all about the [appellant’s] knowledge in English even though he may have no knowledge in Malayalam language, he observed that during both hearings how he was struggling to answer for the questions asked by Tribunal, Due to misinterpretation and mistranslation which leads [appellant] to the inconsistencies of his story and affected his merit review as well. He also said that due to above reasons the [appellant] fails to understand what I’m saying, even though his wife is interpreting.

But in in CB page 425, 41, The federal Circuit did not consider Fr. Allan Horneries truthful statements regarding his lack of knowledge in English which caused for misinterpretation and mistranslation affected [appellant’s] nature of credibility and inconsistencies.

9.. In addition to that In court book, page 271, 15th line in paragraph 48: The [appellant] said the name of the place where incident happened was in Kuzhivilakam. But the interpreter said the place where incident happened was Kuzhuthuray which is in Tamil Nadu. It is 44.8km away from Kochuthope Valiathura Trivandrum and it takes 1 hour 18 minutes drive via Kovalam Rd.

10. Yes in many occasions, the Tribunal asked us that “Is there any problems with the interpreting”? In one time (CB 355, 20) the Tribunal told us that, “If at any time during the hearing you do not understand the interpreter, or you have concerns about interpreting, can you please let me know’’. That is why I the second [appellant] was about to object that but the Tribunal told me that, “Let him speak” (CB 364, 40). Then the Tribunal asked me that “Is there any problem with the interpreting?” By the time I had become very uneasy and panicked and I was unable to indicate the error.

Conclusion: Again we are stating that we are so panic, feared and it is most dangerous for us to go back to India. We myself, , children and my wife will be harmed, mistreated, abused and killed If I made to return to my home country. The more I read and the more I hear about the awful threatening and in some cases death activities caused by the Blade Mafia, the more my fears are affirmed that we will be victims of great torture and eventually killed by Blade Mafia.

So here we request the Honourable court to kindly review our case by considering the above reasons why we applied for protection visa. And we also we put ourselves at the mercy of the Australian Government to help us to remain safe and secure in this wonderful country Australia and away from the unkind, dreadful and ruthless blade mafia.

CONSIDERATION

Ground 1 – misinterpretation

23    It is clear that in order to succeed on this ground the appellants must, in addition to showing that there was in fact an error in interpretation, demonstrate that:

(a)    the misinterpretation or non-interpretation was such that the appellants were denied an effective opportunity to give evidence; or

(b)    that the interpretation error related to a matter of significance to their claims and this affected the Tribunal’s decision.

24    Turning to examine the matter in light of those principles, it is common ground that at both Tribunal Hearings, the appellants were assisted by an interpreter in the Malayalam and English languages as requested by them. As noted, the primary judge concluded that the evidence on which the appellants relied to prove mistranslation was inadequate. He considered the evidence, but chose to give it little weight as it was not independent, objective expert evidence. No appellable error is disclosed by taking this course.

25    The appellants continued to rely orally on the same errors that are identified above in their written submissions. The nature of these errors is not particularly apparent. They do not identify with sufficient specificity the effect of the mistranslation on the nature of their case as it was presented.

26    It seems clear though that the errors were such that they do not relate to matters of significance in relation to their claims or the Tribunal’s decision. It is also clear that the appellants were afforded multiple opportunities to give evidence and put their case, both orally and in writing, as well as to raise any concerns with the quality of interpretation. In those circumstances, even if there were defects in interpretation, it cannot be said that they had the effect of frustrating the appellants’ ability to put their case sufficiently to constitute jurisdictional error.

27    One example is that while the appellants contend that there was a misinterpretation of the place at which the first appellant was allegedly attacked on the first occasion, the interpreter stated the place was, they say, ‘Kuzhuthuray’ rather than ‘Kuzhivilakam’. The Tribunal noted that the first appellant had informed the delegate that the incident occurred 70 metres from his home, whereas he told the Tribunal that it had happened about five minutes away by motorbike at a place called ‘Kzuthuray’. In this instance, the significance of the inconsistency was not the name of the location, but rather, the significant discrepancy as to the different distances from home at which the incident took place. Five minutes away by motorbike is a lot further than 70 metres.

28    In my view, the primary judge was entitled to conclude that the appellants had both failed to prove the alleged errors and to demonstrate that any errors were material.

29    Ground 1 cannot succeed.

Ground 2 – inconsistency

30    As before the primary judge, the appellants challenge the findings of the Tribunal regarding the inconsistencies in their evidence. Again, the ground is unparticularised, but it is supported by the written submissions. In those submissions, for example, the appellants say that the Tribunal was wrong to regard certain evidence, to the effect that the first appellant was simply an ordinary member of SIFDS, as counting against the appellants’ contention that the first appellant was a vice-president of the SIFDS. In this regard, they note that the Tribunal recorded the first appellant’s claim to be vice-president of the SIFDS for several years prior to leaving India, but that this was inconsistent with a letter stating the first appellant had been a vice-president for almost twenty years from October 1989 to June 2009 and the oral evidence given to the Tribunal that the first appellant had just been an ordinary member of the SIFDS. To that the appellants say that the oral evidence was not given by a member of the SIFDS and given by someone who did not know what position the first appellant held, which is why he had said the first appellant had been an ordinary member. The membership card of SIFDS in evidence showed that the first appellant was ‘Vice-President’.

31    The appellants misunderstand the reasoning of the Tribunal. Although the Tribunal had misgivings about the first appellant’s evidence, as discussed above, it did actually accept that he held the position of vice-president for several years prior to leaving India.

32    In merely noting the inconsistent evidence, the Tribunal still accepted the claim of the first appellant. There was no error in the reasoning of the Tribunal. The Tribunal did not conclude that the first appellant was not entitled to maintain his claim because of any rejection of the office the first appellant held. In fact, it accepted that the first appellant was a vice-president.

33    It is clear that the Tribunal was not satisfied that the various explanations sufficiently explained the overall concerns it had with the first appellant’s evidence. It was all those matters, taken as a whole, which caused the difficulty for the first appellant, not just the question of whether he was vice-president or an ordinary member of SIFDS.

34    In truth, there were many inconsistencies and implausibilities to which the Tribunal pointed. The Tribunal invited the first appellant to comment on those inconsistencies, which he did. The first appellant’s responses and the Tribunal’s assessment are set out in the Tribunal’s reasons (at [38]-[42] inclusive and [48]-[50]) as follows:

38.    In submissions provided to the Department and to the Tribunal the [first appellant] has set out that the Blade Mafia were very cruel people who do not hesitate to do anything they want and that they are able to act with impunity and drive many people to suicide, yet the [first appellant] told the Tribunal that he went to their headquarters in early 2013 to act as a mediator for his fellow SIFDS members. He did not tell the Tribunal that he took any precautions for his safety prior to the meeting. The [first appellant] told the Tribunal that other fishermen led him to their location, and that he just walked in and began negotiations with their leader, a man he identified as Kumar. The Tribunal had several difficulties with the [first appellant’s] description of this event. Firstly the Tribunal considered that if the Blade Mafia were as ruthless and violent as the [first appellant] contends, it was implausible that he would travel to their location and attempt negotiations. Secondly, the Tribunal was not satisfied that the [first appellant] was recalling actual events when he discussed the circumstances of his visit. The Tribunal had to repeatedly ask the [first appellant] for details of his conversation and his responses were consistently vague and general. For example he claimed Kumar got angry but when asked several times for details of the negotiations the [first appellant] gave general responses stating that “they were not ready for money by instalments.” As discussed with the [first appellant] pursuant to s.424AA of the Act, in his interview with the delegate the [first appellant] claimed that he attended the meeting with 5 other fishermen, he told the Tribunal on 9 December 2015 that there were only 4 fishermen, and he was asked to confirm the number. When this inconsistency was put to him on 24 February 2016, the [first appellant] then claimed that there were 4 or 5 other men. In view of the significance of this event to the [first appellant’s] claims the Tribunal is of the view that the [first appellant] should be able to accurately recall how many people he attended the meeting with. The Tribunal is not satisfied that the [first appellant] ever went to a meeting with the Blade Mafia at this time.

39.    As the Blade Mafia would not negotiate the [first appellant] then claimed that he attended the police. He has given different accounts of when he went to the police. The [first appellant] told the Tribunal on 9 December 2015 that he went straight to the police the next day. In a statutory declaration, declared on 1 December 2014, submitted to the Tribunal, the [appellant] gives the impression that some time passed as he claimed that after the meeting the Blade Mafia started [to] torture the fishermen again, so the fishermen community said that the problem was not resolved and requested him to report the issue to the police. When this was put to the [first appellant] he claimed, rather than attending the police straight away, what he meant was that he actually had a meeting with the SIFDS where they discussed the problem and decided as a committee to report the matter to the police as it was affecting a number of their members. The [first appellant] has given conflicting information about who attended the police with him. He initially told the Tribunal that it was the 4 fishermen who had sought his assistance with the Blade Mafia and had attended the earlier meeting. On 24 February 2016, the [first appellant] said he thought he might have gone to the police with 4 or 5 people, but they were not committee members, and he could not then remember when he went to the police.

40.    The Tribunal also has difficulty with the [first appellant’s] account of what went on at the police station. He told the Tribunal initially that he did not go to the police station with the intention of filing report, he just wanted the police to talk with the Blade Mafia and ask them to mediate on the fishermen’s behalf. This was the reason that he had no evidence of his complaint to the police, or a first instance report. It is difficult for the Tribunal to rationalise why the [first appellant] would seek police assistance and not make a formal complaint that would enable them to take action. It is implausible that the [first appellant] would complain to the police about illegal activity of money lenders and then ask them to negotiate the instalment arrangement and sanction the illegal activity. Again the [first appellant] has given conflicting accounts of this incidence, as discussed with the [first appellant] pursuant to s.424AA of the Act, in his interview with the delegate the [first appellant] claimed that he took 5 people to the police station and the police would not allow him to take legal proceedings.

41.    The [first appellant] told the Tribunal that the police took no action. He surmised that the police informed the Blade Mafia on him. The report to the police and the earlier attendance upon the Blade Mafia, are the only times that the [first appellant] claimed that he initiated any contact with the Blade Mafia or made any complaint. This was also the only action of the SIFDS campaign. He claimed that it occurred after he returned to India on 24 December 2012 and several weeks prior to 27 February 2013. Even without the inconsistencies the Tribunal has difficulty reconciling the information in the [first appellant’s] written claims and supporting documents with his evidence to the Tribunal about these events. For example in his response to question 45 the [first appellant] sets out;

“I took a one way ticket and went to India on 24th of December ... I thought that the time was ok to do this and that the Blade Mafia would have forgotten about me. It turned out I was wrong I made a big mistake.”

Additionally the [first appellant] has written;

“We decided to migrate to Australia to pursue education opportunities for my wife so that she could better her prospects and have a better career in India. However we also had the idea that being away from the situation for a time being things would settle down and maybe the Blade Mafia would forget about me and my dealings with them.”

The [first appellant] repeatedly stated to the Tribunal that he had no contact with the Blade Mafia prior to returning to India on 24 December 2012. His explanation to the Tribunal for the above comments in his written claims was that the fishermen had had problems with the Blade Mafia prior to 24 December 2012, and this was what he meant. However this does not satisfactorily explain to the Tribunal why the Blade Mafia would need to forget about the [first appellant]. Further the [first appellant] also claimed:

“What I have done in terms of political need to have politicians and the government officials hear what I am saying about the activities of the Blade Mafia has greatly dented their freedom and influenced their manpower.”

When asked about this claim at the hearing the [first appellant] confirmed that he did not contact any politicians at any time. He qualified that by government officials he meant the police. The [first appellant] was unable to explain to the Tribunal how he had influenced the freedom or manpower of the Blade Mafia. The Tribunal considered that his written claims could not be reconciled with the evidence provided by the [first appellant] to the Tribunal of his actual exposure to the Blade Mafia.

42.    Finally in the letter of support provided by [Uncle A], on the letterhead of the SIFDS sets out the following;

“[The first appellant] was one of the main activists in our drive against private money lenders within the coastal fishing communities in Trivandrum. Most of the victims of the illegal money lenders were the ordinary families from the coastal fishermen communities as they could more easily access credit from them. He was frequently attacked and his life was always in danger as he was directly and passionately campaigning against money lenders and brought a few of them to legal proceedings.”

The Tribunal cannot reconcile the description provided by [Uncle A] of the [first appellant’s] activities with the [first appellant’s] evidence of his actions. At the Tribunal hearing, the [first appellant] also had to qualify [Uncle A’s] description of his activities. The [first appellant] suggested that legal proceedings meant his one complaint to the police, and that the direct and passionate campaigning referred to his single attempt directly at mediation with the Blade Mafia. The [first appellant] was unable to explain how he was the main activist. The Tribunal does not accept the letter from [Uncle A] as an accurate description of the [first appellant’s] activities and finds the information of [Uncle A] unreliable. Due to the various inconsistencies the Tribunal does not accept that the [first appellant] complained to the police about the activities of the Blade Mafia.

…

48.    The [first appellant] told the Tribunal that about 10 days after the Blade Mafia attended [Uncle B’s] house looking for him he was stopped while driving his motorbike when he was returning to his uncle’s house in the evening. He claimed that 2 people stepped out in front of his bike and waived their hands and he stopped. When the men started talking to him he came to know that they were from the Blade Mafia. The [first appellant’s] evidence of this event was reticent. He was repeatedly questioned about what was actually said to him and only gave general responses, claimed he was told him if they see him again they will finish him. At no point did the [first appellant] state that the men referred to the fishermen or their loans. At first the [appellant] did not state that he was physically assaulted in any way. When it was put to him that the delegate records that the [appellant] was pushed and hit in the neck and kicked in the chest and did not fall to the ground, he claimed that this also happened but when asked by the Tribunal how and when it happened the [first appellant] was unable to put this evidence in context. The [first appellant] told the delegate that this occurred 70 metres from his home. He told the Tribunal it was about 5 minutes away by motor bike at a place named Kzuthuray. Overall the Tribunal found his evidence about this incident unpersuasive.

49.    The evidence of the second incident gave the Tribunal even greater concerns. The [first appellant] has given conflicting evidence about the timeline of this event. He told the delegate that it occurred two weeks after the first incident, he told the Tribunal it was a week. He has consistently claimed it occurred on 27 February 2013. He told the Tribunal that it occurred around the same time of night as the first incident, around 9:30 to 10 pm, around the same place as the first incident. It was put to the [first appellant], that when he had been attacked at this place, in this manner, at a similar time and threatened with further attacks if he was seen again, it was improbable that he would stop on this occasion. The explanation that the [first appellant] provided for this conduct was again that it was common practice in India to waive people down for lifts, for this reason he stopped. The Tribunal considers this explanation unbelievable. The [first appellant] also seemed to struggle to provide to the Tribunal detail[ed] evidence of the assault that took place on this occasion. He claimed that the Blade Mafia said that they wanted to kill him and told him that next time they saw him they would kill him. His description of this attack was very similar to the first attack, however this time when they kicked him, he went one way and the bike another. He told the delegate and the Tribunal on 9 December 2015 that he was hit and kicked by 4 men. They used their hands and feet. On 24 February 2016, the [first appellant] also added that he was beaten with a rod. He claimed that he omitted the rod in previous descriptions of the event as he had forgotten. The [first appellant] also claimed that he was collected from the roadside after this attack by [Uncle B] and [HB]. A fact which neither witness supported, even after their letters recanting much of their oral evidence.

50.    In his protection visa application the [first appellant] claims that he was hospitalised after the second attack. He confirmed in his evidence to the Tribunal that this did not happen and what he meant was that he sought the treatment several days later from his local traditional Siddha practitioner. The Tribunal finds it difficult to accept that if the [first appellant] was as badly beaten as he claimed that he would wait several days to seek medical treatment. The [first appellant] has provided to the Department and the Tribunal letters from David Mariyan, Siddha Medical Practitioner. The first letter is dated 1 March 2013, and the telephone number on the letter did not match the telephone number on the stamp. A further letter was submitted to the Tribunal by the [appellants] from Mr Mariyan in which it was conceded that the date on the letter is not reflective of the date on which it was written. It is in the second letter that Mr Mariyan addressed the findings and presentation of the [first appellant] on examination, rather than just stating the [first appellant] claimed to have been attacked. This second letter was only after the deficiencies in the evidence were pointed out in the decision of the delegate. As with the evidence of the [first appellant’s] relatives, this witness’ evidence has changed and adapted at the request of the [first appellant] to shore up perceived weaknesses in his claims. The Tribunal accepts that David Mariyan was a treating practitioner of the [first appellant] and that he may have attended him for treatment on 1 March 2013. However the Tribunal considers that Mr Mariyan’s evidence is open to manipulation by the [first appellant], that it is not truly independent and the Tribunal does not accept it as evidence of an attack by the Blade Mafia or any other persons on 27 February 2013. The Tribunal is not satisfied that the [first appellant] was ever attacked by the Blade Mafia in February 2013, or at any other time.

(Emphasis added.)

35    There were numerous bases on which the appellants’ evidence was rejected, not simply those on which the appellants’ submissions rely and which, irrespective, fall short of demonstrating error. No error on the part of the primary judge or jurisdictional error on the part of the Tribunal has been made out.

36    The second ground of appeal cannot succeed.

CONCLUSION

37    No error is demonstrated in the reasoning of the primary judge and the appeal must be dismissed with costs.

Associate:

Dated:    7 March 2019

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