FEDERAL COURT OF AUSTRALIA

ANQ16 v Minister for Immigration and Border Protection [2019] FCA 693

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The appellant is a Sri Lankan citizen of Tamil ethnicity who arrived in Australia in July 2012 by boat. The appellant applied unsuccessfully for a protection visa. The appellant appeals a decision of the Federal Circuit Court of Australia which dismissed his application for judicial review of a decision of the Administrative Appeals Tribunal dated 16 February 2016. The Tribunal had affirmed the decision of a delegate of the first respondent (the Minister) to refuse to grant the appellant a protection visa.

2    The appellant was represented by counsel before the Federal Circuit Court, but was unrepresented on the appeal to this Court. At the hearing of the appeal in this Court, the appellant addressed the Court through interpreters.

Background

3    The appellant claimed to fear serious harm at the hands of the Sri Lankan Army (SLA), the police, or the Sri Lankan government as a result of his Tamil ethnicity, an imputed political support of the Liberation Tigers of Tamil Eelam (LTTE), and due to his unlawful departure from Sri Lanka. The appellant claimed that in May 2012 in Sri Lanka he was identified as a Tamil by men whom he thought were members of the SLA who had attended at his place of work. The appellant claimed that the men, who were Sinhalese, threatened and harassed him, and later came looking for him in his village, and made further threats. The appellant claimed that one of the men had threatened to shoot and kill him, as a result of which he ultimately decided to flee to Australia, as he considered that there was nowhere safe for him to go in Sri Lanka.

4    The appellant participated in an entry interview with the assistance of an interpreter at Wickham Point Immigration Detention Centre on 3 September 2012. The interview occurred about seven weeks after his arrival in Australia. There is a written record of that interview that is signed by the interviewer, the appellant, and the interpreter. The appellant made a statutory declaration on 3 December 2012 in support of his application for a protection visa. The statutory declaration was endorsed with a statutory declaration of an interpreter. The appellant also participated in an interview with a delegate of the Minister on 25 September 2013 using a Tamil interpreter.

5    On 24 February 2014, the Minister’s delegate refused the appellant’s application for protection, finding that there were a number of discrepancies and inconsistencies in statements made by the appellant relating to his protection claims, and that his verbal testimony about the incidents that supported his claims was vague and unconvincing. The delegate found that the appellant had fabricated aspects of his claim in order to bolster his claims for protection, and that he was generally not credible.

6    On 21 March 2014, the appellant applied to the Tribunal (at that time, the Refugee Review Tribunal) for review of the delegate’s decision. On 3 February 2016, the Tribunal received a written submission of the same date from a legal representative of the appellant, together with a statutory declaration of the appellant made 2 February 2016. By this statutory declaration the appellant made an additional claim to the Tribunal that his brother had been attacked by some fishermen in Sri Lanka in about May 2014, who had asked about the whereabouts of the appellant. The appellant claimed that a few months later the fishermen attended his brother’s house, asking where the appellant was. The appellant claimed that the fishermen complained that when the appellant had worked as a bulldozer driver making roads that were associated with the construction of a hotel, he had blocked a river, affecting part of the river where fish hatched. The appellant claimed that he feared that the fishermen would physically harm him if he returned to Sri Lanka.

7    On 5 February 2016, the Tribunal conducted a hearing. The appellant gave evidence before the Tribunal. By its decision dated 16 February 2016, the Tribunal affirmed the decision of the delegate of the Minister. The Tribunal formed the view that the appellant’s evidence in its material aspects was not credible due to inconsistencies in the evidence, and due to the implausibility and vague nature of various aspects of the appellant’s claims.

8    The appellant made an application for judicial review of the Tribunal’s decision to the Federal Circuit Court, which was dismissed on 20 December 2018. The appellant appeals that decision to this Court.

The appellant’s claims

9    The appellant was required to express his claims on different occasions. The record of the appellant’s entry interview dated 3 September 2012 stated the appellant’s claim in relation to threatened harm by the Sri Lankan Army in the following terms –

Q:    Tell me why you left Sri Lanka to come to Australia.

A:    There’s no guarantee for my life.

Q:    Tell me more, why is there no guarantee for your life?

A:    The place I worked, I was interrupted and I have problem with Army.

Q:    What problem do you have with the Army?

A:    One occasion, the Army came to my workplace, they check and they took all the details and they identified I am a Tamil and how is it possible a Tamil person is working with Sinhalese people, they used abusive words and they were about to hit me and it became a problem.

I called my employer and I told about this incident, my employer said don’t be afraid, there won’t be any problem. On the day, same night time, they were looking for me, fortunately I wasn’t there, I went to shop, then I worked like this and after some times, four people come to me, then they come to the workplace and they was about to hit me and another guy asked me to run, I ran away and in the jungle field I slept, morning I took my luggage and I came to my village, I told my employer that I can’t work there, then he said it’s okay, you work here, I worked in my village.

After a while, I again went to the same workplace, after that I was working there, 17th of June, I went to the shop, there was a vehicle, Army came, at the shop, they started shouting at me, you Tamil and they was about to hit me, they start chasing me, I ran away through the fields, then I went to my workplace, then at first they come to my workplace, shouting at me and they went to chase me from that workplace and they threaten me that they are going to burn that place, then I went to my village, after that I didn’t go to work and someone came looking for me, but I don’t know who they are.

After that, I come to Australia.

Q:    When did the problem with the Army begin?

A:    May.

Q:    Which year?

A:    2012.

Q:    Where did this happen?

A:    [place omitted].

Q:    That night, you said four people came looking for you, who were those people?

A:    I think they were Army, they were drunk.

Q:    Why were they looking for you?

A:    I don’t know.

10    The appellant’s statutory declaration dated 3 December 2012 expressed the corresponding claims as follows –

9.    I fled to Australia because of problems I had with Sri Lankan Army officers.

10.    When I was working at [place omitted] in 2012, a group of Singhalese men in Sri Lankan Army uniform came to my workplace. In [place omitted] there are a lot of problems between the Tamils and the Singhalese.

11.    The Army officers asked everyone for their documents. They asked me if I was Tamil or Singhalese. I can speak both languages. I spoke to them in Singhalese. They asked for my ID card, which says that I am Tamil.

12.    The officers became angry when they found out that I was Tamil and I was working with Singhalese people. I was the only Tamil person working there. They were rude to me, and l spoke back to them. They wanted to beat me up but my friends pulled me back. The officers wrote down my details and left.

13.    I called my boss [name omitted] to tell him what happened. He told me not to worry. That night I was staying in a hut at my workplace with the other workers. The same four men came back. They were drunk and not wearing their uniforms.

14.    They asked, “Where is the Tamil boy?” I was inside the hut. They made me come out. Then they harassed me and asked why I was there. They threatened to burn down the hut. They tried to hit me but I ran. I slept in a paddy field all night.

15.    In the morning I went back to my village. I told [name omitted] that I could not work in [place omitted] anymore. He told me I could work for him in my village. I did this for about 10-15 days.

16.    Then my boss asked me to work in [place omitted] again. The salary was much higher if l went to work there so I agreed although I was frightened of the Army officers.

17.    I worked for a day. The next morning I rode a bicycle into [place omitted] city to a shop. At the shop, I saw one of the officers who had previously harassed me.

18.    He verbally abused me, calling me a ‘Tamil bastard’ and ‘Tamil dog’. He kicked my bicycle and threatened that he would kill me. I ran away. The officer took out his gun and shouted, “Stop or I’ll shoot”. I kept running. I was very scared.

19.    I ran through the fields and took a bus to my village. I told [name omitted] I did not want to work in [place omitted] anymore. I said I would work for him in my village instead.

20.    After only one or two days, some Singhalese men came looking for me in my village. I suspected were the same Army officers who had threatened me. They came to my mother’s house and asked her where I was. She told them that I was at work. I was actually in another house across from my mother’s house, hiding. They came two more times after this when I was at work.

21.    They asked my mother a lot of questions about me, such as where I worked and what time I got home. My mother asked why they wanted me, and they did not tell her. They did not harm her.

22.    My mother felt very scared and so did I. We thought that for these Army officers to come all the way from [place omitted] to find me meant that it was very serious.

23.    I was sure that my life was at risk because they had threatened to shoot me and kill me. They were targeting me because I was a Tamil and I was working with Singhalese people. The Sri Lankan Army hates Tamils because they think that all of us are supporters of the LTTE. I decided to flee to Australia.

11    The Tribunal summarised the material parts of the appellant’s evidence to the Tribunal at [24]-[31] as follows –

24.    … While he was in [place omitted] for work in about May 2012, he went out with Sinhalese boys and had some tea. The SLA officers came and checked him. They asked him if he was Tamil and the problems started. They were having tea in the hut they were all staying in; they were working in a farm and residing on the premises. It was in the morning, around 10am. He does not know the reason for the SLA coming to his hut.

25.    The officers asked if he was Tamil; he said yes. They accused him of being LTTE and had an argument. They took his ID and told him that he had a big mouth. He confirmed that the conversation went straight from them asking if he was Tamil to accusing him of being LTTE. They asked if he helped the LTTE; he said he did not. They asked him why he had to work there; he asked them why can’t he work there. They took his ID and noted it down. After that they left.

26.    That night the same four men returned to the hut. They were drunk and asked where the Tamil was. He was inside at the time; they said if he does not come out they will burn down the hut. There was one man who tried to hit him but a friend told him to run. The applicant ran away; that night he slept in the paddy fields. In the morning he went to the hut, took his belongings and returned to his home village. He told his boss about the problem. [Name omitted] told him that he could work from his village.

27.    After ten days or so, [name omitted] asked him if he wanted to go and work in [place omitted]. Because of the higher pay, the applicant decided to return. In the morning, when he went to the shop, an army personnel came there; he was one of the four who had been to the hut. The SLA officer shouted at him ‘Tamil dog come out’. He kicked the applicant’s bike and started coming towards him. The applicant started running. The officer shouted that he would shoot and took out his gun, but he did not shoot. The applicant continued running.

28.    The tribunal noted that this seemed to be an extreme reaction by the officer just at seeing the applicant, given his evidence about their previous encounter. The applicant stated that he does not know why the officer did that.

29.    The officer was running after him for about 50 metres. The applicant went to the hut, took his bag and returned to his home village. He told his boss that he could no longer work there and the boss said that’s ok. He was asked if his boss offered to do anything to sort out the problem. He stated that his boss did not take it into account and just wanted them to work.

30.    After that, Sinhalese people came to the applicant’s house looking for him. They asked where the applicant was; he was in another house at the time. His family told the people that the applicant had gone to work. He does not know who they were. His mother asked; they said they were someone known to the applicant.

31.    They came four or five times in the morning, starting two days after he got back. They came after a day, or two or three days, over the course of approximately two weeks. They asked where he was, where he was working and when he would return. His mother told them that the applicant went to work; but she did not know exactly where he works. The applicant was staying at a friend’s house the first night, came home then he went back to his friend’s house. After the first time, his mother told him not to stay there, so he went and stayed at his auntie’s place. After the other times they came, his mother told him not to stay there and then he got the opportunity to go to Australia.

12    The delegate’s reasons referred to the following differences between the written claims in the appellant’s statutory declaration of 3 December 2012, the record of the appellant’s entry interview on 3 September 2012, and the interview by the delegate on 25 September 2013 –

(1)    In the record of the entry interview –

    the appellant is recorded as stating that when the members of the SLA returned in the evening, he was not there because he had gone to the shop;

    the incident at the shop is stated to have occurred on 17 June 2012;

    in relation to the incident at the shop, the appellant made no mention of a threat to kill him, or about the officer drawing his gun and threatening to shoot the appellant;

    the appellant is recorded as stating that following the incident at the shop, he ran away through the fields, and then he went to his workplace, then at first the SLA went to his workplace, shouting at him and they went to chase him from that workplace and they threatened him that they were going to burn that place, and then he went to his village;

    the appellant is recorded as stating that he did not go to work after returning to his village following the incident at the shop, although in my opinion it is not clear whether the appellant was referring to “work”, or his workplace.

(2)    In the statutory declaration –

    the appellant stated at [13] that he was staying in the hut at his workplace when the SLA members returned in the evening;

    at [18] the appellant described a threat to kill him that was made by a member of the SLA at the shop, and stated that the officer took out his gun and shouted “Stop or I’ll shoot”;

    the appellant stated at [19] that after the incident at the shop he ran through the fields and took a bus to his village;

    the appellant gave an account at [20] of Sinhalese men going to his mother’s house on three occasions.

(3)    In the interview by the delegate –

    the appellant stated that the incident in the shop occurred 30 days before he left Sri Lanka (which was 29 June 2012);

    the appellant stated that following the incident at the shop he returned to his workplace, collected his bag, and left to return to his village, and that he did not see the SLA at his workplace on this occasion;

    the appellant stated that he continued to do cleaning work at a prawn farm in his village until he left Sri Lanka;

    the appellant stated that Sinhalese men went to his mother’s house on four or five occasions.

13    The Tribunal stated at [37] of its statement of decision and reasons that it put to the appellant that in his entry interview he had claimed that he had not been present on the evening when the SLA members returned to his workplace, and that he was at the shop. The Tribunal recorded the appellant’s response –

He advised that the night when they came, he was there but he was talking about the second time when he came to the shop. The tribunal read back the summary of the evidence in his entry interview. The applicant again stated that he was at the hut.

14    The Tribunal at [57] of its reasons rejected this explanation. The Tribunal stated in relation to this and other perceived inconsistencies –

Claims related to the SLA

56.    While the tribunal acknowledges that the applicant has provided some consistent details in relation to events described, in the tribunal’s view, the implausible nature of various aspects as well as inconsistencies between his entry interview and subsequent evidence outweighs any consistency of certain details.

The applicant’s encounter with the SLA in [place omitted]

57.    As discussed with the applicant at hearing, the applicant has provided different accounts of his encounters with SLA officers in [place omitted] in his entry interview and in his protection visa application and to the tribunal. For example, the applicant told the tribunal that he was in the hut when the four drunk SLA officers returned in the evening. However, according to his account as set out in the entry interview, the applicant was not in the hut but had gone to the shop. The tribunal does not accept that the applicant was referring to the incident when he returned to [place omitted] and saw an SLA officer at a shop; that episode is also mentioned later on in the entry interview record.

58.    A further inconsistency between the applicant’s account at entry interview and his subsequent account is when the applicant returned to his home village after the alleged second visit to his hut by drunk SLA officers. The entry interview record indicates that the applicant continued working and that, after some time, four people came to his workplace and were about to hit him when another individual told the applicant to run away, which is when he slept in the jungle and returned to his village. In the version given by the applicant in his written statement and to the tribunal, he ran away and slept in the field on the night drunken SLA officers came to the hut and returned to his village the next morning.

59.    Furthermore, the applicant appears to have provided different versions of what occurred when he returned to [place omitted] from his village a week or so later. According to the account set out in the entry interview record, after the encounter with the SLA officer at a shop, he returned to his workplace, where SLA officers also came and threatened to burn it down. According to the account given by the applicant in his protection visa and review applications, he immediately returned to his home village again after encountering the SLA officer at the shop and did not return to his workplace. According to his statement and evidence to the tribunal, the applicant also claimed that the threat to burn down property (his hut) was made earlier, when drunken SLA officers came to the hut looking for him. He did not refer to any threats to burn down his workplace after returning to [place omitted].

60.    At the hearing the applicant was not able to provide any explanation for why the account set out in the entry interview record differed from his subsequent account. Written submissions on this matter from his representative argue that it is not unreasonable for the applicant’s account at entry interview to conflate or confuse two separate incidents given the circumstances of the interview. While the tribunal acknowledges that the applicant did not have the assistance of his representative at the time of the entry interview, it is not convinced that the circumstances of that entry interview would have led to the confused account provided by the applicant. No evidence has been provided regarding any particular unusual circumstances of the applicant’s entry interview.

…

64.    The tribunal acknowledges that the applicant has provided a fairly consistent account of incidents during the two trips to [place omitted] and upon his return to [his village] in his protection visa application and in his oral evidence to the tribunal. While some details provided by the applicant may be based on certain events that occurred at some time in the past, the tribunal finds so many aspects of the applicant’s claims to lack credibility for various reasons that it cannot be satisfied that he is providing a true and credible account of the events that occurred prior to his departure from Sri Lanka.

15    In addition to the perceived inconsistencies, the Tribunal also considered that elements of the appellant’s claims were difficult to accept, including that the appellant would be suspected of LTTE involvement in the circumstances that he described, when the appellant’s identity card showed that he came from an area that, according to country information, was never under LTTE control. The Tribunal considered that the claims in relation to the SLA member making threats to kill the appellant lacked credibility, and the claim that unknown Sinhalese men visited the appellant’s mother’s house to be implausible, and also lacking in credibility. In consequence, the Tribunal did not accept any of the appellant’s claims in relation to his encounters with the SLA, or that unknown Sinhalese men had visited his mother’s house.

16    In relation to the appellant’s claim that he feared harm from fishermen who had attacked his brother and made threats, the Tribunal considered these claims to be vague, far-fetched, and implausible. The Tribunal did not accept that the appellant, who was only a bulldozer driver, would be targeted ahead of others, and rejected a claim by the appellant that his supervisor had been beaten, when that claim had not been made in the appellant’s statutory declaration of 2 February 2016.

17    In relation to any risk to the appellant upon return to Sri Lanka on the basis that he was a returned asylum-seeker, the Tribunal referred to country information from 2015 that there had been thousands of asylum-seekers who had returned to Sri Lanka since 2009 with relatively few allegations of torture or mistreatment, and stated that it appeared that those who were of adverse interest to the Sri Lankan authorities had a profile of interest. The Tribunal was of the view that the appellant did not have a profile of interest, and did not accept that standard questioning and security checks that might occur upon the appellant’s return to Sri Lanka would amount to serious harm or significant harm. The Tribunal did not accept that there was a real chance or a real risk that the appellant would be imprisoned as being a returned asylum-seeker. The Tribunal accepted that the appellant had departed Sri Lanka without valid travel documents, and was therefore likely to be charged with an offence under the Sri Lankan Immigrants and Emigrants Act upon his return. The Tribunal relied on DFAT advice and formed the view that if the appellant was charged with such an offence, he would likely be held in remand for a short period, which was generally up to 24 hours, or at most a few days, before appearing before a Court where he would likely be bailed, or fined and released. The Tribunal found that, if convicted, the chance of a custodial sentence for the appellant was remote, and that the risk of serious harm to the appellant if he was held on remand for no more than a few days was also remote.

18    The Tribunal evaluated the appellant’s claims against the criteria in the Refugees Convention, which was picked up by s 36(2)(a), (aa), (b) and (c) of the Migration Act 1958 (Cth), and qualified by s 91R and s 91S. These latter provisions were applicable because the appellant’s application for a protection visa was made before the commencement on 16 December 2014 of item 28 of Part 4 of Schedule 5 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The Tribunal was not satisfied that the appellant had a well-founded fear of persecution, or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there was a real risk that the appellant would face significant harm.

The proceeding before the Federal Circuit Court

19    Before the Federal Circuit Court, the appellant advanced the following grounds in support of his application seeking judicial review of the Tribunal’s decision –

1.    The Tribunal fell into jurisdictional error in that it failed to consider relevant considerations including claims, integers of claims, material questions of fact and information or material.

Particulars

(a)    The Tribunal failed properly to take account of the information before it relating to the phenomenon of torture and abuse of those in detention or prison or under the control or power of the authorities of Sri Lanka. (Court Book (“CB”) 208-221; CB 316, [84-87]; CB 318, [99]-[100])

(b)    In assessing the weight to be given to inconsistencies between the Applicant’s evidence at the Entry Interview and his later evidence, the Tribunal failed to consider:

    (i)    the limited purpose of the of the Entry Interview;

    (ii)    the limited duration of the Entry Interview;

(iii)    the fact that the Entry Interview was conducted through an interpreter;

(iv)    the fact that the Entry Interview was conducted 3 years and 5 months before the Tribunal’s hearing.

2.    The Tribunal fell into jurisdictional error in that it erred in interpreting or applying the law.

Particulars

Given the information before the Tribunal relating to the phenomenon of torture and abuse of those in detention or prison or under the control or power of the authorities of Sri Lanka, in finding that there was no real chance of the Applicant suffering serious harm and no real risk of him suffering significant harm, it is to be inferred that the Tribunal was in fact requiring to be satisfied of more than a real chance or a real risk of such harm. (Court Book (“CB”) 208-221; CB 316, [84]-[87]; CB 318, [99]-[100]; CB 319, [103]-[104]).

3.    The Tribunal fell into jurisdictional error in that it made findings without probative evidence or otherwise acted illogically, irrationally, unreasonably, or so unreasonably that no reasonable Tribunal would so have acted.

Particulars

(a)    Given the information before the Tribunal relating to the phenomenon of torture and abuse of those in detention or prison or under the control or power of the authorities of Sri Lanka, the Tribunal was unreasonable in finding that there was no real chance of the Applicant suffering serious harm and no real risk of him suffering significant harm. (Court Book (“CB”) 208-221; CB316, [84]-[87]; CB 318, [99]-[100]; CB 319, [103]-[104].

(b)    The Tribunal was unreasonable in assessing the weight to be given to inconsistencies between the Applicant’s evidence at the Entry Interview and his later evidence, given:

    (i)    the limited purpose of the Entry Interview;

    (ii)    the limited duration of the Entry Interview;

(iii)    the fact that the Entry Interview was conducted through an interpreter;

(iv)    the fact that the Entry Interview was conducted 3 years and 5 months before the Tribunal’s hearing.

20    I shall consider the grounds raised before the primary judge when I address the grounds of appeal.

The appeal to this Court

21    The notice of appeal filed on 7 January 2019 sets out the following grounds of appeal –

1.    Applicant thinks the order, which is based on the application has a question of law and it should be investigated.

2.    Applicant has provided lot of information and supporting documents for his protection Visa application. Applicant believes this information was not considered properly and not granted a fair order.

22    The appellant did not file written submissions, and in oral submissions did not advance any specific error in the decision of the primary judge. I indicated to the parties at the hearing of the appeal that I proposed to treat the appellant’s grounds of appeal as a general claim that the primary judge had erred in rejecting the appellant’s grounds of review. The Minister agreed that I should adopt this course.

23    Within the three grounds of review before the primary judge that I have set out under [19] above were two arguments, namely –

(1)    that the Tribunal had fallen into jurisdictional error in its consideration of inconsistencies between the appellant’s entry interview and his later evidence before the Tribunal; and

(2)    the Tribunal had fallen into jurisdictional error in its consideration of claims alleged to have been made by the appellant that he might be subjected to torture on his return to Sri Lanka.

I shall consider the two arguments in turn.

Perceived inconsistencies in the appellant’s accounts of events

24    In paragraphs [56] to [60] of its reasons which I have set out at [14] above, the Tribunal identified what it considered to be inconsistencies between what the appellant was recorded as having stated during his entry interview, and what the appellant later stated in his evidence before the Tribunal. Those inconsistencies related to three matters: (1) whether the appellant had been present when four drunken SLA members attended the hut on the evening of their first visit to the appellant’s workplace; (2) when the appellant returned to his home village following the claimed second visit to the hut by the SLA members; and (3) whether, after the incident at the shop, the appellant returned to his workplace where the SLA made further threats to him, or whether the appellant returned directly to his village.

25    Before primary judge, the grounds of review raised two types of jurisdictional error. First, it was argued on behalf of the appellant that the Tribunal was required to consider and had failed to consider a number of features of the entry interview –

(1)    the limited purpose of the of the entry interview, which was submitted as being general information about the appellant and his arrival in Australia, and why he should not be removed at that time;

(2)    the limited duration of the entry interview, which was one hour and 31 minutes;

(3)    the fact that the entry interview was conducted through an interpreter, thus reducing effective communication time to about 45 minutes; and

(4)    the fact that the entry interview was conducted 3 years and 5 months before the Tribunal’s hearing.

26    Second, it was argued that the Tribunal’s assessment of the weight to be given to the perceived inconsistencies in the appellant’s accounts was the product of legal unreasonableness, having regard to the four features of the entry interview set out above.

27    It has been said that while the evaluation of proof of refugee status calls for a liberal attitude on the part of a decision-maker, that should not lead to an uncritical acceptance of all and any allegations made by applicants for protection: Randhawa v Minister for Immigration, Local Government, and Ethnic Affairs (1994) 52 FCR 437 at 451 (Beaumont J, Whitlam J agreeing). A finding as to credibility “is the function of the primary decision-maker par excellence”: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 168 ALR 407 at [67] (McHugh J). However, notwithstanding that a finding of credibility is a function of the primary decision-maker, like any process of fact-finding, such findings are not immune from review for jurisdictional error, as the following passages from the reasons of the Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 indicate –

37    It is important to note that McHugh J’s observations and his Honour’s use of the phrase “par excellence” were made in the specific context of a claim that the Tribunal had not complied with its statutory obligation under s 430 of the Migration Act to give reasons for its decision. Nothing said by McHugh J suggests that the Tribunal’s adverse findings on credibility are not amenable to judicial review on jurisdictional error grounds. There is a risk that a mechanical use of the phrase “par excellence” as a formula fails sufficiently to appreciate this important reality. The fact that credibility is a matter for the Tribunal to determine as a question of fact does not mean that challenges to credibility are not open. This appeal illustrates three of a number of potential bases of challenge to credibility findings on well-established legal precedent. In the present appeal, the foundation for the challenge is on the basis of no logical or probative basis for the finding in relation to ground 1, illogicality and/or irrationality in relation to ground 2, and, in relation to ground 3, a lack of natural justice.

38    There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:

(a)    failure to afford procedural fairness;

(b)    reaching a finding without any logical or probative basis;

(c)    unreasonableness; and/or

(d)    jurisdictional error as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451.

28    In AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [41] the Full Court (Kenny, Griffiths and Mortimer JJ) summarised the principles guiding judicial review of adverse credibility findings that were applicable to that case –

(a)    The issue whether or not an administrative decision is affected by jurisdictional error requires a careful examination of the relevant statutory framework, with a particular emphasis on provisions which determine the decision-maker’s powers, procedures, functions and obligations.

(b)    While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.

(c)    Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored “relevant material” does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.

(d)    Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).

(e)    Merely because there is no reference in the decision-maker’s reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225; [2001] HCA 30 at [10] per Gleeson CJ).

(f)    Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.

29    In relation to the last matter, which is the need for considerable caution before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, similar observations have been made in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451 at [14]-[15] (Flick J), and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30] (Kenny, Kerr and Perry JJ).

30    In this case, the Tribunal relied upon the record of the appellant’s entry interview as affecting the appellant’s credibility. The Full Court has emphasised that caution should be exercised by decision-makers in relying on an omission by an applicant for a protection visa to raise a matter in an entry interview as a basis for an adverse credibility finding: MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; 239 FCR 436 at [56]. At least the first three of the four submissions advanced on behalf of the appellant before the primary judge to which I have referred at [25] above might be apt to a case where an omission to mention something in an entry interview was thought to be material. However, that is not quite this case. In this case, the Tribunal relied on inconsistencies between the record of what was actually said by the appellant at the entry interview, and what he said in evidence before the Tribunal.

31    In relation to the assessment of inconsistencies between different accounts given by applicants for protection visas, decision-makers might have occasion to take account of the considerations referred to in W375/01A v Minister for Immigration and Multicultural Affairs (2002) 67 ALD 757, where at [15] Lee, Carr and Finkelstein JJ stated –

As anyone with even a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness. All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter. It is inevitable that each version will be slightly different, and may even be very different once the impact of the interpreter is taken into account.

32    In the present case, the Tribunal referred to the submissions put on behalf of the applicant’s representative that it was not unreasonable for the applicant’s account to have conflated or confused two incidents. The submission was in the following terms –

We note that the account given by [the appellant] at his entry interview appears to confuse or conflate what happened on the two separate incidents, which we submit is not unreasonable given the circumstances of the interview, and that [the appellant] was giving one extended account and not asked detailed questions which would allow him to carefully explain the details of the separate incidents. In our submission, the account given by [the appellant] is broadly consistent with the details he has since elaborated.

33    The Tribunal rejected this submission at [60] of its reasons, which I have set out under [14] above. The inconsistencies between the entry interview and the evidence before the Tribunal formed only a part of the reasons for the Tribunal rejecting the material aspects of the appellant’s claims. Other reasons included what the Tribunal regarded as the implausibility of various aspects of the appellant’s claims to which the Tribunal referred at [56] and [64] of its reasons set out under [15] above, and to which I have referred at [16] above. It is also to be noted that although the Tribunal made no reference to the appellant’s demeanour in giving evidence before the Tribunal, or in responding to the inconsistencies that were put to him, the Tribunal had the advantage of having engaged with the appellant, and of considering his evidence as whole: CWR16 v Minister for Immigration and Border Protection [2018] FCA 859 at [86] (Allsop CJ).

34    The primary judge rejected the appellant’s submission that the Tribunal was required to consider, and failed to consider the four matters set out under [25] above. His Honour’s reasons for doing so were as follows –

22.    To the argument advanced by [counsel for the appellant] that the tribunal failed to consider the matters in particulars 1(b)(i), (ii), (iii) and (iv), it seemed to me that by reason of the High Court’s observations in Minister for Immigration and Multicultural Affairs v Yusuf, the tribunal was not required to make a finding of fact on any and every matter that an applicant said was material. To that end, merely because there was no reference in the tribunal’s decision to particular material did not give rise to an inference that the material was not considered. The minister’s submission was correct when the minister said there was no reason to assume that the tribunal did not have regard to the limited purpose of the entry interview, its limited duration, the fact that it was conducted through an interpreter or the fact that it was conducted more than three years earlier. Further, the minister sought to distinguish this case from AVQ15 by contending that none of the matters the applicant highlighted arising from the entry interview constituted “significant information” with the consequence that none required express consideration.

23.    I agree.

24.    I also agree with the minister’s contentions that the applicant was in reality seeking to agitate issues as if this application for judicial review were in truth a merits review. It is not permissible to convert an application for judicial review into a merits review.

35    The primary judge’s reference to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 is to be understood as a reference to the reasons of McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) concerning the obligation of the Tribunal under s 430 of the Act to prepare a written statement. In relation to the requirements of s 430, their Honours stated at [67] –

As was rightly observed in the joint judgment in [Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at 480 [44]], this section calls for a recording of matters that are matters of fact. In particular, s 430(1)(c) requires the Tribunal to set out the findings of fact which it made. But does it require more? Does it oblige the Tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make?

36    At [68], their Honours answered the question that they had posed above as follows –

Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. … A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.

37    By this passage, their Honours rejected the idea that s 430 of the Act required the Tribunal to make findings about facts that were objectively material, and held that the Tribunal was required only to make findings as to facts that the Tribunal considered were material. Their Honours stated further, at [69] –

The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. … It may reveal jurisdictional error. The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.

[footnotes omitted]

38    There is therefore a distinction to be drawn between questions of fact that the Tribunal considers to be material, the findings in respect of which the Tribunal is required to set out in a statement prepared for the purposes of s 430 of the Act, and other facts which the Tribunal might consider, but determine not to be material. For that reason, the primary judge was correct to conclude at [22] that the mere absence of reference in the Tribunal’s statement to the four matters referred to in paragraph [25] above did not give rise to an inference that the material was not considered by the Tribunal. That is because the Tribunal may not have regarded them as material. It was for the Tribunal, within the bounds of legal reasonableness, to determine what factors it considered to be material to the weight to be given to the record of the appellant’s statements at the entry interview.

39    I am unable to conclude that the Tribunal was bound to find that any of the four matters referred to in paragraph [25] above was material. As I have said at [30], the first three matters might have been relevant to an omission by the appellant to mention something in the entry interview, because they are concerned with the limited time and scope of an entry interview. The fourth matter should be assessed having regard to the submissions that were advanced on behalf of the appellant to the Tribunal, the relevant aspect of which I have set out at [32] above. Those submissions did not suggest that the account given in evidence to the Tribunal might be affected by the passage of time. Rather, the submission implicitly supported the account given by the appellant to the Tribunal, but sought to explain the account in the record of the entry interview. The Tribunal addressed that submission and rejected it. Given the focus of that submission, the Tribunal was not required to engage with the speculative relevance of the fact that the entry interview was conducted 3 years and 5 months before the Tribunal hearing.

40    It follows that having reviewed the material that was before the primary judge, I consider that there was no error in the primary judge’s rejection of the submission that the Tribunal’s reliance on inconsistencies between the appellant’s evidence and the record of the entry interview was legally unreasonable. Nor do I consider that the Tribunal’s findings as to the inconsistencies involved any jurisdictional error on the ground that the material findings lacked a logical, rational, or probative basis.

The Tribunal’s consideration of the appellant’s claims as to torture

41    The particulars under each of grounds of review 1, 2, and 3 that were before the Federal Circuit Court, and which I have set out at [19] above, concern “information before the Tribunal relating to the phenomenon of torture and abuse of those in detention or prison or under the control or power of the authorities of Sri Lanka”. Three errors were alleged to arise in relation to this information –

(1)    the Tribunal failed properly to take the information into account [ground 1(a)];

(2)    given the information in relation to torture, in finding that there was no real chance of the appellant suffering serious harm and no real risk of him suffering serious harm, the Tribunal in fact required that it be satisfied of more than a real chance or a real risk of such harm [ground 2]; and

(3)    the Tribunal acted unreasonably in finding that there was no real chance of the appellant suffering serious harm and no real risk of him suffering significant harm [ground 3(a)].

42    The Minister submitted to the primary judge that the phenomenon of torture and abuse had not constituted part of the appellant’s claim. The primary judge stated at [13] that the appellant had relied on various passages from the Tribunal’s reasons to demonstrate that the claim had been made and had not been addressed, and set out a number of passages from the Tribunal’s reasons. At [15], the primary judge stated –

The tribunal’s reasons did contain some references to torture. For example, such a reference was in paragraphs 85 and 100 of the tribunal’s reasons. However, in neither place did the tribunal reference a specified claim by the applicant that he feared harm if returned to Sri Lanka on account of torture. I agree that the phrase “phenomenon of torture” was not used by the applicant and that the applicant did not establish that the phenomenon of torture was of great importance, in the manner contemplated in Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145.

43    In his statutory declaration made 3 December 2012 in support of his application for a protection visa the appellant referred to his fear of being targeted by the SLA on the ground that he was a Tamil, and referred to torture in the following context –

28.    Further, now that I have left Sri Lanka and sought asylum in Australia I fear harm at the hands of the Sri Lankan authorities. I fear that they will arrest and detain me the airport. I am a Tamil and I have left illegally without my passport. I fear I would face serious punishment for this. I could be tortured or disappeared.

44    In written submissions dated 3 February 2016 that were made to the Tribunal on the appellant’s behalf by his legal representative, the appellant’s claims were expressed in overview as follows –

[The appellant] fears that he will he will suffer serious harm, including arrest, detention, physical mistreatment, torture or enforced disappearance, from the Sri Lanka authorities including the Sri Lankan Army (SLA) if he is returned to Sri Lanka, on account of his Tamil ethnicity. He fears harm in relation to:

•    The harassment and threats he received from SLA officers in [place omitted] prior to his departure from Sri Lanka in 2012; and/or

•    Punishment for his illegal departure from Sri Lanka.

45    There were within this submission three elements of the claim –

(1)    the appellant would suffer serious harm on account of his Tamil ethnicity;

(2)    the appellant feared such harm in relation to the threats he received from the SLA officers; and

(3)    the appellant feared such harm in relation to punishment for his illegal departure.

46    Under the heading “General human rights situation” the appellant’s submissions to the Tribunal referred to a report of the US Department of State released in 2015 that made references to torture. The extracts from that report stated in part –

The major human rights problems reported over the year were: attacks on, and harassment of, civil society activists, journalists, and persons viewed as sympathizers of the Liberation Tigers of Tamil Eelam (LTTE) by individuals allegedly tied to the government: involuntary disappearances, arbitrary arrest and detention, torture, abuse of detainees, rape, and other forms of sexual and gender-based violence committed by police and security forces; and widespread Impunity for a broad range of human rights abuses. …

…

The law makes torture a punishable offense and mandates a sentence of not less than seven years’ and not more than 10 years’ imprisonment. There were credible reports, however, that police and security forces tortured, raped, and sexually abused citizens. The Prevention of Terrorism Act (PTA) allows courts to admit as evidence confessions extracted by torture.

In the east and north, military intelligence and other security personnel, sometimes allegedly working with paramilitaries, were responsible for the documented and undocumented detention of civilians accused of LTTE connections. Observers reported that interrogation sometimes included mistreatment or torture following detention. There were reports that authorities released detainees with a warning not to reveal information about their arrest or detention, under the threat of re-arrest or death.

…

According to human rights groups, police stations held an unknown number of detainees, as did · the CID, the TID, army camps, or other informal detention facilities, on allegations of involvement in terrorism-related activities. Authorities allegedly held many of these detainees incommunicado without charge or trial. Numerous reports suggested that security personnel used involuntary disappearances to interrogate persons “off the books” without the need to document the cases. Authorities then released victims of these disappearances and unreported interrogations and told them not to disclose their abductions or interrogations under threat of physical harm. In some cases authorities reportedly followed detention by interrogation that included mistreatment or torture.

47    The submissions to the Tribunal also referred to a summary of concerns of Human Rights Watch in its World Report 2015 which included the following –

The government’s treatment of Tamils forcibly returned to Sri Lanka after being denied asylum overseas continues to be a significant concern.

48    The Tribunal addressed the appellant’s risk of harm as a Tamil or imputed LTTE supporter or as a returned asylum-seeker at paragraphs [77] to [102] of its statement of decision and reasons. At [77] the Tribunal stated –

As discussed with [the appellant], on the basis of the information before it, including that contained in submissions to the tribunal, the tribunal is of the view that that being a Tamil, a Tamil male or a Tamil male from formerly LTTE- controlled areas including the North of Sri Lanka no longer gives rise to a risk profile in Sri Lanka now nor does such a profile impute an individual with a pro-LTTE opinion.

49    And at [86] the Tribunal stated –

The tribunal’s assessment of the country information before it, including that contained in submissions from [the appellant’s] representative, is that it does not indicate that all returnees/failed asylum seekers are at risk or that it is the act of fleeing it appears that individuals who have a profile of interest to the Sri Lankan authorities and who also happen to be returnees/failed asylum seekers (from a western country) may be of adverse interest to the authorities. In light of its findings regarding the [appellant’s] profile and claims the tribunal does not accept that he has a profile of interest to the Sri Lankan authorities.

50    The elements of the appellant’s claims were therefore not accepted by the Tribunal. I note that at [86] the Tribunal referred in general terms to the country information in the submissions from the appellant’s representative, and referred to the US State Department Report at footnotes 28 and 30 in the context of prison conditions in Sri Lanka. The Tribunal did not accept the specific claims in relation to the encounters with the officers of the SLA, and the Tribunal did not accept that the appellant had a risk profile that gave rise to a real chance or risk of serious or significant harm as a Tamil, or as a returned Tamil asylum-seeker who had departed Sri Lanka unlawfully. I am not persuaded that within the appellants’ claims was a generalised claim relating to fear of harm from the phenomenon of torture that was not addressed by the Tribunal in its rejection of the appellant’s claims.

51    In relation to ground 2 before the Federal Circuit Court, the primary judge at [25] recorded the submission made on behalf of the appellant as –

Unless, with a high degree of certainty, there had been a definite and enduring cultural change away from violence and torture – and the evidence did not go so far – the Tribunal could not have made the conclusion that the applicant does not have a real chance of persecution on return to Sri Lanka, or a real risk of significant harm, if it had correctly understood and applied the important principle in Chan’s case.

52    The reference to Chan’s case is a reference to Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 where, in the context of construing the Refugees Convention, and identifying that a fear of persecution is well-founded if there was a “real chance” that the refugee would be persecuted, Mason CJ stated p 389 that “a real chance” of persecution was a substantial, as distinct from a remote chance, and at p 429 McHugh J contrasted a “real chance” with one that was far-fetched. See now, s 5J(1) of the Act. In my view, the appellant’s submission proceeded from the premise of an acceptance that risks identified in the country information that was proffered on behalf of the appellant to the Tribunal were applicable to the appellant. The Tribunal rejected those claims, and held that the appellant’s profile was not such as to attract such risks, either as a Tamil, or as a returned Tamil asylum seeker who had departed Sri Lanka unlawfully. Therefore, I do not consider that there was any error in the primary judge’s rejection of ground of review 2.

53    Further, I am unable to discern that there was any merit in ground of review 3(a), which appeared to engage with the underlying merits of the appellant’s claims. Upon my review of the material that was before the primary judge I am not persuaded that there was any merit in the appellant’s claim that the Tribunal’s decision was legally unreasonable, or that the material findings lacked a logical, rational, or probative basis. Accordingly, there was no error in the primary judge’s rejection of this ground.

Conclusion

54    The appeal should be dismissed with costs.

Associate:

Dated:    17 May 2019