FEDERAL COURT OF AUSTRALIA

BAO18 v Minister for Home Affairs [2019] FCA 965

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court on 15 August 2018 be set aside and, in lieu thereof, the Court makes the following orders:

(a)    an order to quash the decision of the Immigration Assessment Authority dated 7 February 2018 and to remit the Appellant’s visa application to the Authority to be re-determined according to law;

(b)    there be no order as to costs of the proceeding before the Federal Circuit Court; and

(c)    the First Respondent pay the Appellant’s costs of the appeal.

3.    The parties have liberty to file short submissions in relation to costs, within seven days.

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

REASONS FOR JUDGMENT

MURPHY J:

1    In this proceeding the appellant, a Sri Lankan citizen of Tamil ethnicity, appeals from a judgment of the Federal Circuit Court which dismissed his application for review of a decision of the Immigration Assessment Authority (the Authority): BAO18 v Minister for Home Affairs [2018] FCCA 2347. The Authority had affirmed a decision by the delegate of the Minister for Home Affairs (the Minister) not to grant the appellant a Class XE (subclass 790) Safe Haven Enterprise Visa (the visa).

2    For the reasons that follow I have made orders to allow the appeal, to set aside the orders of the Federal Circuit Court, and to remit the appellant’s visa application to the Authority to be re-determined according to law.

THE FACTS AND PROCEDURAL HISTORY

3    The appellant arrived in Australia as an unauthorised maritime arrival on 3 November 2012. He was transferred into immigration detention on Christmas Island and was interviewed (entry interview). On 3 March 2016 the appellant lodged an application for a protection visa. In the entry interview, the statement accompanying his application (SHEV statement) and a subsequent interview with a delegate of the Minister on 25 January 2017 (SHEV interview) the appellant made claims which may be broadly summarised as follows:

(a)    he is of Tamil ethnicity and Hindu religion, and was born in a village controlled by the Liberation Tigers of Tamil Eelam (LTTE) in Trincomalee District in the Eastern Province of Sri Lanka. He lived there until 2006 when he and his family were displaced by the civil war. Several members of the village died during the civil war;

(b)    he was not an LTTE member but has been perceived or suspected by Sri Lankan authorities of being an LTTE member, and/or knowing the whereabouts of LTTE members;

(c)    on one occasion he was taken from the area where he lived to a police station, on suspicion that he was a supporter or member of the LTTE, and held overnight;

(d)    in 2006 his family fled to an Internally Displaced Person (IDP) camp. During the one month period he was at the camp he was interrogated and assaulted;

(e)    in 2006 he was detained for one day and one night by army officers at an army camp near the IDP camp. During this time a pistol was put inside his mouth by army officers and threats made that he would be shot if he did not tell the truth. He was also sexually assaulted by army officers at the camp;

(f)    he left the IDP camp after one month because it was not safe to remain there, and he went to live with a family friend in a nearby village. He would return to the camp from time to time to visit his parents, usually on weekends, but he would not stay long as the authorities there would question and beat him, a circumstance that got worse over time;

(g)    the Sri Lankan authorities would question his parents about his whereabouts after he left the camp. On one occasion when he went to visit his parents they told him the authorities had said that they intended to jail him;

(h)    the appellant fled to Australia in 2012. Since arriving in Australia he has been informed that the Sri Lankan authorities continue to search for him;

(i)    he has visible scarring from a shelling attack; and

(j)    if he is returned to Sri Lanka he fears harm because he is perceived to have LTTE connections and because he departed Sri Lanka illegally. As a victim of previous sexual assault, members of the Sri Lankan authorities may look to him for sexual favours. Further, he may become socially ostracised if information about the past sexual assault he suffered becomes known.

4    On 6 February 2017 the delegate refused to grant the appellant a visa on the basis that he did not face a real chance of serious harm or a real risk of significant harm if returned to Sri Lanka. On 7 August 2017 the Authority affirmed the delegate’s decision.

5    The appellant applied for judicial review to the Federal Circuit Court. By consent, on 17 November 2017 the Court remitted the visa application to the Authority, doing so on the basis that the Authority had failed to consider the appellant’s claim that if returned to Sri Lanka members of the Sri Lankan authorities would look to him for sexual favours and he may be ostracised.

6    On 7 February 2018 the Authority, differently constituted, again affirmed the delegate’s decision. The Authority concluded, based on a cumulative consideration of a number of perceived inconsistencies in the appellant’s account, that he was not recalling a “genuine personal experience” in his account. The Authority was not satisfied that the appellant was a person to whom Australia has protection obligations because he is a refugee or because the Minister has reasonable grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. It found that he therefore did not meet the criterion for a protection visa under s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act).

7    On 5 March 2018 the appellant applied to the Federal Circuit Court for judicial review of the Authority’s decision. On 15 August 2018 the Federal Circuit Court dismissed the application.

8    On 3 September 2018 the applicant filed a notice of appeal to this Court, which was listed for hearing on 15 February 2019.

Procedural matters

The direction for further submissions and pro bono referral

9    The appellant did not have legal representation before or in the hearing on 15 February 2019, and he did not comply with directions to file written submissions. The Minister filed written submissions on 8 February 2019 responding to the two broad grounds in the notice of appeal.

10    In the hearing I identified to the parties some concerns I had in relation to paragraphs [16] to [20] of the Authority’s decision. Counsel for the Minister accepted that it was appropriate that these issues be dealt with by way of further written submissions. I directed the parties to put on further written submissions to address those parts of the Authority’s reasons.

11    I also referred the appellant for pro bono legal assistance under r 4.12 of the Federal Court Rules 2011 (Cth) so that his further submissions could be prepared with legal assistance. Ms Aditi Rao of counsel accepted the pro bono referral and began to prepare submissions. However, unknown to my chambers or Ms Rao, the appellant retained Mr Godwin of counsel in the interim. It is unclear why he did so but it appears that because of his lack of English he did not understand that a pro bono referral had been made, and he did not become aware of the appointment of pro bono counsel because he had altered the contact details he provided to the Court. Mr Godwin filed submissions on 11 March 2019 and shortly afterwards Ms Rao filed submissions.

12    Given the relatively confined nature of the further issues, and that the further issues were to be dealt with on the papers (subject to either party seeking to be heard), I considered it appropriate to grant leave for both sets of submissions to be filed. The Minister was given leave to file further submissions in response. There are many authorities pointing to the practical difficulties associated with one party being represented by different legal representatives (see for example Konneh v NSW [2013] NSWSC 390 at [73]-[86] and the cases cited therein) but there are no such difficulties in the present case and the Minister did not raise any opposition to leave being given for two sets of appellant’s submissions. I note also that the filing of the submissions by Ms Rao was in express fulfilment of the requirements of the pro bono referral under r 4.12.

The application to adduce the transcript of the SHEV interview

13    The transcript of the appellant’s SHEV interview was part of the materials provided by the Secretary to the Authority pursuant to s 473CB of the Act, but for reasons which are not clear it was not before the Federal Circuit Court. It is plain from the Authority’s decision that it had regard to the transcript, and both parties seek to rely on parts of it. It is appropriate to admit into evidence the transcript, as annexed to the affidavit of Mr White made 17 April 2019.

THE AUTHORITY’S DECISION

14    The Authority accepted the appellant’s claim that he and his family were affected by the civil war and forced to move to an IDP camp in 2006. However it found that key parts of his evidence about events leading up to his leaving Sri Lanka were inconsistent and unconvincing. It identified five inconsistencies that it said undermined the credibility of his claims, leading to a finding that he “was not recalling a genuine personal experience in relation to his circumstances and the events that he claims led to his decision to leave Sri Lanka”. In summary, the Authority found:

(a)    inconsistencies in the appellant’s evidence as to why he was being pursued by Sri Lankan authorities between 2006 and 2012;

(b)    inconsistency in his evidence as to the difficulties he faced in the IDP camp, including details of the sexual assault;

(c)    that his evidence was “vague and inconsistent” regarding his interactions with authorities after he stopped living in the camp;

(d)    that it had concerns about a letter purportedly written by the appellant’s mother to the Human Rights Commission of Sri Lanka (HRCSL) recording a complaint made to the HRCSL on 19 January 2011. A translation of the letter, by a qualified translator, from Tamil to English was before the Authority; and

(e)    inconsistencies in his evidence about what he was doing in the years prior to his departure from Sri Lanka in 2012.

The appeal centrally relates to these findings.

THE APPEAL TO THIS COURT

Relevant principles

15    In Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1 at [67] McHugh J described credibility findings as a function par excellence of the primary decision-maker. Even so, as the Full Court in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [37]-[38] (McKerracher, Griffiths and Rangiah JJ) observed:

…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….

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.

16    The relevant principles relating to the review of credibility findings for jurisdictional error due to irrationality, illogicality or unreasonableness are summarised in DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641; [2018] FCAFC 2 at [30] (Kenny, Kerr and Perry JJ) as follows:

…

(1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).

(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:

135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

(Emphasis added)

(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].

(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:

56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…

(citations omitted)

(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].

(Emphasis in original.)

17    To establish jurisdictional error based on irrational or illogical fact-finding the finding must be one at which no rational or logical decision-maker could arrive on the same evidence. This might be so, for example, if there is only one conclusion open on the evidence and the decision-maker does not come to that conclusion, if the decision arrived at was simply not open on the evidence, or if there is no logical connection between the evidence and the conclusions or inferences drawn. As the Minister’s submissions highlighted, if the evidence can give rise to different processes of reasoning or if logical, rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said to be irrational or unreasonable. A reviewing court must be astute to ensure that its assessment of the logicality or rationality of reasoning does not slide into impermissible review of the merits.

18    The Minister made the overarching submission that the grounds sought to be agitated by the appellant amount to an attempted merits review.

Ground 1

19    Ground 1 of the appeal is as follows:

The [Authority’s] finding at [21] that the appellant was not recalling a genuine personal experience in relation to his circumstances and the events that led to his decision to leave Sri Lanka was reached without a logical, rational or probative basis. It was based on five purported “inconsistencies” in the appellant’s evidence [at [16]-[20] of the Authority’s decision] that were either (when properly analysed) not inconsistencies, or which were insufficiently significant to justify the [Authority’s] conclusion that the appellant had fabricated his claim for protection.

The first inconsistency: the appellant’s evidence as to why he was being pursued by Sri Lankan authorities

20    At [16] of its decision, the Authority set out what it considered to be inconsistencies in the appellant’s evidence as to why he was being pursued by Sri Lankan authorities, as follows:

Firstly, there were inconsistencies in the applicant’s evidence as to why he was being pursued by the Sri Lankan authorities between 2006 and 2012. In his SHEV statement, the applicant claimed that the authorities believed him to be a member of the LTTE and that he was mistreated for this reason. However, in the SHEV interview, he advised the delegate that the authorities did not suspect that he was in the LTTE, and that he was only pursued because he formerly lived in an LTTE controlled area and the authorities believed that he could provide the names of senior LTTE members. In an earlier interview with the Department on 13 January 2013 (entry interview), the applicant provided a different account, stating that the authorities came to question him because they were seeking the whereabouts of his cousin.

21    In submissions the Minister accepted that the Authority was wrong in the last sentence in this paragraph. In fact the entry interview records that the Sri Lankan authorities had come to question the appellant both because they were seeking the whereabouts of his cousin, and because “[t]hey are looking for people who are supporting the movement or the LTTE”. There is no inconsistency between this statement and the appellant’s evidence that he was pursued by Sri Lankan authorities because they believed him to be a member of the LTTE. The Authority erred in finding that there was.

22    The Minister submitted, however, that there is no error in the balance of the Authority’s reasons at [16]. In his SHEV statement the appellant said “I was not a member of the LTTE, however as I originate from an LTTE controlled area the authorities perceive me to be a member of the LTTE” and “the authorities believed I was a member of the LTTE”. The Minister argued that this is inconsistent with the appellant’s statement in his SHEV interview, as noted by the delegate, that “the authorities did not believe he was actually involved with the LTTE himself”. The Minister submitted that, understood in context, these statements by the appellant were inconsistent alternative reasons for his interrogation. The Minister contended that the statement that the authorities did not actually believe the appellant was involved in the LTTE, made no sense unless it is understood as an implicit disavowal of the earlier evidence in his SHEV statement.

23    In my view, when regard is had to the totality of the SHEV interview it is difficult to see any inconsistency of substance. In the SHEV interview the appellant said that being from an LTTE controlled area was important to his claim to fear that he will be harmed by Sri Lankan authorities if returned to Sri Lanka because he “lived in that area which was under the control of the [LTTE] I had to face all these problems like thinking that I was an [LTTE member] and I was questioned and interrogated”. This is consistent with the SHEV statement and was accepted by the Authority (at [23]). The appellant said further that “[b]ecause I was living in Samboor [the authorities] used to call – they think that I would have known them higher position – higher people in the [LTTE] so that is why they got – they were suspected and they used to come and look for me.”

24    At a later point in the SHEV interview, when discussing the period after the appellant left the IDP camp in 2006, the delegate asked “If the authorities thought you were involved in the LTTE why didn’t they sent you to a rehabilitation camp?” The appellant responded by stating “They did not interrogate me thinking I was with the LTTE but they used to question me whether I knew any LTTE members”. The interviewer clarified that answer by asking “But they didn’t think you were involved in the LTTE. Is that right?” The appellant responded “Yes”.

25    What emerges from the material is that the appellant consistently stated he was questioned by the Sri Lankan authorities not only because of perceived LTTE links, but also because of assumed knowledge about other people, including his cousin.

26    In regard to whether or not the authorities suspected the appellant was himself an LTTE member, it is difficult to see any inconsistency of substance in his evidence. The entry interview and SHEV statement record his general observations about the authorities’ attitude to a Tamil originating from an LTTE controlled area. His statement that he was not suspected of LTTE involvement and only interrogated about other LTTE operatives was in answer to a specific question about a different and later period of time: i.e. why the authorities wanted to question him after he left the IDP camp in 2006. The appellant did not state that the authorities never interrogated him about being an LTTE member, only that when they interrogated him in 2006 they did not believe he was. On a fair reading the appellant’s statements are not inconsistent alternative reasons for interrogation; instead they reflect various incidents and lines of inquiry by the authorities over the 6 year period during which he said he was periodically questioned.

27    To the extent that there is an inconsistency in his statements it is minor and insufficient to form a logical basis for the rejection of the appellant’s claims. That is particularly so when, as the Minister accepted, the question as to why he was interrogated requires speculation about the motives of the Sri Lankan authorities. His evidence about the reasons for his being interrogated – suspected LTTE connection and knowledge – remained consistent.

The second inconsistency: the appellant’s evidence as to difficulties with the Sri Lankan authorities at the time the appellant was residing in the IDP camp

28    At [17] of its decision the Authority set out what it considered to be inconsistencies in the appellant’s account of the difficulties he encountered while he was living in the IDP camp, as follows:

Secondly, there were inconsistencies in the applicant’s evidence in relation to the difficulties he had with the Sri Lankan authorities at the time he was residing at the IDP camp. In his SHEV statement and application, the applicant claimed that he resided at the IDP camp for one month from April 2006 until May 2006, and that during this time he was interrogated several times and tortured. He also claimed that he was sexually assaulted. The applicant also described being beaten with wooden poles and having a gun placed inside his mouth. He claimed that on one occasion he was taken to [name redacted] Army Camp which was situated near the IDP camp and held overnight. He indicated that after these events he left the IDP camp and went to reside with a family friend in [name redacted]. However, in the SHEV interview, the applicant claimed that he was taken by the army and the police to [name redacted] at the end of 2006 during a visit to see his parents who still remained at the IDP camp. He said that it was during this incident that he was sexually assaulted by the authorities for a whole day. In the entry interview, he provided a different account, stating that he was taken from the area in which he lived by the police to the police station. He also advised in the entry interview that he was only taken by the authorities on one occasion.

29    In submissions the Minister accepted that the last two sentences of the paragraph involved a “strained construction” of the entry interview. In the entry interview the appellant was asked whether he was ever “arrested or detained by the police or security organisations”. In response he said that he had been taken from his area by the police once and held overnight in the police station. In the SHEV interview the appellant was asked: “Did the authorities find you?” He responded by stating: “Only once they took me when I went there. Okay, I have explained this incident.” In context the reference to the “incident” was to his being sexually assaulted, which took place when he was taken by army officers to an army camp for one day. On a fair reading of the appellant’s account these are different events, not a “different account” of the same event as the Authority said. The entry interview question concerned arrest or detention by the police or security organisations, and cannot readily be understood as including all interactions (arrest or otherwise) with the army. On a fair reading, in my view the Authority misunderstood the appellant’s evidence in this regard.

30    However, the Minister contended that the other inconsistency it identified remains, which inconsistency concerns a key part of the appellant’s claims. The Minister submitted that on a fair reading of the appellant’s SHEV statement his account was sequential, and therefore the appellant was taken to the army camp during the one month period he was residing in the IDP camp (April or May 2006). The Minister argued that this was contradicted by the appellant’s statement in the SHEV interview that he was taken to the army camp towards the end of 2006 when he was no longer residing at the IDP camp but was visiting his parents at that camp on weekends.

31    I accept that it was open to the Authority to find such a discrepancy existed. However, having regard to its own reasoning, the Authority could not have rationally relied on the discrepancy between the two dates, and the inconsistency it found does not have the significance which the Authority gave it. At [17] the Authority stated, in essence, that it did not believe that the claimed sexual assault took place because of the date discrepancies it referred to, yet (at [23]) the Authority accepted that the assault occurred “as claimed”. By the Authority’s own reasoning the date discrepancy was not sufficiently significant to justify rejecting the claim.

32    It is contradictory and illogical for the Authority to accept that the appellant was sexually assaulted in 2006 as claimed, but then to rely on a perceived inconsistency in the appellant’s recollection of the date on which it occurred, to conclude that the appellant was not recalling a genuine personal experience (i.e. that the assault did not happen).

The third inconsistency: the appellant’s evidence regarding the number of interactions he had with the authorities after ceasing to live in the IDP camp

33    At [18] of its reasons the Authority said:

Thirdly, the applicant was vague and inconsistent in relation to the number of interactions he had with the authorities after he stopped living in the IDP camp. In his SHEV statement, he stated that after he left the camp his parents [were] frequently questioned by the authorities about his whereabouts. He also claimed that when he visited his parents at the IDP camp on weekends he was questioned and beaten. He further claimed that when his parents were told they would take him to [name redacted] jail he kept a low profile ceased visiting his parents [sic]. However, in the SHEV interview, the applicant said that his parents told him by telephone that as soon as he left the IDP camp the authorities harassed them daily about his whereabouts. He also advised the delegate that the authorities only found him once after he stopped living in the camp, and that was during the visit at the end of 2006 where he was taken to the army camp in [name redacted] and sexually assaulted. He also said it was because of that incident he never returned to the IDP camp. In the entry interview, the applicant stated that the police and security or intelligence organisations did not impact his day to day life in Sri Lanka, aside from being taken by them on one occasion.

34    For the same reasons as above (at [29]) in my view the last sentence in this paragraph involves a strained reading of the appellant’s evidence. Again it appears that the Authority assumed the appellant understood questions in the entry interview referring to “police and security organisations” to also include the army.

35    The Minister, however, highlighted two asserted inconsistencies in the balance of that paragraph:

(a)    The first asserted inconsistency is that the appellant said in his SHEV statement that he “continued to be targeted by the authorities” and was “questioned and beaten sometimes”. As against that, in the SHEV interview the appellant said he had only been found once by the authorities.

(b)    The second asserted inconsistency is that the appellant gave different reasons for ceasing to visit his parents. In his SHEV statement he said that he stopped visiting after his parents told him the authorities said they would take him to jail. In his SHEV interview, he said he ceased visiting his parents after being taken by the army to the army camp, where he suffered a sexual assault.

36    I take a different view. In relation to the first asserted inconsistency, in my view, on a fair reading of the SHEV interview, it does not arise. The relevant passage is as follows:

[AUTHORITY]: …in your application you said you kept visiting the camp to see your parents. Is that right?

INTERPRETER: Yes, Saturdays, Sundays.

[AUTHORITY]: Did the authorities find you?

INTERPRETER: Only once they took me when I was there. Okay, I have explained this incident.

[AUTHORITY]: The one we talked about previously? Okay. Did they ever find you again after that?

INTERPRETER: No, after that I didn’t go that side.

[AUTHORITY]: Sorry, after that you didn’t go – I didn’t catch the word you said?

INTERPRETER: Yes, he said after that I didn’t go that side.

[AUTHORITY]: That side. Sorry, I’m not sure what’s meant by that?

INTERPRETER: Camp (indistinct) to the camp after that.

The appellant’s answer is that he was only taken somewhere by the authorities once. He did not answer, in terms, about how many times he was questioned.

37    The second asserted inconsistency has the threshold problem that it is not clear that the Authority relied on any such inconsistency to reject the appellant’s claim. It is not open to the Minister, on judicial review, to identify a further putative basis for the Authority’s conclusion about inconsistency or the credibility of his account. The Minister argued that while the first sentence of the Authority’s decision at [18] suggests that the Authority was only interested in the number of times the appellant was taken by authorities, its reference (at [21]) to the reason he stopped visiting his parents shows that it was also interested in this matter. In my view, on a fair reading of the Authority’s decision (at [18]), the Authority was concerned with the number of interactions that the appellant had with the authorities after he stopped living at the camp, not his reasons for ceasing to visit his parents. That issue is the overarching concern of this paragraph of the decision.

38    Even accepting the Minister’s submission regarding the Authority’s interest (at [21]) in the appellant’s reasons for ceasing to visit his parents, the submission is based on the flawed premise that there could only be one reason for ceasing to visit. As the Full Court in AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227; [2018] FCAFC 133 at [27] (Kenny, Griffiths and Mortimer JJ) said, the label “inconsistency” should be used advisedly, and with an appreciation of how such labels can mask the need for deeper analysis. The appellant ceasing to visit the IDP camp after a claimed incident of sexual assault is not inconsistent with his fearing that if he returned to the camp he would be sent to jail.

The fourth inconsistency: the letter written to the Human Rights Commission of Sri Lanka by the appellant’s mother

39    In his visa application the appellant provided a copy of a letter of complaint purportedly written by his mother to the Human Rights Commission of Sri Lanka (the HRCSL letter) in January 2011, which referred to persons visiting their home, asking about the appellant and his “step brother”, and making threats if the appellant was not handed over.

40    At [19] of its reasons the Authority explained why it did not accept the HRCSL letter was genuine, as follows:

Fourthly, I have concerns with the letter purportedly written by the applicant’s mother to the Human Rights Commission of Sri Lanka (HRCSL) in January 2011. In the SHEV interview, the applicant advised the delegate that the harassment of his parents got to a point where his mother contacted the HRCSL. According to the letter, the applicant’s mother reported that in the ‘past few days a group of unknown persons’ came to her house and enquired about her son (the applicant) and his step-brother [name redacted]. She also stated that her son was threatened and that she continued to hide him at a relative’s house. However, the letter contradicts information provided by the applicant. Firstly, the applicant has not claimed to have a brother or a step-brother called [name redacted]. He has consistently claimed throughout his dealings with the Department that he only has one brother named [name redacted]. I also note in the entry interview he confirmed that he had never had a step-parent and that both of his siblings are from the same mother and father. Secondly, according to the letter and documents from the HRCSL the applicant’s mother was living at the same address as the applicant in January 2011. This differs from the applicant’s evidence in his SHEV application, SHEV statement and SHEV interview where he claimed that his parents continued to reside in the IDP camp at this time. Further, I also note this evidence does not support the applicant’s mother’s claim in the letter that the applicant was in hiding at a relative’s house in January 2011. Thirdly, the applicant’s mother’s claim that the applicant was being pursued by ‘unknown persons’ within the ‘past few days’ does not support the applicant’s claims that he was being pursued by the Sri Lankan authorities since 2006. I note at no point did the applicant claim that he was pursued by unknown persons. In the SHEV interview, the applicant advised the delegate that when his mother wrote ‘past few days’ she would have been nervous and speculated that she meant to write ‘past few years’.

41    Again, the Minister accepted that the third asserted inconsistency in this paragraph involved a strained reading of the appellant’s evidence. The appellant clearly stated in the SHEV interview that the persons who harassed his parents were unknown because “they don’t come in uniform, they normally come in civilian clothes”. He said, however, that he knew these persons were the CID because “only army or CID would come and ask about my whereabouts, nobody else will come and ask such questions”. In my view there was no evidentiary basis for the third asserted inconsistency found by the Authority, and it ignored or overlooked the appellant’s explanation.

42    The Minister’s position as to the asserted inconsistencies in the balance of the Authority’s decision at [18] appeared to change. Initially the Minister submitted that the issue of the appellant’s step brother was discussed during the hearing and by the primary judge, and argued that it was open to the Authority to form the view that the appellant’s evidence on that issue was inconsistent with other aspects of the applicant’s statements. Second, the Minister argued that it was open to the Authority to form the view that the HRCSL letter (which referred to an incident at “our house”, gave an address in the appellant’s village and stated that his mother lived at that address) was inconsistent with the appellant’s SHEV statement that his parents continued to reside in the IDP camp.

43    The Minister did not, however, press these contentions in his later submissions, made after Ms Rao’s submissions and with the benefit of the SHEV interview transcript. Instead the Minister submitted that because the Authority decided to give “no weight” to the appellant’s HRCSL letter, it was not one of the inconsistencies that led the Authority to reject the appellant’s account of his experiences, and therefore this aspect of its reasoning does not taint the Authority’s credibility finding.

44    I do not accept these submissions. The first purported inconsistency on which the Minister sought to rely in his initial submissions is not, in my view an inconsistency at all. The SHEV interview shows that the appellant’s migration agent explained that in Tamil families, a cousin on the maternal side is often referred to as a brother. The same point was made by the appellant in the hearing before this Court. This explanation was not contradicted by other evidence. The obvious inference is that the appellant’s mother use of the word “step-brother” (or her words in Tamil translated as such) was meant to indicate that the cousin is not her child. However, in accordance with general cultural norms, he was referred to as a step brother. In my view the Authority misunderstood the evidence because of assumptions about family relationships that did not take account of different norms of family description amongst Tamils, and because it ignored the only direct evidence on the issue.

45    The second purported inconsistency identified by the Authority – that the appellant’s mother was apparently living at the same address as the appellant in January 2011 – does not take matters far. Whether that was so is not clear on the face of the materials, which show a different address for the appellant’s mother to that given by the appellant in that time frame. Further, the appellant’s mother also appears to state in the HRCSL letter that the appellant does not live in the same house as her. The letter said that the appellant is in hiding at a relative’s house because “if my son stays in [this] house it is danger for his life”. Further, even if the appellant’s mother or family did maintain a Trincomalee address (whether or not in parallel to registration at the IDP camp), this issue has little significance to the application when it does not concern the appellant’s central claims and it relates to a different time period.

46    It is noteworthy that the Authority said (at [21]) that “when considered cumulatively, I consider the above inconsistencies and other evidence discussed to [sic] lead me to conclude that the applicant was not recalling a genuine personal experience…” On a fair reading the Authority was there referring to the inconsistencies it found in the appellant’s account as set out at [16]-[20] of its decision. In my view the Authority erred (at [19]) in concluding that the matters to which it referred showed inconsistencies in the appellant’s account.

The fifth inconsistency: the appellant’s evidence as to his employment and vocational education history

47    At [20] of its decision the Authority said:

Fifthly, there were a number of inconsistencies in the applicant’s evidence as to what he was doing in the years leading up until he departed Sri Lanka. In his SHEV application he indicated he worked as a waiter at the Golden Beach Hotel in Trincomalee from May 2009 to October 2009, undertook a mechanics course in from April 2010 to October 2010, and undertook a hotel management course from November 2011 to December 2011. This was broadly consistent with his evidence in the entry interview where he also advised the interviewing officer that after he worked as a waiter he studied mechanics and hotel management but was unable to find further employment in Sri Lanka. However, in the SHEV interview, the applicant advised the delegate that he started working at the Golden Beach Hotel in late 2011, after he completed the hotel management course. He said he could not remember how long he worked at the hotel.

48    The Minister accepted that this inconsistency was marginal to the appellant’s claims, but contended that some answers “may have been given in response to questions as to why Sri Lankan authorities were not able to find him given his work and employment history”, and argued on that basis that the inconsistency was material. The SHEV interview however shows that the only time the appellant mentioned the order in which he undertook the vocational courses and when he worked at the Golden Beach Hotel was while answering basic questions at the start of the interview. At that point there had been no mention of whether or not the Sri Lankan authorities could find him. This is the type of trivial error or minor inconsistency that this Court has said is not a valid basis for making an adverse credibility finding: SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] (Gordon J); CWR16 v Minister for Immigration and Border Protection [2018] FCA 859 at [62] (Allsop CJ).

49    The Minister further submitted that the inconsistency at [20] of the Authority’s reasons should be considered in the context of its cumulative assessment of the inconsistencies. I am not persuaded that the fifth inconsistency, whether considered individually or cumulatively, should rationally have any material bearing on the overall credibility finding made by the Authority. At its highest it concerns whether the appellant first worked in a hotel then did a hotel management course, or the other way around which is of little or no relevance to the basis for his claims for protection. Its significance cannot be elevated merely by stating that it is included in a cumulative series of findings especially when, as I have said, those findings themselves were affected by error – either partially or wholly.

The Minister’s overarching submissions

50    The Minister argued that Ground 1 in reality involves impermissible merits review, and that the appellant was wrong in submitting that such inconsistencies as exist are minor in nature.

51    First, the Minister contended that it is incorrect to approach the inconsistencies in the appellant’s evidence in an atomised fashion. He noted that the Authority did not state that each of the inconsistencies identified could alone support its credibility finding, and instead said that the identified inconsistencies were considered cumulatively.

52    Second, the Minister submitted, and I accept, that to succeed in establishing jurisdictional error the appellant must show there was “no room” for a logical or rational decision-maker to reach the same decision as the Authority did on the material: see SZMDS at [135].

53    Third, the Minister argued that the inconsistencies the Authority identified went to some fundamental aspects of the circumstances and events that the appellant claimed led to his decision to leave Sri Lanka. That is: (a) why he was a person of interest to the authorities (the first identified inconsistency); (b) the nature of his interactions with authorities; and (c) the timing of the sexual assault/the reason he stopped visiting his parents (the second and third identified inconsistencies). The Minister said that in those circumstances it was open to the Authority to reach the conclusion it did on the cumulative basis of those inconsistencies.

54    Fourth, the Minister contended that any illogicality or irrationality in the Authority’s reasons or fact-finding leading to its conclusions on credibility were immaterial in the sense that they were not critical to the end result: Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780; [2018] FCA 24 (Hossain) at [30]-[31].

55    It may be accepted that the individual components of a cumulative finding should not be weighed as if each one must be capable of supporting the final conclusion, but a cumulative finding is only as good as the individual findings lying beneath it. The Authority said (at [21]) that considered cumulatively, the inconsistencies it identified lead to the conclusion that the appellant was not recalling a genuine personal experience in relation to his circumstances and the events that led to his decision to leave Sri Lanka. However, many of the purported inconsistencies on which it relied either do not exist or are so minor that they cannot form a rational basis for that finding. In my view such inconsistencies as may be fairly said to be open to the Authority to find do not provide a valid basis for the adverse credibility finding it made. Where a decision-maker relies on intermingled findings or matters in coming to a conclusion and there is no proper basis for one more of the findings, jurisdictional error may result: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at [74]; (Griffiths, Perry and Bromwich JJ); CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [61] (Murphy, Mortimer and O’Callaghan JJ).

56    Finally, it is worth noting that the Authority’s findings in respect to the first four asserted inconsistencies were infected by at least one clear misunderstanding or (admitted) strained interpretation of the appellant’s evidence. While this is not sufficient by itself to ground a conclusion of jurisdictional error, it reinforces the appropriateness of the conclusion that the Authority did not take a rational and careful approach to the assessment of the appellant’s credibility. To my mind such errors mean the Authority forfeits the benefit of the doubt to which it would otherwise be entitled: John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77; [2003] HCA 50 at [5]-[6] (Gleeson CJ); FKO17 v Minister for Home Affairs [2019] FCA 98 at [64] (Wheelahan J).

57    Credibility findings are not linear (SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44]-[45] (Lee J) and the cases there cited) and this is not a case where the illogical findings of fact can properly be said to be immaterial to the Tribunal’s ultimate conclusions.

58    The Authority’s finding regarding the appellant’s credibility was central to its conclusion that he was not entitled to a protection visa. It expressly relied on a cumulative consideration of the asserted inconsistencies (at [16]-[20]) to find that the appellant was not recalling a “genuine personal experience” in relation to the circumstances and events that he claims led to his decision to leave Sri Lanka (at [21]). The Authority set out its conclusion as to the appellant’s claims (at [23]). It accepted that he originated from an area under the control of the LTTE, it accepted that he and his family relocated to an IDP camp, that he may have been interrogated by the Sri Lankan authorities in 2006 about LTTE connections while living in the camp, and accepted that he was a victim of mistreatment and sexual assault on a one off occasion in 2006 as claimed. However, “in light of the evidence above” the Authority did not accept that the appellant’s parents were the subject of harassment or that he was otherwise pursued by the Sri Lankan authorities beyond 2006, and it did not accept that he has an ongoing adverse profile with the authorities. On a fair reading of its decision the Authority relied on matters including the adverse credibility finding at [21] to reject the appellant’s claim that he had an ongoing adverse profile with the Sri Lankan authorities and faced a real chance of serious harm if returned to Sri Lanka. In my view there is a realistic prospect that the Authority’s decision would have been different if it had not made illogical and erroneous findings of fact, and the adverse credibility finding was material to the Authority’s decision in the sense described in Hossain and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3.

59    Ground 1 of the appeal is allowed.

Ground 2

60    The appellant’s submissions set out Ground 2 of the appeal as follows:

In considering the appellant’s complementary protection claim the [Authority] failed to have regard to the individual characteristics of the appellant in considering the risk of significant harm being intentionally inflicted upon the appellant in the curse of being detained by the Sri Lankan authorities upon his return to that country as an illegal departee.

61    The Minister argued that this ground is not raised in the notice of appeal, and that no leave was sought or granted to advance it.

62    In light of my finding on Ground 1 it is unnecessary to decide this ground.

CONCLUSION

63    It is appropriate to set aside the orders of the Federal Circuit Court made 15 August 2018, and in lieu thereof to make an order in the nature of certiorari to quash the decision of the Authority, and an order in the nature of mandamus requiring the Authority to re-determine the appellant’s application according to law.

64    I am not aware of any reason why the costs of the appeal should not follow the event, and I have made an order for the Minister to pay the appellant’s costs of the appeal. Usually, it would also be appropriate to order that the Minister also pay the costs of the hearing below. However, the appellant did not advance before the Federal Circuit Court the ground upon which he has succeeded in this appeal. My present view is that the costs order previously made in favour of the Minister in Federal Circuit Court proceeding should be set aside and there should be no order as to the costs of that proceeding. I have made an order in such terms but grant liberty to the parties to make submissions within seven days in relation to costs should either of them contend a different result is appropriate.

Associate:

Dated:    20 June 2019