FEDERAL COURT OF AUSTRALIA

AAD15 v Minister for Immigration and Border Protection [2019] FCA 1368

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia in AAD15 v Minister for Immigration [2017] FCCA 1344, which dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) of 5 February 2016. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Border Protection to refuse the appellant a protection visa under the Migration Act 1958 (Cth) (Migration Act) and Migration Regulations.

2    At the hearing of the appeal, Counsel for the appellant sought the leave of the Court to rely on two grounds of appeal not raised before the primary Judge. These grounds were:

Ground Six

This ground is a new ground. The applicant will seek leave to argue this ground.

Tribunal failed to comply with s 424A of the Act in that it failed to give to the applicants notice in accordance with that section of clear particulars of information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review and failed to ensure, so far as reasonably practicable, why the information was relevant to the review.

Particulars:

The Second respondent at paragraph 95 of the decision relied on the entry interview information which particular was not put to the applicant.

Ground 7

The Second Respondent, in considering a claim by the appellant that people had threatened to take his family’s land, stated at [95] that the appellant told the Refugee Review Tribunal (“the RRT”) at a hearing before the RRT in January 2015 that “his family chose to move away from the farm for comfort”. The Second Respondent found this version of the claim was “inconsistent” with a version of the claim on other occasions and “the applicant’s claims about the land grab have altered over time”. The Second Respondent at [95] then rejected the land grab claim. Contrary to the Second Respondent’s finding at [95], the appellant did not tell the RRT that “his family chose to move away from the farm for comfort”. In the circumstances, the Second Respondent misunderstood the appellant’s evidence to the RRT and then rejected a significant claim by the appellant because of its misunderstanding of the evidence. This involves jurisdictional error.

3    I granted leave in respect of ground 6 after hearing both Counsel, and in circumstances where Counsel for the Minister indicated that he was in a position to respond to it.

4    The Minister opposed grant of leave in respect of ground 7. After hearing from both Counsel I refused leave. As I explained at the hearing, this was for reasons including:

    The only reason ground 7 had not been relied on before the primary Judge was because the lawyer representing the appellant in the Federal Circuit Court had not thought of it;

    Counsel for the appellant indicated that he would need to rely on a transcript of a hearing of the Tribunal which had not been transcribed by an accredited transcription service. While this in itself is not reason to refuse leave:

(a)    It appears that the transcription related to an audio recording of a hearing conducted over several hours by the then Refugee Review Tribunal,

(b)    There were many points in the transcript where the transcriber appeared to experience difficulty with the clarity of the audio recording, resulting in many instances where the word “unclear” appeared in the transcript;

(c)    Although Counsel for the appellant indicated particular reliance on pp 31-33 of the transcript (pp 349-351 Appeal Book), given that the appellant claimed an absence of a particular comment referable to the “comfort” of the family by the appellant to the member conducting the RRT hearing, it would be necessary to have regard to the audio recording in its entirety to ascertain whether in fact there was no such comment;

(d)    It would be oppressive at this stage of proceedings to require examination by the Minister of the entire audio recording; and

(e)    Minute examination of evidence is not a task for an appellate court.

Background facts

5    A concise summary of the background facts was set out in the decision of the primary Judge. I do not consider this summary to be controversial, and set it out here:

3.    The applicant is a national of Sri Lanka who first entered Australia as an irregular maritime arrival in August 2012.

4.    On 12 December 2012, the applicant applied for a protection visa. On 7 September 2013, a delegate of the Minister (delegate) refused to grant the visa. The applicant sought review of that decision, which was affirmed by the former Refugee Review Tribunal (RRT) on 19 January 2015.

5.    The applicant sought judicial review of the RRT’s decision. By consent, the matter was remitted to the Tribunal for reconsideration.

6.    On 28 September 2015, the applicant was invited to appear before the Tribunal to give evidence and present arguments. The applicant attended a hearing on 23 October 2015 and, on 5 February 2016, the Tribunal affirmed the decision under review.

The applicant’s claims

7.    The applicant claimed to fear harm on the basis of an imputed political opinion in support of the Liberation Tigers of Tamil Eelam (LTTE). The applicant advanced the following factual claims:

a.    in 2003, one of the applicant’s uncles [name redacted], who was an LTTE cadre, was “kidnapped and killed”;

b.    in 2007, the applicant was beaten by members of the Sri Lankan Army (SLA) after he accidentally entered a military zone. This attack left the applicant with scars on his back. On another occasion in 2007, the SLA entered a party at his family’s home, pointed a gun to the applicant’s chest and subsequently tortured his brother;

c.    in 2009, the applicant’s paternal uncle [name redacted] disappeared. [Name redacted] was an “active member” of the LTTE and had worked in an LTTE hospital. The applicant submitted a photograph of [name redacted] and a former LTTE leader at a wedding;

d.    the applicant accompanied his aunt to multiple agencies to “complain about the disappearance of her husband” and to seek help finding him. In 2012, the applicant and his aunt, [name redacted]’s wife, were asked to report to the CID office in Trincomalee to discuss [name redacted]’s disappearance. The applicant was questioned by officers, particularly about his facial scar and his relationship to [name redacted];

e.    in February 2012, Sinhalese men threatened the applicant, asking him to hand over the family land;

f.    on 23 April 2012, five Tamil-speaking Sinhalese men came to the applicant’s family home and demanded money from the applicant’s father in exchange for [name redacted]’s return (the April 2012 incident). The applicant’s father refused and the men then said that “they would kidnap the boy with the scar on his face, which was a reference to [the applicant].” After this incident, the applicant was sent to live in Vavuniya with his aunt. The men returned to the applicant’s family home looking for him in May and July 2012. Since his arrival in Australia, the applicant’s parents had informed him that they had to flee the family home “because of these threats”.

8.    The applicant claimed that he would be imputed with having LTTE links on the basis of his family connections (set out above), his illegal departure and having sought asylum in Australia. He further claimed that his facial scar (incurred from a childhood incident) would be seen by the authorities as evidence of his involvement with the LTTE.

9.    In addition to the above, the applicant claimed that Sinhalese people used their power to dispossess Tamils of their land and wealth.

(Footnotes omitted.)

Tribunal decision

6    The Tribunal summarised the appellant’s claims as they developed at the entry interview, his original protection visa application, before the delegate, and in the RRT, and then turned to evidence before it. It found the appellant to be an unreliable witness because of, inter alia, his inconsistent evidence.

7    The Tribunal rejected the appellant’s claims concerning:

    His facial or back scars leading to him being imputed as an LTTE supporter, or facing greater scrutiny at the airport on his return;

    He and his aunt being summoned or interrogated by the CID in 2012;

    The entirety of the April 2012 incident, including any link between the applicant helping his aunt and that incident, or any link between the incident and the Sri Lankan authorities; and

    The combination of the applicant’s status as someone who departed Sri Lanka illegally and as a failed asylum seeker, leading to him being imputed as an LTTE supporter.

8    The Tribunal did not accept the applicant’s claim regarding his uncle [name redacted], noting that the evidence provided in support of [name redacted]’s death indicated that he had died by strangulation, whereas the applicant claimed that he had been shot.

9    The Tribunal accepted that the appellant’s uncle [name redacted] might have given information to the LTTE, that he had been “taken aside at a checkpoint in 2009 and never seen again”, and that this may have been because of locally posted soldiers or paramilitary personnel. However, on the basis of country information, the evidence as to the State’s apparent willingness to help the applicant’s aunt locate [name redacted] and evidence that nothing significant had occurred to [name redacted] prior to his disappearance in 2009, the Tribunal found that [name redacted] was not involved with the LTTE, nor that he would be perceived to have been involved. Further, given the applicant’s evidence that his family had been able to continue “getting on with their lives”, the Tribunal gave no weight to the applicant’s claim for protection on the basis of a perceived link to the LTTE through his uncles.

10    The Tribunal accepted the applicant’s claims in relation to the 2007 incidents but found that these incidents were limited to a specific time and place and gave them little weight.

11    The Tribunal did not accept that Sinhalese men had attempted to dispossess the applicant and his family of their land. The Tribunal again referred to inconsistencies in the applicant’s evidence, and noted in particular his evidence that his family moved to a smaller farm as it was easier for the applicant’s elderly father to manage.

12    The Tribunal accepted that upon his return to Sri Lanka the appellant would be identified as a returnee to Sri Lanka, and potentially subjected to questioning at the airport and charged with a criminal offence for an illegal departure. However the Tribunal considered that this would be in the context of a law of general application. The Tribunal accepted further that if he were remanded it is likely he would be kept in poor conditions, however such conditions would not amount to “serious harm” as defined in the Migration Act. The Tribunal further considered that any fine faced by the applicant would not amount to serious harm, and that the applicant was not likely to face any custodial sentence.

13    Finally the Tribunal considered the appellant’s claims against the complementary protection provisions, noting that those claims relied on the same facts as his Convention claims. The Tribunal found that there was no real chance of the appellant facing significant harm.

Decision of the primary Judge

14    Before the primary Judge the appellant relied on grounds of review including some which are not pressed on appeal. In respect of grounds which are pressed on appeal, his Honour found in summary as follows.

15    In respect of Ground 1 the appellant claimed that, in making findings at [69], [87], [81] and [93], the Tribunal overlooked evidence in the transcript of the RRT hearing. In respect of this ground the primary Judge observed:

27.    There are a number of difficulties with this ground. First, there is no evidence that the Tribunal had available to it a transcript of the RRT hearing. I am willing to infer from the detailed description of the applicant’s evidence presented to the RRT from [33] to [47] that the Tribunal had regard to something more than the RRT decision in considering that evidence. The presiding member may well have listened to the sound recording of the RRT hearing but it does not follow that he had before him a transcript of that hearing.

28.    In any event, I accept, for the following reasons, the Minister’s submission that the material identified by the applicant as having been overlooked by the Tribunal cannot be said to have been centrally important to the Tribunal’s decision-making process.

…

30.    The applicant’s submissions recite two portions of what is said to be a transcript of the RRT hearing, which he contends were not considered by the current Tribunal. First, the applicant refers to previous evidence relating to the claimed sexual assault of his aunt. However, it is unclear what relevance this purported evidence had to the applicant’s claims or the Tribunal’s findings at [81] (the paragraph to which the applicant’s submissions referred in support of this contention). Secondly, the excerpt relating to the farm of the applicant’s family is consistent with his evidence to the current Tribunal). Nor can it be said that the purported evidence to the RRT had the “capacity to corroborate the [applicant’s] claims in a material respect.” Even if a transcript of the RRT hearing was before the current Tribunal, the applicant has not established that anything in such a transcript was critical to the process of the current Tribunal’s decision-making such that the Tribunal’s omission to explicitly address it constitutes jurisdictional error

(Footnotes omitted.)

16    In respect of Ground 5 the appellant claimed that the Tribunal erred by failing to find that the purported s 438 certificate was invalid and by failing to put the documents covered by the certificate to the appellant for comment. The certificate covered folio numbers 71-75 and 132-133 in the departmental file, being the applicant’s arrival entry interview and documents relating to the remittal of the matter to the Tribunal. In summary his Honour found that:

    Folios 132 -133 were plainly irrelevant to the issues for determination by the Tribunal, were not adverse to the appellant, and were not considered by the Tribunal as relevant;

    In relation to folios 71-75 there was no unfairness because the arrival entry information was made available to the applicant, albeit not in connection with any disclosure of the certificate by the Tribunal; the applicant was on notice of the information contained in the entry interview, having participated in it, and having received a copy of the document in the context of the previous judicial review proceedings; it could not be said that the appellant was denied any opportunity that might have affected the outcome of his application for review; and no practical injustice or detriment had been suffered by the appellant due to the existence and non-disclosure of the certificate.

17    His Honour concluded that the appellant had failed to establish that the decision of the Tribunal was affected by any jurisdictional error, and dismissed the application.

Appeal to the Federal Court of Australia

18    In the Federal Court of Australia the appellant relied on the following grounds of appeal:

Ground 1

1. His Honour erred in finding that the Second Respondent's decision had not is affected by jurisdictional error in that the Second Respondent overlooked evidence which was cogent and relevant to its decision, being evidence which appeared in the transcript of an earlier Tribunal hearing.

Particulars:

1.1 The Second Respondent had before it a transcript of a hearing conducted by the Refugee Review Tribunal with the applicant, but did not consider this transcript and instead relied upon the decisions record when considering the oral evidence given by the applicant at the at hearing. The summary of the applicant's evidence, "Evidence presented to the previously-constituted Tribunal", as provided in the decision record of the Refugee Review Tribunal was inaccurate. This inaccuracy was relevant to the Second Respondent's findings at [69-77], [79-92], [93] [95].

Ground Five

The Second Respondent's decision was affected by jurisdictional error, by failing to find that a purported s 438 certificate was invalid and that the consequent failure to put the material covered by the certificate to the applicant for comment constituted a denial of procedural fairness. His Honour erred in holding that no jurisdictional error in this ground. Furthermore His Honour erred in holding that the applicant was denied any opportunity that might have affected the outcome of his application for review, nor did the material enliven an obligation under s.424A.

Particulars:

The certification in the purported s 438 certificate did not relate to a matter permitted under s 438(1) of Migration Act, with the result that it was invalid. The non-disclosure of material before the Tribunal constituted a denial of procedural fairness.

Ground six

1. This ground is a new ground. The applicant will seek leave to argue this ground.

Tribunal failed to comply with s424A of the Act in that it failed to give to the applicants notice in accordance with that section of clear particulars of information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review and failed to ensure, so far are reasonably practicable, why the information was relevant to the review.

Particulars:

The Second respondent at paragraph 95 of the decision relied on the entry interview information which particular was not put to the applicant.

(Errors in original.)

19    It is convenient to examine each ground of appeal in turn.

Ground 1

20    This ground of appeal clearly related to the earlier hearing by the then-RRT in which the appellant presented evidence, and which was the subject of the audio recording transcribed and included in the Appeal Book (AB). At the hearing Counsel for the appellant conceded that there was “force” in the Minister’s submission that no inference could be drawn from the Tribunal’s detailed account of evidence presented to the RRT at AB 192-193 [33]-[48] that the Tribunal had before it a transcript of the RRT hearing or that the Tribunal had listened to an audio recording of the RRT hearing, in circumstances where the Tribunal’s account of the evidence was substantially the same as the summary of the appellant’s evidence contained in the RRT’s decision record at AB 281 [13]; 282 [16]; AB 241 [26]; AB 283 [19]; AB 284 [25]; AB 285 [28]; AB 284 [22]; and AB 285 [29].

21    The appellant nonetheless pressed ground 1 at the hearing, in particular contending that it was open to the Court to conclude that the Tribunal, in the course of making its findings at [86], overlooked the clear and detailed evidence given by the appellant at the hearing before the RRT concerning the occasions on which he accompanied his aunt to meetings to try to locate his uncle. The appellant further contends that notwithstanding the summary of the appellant’s evidence at AB 194 [46] in respect of his visits to the CID with his aunt, in its ultimate consideration at AB 202-203 [81]-[87] the Tribunal did not have regard to that evidence.

22    Noting the appellant’s concession as to the force of the Minister’s submission concerning whether an inference could be drawn in respect of the presence or otherwise of a transcript or audio recording of the RRT hearing before the Tribunal, I also note:

    The Tribunal had summarised the appellant’s evidence in respect of the visits with his aunt to the CID and there is no reason to infer that it had not taken that evidence into account in its conclusions. Indeed at AB 202 [81] and AB 203 [86] - [87] the Tribunal referred back to the appellant’s evidence, and gave detailed reasons why the Tribunal found his evidence unreliable;

    To the extent that the Tribunal could have been more explicit in setting out the relevant evidence in its reasons at the point of conclusion (which I do not in any event accept) it is well-settled that the Court should not examine the Tribunal’s reasons with an eye finely attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; and

    The view taken by the Tribunal that the appellant’s evidence was undetailed and confused is within the jurisdiction of the Tribunal as the finder of fact.

23    In my view this ground of appeal has no merit.

Ground 5

24    Ground 5 relates to a certificate issued under s 438 of the Migration Act. Section 438 provides:

Tribunal’s discretion in relation to a document or information if:

(1) This section applies to a document or information if:

(a)    the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

(b)    the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

(2)    If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:

(a)    must notify the Tribunal in writing that this section applies in relation to the document or information; and

(b)    may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.

(3)    If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:

(a)    may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and

(b)    may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.

(4)    If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.

(Emphasis added.)

25    A certificate was issued signed by a delegate of the Minister and dated 21 July 2015, purportedly given under s 438(2)(a) of the Migration Act. Relevantly it stated:

CERTIFICATE AND NOTIFICATION REGARDING THE DISCLOSURE OF CERTAIN INFORMATION UNDER s438 OF THE MIGRATION ACT 1958

I certify that paragraph 438(1)(a) of the Migration Act 1958 applies to the information in folios 71-75, 132-133

…

The disclosure of this information would be contrary to the public interest because:

(a) folios 71-75, 132-133

contain information relating to an internal working document and business affairs.

The Refugee Review Tribunal's use and disclosure of this information is subject to the provisions of subsections 438 (3) and (4) of the Migration Act 1958.

26    Before the primary Judge the Minister accepted that the certificate was invalid, and that no disclosure of its existence was made by the Tribunal to the appellant.

27    The decision of the primary Judge pre-dates the decision of the High Court of Australia in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3. In that case the majority of the High Court held that:

2.    The Full Court was correct to take the view that the fact of notification triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.

3.    The Full Court was also correct to take the view that an incorrect notification results in jurisdictional error if, and only if, the incorrect notification is material, again in the sense that it operates to deprive the applicant of the possibility of a successful outcome.

4.    Where materiality is put in issue in an application for judicial review of a decision of the Tribunal, it is a question of fact in respect of which the applicant for judicial review bears the onus of proof. The Full Court was correct to hold in CQZ15 that evidence of the content of notified information can be relevant to the determination of materiality and can on that basis be admissible in such an application. The Full Court was also correct to find on the evidence adduced in BEG15 that the undisclosed and incorrect notification in that case was immaterial. The undisclosed and incorrect notification in SZMTA was similarly immaterial and did not result in jurisdictional error.

(Emphasis added, footnotes omitted.)

28    The majority also relevantly observed:

38.    Because procedural fairness requires disclosure of the fact of notification, non-disclosure of the fact of notification constitutes, without more, a breach of the Tribunal's implied obligation of procedural fairness. For such a breach to constitute jurisdictional error on the part of the Tribunal, however, the breach must give rise to a "practical injustice": the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal's decision

(Emphasis added, footnotes omitted.)

29    The appellant submitted in summary that:

    Section 438 only applies to the documents referred to in the certificate if one of the preconditions set out in s 438(1) is met in respect of the documents: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3.

    In this case neither precondition of s 438(1) was met, thus the certificate issued was incorrect and invalid.

    The Tribunal did not inform the appellant about the certificate.

    The Tribunal’s breaches are material because:

(a)    The entry interview was the appellant’s first opportunity to state his claims for protection to Australian authorities;

(b)    His claims as set out in the entry interview record were reasonably detailed, in particular concerning the three occasions in April 2012, May 2012 and July 2012 that some men came to his house;

(c)    If the Secretary had not issued the certificate the Tribunal was bound to have regard to the entry interview record, since it contained relevant evidence;

(d)    It is unclear from the Tribunal’s decision whether or not it considered the certificate valid;

(e)    In circumstances where the Tribunal was aware of the certificate it is possible that the Tribunal considered the certificate valid and chose not to have regard to the entry interview record;

(f)    The fact that the Tribunal at AB 191 [22] summarised answers given by the appellant at his entry interview was not inconsistent with a conclusion that the Tribunal, for the purpose of the exercise of its powers, considered the certificate valid and chose to not have regard to the entry interview record.

    If the Tribunal had regard to the appellant’s detailed claims in his entry interview record, in particular concerning the three occasions in April 2012, May 2012 and July 2012 when some men came to his house, the Tribunal may have accepted that the claims were true. It follows that the Tribunal’s errors were material within the meaning explained in SZMTA.

30    The primary Judge considered the question whether the Tribunal erred, and observed:

40.    The certificate covers folio numbers 71-75 and 132-133 in the departmental file, being the applicant’s arrival entry interview and documents relating to the remittal of the matter to the current Tribunal, respectively.

41.    I accept the Minister’s submissions in relation to folios 132–133. Those folios were plainly irrelevant to the issues for determination by the Tribunal, and were not adverse to the applicant. Further, the Tribunal plainly had no regard to the documents and “on any view, they can have been of no, or only passing contextual, relevance to the application.” Accordingly, it could not be said that the applicant was denied any opportunity that might have affected the outcome of his application for review, nor did the material enliven an obligation under s.424A. Likewise, there is no basis to infer that the documents led the Tribunal to act on the invalid certificate.

42.    The real issue concerns the record of the applicant’s irregular maritime arrival entry interview, to which the Tribunal specifically referred at of its reasons. That record is folios 71 to 75 as covered by the purported certificate.

(Footnotes omitted.)

31    His Honour continued:

43.    In my view, it is not material whether the Tribunal acted inconsistently with the certificate and I do not accept that the Tribunal was unaware of it. The issue is whether the way in which the Tribunal dealt with, or in this case failed to deal with the certificate, resulted in procedural unfairness. In my view, there was no unfairness because the arrival entry information was made available to the applicant, albeit not in connection with any disclosure of the certificate by the Tribunal.

44.    The information in the entry interview is reproduced in the applicant’s statement attached to his visa application and in the delegate’s decision record, to which the Tribunal did expressly refer. The applicant was on notice of the information contained in the entry interview, having participated in it, and having received a copy of the document in the context of the previous judicial review proceedings. As such, the applicant had access to the document and had an opportunity to address the information arising from the entry interview. Therefore, “it could not readily be said that the applicant was denied any opportunity that might have affected the outcome of his application for review.”

45.    In this respect, the Minister relies on the following reasoning in the judgment of Barker J in AVO15 v Minister for Immigration [2017] FCA 566 at [91]:

To the extent that there may have been some technical breach of the disclosure obligations arising under the Act, I do not consider that the applicant lost any opportunity to advance his case by reason thereof. No detriment is shown. No practical injustice is, on any view, identified.

46.    His Honour’s comments are relevant to the present case although the facts are different. No practical injustice or detriment has been suffered by the applicant due to the existence of the certificate and the Tribunal’s omission to disclose the certificate to him. This being so, the applicant has not been denied procedural fairness and the jurisdictional error principles disclosed in MZAFZ v Minister for Immigration [2016] FCA 1081; (2016) 243 FCR 1 and Singh v Minister for Immigration (2016) 313 FLR 1 are not applicable to this case.

(Footnotes omitted.)

32    In my view the comments of his Honour are directly on point, and correct. There is little for me to add to those comments, other than to conclude that no practical injustice was occasioned to the appellant in circumstances where the information in the entry interview record was reproduced in the appellant’s statement attached to his visa application and in the delegate’s decision record, to which the Tribunal expressly referred. Further, clearly the appellant participated in his own entry interview. It is also not controversial that the appellant had a copy of the record.

33    Finally, it is patently clear from the observations of the Tribunal at AB 191 [22] that the Tribunal did have regard to the entry interview record. The Tribunal stated:

Information provided by the applicant at his entry interview

22.    In his entry interview, the applicant told the interviewer that· he left Sri Lanka illegally by boat a few days after his parents came looking for him in Vavuniya, where he was hiding, to tell him that the gang of five that had visited the house in April was still looking for him, having come to the house on two more occasions since. He also claimed there was a conflict of sorts with a Sinhalese man who wanted to farm on his family's land during the ·rainy season. He said the man used to boast about his military service He also claimed the military beat him once for grazing his cows in a particular location away from his farm. He claimed the military used to force children like him, when he was at school, to perform chores under threat of vandalising their bicycles. He spoke of the uncle who was kidnapped and killed in 2003; he said he did not know who had done this. He claimed his father was beaten by authorities in 1999 and lost adequate use of one leg. He claimed he was threatened at gunpoint by soldiers, during the civil war in 2007, when they came to his house asking after two individuals. He said the· military took his eldest brother away on this occasion and beat him, returning him home afterwards. He claimed that no member of his family had ever been involved in a. political group. He claimed he himself had never been arrested by the authorities.

34    Ground 5 is clearly not substantiated.

Ground 6

35    Ground 6 relates to the finding of the Tribunal at AB 204 [95]:

The alleged land grab

95.    I note that the applicant went on more recently to give an alternate reason for his family's move to Murugapuri: a successful bid to seize his family's land. However, I note that the applicant's claims about the land grab have altered over time. Initially, they were about a man who wanted to use the land in the rainy season. Then they were about a group of Sinhalese trying to grab the land by force. The latter claims implied that the family was evicted from its land, but seemingly inconsistent with this, the applicant told the previously constituted Tribunal that his family chose to move away from the farm for comfort. The applicant provided no evidence to support his arguably inconsistent claims about the land grab, except to cite instances of such activities affecting others. I accept that there have been attempts to seize land in the Trincomalee area but I do not accept on the evidence before me that the applicant's family has been directly or indirectly affected by such activity. On the evidence before me, I am confident that the applicant has recently invented the claims about the land grab to strengthen his visa. I give no weight to this claim. I do not accept that the applicant's family moved six kilometres down the road due to a land grab.

36    The premise of ground 5 is that the Tribunal did not have regard to the entry interview record, but should have. On the other hand, the premise of ground 6 is that the Tribunal did have regard to the entry interview record but should have put to the appellant any inconsistencies between his evidence at entry point and his later evidence. At the hearing the following exchange took place:

HER HONOUR: Sorry. Aren’t you – can I just ask you one question, Mr Zipser. In ground 5, aren’t you saying that there’s no evidence that the tribunal had regard to the information in the entry interview record?

MR ZIPSER: Your Honour, I accept

HER HONOUR: But ground 6 is they obviously did.

MR ZIPSER: Well

HER HONOUR: So how does that work?

MR ZIPSER: There is a tension between the two grounds.

HER HONOUR: Yes. That’s one way of putting it. An internal inconsistency is another way of putting it.

MR ZIPSER: Yes.

HER HONOUR: It sounds like you’re trying to have your cake and eat it, too, Mr Zipser. They either did or they didn’t. You can’t run one ground saying they obviously didn’t have regard to the interview and then another one saying that they shouldn’t have had regard to the interview.

MR ZIPSER: Well, your Honour, I’m aware that there is an inconsistency between the two grounds, but

HER HONOUR: So how do you reconcile them, that inconsistency?

MR ZIPSER: Well, firstly, one way in which I reconcile them is that in relation to ground 5 – sorry – yes – in relation to ground 5, the point in the tribunal’s finding in which it rejects the applicant’s claim concerning the gang of five is in paragraph 93 of the tribunal’s decision, and although it’s a difficult argument for the court to accept, it is possible that the tribunal in the course of making a finding concerning the land grab in – on the issue of the land grab in paragraph 95 did have regard to the entry interview for a reason adverse to the applicant but for the gang of five matter – or issue in paragraph 93 did not have regard to the certificate. But that is the only way I can attempt to reconciled the two grounds. I accept that your Honour may – it’s open to your Honour to conclude that either the tribunal did have regard to the entry interview on all issues or alternatively did not. In that case, it’s a weakness for one of my grounds, but the other ground still survives or can still be run.

HER HONOUR: Thank you.

(Transcript pp 27-28.)

37    The submission of Counsel for the appellant that there is “tension” between grounds 5 and 6 is something of an understatement. I do not accept the appellant’s submission that the two grounds of appeal can be reconciled in the manner he contends, namely that the Tribunal gave limited consideration to the entry interview record. The grounds are incompatible. Further, there is absolutely no basis on which it could be inferred that the Tribunal was selective in its consideration of the entry interview record.

38    Nonetheless in the interests of justice I will now examine ground 6. This ground raises the question whether s 424A(1) of the Migration Act was contravened. The section reads, materially:

Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)    invite the applicant to comment on or respond to it.

 (2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies--by one of the methods specified in section 441A; or

(b)    if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

  (3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)    that is non-disclosable information.

 (4)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

39    The comments the appellant made at his entry interview to which the Tribunal referred were as follows:

There is a Sinhalese man that comes to our farm to hunt at night - he came and asked if he could do farming in our land in this rainy period - So I told him that I could not give him the land – I told him that my fathers brothers family was supported by us - so I am the provider to them - so he told me that I would not do my farming in this place and he challenged me saying that he would not let me do the farming in this land and all these things - problems started after this talk with this man. He is Sinhalese. I do not know his name - he never told me - he always boasted about his military service.

40    The Tribunal noted that the appellant had told the previously constituted Tribunal that his family chose to move away from the farm “for comfort”, which was inconsistent with his information at the entry interview.

41    “Information” for the purposes of s 424A does not include the existence of doubts, inconsistencies or the absence of evidence, which includes inconsistencies in information that an applicant provides at an arrival interview: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18], Minister for Immigration and Citizenship v SZFLX [2009] HCA 31; (2009) 238 CLR 507 at [22], and see discussion of Thawley J in SZWCB v Minister for Immigration and Border Protection [2019] FCA 139 at [14]-[17]. An obligation under s 424A(1) in relation to a particular statement which does comprise “information”, assuming that information otherwise falls within s 424A, does not oblige the Tribunal to give a visa applicant particulars of inconsistencies, doubts or potential adverse credibility findings. Insofar as inconsistent statements were given by the appellant to the previously-constituted Tribunal, it is clear that this provision of information was “for the purpose of the application for review” in s 424A(3)(b) of the Migration Act notwithstanding that the Tribunal was differently constituted: SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 at [37]-[39].

42    In my view ground 6 has no merit.

conclusion

43    No appellable errors in the decision of the primary Judge have been substantiated. No jurisdictional error as claimed by the appellant is apparent in the decision of the Tribunal. The proper order is to dismiss the appeal with costs.

Associate:

Dated:    28 August 2019