FEDERAL COURT OF AUSTRALIA

BEL16 v Minister for Home Affairs [2019] FCA 1678

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Order 1 of the orders made by the Federal Circuit Court on 5 February 2019 be set aside and in lieu thereof it be ordered that the decision of the second respondent made on 21 April 2016 be quashed and the matter be remitted to the second respondent for hearing and determination according to law.

3.    Order 2 of such orders be set aside and in lieu thereof it be ordered that the first respondent pay the appellant’s costs of the proceedings in the Federal Circuit Court.

4.    The first respondent pay the appellant’s costs of and incidental to the appeal in this Court to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

BEACH J:

1    The appellant appeals from a judgment of the Federal Circuit Court delivered on 5 February 2019 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal made on 21 April 2016 to affirm a decision of a delegate of the Minister to refuse to grant to the appellant a protection (class XA) visa (the visa).

2    The appellant says that the primary judge erred in two essential respects.

3    First, it is said that he erroneously failed to find that the Tribunal, in finding that the appellant was not a truthful or credible witness, engaged in irrational or illogical reasoning, made findings without any probative basis, and failed to carry out its statutory task by failing to consider relevant information.

4    Second, it is said that he erroneously failed to find that the Tribunal engaged in irrational or illogical reasoning, and failed to carry out its statutory task by failing to properly consider a police report submitted by the appellant regarding an attack on his aunt by marriage on his paternal side.

5    For the reasons that follow I would uphold both grounds of appeal.

6    But before getting into the detail let me make two points. First, I was much assisted by the submissions of counsel for the appellant, Mr Jim Hartley, who was acting pro bono under a reference made under Rule 4.12 of the Federal Court Rules 2011 (Cth). If I may say so, the triaging of cases performed by specialist judges and the quality of the pro bono representation procured accordingly make the Court’s pro bono protocols pre-eminent. Second, in terms of the Minister’s representation, the solicitor for the Minister at the hearing this week made an application for an adjournment based upon the non-attendance of the Minister’s counsel, which adjournment I refused. This appeal was originally listed before me on 19 August 2019 but on that occasion was adjourned to this week for a reason concerning the Minister’s counsel. At the hearing two days ago that same counsel did not appear, apparently due to a miscommunication within the Minister’s legal team. I refused a further adjournment based upon the inconvenience and disruption that would be caused to the appellant, the interpreter, pro bono counsel and the Court. But I have the helpful written submissions of the Minister’s counsel and I gave the Minister an opportunity to file further submissions by 1.00 pm yesterday after reviewing the transcript of Wednesday’s argument; the Minister took up that opportunity.

7    Let me now turn to some relevant background to the present appeal.

BACKGROUND

8    The appellant is a Sri Lankan Tamil. He arrived in Australia on 20 June 2012 as an “unlawful maritime arrival”, and undertook what I would describe as a “Biodata” interview. On 13 August 2012 he participated in a much more detailed maritime arrival entry interview (the entry interview). He applied for the visa on or about 21 February 2013 and at that time made a detailed statutory declaration. He claimed to fear harm from the Sri Lankan Criminal Investigation Department (“CID”) arising out of a dispute between his father and his uncle on the one hand, and a politician with links to the CID on the other hand.

9    The appellant asserted that his uncle had been detained by the CID. Further, upon the uncle’s release the uncle had informed the appellant’s father that the father was also under suspicion. At that point, so the appellant said, his father then vanished and apparently went into hiding from the CID. According to the appellant, shortly after all of this, CID officers attended the appellant’s home in search of his father. But when the CID did not find his father, the appellant claimed that the CID threatened that they would return and kidnap the appellant to secure the presence and giving up of his father.

10    On 4 June 2014 the appellant was interviewed by the delegate. Ultimately, on 1 December 2014 the delegate refused the appellant’s application for the visa. The delegate did not accept the appellant’s claim and commented adversely on his credibility.

11    On 21 April 2016, the Tribunal affirmed the decision of the delegate made on 1 December 2014 refusing to grant to the appellant the visa. It found that the appellant was not “a truthful or a credible” witness (at [67]).

12    By his application for judicial review in the Federal Circuit Court challenging the Tribunal’s decision, the appellant advanced two grounds of review. The first was broadly that the Tribunal’s credibility finding was affected by jurisdictional error. The second was that the Tribunal fell into jurisdictional error in dealing with a police report that on its face was said to corroborate the appellant’s version of events. The primary judge rejected both grounds, and dismissed the application on 5 February 2019. It is not necessary for the moment to linger on his Honour’s reasons.

GROUNDS OF APPEAL

13    Let me address each ground of appeal in turn.

(a)    Ground 1 – the Tribunal’s credibility finding was affected by jurisdictional error

14    The Tribunal found that the appellant was not a truthful or a credible witness. And broadly the Tribunal gave two reasons. First, it was said that the appellant had given differing accounts of why the CID was pursuing his father and uncle, which the Tribunal characterised as discrepancies. On this aspect it rejected the appellant’s explanations for such discrepancies. Second, it found that the reason that the appellant gave for the CID’s interest in his father and uncle was far-fetched and implausible.

15    Now before getting into the detail of this ground, let me make the following general observations.

16    First, it is not in doubt that in assessing credibility, a Tribunal may rely upon inconsistencies properly so-called, but the Tribunal must reason carefully and fairly to avoid any undue propensity to scepticism. Indeed, an error may be identified in how the Tribunal went about its task if the Tribunal had approached the task in one or more of the following ways:

(a)    Commencing a review of the material and evidence provided by an applicant with an unwarranted degree of scepticism.

(b)    Engaging in confirmatory bias by inappropriately discounting material prima facie in support of the applicant’s position before the totality of the material had been considered.

(c)    Viewing inconsistencies, vagueness or omissions in the applicant’s version of events without regard to imperfections in memory that naturally occur over time or due to stress or language difficulties particularly when an interpreter has been used or due to reticence to be forthcoming with people or bodies perceived to be in authority. In this respect, inconsistencies, vagueness or omissions do not necessarily indicate a deliberate lack of truthfulness, although they may affect the assessment of reliability. Indeed, and conversely, too much detail and consistency may be “merely corroborative detail, intended to give artistic verisimilitude to an otherwise bald and unconvincing narrative” in the words of WS Gilbert’s Pooh-Bah.

(d)    Viewing the absence of documentary material without regard to the improbability that such material would exist or be in the possession of the applicant at either the time he applied for a visa or at the time of the review before the Tribunal or, conversely, discounting documentary material put forward by the applicant without good reason.

17    But to be clear, whether I would have gone about the fact finding exercise in the same fashion or made the same findings as the Tribunal is not to the point. The question is whether it was open to the Tribunal to engage in the process of reasoning in which it so engaged.

18    Second, over-ready use of labels such as “inconsistency” or “discrepancy” when characterising evidence of events invites error.

19    Third, to mention a claim to the Tribunal not having mentioned it to the delegate or vice versa may be relevant to credibility, but may also be reasonably explicable. Further, giving more detail on one occasion than another, or emphasising different matters at different times, may be reasonably explicable by the context or the different stage of the relevant inquiry in a way that does not invite an adverse credibility finding.

20    Fourth, even where there are inconsistencies or discrepancies in evidence, their significance and weight must be assessed having regard to the centrality or peripherality of the particular issue upon which the evidence is given.

21    Fifth, although in some circumstances it can be legitimate for the Tribunal to have regard to the timing of the making of a claim in assessing whether it is satisfied of the veracity of the claim, such an analysis is confined by principles of reasonableness, which includes as I have already indicated being “conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given” (AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227 at [28] per Kenny, Griffiths and Mortimer JJ).

22    Sixth, I accept that the Tribunal’s reasons should be read as a whole, and further should not be “construed minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 drawing upon Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287).

23    Seventh, I refer to and repeat what I said in DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525 at [46] to [52].

24    Eighth, in AVQ15, the Full Court observed that “[c]onsiderable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review” (at [41(f)]). Further, it observed (at [41(c)]) that:

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

25    Ninth, I accept that where there are multiple reasons justifying why the Tribunal has made an adverse credibility finding and one of them has been shown to be flawed, there may be occasions where the finding can still stand with no jurisdictional error if other reasons singularly or cumulatively can in any event be independently drawn upon and were drawn upon to justify the adverse credibility finding.

26    Finally, to the extent that it may be suggested that before I deal with the question of materiality I have to determine the error to be of a particular type, the errors that I have identified elsewhere so infected the Tribunal’s reasoning such that the relevant findings were illogical, irrational or unreasonable. And as a result and overall given their materiality, the Tribunal’s decision was affected by jurisdictional error. Of course, the use of expressions such as illogicality, irrationality or unreasonableness may be no more than to strongly emphasise disagreement with someone else’s process of reasoning on an issue of fact. And I also accept that differences of degree, impression and empirical judgment between the approach and reasoning of the Tribunal as compared with that of a judge undertaking judicial review or an appeal therefrom, do not establish illogicality, irrationality or unreasonableness. There is a high threshold. But I am satisfied that the high threshold has been met in the present case, as I will later explain.

Were there any discrepancies?

27    Counsel submitted that the appellant’s account did not involve any or any relevant discrepancies.

28    The appellant gave reasons for leaving Sri Lanka in the entry interview, a statutory declaration, an interview with the delegate, and to the Tribunal. It seems to me, and I agree with counsel for the appellant, that the following central points have remained static:

(a)    On 27 May 2012, the appellant’s uncle, who was a brother of the appellant’s father, was taken by the CID and released two days later.

(b)    On 29 May 2012, the uncle met with the appellant’s father at the father’s house and likely warned him about the CID’s interest.

(c)    On 30 May 2012, the father went to the fish market ostensibly to buy fish, but never returned.

(d)    Later on 30 May 2012 around midnight, the CID came to the father’s house, enquired as to the father’s and uncle’s whereabouts, beat the appellant, and said to the appellant’s mother that if the CID were not told of the father’s and uncle’s whereabouts, they would kidnap the appellant.

(e)    On 31 May 2012, a different uncle, being a brother of the appellant’s mother, informed the appellant that that uncle could arrange for the appellant to be on a boat to Australia. The appellant left Sri Lanka by boat on 31 May 2012.

(f)    The appellant arrived in Australia on 20 June 2012.

(g)    Around late June 2012, the father telephoned the appellant’s mother and informed her that he had gone into hiding. This information was relayed to the appellant who by then was in Australia.

29    Now stopping here for a moment, the Tribunal said at [67] to [70] the following:

For the following reasons I did not find the [appellant] to be a truthful or a credible witness and I do not accept that he fled Sri Lanka by boat in May 2012 because he had been threatened by the CID and feared for his life.

In the first place, the [appellant] has given differing accounts of why the CID was pursuing his father and uncle, stating in his entry interview that he did not know why his uncle had been arrested, then claiming in his first written statement that he believed that it related to his father and uncle refusing to pay money to a Singhalese politician in order to operate their business from a local market, then telling the delegate that the CID had arrested his uncle and wanted to arrest his father and uncle because they had been persuaded to do so by [N], a Singhalese politician [who] wanted to defeat [T] a Tamil politician whom [his] uncle and father supported in elections. During the hearing he again claimed the CID wanted to arrest his father and uncle because [N] wanted to harm [T], but said that they were from the same party and were not rivals for an elected position. In addition the [appellant] claimed in his written statement that his uncle and father had been accused of weapons smuggling, but had clearly forgotten this when the issue was discussed during his interview with the delegate as he failed to mention it until reminded of his earlier evidence by the delegate.

In considering the significance of these discrepancies I have considered the [appellant’s] evidence that he was not aware of the reasons the CID was pursuing his father and uncle until he spoke to his uncle after he arrived in Australia. However, the [appellant] was present when his uncle came to warn his father that he should go into hiding because the CID wanted to arrest him and I do not accept that he would have been unaware of the reasons for this if this had occurred.

I have also considered the submissions by the [appellant’s] representative that he did not understand the application process, that he was fearful of the authorities and that he feared that any information he provided would be sent to Sri Lanka. I do not accept any of them. No knowledge of the protection visa process is needed to answer simple questions such as why did you leave Sri Lanka in an honest and reasonably complete fashion. It is not plausible that someone would come to Australia to seek protection if they feared Australian authorities nor is it plausible that the [appellant] would have felt the need to conceal the reasons he fled Sri Lanka from the Sri Lankan authorities as he had never been involved in any anti-government activities and the authorities would have been aware of the false weapons charges allegedly faced by his uncle and father.

30    I will come to some detail concerning these discrepancies in a moment. But what is apparent is that the Tribunal was not engaging with discrepancies concerning the central and static elements of the appellant’s story but rather discrepancies concerning why the CID was pursuing his father and uncle. But there are difficulties with this.

31    It should be apparent that the appellant had no personal knowledge of why the CID was so acting. At most the appellant’s belief could only have been informed by compounded hearsay. Of course the perception of risk of harm and the reasonableness of that risk is central to the Tribunal’s consideration. But in terms of assessing the credibility and truthfulness of the appellant himself, discrepancies concerning his speculation as to the motivations for conduct of a third party are far less significant and meaningful than discrepancies concerning the appellant’s version of his own conduct, his own motivations and what he could reasonably be expected to have first-hand knowledge of. I will return to this topic later, but for the moment let me address the so-called discrepancies.

32    Counsel for the appellant submitted that what the Tribunal identified were not discrepancies.

33    In relation to the evidence in the entry interview, according to the appellant’s counsel the appellant said that he did not know why his uncle was taken by the CID. He said that his father supported the political candidate, T; I have used “T”, although from my review of the transcript of the interview with the delegate another letter could have been used. The appellant said that his uncle arrived in Australia after he did, and that he had spoken with his uncle at a detention facility.

34    As to the evidence in the statutory declaration, according to the appellant’s counsel, the appellant said that during his entry interview he was asked to provide his claims in a brief form, and had not had it explained to him what matters were relevant. Accordingly, he had not detailed all of his claims. The appellant repeated that his father supported T, and said that his uncle had too. The appellant said that, “[t]here is a Singhalese politician who was vying with [T] for the same position”, who “is now in power and has good connections with the government authorities”. To the delegate, that Singhalese politician was identified as N.

35    The appellant said that he did not know all the details concerning why the CID were after his father and uncle. However, he “[did] know that [his] father and uncle both supported [T], helping him to get elected”, and he said that his uncle had also told him that his father had “problems” with the CID because of the father’s dried-fish business:

I have been told that my uncle and father tried to circumvent an extortion deal that was made regarding their sale of fish in the local market in Mulla[i]tivu. [N] forced my father and uncle into a deal where they would get the smaller cut of sales from the business in the local market. This was making it hard for them to do business and my uncle and father therefore decided to sell the fish directly from my uncle’s house in Uddapu. When [N’s] people found out, they organized for my father and uncle to be arrested by the CID on false charges of smuggling weapons down from Mulla[i]tivu.

36    As to the evidence in the interview with the delegate, according to the appellant’s counsel the appellant was asked, “who threatened your father?” He said that it was a “political issue”, arising out of his father’s support for T, whose political rival was N. The delegate asked the appellant whether there was any other reason why the CID might come looking for his father and uncle. The appellant said that he did not know “the political situation with [his] father and [his] uncle”, that he did not know why the CID beat him and what they wanted, and that he only had any understanding of what might be the reason from speaking with his uncle after they both were in Australia.

37    The delegate said that in the appellant’s statutory declaration he mentioned that his father and uncle were involved in smuggling and that they ran a dried-fish business, but had not mentioned those matters that day. But counsel for the appellant said that this was wrong. The appellant had never said that his father and uncle were involved in smuggling, but rather said that false charges had been made against them. The appellant informed the delegate to this effect. The appellant said that his “understanding of this procedure today was that [he] was going to answer questions that [the delegate] asked, so [he] didn’t generate anything else other than what [he] was asked”.

38    The appellant said that false charges had been laid against his father and uncle, that “[his] uncle spoke and explained to the lawyer the issues that [his uncle] and [his] father faced with [N]”, and that he “only [knew] about the problems that [he] faced”.

39    As to the evidence given at the Tribunal hearing, according to counsel the appellant said that two Singhalese brothers, one of whom was N, caused problems for him and his family. The appellant’s father and uncle supported T. N and T did not compete for the same position, but were rivals and disliked each other. As a result, “the [Ns] targeted the [appellant’s] father and uncle by alleging that they used their dried fish business to transport weapons from Mullaitivu and accused [them] of being involved with the LTTE” ([37]).

40    Now the concept of “discrepancy” includes lack of agreement, inconsistency, variance, lacking in harmony, incompatible and the like.

41    As I have indicated, the Tribunal relied on four matters that it called discrepancies.

42    First, it said that the appellant said in the entry interview that he did not know the CID’s reasons for pursuing his father and uncle, but later gave an explanation. But this is not a relevant discrepancy. It is simply the mention of a matter not previously mentioned. The appellant said that he did not know what the CID’s reasons might have been until he spoke with his uncle when they were both in Australia.

43    I agree with the appellant that the Tribunal purported to deal with this explanation, but did so in a way that was illogical or irrational. It said, “the [appellant] was present when his uncle came to warn his father that he should go into hiding” ([69]). But as counsel pointed out, this was contrary to the evidence. In the entry interview, which was before the appellant knew that such a detail was important, the appellant said, “they [uncle and father] was talking outside, I was inside the house, and then my father’s brother left”. So, the appellant was not present at any conversation between the father and the uncle. Further, and in any event, the Tribunal’s assumption that the uncle would say to the father why the CID was after them, is speculation to some extent, although I am prepared to assume that the father likely knew why the CID was after them. But the assertion that the appellant therefore likely knew is a step too far and not supported sufficiently by either probative evidence or likely inference.

44    Second, the Tribunal said that the appellant’s statutory declaration stated that N’s grievance with his father and uncle related to the operation of their market business, but later said that it related to support for T. But this misapprehends the appellant’s statutory declaration. In that declaration he said:

The CID was after both my uncle and my father. While I don’t know all the details as I didn’t discuss these matters heavily with my father, I do know that my father and uncle both supported [T], helping him to get elected. From what my uncle has told me, my father also had problems with the CID because of the dry-fish business they had together.

45    Moreover, the word “also” puts beyond doubt what was clear, namely, that the father’s and uncle’s support for T had a link with the claim of the CID being after them. The appellant’s family’s support for T was mentioned in the entry interview. Accordingly, the Tribunal’s conclusion that support for T was only given belatedly as an explanation for the CID’s interest in the appellant’s father and uncle was flawed.

46    Third, the Tribunal said that the appellant said to the Tribunal that T and N were from the same party and were not rivals for an elected position. But as counsel for the appellant correctly submitted, there was no discrepancy. The appellant never said that T and N were in different parties. He said in his statutory declaration that T and N were “vying for the same position”, and said to the Tribunal that they were not rivals for an “elected position”. These propositions are not inconsistent. The appellant was never asked whether the position to which he referred in his statutory declaration, for which T and N were vying, was an elected position. As they were members of the same party, they may have been vying for a position of power or influence within the same party.

47    Fourth, the Tribunal said that the appellant had mentioned false weapons-smuggling charges in his statutory declaration, but not unprompted before the delegate. But to mention a matter on one occasion but not another is not necessarily a relevant discrepancy. In any event, when the delegate said (wrongly) that the appellant had previously stated that his father and uncle had actually smuggled weapons, he gave an account of false weapons-smuggling charges that was consistent with his statutory declaration.

48    In summary, I tend to agree with counsel for the appellant that none of the asserted discrepancies upon which the Tribunal relied were in fact significant relevant discrepancies. But to have described them in that way, and then to have used them to conclude that the appellant was not to be believed, was erroneous.

49    I will not linger for the moment on questions of characterising any of this as jurisdictional error, but will return to this later after considering all topics under this first ground of appeal.

If there were any discrepancies, did they substantially undermine credibility?

50    Counsel submitted that any differences did not substantially undermine credibility. I agree.

51    The appellant’s account of the detail of matters within his own knowledge, that is, what happened, when, to whom, where, etc., was precise to the date and never shifted. And he repeatedly indicated, as is obvious, that his knowledge of why the CID might be after his uncle and father was imperfect and second-hand.

52    Further, it is to be noted that after speaking with his uncle, when the appellant was in Australia, the appellant thereafter always identified the importance of his father’s and uncle’s support for T in explaining the CID’s conduct.

53    Further, it seems to me that if there was some discrepancy, the Tribunal was required to have regard to its significance and centrality and to explain why the discrepancy justified any rejection of the appellant’s account. But it did not. It stated that it “consider[ed] the significance of these discrepancies” (at [69]), but never meaningfully elaborated on why they were significant rather than insignificant or why they were central rather than peripheral, and I mean central and significant to the appellant’s truthfulness and credibility.

54    I agree with the appellant that the discrepancies identified (at [68]) do not go substantively to the appellant’s credibility. Their subject matter was the appellant’s speculation, which was based on second-hand opinion hearsay, as to the content of the corporate mind of the CID. It is apparent that to ask why the CID was pursuing a person, indeed primarily the appellant’s father and uncle, was to invite speculation. The appellant could not know the answer. He was not the CID. And the CID had not told the appellant its motivations. Relevantly, he could only speculate based on what his uncle said to him about what his uncle thought was in the CID’s mind.

55    Moreover, if the appellant speculated wrongly, it does not follow that he was not to be believed on the objective factual elements of his version of events where he did have first-hand knowledge. Any number of other explanations could be plausible as to his wrong speculation. For example, wrong speculation might more readily be explained by the innocent possibility of the appellant simply guessing wrongly, misunderstanding what he had been told, being given only a partial explanation, or being misinformed. But none of such possibilities could justify a finding that the appellant was not truthful or credible on the essential factual elements of which he had first-hand knowledge.

56    Indeed, and as counsel submitted, the appellant’s knowledge of the CID’s motivations based on second-hand speculation was peripheral in one sense. The central aspects relevant to the appellant’s truthfulness were what had happened to the appellant.

57    Now the Minister rightly points out that to properly understand the nature of the findings made by the Tribunal, it is necessary to consider the relevant reasoning of the Tribunal as a whole. So far so good. The Minister points out that the Tribunal’s reasoning was expressed at [68], which I have already set out. The Tribunal then went on (at [69]) to consider the appellant’s evidence that he was not aware of the reasons why the CID was pursuing his father and uncle until he spoke to his uncle after he arrived in Australia. The Minister says that the Tribunal rejected this evidence on the basis that the appellant “was present when his uncle came to warn his father that he should go into hiding because the CID wanted to arrest him”. And the Tribunal did “not accept that he would have been unaware of the reasons for this if this had occurred”. But as I have already said, this was to misunderstand the evidence.

58    The Minister then says that the Tribunal also considered other reasons advanced for the differences in the appellant’s evidence as expressed at [70], which I have also set out.

59    The Minister then says that the fact that each of these differences identified by the Tribunal may not properly answer the description of a discrepancy is not sufficient to establish jurisdictional error. I would agree with that at least. The Minister then says that it is plain that there were a number of divergences and alterations in the evidence given by the appellant as part of the entry interview, his statutory declaration, his evidence before the delegate and his evidence before the Tribunal. Therefore the Minister says that the Tribunal was entitled to rely upon these differences in forming an adverse view as to the appellant’s credibility.

60    But there are difficulties with such a rolled-up contention.

61    First, there were no relevant discrepancies in the appellant’s version of objective events of which he had first-hand knowledge.

62    Second and relatedly, the discrepancies, if there be any, related to speculation about what was motivating the CID concerning principally its interest in the appellant’s uncle and father. At best they were second-order discrepancies in terms of assessing the truthfulness of the appellant.

63    Third, many of the so-called discrepancies were not that at all. Indeed, one proceeded from a mistaken view of the evidence.

64    Fourth, the Minister says that it is not to the point that part of the appellant’s evidence may have invited speculation in circumstances where the proposition said to invite speculation, namely, why the CID were pursuing him, formed a central part of his claim for protection. But in my view this is to inappropriately confuse two concepts. Of course, the appellant’s perception of risk from the CID and its reasonableness is important to his claims. But I am here dealing with the truthfulness of the appellant himself and the Tribunal’s rejection of the credibility and truthfulness of the appellant such as to lead to its finding (at [76]) that the appellant concocted his claims. The so-called discrepancies, even if accepted for the sake of argument, go nowhere close to providing a reasonable or logical basis for making such a hard finding; I am using “hard” in both dimensions.

65    Fifth, the Minister says that to the extent that the appellant complains about centrality, the reasoning by the Tribunal in [68] must be read in conjunction with what was said in [67] where the Tribunal stated that “for the following reasons”, it “did not find the [appellant] to be a truthful or a credible witness”. In so doing, the Tribunal expressly identified that the reasons in [68] were relevant to, and otherwise informed, its finding that the appellant was not truthful or credible. Further, the Minister says that it is illogical to assert that the central aspects of the appellant’s evidence were limited to “what had happened to him” in circumstances where the appellant expressly relied upon what had happened to his father and uncle to support his claim for protection. Again, this is all to inappropriately blend a number of concepts as I have endeavoured to explain.

The false assertion of gun smuggling

66    Let me turn to the fiction concerning gun smuggling. Counsel for the appellant submitted that the Tribunal’s reasoning manifested illogicality in relation to the gun smuggling issue. The Tribunal said (at [72]):

I have also considered the claim that the [appellant’s] father and uncle were accused of smuggling weapons for the LTTE in 2012 and that this [led] to his uncle’s arrest in 2012. It is not plausible that the CID would have released the [appellant’s] uncle after only two days or that they would have failed to detain his father, who remained at home and easy to [locate] for over two days after his brother’s arrest, if they had genuinely suspected or believed that they were involved in smuggling guns for the LTTE or anyone else.

67    The Tribunal identified (at [72]), as a reason for disbelieving the appellant, that it was not plausible that the CID would have released the appellant’s uncle after two days or failed to arrest his father if they genuinely suspected or believed that they were involved in smuggling guns. But as counsel for the appellant correctly submitted, the appellant never claimed that the CID did so genuinely suspect or believe. Rather, he expressly said that the charges against them were false. Further, the Tribunal made a finding (at [76]) that the appellant’s father and uncle were not involved in smuggling weapons. And indeed, the appellant never said that they were.

68    I agree with counsel that it was irrational and unreasonable for the Tribunal to find a person’s credibility damaged by reason of rejecting a claim that the appellant never made.

69    Now the Minister says that the Tribunal’s reasoning needs to be understood in the context of its anterior observations at [17] and [24], where it stated:

The [appellant] did not know the full details of why the CID was looking for his father, but he believed that a Singhalese politician had tried to force his father to pay additional money from their fish business at the local market, so his father began to sell fish from his uncle’s house. Because of this the Singhalese politician organised for the CID to lay false charges of weapon smuggling from Mullaitivu against the [appellant’s] father and wanted to arrest him.

….

The delegate noted that there were a number of contradictions in the evidence provided by the [appellant]. She pointed out that when he was first interviewed on arrival in Australia he said … he came because he was in poverty. The [appellant] said he was confused when he first got off the boat and he had a lot of hardship when he was studying so he mentioned poverty. She also noted that he had previously claimed that father and uncle had problems related to their dried fish business and that false charges of weapons smuggling had been laid [against] them as a result, but he had failed to mention either of these matters when his father’s problems were discussed during the interview. The [appellant] said that he had not mentioned his father’s business problems or the weapons charges because he was not asked about them.

70    The Minister says that it was on the basis of these observations that the Tribunal later made its implausibility finding at [72].

71    The Minister says that the Tribunal’s assessment was not dependent upon the appellant advancing a claim that the CID had a genuine belief or suspicion that his father and uncle were smuggling guns for the LTTE. Indeed, the Tribunal noted that the appellant had stated that the charges of weapon smuggling were false ([17], [24]). But the Tribunal was required to deal with the appellant’s claim that the CID had suspected his father and uncle of smuggling guns. A necessary premise of this claim was that the CID in fact suspected his father and uncle of smuggling guns. Further, nothing in the appellant’s claims suggested that the CID should be taken to have known that the charges were false. Accordingly, the Tribunal was entitled to test that underlying premise and to reach its conclusion as to implausibility, particularly having regard to the Tribunal’s reasoning in [17] and [24]. The Minister says that there was no error in this reasoning.

72    Now let me say a number of things at this point.

73    First, assuming in favour of the Minister’s submissions that the Tribunal’s reasoning on this aspect was cogent, this point goes nowhere close to impugning the credibility and truthfulness of the appellant.

74    Second, and in any event, the false charge could have been at first believed by the CID and then verified as wrong, thereby explaining the uncle’s release two days later.

75    Third, the surmising of the Tribunal in [72] is speculative.

76    Fourth, the first part of the Tribunal’s reasons at [76] “I do not accept that the [appellant’s] uncle [was] involved in or accused of smuggling weapons…” seems to confuse within it a claim never made.

77    In summary I am not convinced that the Tribunal’s reasoning was cogent or reasonable on this aspect.

The potential arrest of other family members?

78    The appellant also submitted that the Tribunal’s reasoning manifested illogicality in relation to the arrest of family members. In this regard, I note that the Tribunal said (at [73]) the following:

Even if I accepted that the CID was continuing to seek the [appellant’s] father (which I do not) I find the claim that the CID would continue to hunt for the [appellant] for nearly four years so they could detain or abduct or get rid of him in order to pressure his father to give himself up completely implausible. If the CID believed that detaining or abducting a family member would have forced his father out of hiding then surely, they would have detained his mother or siblings. And killing the [appellant], as he appears to be suggesting, would no [doubt] have caused his father to remain in hiding, not to give himself up.

79    The Tribunal identified as a reason for disbelieving the appellant that if the CID’s plan was to detain him to force his father and uncle out of hiding, that did not make sense given that the CID could simply detain his mother or siblings instead. But I agree with the appellant that this approach was problematic for two reasons.

80    First, the appellant could not know the CID’s mind. Moreover, if the appellant’s speculations did not strike the Tribunal as likely, that could not say anything about the appellant’s truthfulness.

81    Second, the appellant said in the entry interview and statutory declaration that his mother and siblings spent nights away from home to avoid the CID. Problematically to say the least, the Tribunal did not refer to this explanation. Now the primary judge declined to find error on the basis that the necessary centrality of the evidence in the review was absent ([45]). But this was problematic as well. It is not persuasive to say that the error (at [73]) could not have made a difference to the Tribunal’s credibility finding.

82    Now the Minister says that [73] discloses that any finding made by the Tribunal was made in the alternative and for completeness in circumstances where the Tribunal had expressly rejected the appellant’s contention that the CID was interested in the appellant, his father or his uncle. So the Tribunal addressed this aspect of the appellant’s claim in circumstances where the fundamental premise, namely, that the CID were interested in the appellant, his father and his uncle, had been rejected. But this was not a complete answer. In any event, the foundation for this argument involves an acceptance of this “fundamental premise” which was itself infected with jurisdictional error.

83    Further and in any event, the Minister says that there were three reasons given in response to this claim. First, there was the inherent implausibility of the claimed interest given the time lag. Second, there was the unlikelihood of the claim given other family members could have been kidnapped. Third, there was the unlikeliness for this approach to yield a desired outcome. The Minister says that these were cogent reasons. Perhaps that may be so, and absent other error the Minister might have a point. But there are other errors as I have discussed. Whether they amount to jurisdictional error, including materiality, is a matter I will return to later.

Is the CID still interested?

84    The Tribunal also held that the appellant’s evidence at the hearing was contradictory and unconvincing in that his evidence to the Tribunal regarding the CID visiting his home after he left Sri Lanka was at odds with his evidence to the delegate. Its reasoning (at [74]) was as follows:

The [appellant’s] evidence at the hearing regarding the CID’s continuing interest in him was contradictory and unconvincing. When I incorrectly observed that he had not made this claim previously, he did not correct me but indicated that the CID had only come to his home recently and when I pointed out that this was at odds with the claim that they had come 6 months after he left Sri Lanka, said that this was true but he had only recently learned of these visits, which is at odds with his evidence to the delegate in xxxx. Far from persuading me that he was of continuing adverse interest to the CID, I find the [appellant’s] changing evidence regarding the claimed visits of the CID to his home a strong indication that he is not a truthful witness.

85    The appellant says that this is an error. Strictly I agree. The transcript of the interview with the delegate shows that the appellant did not give any evidence to the delegate concerning the CID visiting his home after leaving Sri Lanka.

86    Now the primary judge said that: (a) he “detected no error in that path of reasoning”; (b) “the use of xxxx was superfluous”; (c) “a plain reading of the paragraph revealed its purport”; and (d) “[h]ad the four x marks been absent the relevant sentence made sense”. But the appellant says that each proposition involved an error. Moreover, as the appellant’s counsel correctly points out, as to the second to fourth propositions, the sentence might have made sense in that it had a grammatical meaning, but it assumed that the appellant had given contradictory evidence to the delegate, which was itself an error.

87    The fact is that the Tribunal reasons (at [74]) start with a finding that the appellant’s evidence was contradictory, which on one view it was not. It wrongly states that the appellant’s evidence to the Tribunal “is at odds” with the evidence to the delegate.

88    Now the Minister contends that the Tribunal’s holding that the appellant’s evidence was contradictory and unconvincing was based upon the Tribunal’s recording of what had occurred at the hearing before the Tribunal.

89    Further, the Minister says that the reference to “xxxx” in the Tribunal’s reasoning plainly involved a typographical error but is not indicative of jurisdictional error. And the Minister says, as the primary judge observed, that the Tribunal’s reasoning makes sense in the absence of the erroneous inclusion of “xxxx”. But the “xxxx” is demonstrably an editorial note to find a phantom reference. One does not need “an eye keenly attuned to the perception of error” to work all of this out. The fact is that there was no contradictory evidence as such.

90    The Minister says that it is important to observe that in [74] the Tribunal recounted the appellant’s statement that the CID had only come to his home recently. The Tribunal then stated that when it pointed out that this was at odds with his claim that the CID had visited his mother six months after he left Sri Lanka, the appellant said this was true but that “he had only recently learned of these visits, which is at odds with his evidence to the delegate in xxxx”. The Minister says that it is apparent that the matter that was at “odds” was the appellant’s statement to the Tribunal that he had only recently learned of the CID visits. The reason why this statement was at odds is reflected in the fact that the delegate referred to the CID’s continuing visits to the appellant’s mother in the decision record. The fact that the CID were continuing to visit the appellant’s family home was a matter known at the time of the delegate’s decision in 2014. It was also a matter to which the appellant referred upon his arrival in Australia. So, as the Tribunal stated, it was not a matter of which the appellant “recently learned”. Therefore, there is no error in the Tribunal’s finding in [74].

91    But even if one was to accept this alternative explanation of the Tribunal’s reasons at [74], on no reasonable view could this be said to be “a strong indication that he was [not] a truthful witness”. Even on the Minister’s version, the appellant had made earlier references to these visits of the CID to his family home after he had left Sri Lanka. In the overall scheme of things, even if this discrepancy were to be demonstrated, its significance has been disproportionately over-stated.

The relevance of the uncle’s release at the behest of T

92    The appellant gave evidence that his uncle was released after being held by the CID for two days. The appellant said in his statutory declaration that, “[his] uncle has more recently told [him] that [T] had helped get [his uncle] released after being initially arrested”. But the Tribunal held ([75]) that the appellant’s claim that his uncle had been released due to T’s intervention did not sit well with the claim that the CID did N’s bidding. But the Tribunal’s approach involved two errors.

93    First, the appellant did not claim that his uncle had been released for that reason. He claimed that his uncle had told him that he had been released for that reason. Accordingly, if that reason was implausible, that might impact upon the uncle’s credibility but not on the appellant’s credibility. True.

94    Second, for the Tribunal to say that T’s asserted intervention does not sit well with other evidence about N’s influence over the CID was to state a proposition that was devoid of content. Why does it not sit well? Why is it implausible that two politicians might have varying degrees of influence with the CID? Why is it implausible that T had influence with some, but N had influence over others and more? The Tribunal appears to have engaged in mere personal speculation.

95    Now the Minister says that the appellant overlooks the entirety of the Tribunal’s reasoning (at [75]) which is that:

The [appellant’s] claim that his uncle was released after [T] intervened on his behalf does not sit well with the claim that the CID did [N’s] bidding because they were both Singhalese or with this claims that he, his father and his uncle were so fearful that [they] had to flee the country or go into long term hiding to avoid arrest or other serious harm.

96    So understood, the Minister submits that it is apparent that the Tribunal was stating that the appellant’s claim that his uncle was released after T’s intervention did not sit well with both the claim that the CID did N’s bidding and the claim that the appellant, his father and his uncle were so fearful that they had to flee the country or go into long term hiding. Again, to me, this is soft speculation.

97    The Minister says that it was open to the Tribunal to reason in this way with respect to the latter claim. Further, the distinction that the appellant seeks to draw between the claim he made, namely, that his uncle told him that he was released after two days after T’s intervention, and the claim articulated by the Tribunal is immaterial. In any event, it is apparent that the Tribunal was not making an independent finding that was dispositive or otherwise central to its conclusions as to the credibility of the appellant.

98    But it seems to me though that this aspect was used, partly, to make an adverse credibility finding. And it goes nowhere close to cogently performing that function.

Other matters

99    The Tribunal at [76] said the following:

After considering all of the relevant evidence, I do not accept that the [appellant’s] uncle [was] involved in or accused of smuggling weapons or supporting the LTTE or that the [appellant’s] uncle was detained by the CID and that his father was at risk of detention by the CID in May 2012 for any reason or that the [appellant] was threatened by the CID in May 2012 for any reason. I find that he concocted these claims in order to enhance his claim for protection in Australia and I am not satisfied that the [appellant] has a well-founded fear of persecution arising from these events.

100    I have a number of problems with this paragraph as well. Let me break them down.

101    First, this conclusion is tainted by the errors that have gone before and that I have discussed above.

102    Of course, as part of its task and within its jurisdiction, the Tribunal can make permissible factual errors. But the centrality of the adverse credit finding was such that in my view the errors reveal that the Tribunal did not perform its task rationally or reasonably in assessing the credibility of the appellant. The materiality of these errors self-evidently follows.

103    Second, the appellant was never challenged or shaken on the central objective elements of his version of events of which he had first-hand knowledge and which I have set out at [28] above. Accordingly, the conclusion that the appellant “concocted these claims” is neither rational nor reasonable.

104    Third, and following from the second point, there was no rational or reasonable basis for finding that the appellant did not have a subjective belief of fear of the CID. Whether that belief was reasonable or could now reasonably still apply are separate matters.

105    I accept that there is much in favour of the Minister to suggest that now or at the time of the Tribunal’s hearing, any subjective fear may not be reasonable, and that the CID would now have no interest in the appellant.

106    Indeed I note other findings of the Tribunal pointed to by the Minister in supplementary submissions filed yesterday.

107    The Tribunal found ([83]) that the appellant would not be persecuted upon his return to Sri Lanka because, inter-alia, there was no credible evidence that suggested that the appellant was involved in any militant or political activities or that he was of adverse interest to the Sri Lankan authorities. I also note the Tribunal’s findings at [85] although they were contaminated by errors that I have previously discussed; see also at [90]. Further, there was a finding ([86]) that the appellant, his father and uncle supported the SLPF, a mainstream political party which operates openly and freely in Sri Lanka, and that there was no evidence “which suggests that members of the SLPF are at risk of serious harm in Sri Lanka”. Accordingly, the Tribunal concluded ([88]) that there would not be a real risk that the appellant would suffer serious harm upon his return to Sri Lanka.

108    I have considered these other findings, but I cannot let pass that the Tribunal’s approach to assessing the appellant’s credibility was flawed to such a significant extent as to amount to a jurisdictional error justifying the setting aside of its decision. The legality of the process used to assess credibility is what is in question. And as I say, that process has been successfully impugned by the appellant.

109    In summary, I am unable to say that by reason of the Tribunal’s errors, the appellant did not lose a real opportunity to obtain a different outcome.

110    Accordingly, this first ground of appeal is made out. The Tribunal made a jurisdictional error and the primary judge was incorrect not to so find.

(b)    Ground 2 – the Tribunal’s flawed dismissal of the police report

111    The appellant put forward as part of his evidence a police report which he said was prepared regarding an attack on his aunt, being the wife of the uncle detained by the CID. The Tribunal dealt with this report at [45] and [77] in the following terms:

I asked [the appellant] to explain the significance of an untranslated police report dated 6 August 2013 which was attached to his file. He said that it related to problems his uncle’s wife had faced with [N’s] people. The [appellant’s] adviser provided a translation for the document following the hearing. It is a report from the … Police Station dated 2 October 2013 which states that the wife and father-in-law of the [appellant’s] uncle … were assaulted in their home by unidentified men who were looking for the [appellant’s] uncle. The report states that the [appellant’s] uncle’s wife believed that they were associates of [N] and that they were looking for his uncle because he supported [T but query] in the elections.

…

In reaching this conclusion I have considered the police report relating to an attack on the [appellant’s] uncle’s wife and father by people associated with [N]. However, even if this document is genuine, which I strongly doubt, it contains nothing which suggests that the CID would pursue the [appellant] if he returned to Sri Lanka and I have given it no weight.

112    Counsel for the appellant submitted that the Tribunal’s characterisation (at [77]) was erroneous.

113    The appellant’s claim involved the following propositions. First, N, so the appellant understood, had an interest in detaining the appellant’s father and uncle. Second, the CID had, at N’s instance, threatened to detain the appellant to draw his father from hiding. Counsel for the appellant submitted that the police report suggested that the first proposition remained true. It also suggested that N remained prepared to harm family members of the father and uncle to achieve his aims, which was consistent with the second proposition. Further, counsel said that whether the people referred to in the police report were CID was not known. But if not, that would not detract from the appellant’s claim. It was said that the fact that N might on occasion use as enforcers people who were not CID does not detract from the cogency of the appellant’s fear of the CID on the basis that they were sometimes enforcers for N.

114    The Minister in response said that the primary judge noted that a number of propositions could be distilled from the police report, although he misdescribed some that I have now corrected. First, four persons, who were not identified beyond two being dark-skinned and fat and two being short, came to the appellant’s aunt’s residence. Second, there they beat the appellant’s aunt and her father. Third, they threatened to kill her and her father unless the appellant’s aunt and father surrendered the appellant’s uncle to them. Fourth, they damaged furniture and windows. Fifth, on leaving, they threatened to harm the appellant’s uncle if they saw the appellant’s uncle. Sixth, the appellant’s aunt otherwise speculated about who they were, who they represented and why they were there at all beyond asking for her husband.

115    The Minister pointed out that the primary judge observed that these opinions were unsupported and raised doubts, including by reason of the failure firmly to identify the number of attackers. The primary judge also observed that the police report bears four dates, the relevance of which was unexplained, and which may have actuated the Tribunal’s doubt.

116    The Minister said that it was in this context that the Tribunal made its findings. So, the police report did not support the appellant’s case. Indeed, the highest it was put was that the police report did not detract from the appellant’s case. According to the Minister, as both the Tribunal and the primary judge observed, the report did not establish that CID persons would pursue the appellant if he were returned. Indeed, nowhere in the report was a link made to the CID. Further, these deficiencies were compounded by the aunt’s inability to clearly recollect key aspects of the event, and the unexplained use of various dates on the report. Accordingly, the Tribunal was entitled to give no weight to the report and the primary judge did not err in failing to detect any error in the Tribunal’s reasons.

117    Again, there are problems with the Minister’s contentions.

118    First, it was not put that the document was false or forged.

119    Second, there is a consistency of date in the typed text. The event was dated as occurring on 6 August 2013. The date of issue of the certified version was 2 October 2013.

120    Third, on its face it confirmed that the appellant’s uncle was of interest at that time at least to supporters of N.

121    Fourth, true it is that the CID is not linked up directly, but the treatment “I have given it no weight” was not reasonable. Some, even if little weight, should have been given.

122    If ground two was the only error, I would say that it was not of itself material. But taken in combination with ground one, there was jurisdictional error. It has the capacity to bolster the appellant’s credibility to some extent although it adds little to whether now the CID would still be interested in the appellant as the Tribunal rightly said.

(c)    Conclusion

123    As both grounds of appeal have been made out, the appeal must be allowed.

Associate:

Dated:    11 October 2019