FEDERAL COURT OF AUSTRALIA

BFA17 v Minister for Immigration and Border Protection [2019] FCA 2102

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    Leave to rely on a new ground of appeal is refused.

3.    The appeal is dismissed.

4.    The appellant to pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The appellant is a citizen of Sri Lanka who arrived in Australia on 26 September 2012 and on 1 July 2016 applied for a Safe Haven Enterprise Visa (SHEV), which was refused by a delegate of the Minister on 15 December 2016. On 15 February 2017 the Immigration Assessment Authority affirmed that decision, and on 15 May 2019 the Federal Circuit Court dismissed an application for judicial review of that decision. This is an appeal from that decision.

2    This appeal raises the issue of whether the Federal Circuit Court erred in not finding that the Authority had misconstrued the appellant’s claims and in not finding that the Authority's decision was legally unreasonable as it relied upon inconsistencies in the appellant's evidence that did not exist. Leave to rely on a new ground in relation to the Authority’s consideration of two letters relied on by the appellant, is also sought.

3    For the reasons given below, leave to rely on the new ground is refused and the grounds of appeal have not been established.

Background

4    In summary, the appellant claimed to fear harm in Sri Lanka as a Tamil from the Eastern province. He claimed that he feared harm from the Karuna group because he refused to work for them, and they will suspect he is a member of the Liberation Tigers of Tamil Eelam (LTTE) and that he made a complaint about them. He also claimed to fear harm from the Sri Lankan authorities because they will suspect he is an LTTE member, because he is a Tamil from the Eastern province, and because he departed Sri Lanka illegally and applied for asylum in Australia.

5    The appellant accepts that the Federal Circuit Court accurately summarised his claims for protection at paragraphs [2]-[6]. The claims of significance to the grounds of appeal are based on the appellant’s SHEV statement, and are as follows:

8. The LTTE required at least one member of every family to work for LTTE to fight against the SLA. On the other side, in the SLA controlled area, there were heavy restrictions on civil life as the SLA was suspicious of Tamils working for the LTTE.

…

11. From January 2000 to 21 September 2003 l did not have a stable address and moved between addresses in Colombo, Pankudaly, Kallady and Thirupulugamam to avoid being targeted by the LTTE and the SLA army. This is because the LTTE required me to serve in their ranks and fight against the SLA and the SLA on the other hand was suspicious of me being a member of the LTTE as we moved from an LTTE controlled area to the SLA controlled area (Pankudaly - LTTE controlled area; Kallady SLA controlled area, Thirupulugamam - both).

12. To avoid being targeted by both the LTTE and SLA I went to Dubai. I was also working while I was in Dubai as a labourer in a Carton factory.

…

15. After LTTE dismembered in 2009, the KARUNA group, being formerly part of the LTTE became dominant. The KARUNA group worked with the army and the government.

16. The KARUNA group was behind the idea of compulsory service for one person in the family during the LTTE fight against the SLA. As I had fled to Dubai to avoid service I was fearful that they might take revenge by kidnapping and torturing me.

The Authority

6    The following summary is largely taken from the respondent’s submission, no issue having been taken by the appellant to its accuracy. The two matters to which the grounds of appeal are directed are discussed in more detail in the consideration of the grounds.

7    The Authority accepted on the basis of the appellant’s evidence and country information that the appellant had a subjective fear of being forcibly recruited by the LTTE, and that this was the reason he travelled to Dubai and overstayed his visa. It did not accept, however, that the LTTE had ever sought actively to recruit him. The Authority had difficulties with aspects of the appellant’s claim that he had been threatened by the Karuna group. The Authority noted that the appellant had provided inconsistent evidence as to which political party was threatening him, in that he said in his entry interview that he was forced to work by the “SK” but never mentioned the party again. The Authority recited the claim to fear harm from the Karuna group, and stated that the answers the appellant had given to the delegate on this claim did not clarify why the group would target him. The Authority found that the claim was inconsistent with his other evidence that he went to Dubai to avoid the LTTE. The Authority noted that the Karuna group did not exist at the time the appellant went to Dubai.

8    The Authority considered two letters purporting to have been written by members of the TMVP and a police report. The Authority did not accept them as credible. The Authority rejected the claim that the TMVP or Karuna group had sent letters to the appellant or his father, and it rejected the claim that supporters of the Karuna group, TMVP or any unknown armed men went to the appellant’s father’s home and made threats against the appellant. The Authority found this claim to have been fabricated.

9    The Authority was not satisfied that the appellant would face harm for reason of being a failed asylum seeker, having regard to country information and noting the lack of any LTTE profile that might expose the appellant to harm. The Authority also was not satisfied the appellant would face harm amounting to serious harm for having departed Sri Lanka illegally.

10    The Authority considered the appellant’s claims relating to his brother who he said was threatened by the CID in 2014. The Authority accepted that the appellant’s brother had gone to Switzerland. However for reason of inconsistencies in the presentation of the claims, and the fact that the CID had made no attempt to contact any other members of his family after 2014, the Authority did not accept the CID had questioned the appellant’s brother about him in 2014. The Authority found this claim to have been fabricated. The Authority took into account other claims made by the appellant in his entry interview, but not repeated in his SHEV application. The Authority considered the claims but was not satisfied they gave rise to a real chance that the appellant would suffer serious harm.

11    The Authority concluded that the appellant did not meet the requirements of refugee in s 5H(1) of the Migration Act 1958 (Cth). Having regard in particular to the appellant’s claims of having departed Sri Lanka illegally, and the prospect that the appellant as a Tamil would suffer societal discrimination, the Authority was also not satisfied the appellant was entitled to protection under s 36(2)(aa).

Federal Circuit Court

12    The appellant relied on two grounds of appeal in the Court below, only the second of which (ground 4 in the Federal Circuit Court) is repeated in this Court. It is therefore unnecessary to recite the reasoning in respect to the first of those grounds. The Court’s reasoning in relation to ground 4 is discussed in detail below in considering ground 1 of this appeal. Suffice to say at this stage, the Court below found that the grounds were not established and dismissed the appeal.

Consideration

13    As noted above, the appellant relies on four grounds of appeal, the first three relate to the same issue, and the fourth of which he needs leave to rely on as it was not raised in the Court below.

Ground 1 and 2: there is no basis for the Authority’s finding as to why the appellant went to Dubai, the Authority misconstrued the claims

14    These appeal grounds centred on a particular claim which the appellant submitted was clear from the statement he provided in support of his SHEV application: that he had been selected as the family member who was to join the LTTE. At that time the LTTE and the Karuna group were the same body, but it was the idea of the Karuna group that a family member from every family be conscripted. The appellant travelled to Dubai to avoid conscription by the LTTE. By the time he returned to Sri Lanka the Karuna group had split from the LTTE. He feared the Karuna group as he had avoided subscription at the time they had been enforcing that within the LTTE.

15    The appellant submitted that the material before the Authority established that the Karuna group had been part of the LTTE until 2004 and therefore did not have an independent existence until 2004. The appellant departed for Dubai in 2003.

16    The particular finding by the Authority which was challenged in the Court below was at paragraph [14]:

In his SHEV statement, he claimed to fear harm from the Karuna group, because he went to Dubai to avoid serving the Karuna group. When the delegate questioned the applicant regarding this part of his claims, he stated because Karuna worked with the army, that was why the army sometimes questioned him. I consider that explanation does not clarify why the Karuna group would target the applicant for harm because he went to Dubai. As discussed above, his evidence elsewhere is he went to Dubai due to a subjective fear of forced recruitment by the LTTE, not to avoid the Karuna group. The country information I referred to above indicates too that the Karuna group did not exist at the time the applicant went to Dubai. I consider the applicant has provided materially inconsistent evidence as to his fearing the Karuna group on return to Sri Lanka from Dubai and I consider that inconsistent evidence undermines the credibility of his claims.

17    The appellant submitted that the first sentence of paragraph [14] was incorrect, because the appellant’s claim was that he went to Dubai to avoid being threatened by the LTTE and the SLA. In that respect the appellant relied on paragraph [12] of his statement, recited above at [5]. The appellant submitted that this error infected the reasoning in this paragraph. It was submitted that the Authority used an inconsistency between a claim the appellant did make - going to Dubai to avoid subscription by the LTTE - and a claim he did not make - going to Dubai to avoid serving with the Karuna group - as a basis for an adverse credibility finding. It was submitted that this finding was legally unreasonable and materially affected the decision.

18    The appellant submitted that the findings of the Court below in paragraphs [25] and [26] of its reasons, which rejected this submission, ignores the plain words of the first sentence of paragraph [14] of the Authority's reasons. The appellant submitted that the conclusion of the primary judge that it was reasonably open to find that a claim was made (by implication from the SHEV statement) is not open because the appellant plainly and expressly said in that statement that he went to Dubai to avoid being threatened by the LTTE and the SLA.

19    The respondent submitted that it was at least open to the Authority to interpret the appellant’s claims in the way that it did. It submitted that paragraph [14] must be read in the context of the preceding paragraph which it submitted showed the Authority was mindful of the historic background of the various political entities in Sri Lanka. In oral submissions it was submitted that the preceding paragraph raised concerns which were essentially to the effect that the Authority was concerned that the appellant was providing inconsistent evidence about which political party was threatening him at which particular time, and there was some inconsistency in relation to the TMVP and the SK which are described in that paragraph. The respondent pointed to paragraph [16] of the appellant’s statement, recited above at [5]. From that it was submitted it was open to the Authority to reach the conclusion in the first sentence of paragraph [14]. It was the appellant who volunteered that it was the Karuna group that was behind the idea of compulsory service for the LTTE, which was the very service the appellant claims he was trying to avoid by fleeing to Dubai. He appears to have volunteered that it was the Karuna group that was behind the idea of compulsory service in order to support the claim that he feared harm in the future from the Karuna group because he had evaded that service by fleeing to Dubai. It was submitted that having sought to articulate the claim in this way, the appellant cannot now complain that the Authority should read paragraph [16] of his statement consistently with his earlier expressed claim that he fled to Dubai to avoid being targeted by the LTTE and the SLA. The respondent submitted that the fact that the appellant also claimed at paragraph [12] of his statement that he went to Dubai to avoid being targeted by the LTTE and the SLA does not warrant difficulties that emerge from paragraph [16] of the statement to be overlooked. The respondent submitted that it was evident from its findings at [13] that the Authority was concerned that the appellant was confused about the political groups from which he claimed to fear harm. Its concerns and findings expressed at [14] are of a similar kind; the appellant was inconsistent in his presentation of claims as to which entity he feared.

20    The impugned conclusions of the Federal Circuit Court are in paragraphs [25] and [26] of its reasons which are as follows, (the paragraphs of the appellant’s statement referred to therein are recited above at [5]):

25. I do not accept the Authority was incorrect in stating that in the Statement the applicant claimed he feared harm from the Karuna group, because he went to Dubai to avoid serving the Karuna group. At the very least it was reasonably open to the Authority to consider that the applicant did make such claim in the Statement. That appears from paragraph 16 of the Statement:

The KARUNA group was behind the idea of compulsory service for one person in the family during the LTTE fight against the SLA. As I had fled to Dubai to avoid service I was fearful that they might take revenge by kidnapping and torturing me.

26. That in paragraph 15 of the Statement the applicant states that the LTTE “dismembered in 2009” and that the Karuna group became dominant does not imply that the applicant claimed the Karuna group had no separate identity. Paragraph 15 of the statement asserts the Karuna group had an identity; and the applicant claims the Karuna group was “formerly part of the LTTE”. And to claim, as it is claimed in paragraph (c)(ii) of the particulars to ground 4, that the applicant did not claim in paragraph 16 of the Statement that the Karuna group was a separate entity, but was only a faction within the LTTE, does not gainsay that the applicant claimed the Karuna group had a distinct identity; that in paragraph 16 of the Statement the applicant claimed the Karuna group – not the LTTE in general – was behind the idea of compulsory service for one person; and that it was the “they”, the Karuna group, the applicant claimed he feared might take revenge on him by kidnapping and torturing him.

21    When the appellant’s claims (extracted at [5] above) are properly read together, it cannot be said that the Court below was in error to conclude that it was reasonably open to the Authority to make the finding it did in the first sentence of paragraph [14]. As explained by the Federal Circuit Court in the passage cited above, paragraph [16] of the appellant’s statement, in the context in which it appears, is the basis for that first sentence. It was, after all, as the appellant claimed, the Karuna group who was behind the idea of compulsory service. It was the appellant who raised the Karuna group in his statement, and why he claimed he feared them on his return. That reasonable minds might differ as to the interpretation of the appellant’s statement is not a proper basis on which to find jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131], [135] per Crennan and Bell JJ.

22    This ground is not established.

Ground 3: the finding of inconsistency

23    The appellant submitted that there was no basis for the Authority, in paragraph [14] of its reasons (extracted at [16] above), to find that the appellant had provided inconsistent evidence. The appellant relied, in part, on the finding of the primary judge at paragraph [27] where the Court recognised that a strong case could be made that it was not open to the Authority to consider the claims to be inconsistent because the appellant claimed the Karuna group formed part of the LTTE, and it was the Karuna group, while it was part of the LTTE that was behind the idea of compulsory service. The primary judge did not determine this issue as it was considered to be outside the ground of appeal as pleaded.

24    The appellant submitted that the finding of inconsistency when there was none, was material, relying particularly on SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 (SZTFQ) at [44]-[45]. The appellant challenged the reasoning of the Court below, that if there was an inconsistency any error was not material.

25    The respondent submitted that the impugned finding by the Authority was that the appellant had provided “materially inconsistent evidence” that he feared the Karuna group on return to Sri Lanka from Dubai. It submitted that the Authority based its finding not only on the claims advanced by the appellant, but the answer he gave to a question from the delegate at the SHEV interview concerning this part of his claim, referring to paragraph [14] where the Authority referred to the delegate’s questions. The Authority further relied upon country information that the Karuna group was a faction within the LTTE that split in 2004 to form the TMVP, and which then split again from the TMVP in 2008. The Authority found, as a fact, that the Karuna group as an entity did not exist at the time the appellant went to Dubai in 2003. This conclusion was open on the material available.

26    While not necessarily endorsing all the reasoning of the primary judge as to materiality, the respondent submitted that the impugned finding was not material. The respondent relied particularly on AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227 (AVQ15) at [40]-[41] and SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 (SZWCO) at [64].

27    As a preliminary observation, the approach adopted by the Court below that it did not need to decide the question of inconsistency because it was not within the ground of appeal appears to be incorrect. The ground in that Court did encompass this aspect of the argument. The respondent in this Court does not suggest otherwise.

28    The findings in paragraph [14] must be read with the preceding paragraphs in the Authority’s reasons. The inconsistent evidence provided by the appellant is said to relate to his fearing the Karuna group on his return to Sri Lanka from Dubai. From paragraph [13] the Authority expressed concerns about what it described as inconsistent references to various groups by the appellant, and it concluded that paragraph with the finding that “I consider the applicant providing inconsistent evidence as to which political party was threatening him undermines the credibility of his claims”. In paragraph [14] the Authority referred to answers given by the appellant when questioned by the delegate on the topic being addressed, and it appears that it took into account those answers in reaching the conclusions it did. The transcript of that interview was clearly before the Authority but has not been provided to this Court. In particular the appellant has not relied on anything in that interview to submit that the Authority’s statements about it are incorrect, or not reasonably open. In the absence of the evidence of the interview (or any challenge based on it), the finding by the Authority as to inconsistency, which plainly is based in part on the interview, is difficult to fault. The appellant has not established that finding by the Authority was not reasonably open for it to make.

29    In any event, even if the finding of inconsistency involved error the appellant must establish materiality in order to establish jurisdictional error: AVQ15 at [41(d)]; Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at [30] – [31] per Kiefel CJ, Gageler and Keane JJ. The appellant has not established materiality.

30    Initially there was no real attempt made by the appellant to demonstrate materiality, save for submitting that based on his submission as to the first sentence of paragraph [14], the conclusion in the last sentence of that paragraph, that there was materially inconsistent evidence which undermined the credibility of his claim, was very difficult to sustain. However, I have not accepted the submission as to the first sentence.

31    The appellant submitted by reference to SZTFQ that even small matters in a credibility finding can make a difference and it is too difficult to know what effect it might have had on the overall finding. The appellant did not address the findings of the Court below, where it addressed the issue of materiality in paragraph [28], until asked specifically to do so.

32    After the hearing, as a result of the respondent referring to the two authorities AVQ15 and SZWCO the appellant was given leave to file a further brief submission addressing those authorities. That further submission did not address those authorities in any detail, but rather made submissions as to materiality in this case. The appellant relied on the finding in paragraph [20] of the Authority’s reasons that “[o]n the credible evidence before me I am not satisfied the [appellant] faces a real chance of serious harm from the TMVP, Karuna group and/or Pillaiyan group due to any imputed political opinion, now or in the reasonably foreseeable future if he returns to Sri Lanka,” to demonstrate materiality. It was submitted that paragraph [20] was premised on being based on the credible evidence before the Authority and that to the extent that the Authority excluded evidence based on the impugned credibility finding this limited the evidence on the ultimate conclusion.

33    The appellant’s submission was really twofold: first, the Court cannot know that the Authority would have reached the same result if the evidence and claim about being fearful of the Karuna group on his return had been taken into account and it would be an impermissible merits review for the Court to make its own assessment of the weight; and second, in any event, there is no putative alternative basis for the finding in paragraph [14]. The Karuna group claim was found not to be credible because of the inconsistent evidence, and therefore it has not been taken into account by the Authority in reaching its conclusion in paragraph [20] and there is no independent basis for not taking into account this claim apart from the finding of inconsistency.

34    As a preliminary observation, the Authority in paragraph [14] did not reject the claim as to the appellant’s fear of the Karuna group on return, but rather concluded that the inconsistent evidence undermined his credibility as to the claim. It follows that the appellant’s submission that as a result of that finding the appellant’s claim was not considered is also incorrect.

35    The Authority then referred to other evidence relevant to the claims that led to the conclusion in paragraph [20], in the paragraphs which followed. As is clear from paragraph [15] which is recited below at [52], the Authority made findings in relation to the two letters. However, in paragraph [16] the Authority also addressed the police report relied on by the appellant in support of his claim and found that it was inconsistent with the appellant’s claims. The police report stated the father made a complaint that armed men, unknown to the father made threats against the appellant. This was found to be inconsistent with the appellant’s claim that the men were known to him and his father as being from the TMVP/the Karuna group. It placed weight on the fact the report did not bear any identifying features to demonstrate it was a genuine police document. The Authority found that the police report, as with the two letters, were not credible. It also found that providing such documents undermined the appellant’s credibility. In paragraph [17] the Authority addressed the appellant’s claims that he had been approached by supporters of the Karuna group to assist with the election campaigning. It recited the appellant’s evidence on the topic, which has not been the subject of challenge. The Authority in paragraphs [18] and [19] referred inter alia to the country information, and findings as to what it accepted and did not accept in relation to the appellant’s claims. For example, the Authority accepted that the appellant was asked by the Karuna group to assist with election campaigning and that he sought to avoid this; that he had a subjective fear arising from that which in part was his motive to travel to Colombia and India. However it did not accept that the Karuna group sent him or his father letters or that their supporters went to his father’s home and made threats against him. Based on the country reports the Authority found that the Karuna and Pillaiyan groups had significantly reduced influence and power since 2015 and it rejected the appellant’s claim that because the Karuna group was once aligned with the Sri Lankan military they remain powerful. It was in light of all these findings that the Authority made the finding in paragraph [20].

36    In that context, even if, contrary to my conclusion that there was no error established in relation to paragraph [14], the appellant has not established that any error was material.

37    An error of fact is not, without more, jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [53]; ESU17 v Minister for Home Affairs [2019] FCA 300 at [17]. The “fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111] per Robertson J. Circumstances giving rise to jurisdictional error do not arise in this case.

38    The appellant referred principally to the observations in SZTFQ at [44]-[45] where Lee J stated:

It is not realistic to put the various aspects of the appellant’s evidence into hermetically sealed boxes or to approach the reasoning of the Tribunal member on the basis that this is how the evidence was approached. The assessment of credibility is necessarily an impressionistic one, which, if properly formed, takes into account all of the evidence. As the Full Court (Hill, Sundberg and Stone JJ) observed in VAAD v Minister for Immigration & Multicultural Affairs [2005] FCAFC 117 at [79] “an assessment of credibility is not necessarily linear”. Put another way, although it is not accurate to say that the Hospital Evidence was minor, as Gleeson CJ commented in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 89, “[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.” The finding that the appellant had been deceitful about the hospital was plainly not an issue the Tribunal member had considered to be peripheral to assessing his creditworthiness.

To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved is, to my mind, to underplay the complexity of the anatomy of decision-making. As Kirby J observed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 23 [81]:

…decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker's disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person's credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person's entire evidence in a new light.

39    The appellant relied on these passages to submit that even small matters in a credibility finding can make a difference and it is difficult to know what effect the matters in this case had. He submitted that there were a number of reasons that led to a credibility finding is not an answer to his submission the finding was material.

40    It may be accepted, as Gleeson CJ said in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [4], that “[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive”: and see: Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; (2019) 163 ALD 469 at [39].

41    Nonetheless, the relevant principles guiding judicial review of credibility findings are conveniently summarised in AVQ15 at [41]. Relevantly for present purposes, the Full Court observed that:

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

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

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

…

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

42    Against that background, the Court’s conclusion on the lack of materiality of any alleged error was correct, namely that:

[T]he Authority relied on a number of matters for finding the applicant was not a credible witness; and it also found that the power of the Karuna group has been significantly reduced after the change of government in 2015.

43    I note also that other matters which the Authority concluded undermined the appellant’s credibility, (as is apparent from the summary at [35] above) related to documents and statements made by him in support of his claim of being fearful of the Karuna group, and other groups.

44    On the appellant’s reasoning, any error relating to an adverse finding as to credibility would necessarily result in jurisdictional error on the basis that its effect is unknown. This submission cannot be correct in light of the relevant authorities cited above, including SZTFQ which was the basis of the appellant’s submission.

45    The appellant has not established that the alleged error in the finding of inconsistency in paragraph [14], was material to the Authority’s ultimate decision. The reasoning of the Authority leading to the conclusion in paragraph [20] involved a number of different factual findings, including findings as to the relevant country information and separate adverse findings to credibility than those in the impugned paragraphs. Jurisdictional error has not been established.

Ground 4: the two letters

46    This is the ground on which the appellant requires leave to rely.

47    The relevant principles for the grant of leave are well established and are summarised in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]–[48] where the Full Court said:

In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20]-[24] and [38].

In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

48    The respondent opposed leave being granted, principally on the basis that the appellant was legally represented in the Federal Circuit Court, and that the arguments sought to be raised in this Court could have been raised below. The appellant relied particularly on observations of the Court in Chan v Minister for Immigration and Border Protection [2018] FCA 1323 at [43] – [44] and CGA15 v Minister for Home Affairs [2019] FCAFC 46 (CGA15) at [37], each of which addressed the grant of leave in circumstances where the appellant was represented in the Court below. It is plain that while that fact is a relevant consideration which can be seen as weighing against the grant of leave, it is not decisive: CGA15 at [37]. The merit of the proposed ground will also be an important consideration: ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25].

49    The respondent does not suggest that it was in any way prejudiced by the application. Given the grant of leave to rely on the new ground of appeal is heavily influenced by whether there was merit in it, the ground was fully argued on the appeal.

50    Against that background I turn to consider the ground.

51    The appellant submitted that the Authority in paragraph [15] found that he gave inconsistent evidence as he had asserted that the TMVP had written to him twice and his father once, yet the two letters he had produced to the department were both addressed to his father. The appellant submitted this is incorrect as the first letter of 3 May 2012 (which the Authority refers to as being dated 5 May) was addressed to the appellant. It was submitted that the error is significant as the Authority has relied upon an alleged inconsistency that did not exist to discredit the appellant. It was submitted that an error of fact which relates to a matter which the decision maker treats as being a critical aspect of the appellant’s claims can infect a decision with jurisdictional error, relying on a number of authorities in support of this proposition, including VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51; Gill v Immigration and Border Protection [2017] FCAFC 51 at [72].

52    Paragraph [15] was in the following terms:

I have had regard to the two letters purportedly from TMVP and the police report. In assessing those letters and the police report, I am mindful of the information in the new DFAT report and 2015 DFAT report regarding the prevalence of fraudulent documents in Sri Lanka. The applicant claims the TMVP sent him two letters and his father one letter, he has provided two letters (and English translations), one dated 5 May, the second dated 28 May 2012. Contrary to the applicant’s claims, neither letter is addressed to him. They are both addressed to his father and indicate the TMVP wish to discuss matters with his father, although both letter request the father bring the applicant too. Nowhere in the applicant’s claims does he state the TMVP/Karuna group were interested in his father. His evidence elsewhere is the Karuna group came to his father’s home while the applicant was in India and made threats against the applicant to his father. It appears implausible to me if the Karuna group/TMVP were inviting the applicant’s father to attend meetings to discuss matters, that the Karuna group would not have made any threats towards the applicant’s father given the father did not respond to the letters. I further consider it implausible the Karuna group/ TMVP would know to send the second letter to the applicant’s father because the applicant was in India. I consider these inconsistencies and implausibility undermine the credibility of the applicant’s claims.

53    The respondent accepted that the letter dated 5 May 2012 was (apparently) addressed to a person who could be the appellant, and that the letter dated 28 May 2012 was addressed to a different person. The respondent submitted that each letter contained the following request: “Please bring your son without disregarding this letter”. The Authority could only interpret the letters by reference to the translations, which were provided by the appellant himself. The respondent submitted that it was open to the Authority in light of the contents of the letters to find that each of them was addressed to the appellant’s father, and not to him personally. In addition the respondent submitted that whether one letter was addressed to the appellant or to his father did not matter in light of the Authority’s reasoning. The Authority did not find the appellant not to be credible for this reason. Rather, the Authority reasoned that it was implausible that the Karuna group or TMVP were inviting the appellant’s father to attend meetings to discuss matters when the groups had not made any threats towards the appellant’s father given that he had not responded to the letters. The Authority further found it implausible that the groups would have known to have sent the second letter to the appellant’s father because the appellant was in India. The Authority noted the prevalence of document fraud in Sri Lanka. The respondent submitted that the Authority found for those reasons that the credibility of the appellant’s claims were undermined.

54    The respondent submitted that even if the Authority made an error concerning one of the letters in respect of its intended recipient, it was a mere factual error that did not go to jurisdiction. Alternatively the error was not jurisdictional because it was not material in that the error did not deprive the appellant of the possibility of a successful outcome: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252.

55    As the respondent submitted, the evidence provided by the appellant to the Authority in relation to the letters is rather unsatisfactory. As both parties recognised, the oddity about the letters is that while they appeared to be addressed to different persons, even accepting one is to the father and one the appellant, both letters contain the words, “[p]lease bring your son without disregarding this letter”. Plainly the content of each of the letters is directed to the father. That is inconsistent with the letters being addressed to different persons, one being the appellant. Even accepting there are different names on the two documents, the Authority correctly summarised the content of the letters as being directed to the father. In this context, the respondent’s submission that it was open to the Authority by reference to the content of the letter as a whole to find that they were both addressed to the father, should be accepted.

56    Regardless, the respondent’s submission as to the use made by the Authority of that finding must be accepted on a proper reading of paragraph [15]. It being accepted that at least one of the letters was addressed to the father, the Authority noted that the appellant had not made any claim about the TMVP/Karuna group being interested in his father and there was no claim of threats against the father even though he had not responded to the letters. The Authority also found it implausible that the TMVP/Karuna group knew to send a second letter to his father as he was in India (the respondent noted that there was no dispute that the second letter dated 28 May 2012 was addressed to the father). The Authority was mindful of the prevalence of document fraud. While the Authority, contrary to the appellant’s claims, made a finding that both letters were addressed to his father, the reasoning thereafter focuses on the implausibility of such a letter being sent to his father. As at least one letter was addressed to his father that reasoning stands regardless of the impugned finding.

57    In that event, the finding could not be said to be material in the requisite sense.

58    Leave to rely on this ground is refused.

Conclusion

59    Leave to rely on the new ground is refused.

60    As none of the grounds of appeal have been established the appeal is dismissed.

Associate:

Dated:    13 December 2019