FEDERAL COURT OF AUSTRALIA

CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2190

ORDERS

THE COURT ORDERS THAT:

1.    The appellants have leave to file, and shall forthwith file, an amended notice of appeal in the form provided to the Court and dated 28 October 2019.

2.    The appeal be allowed.

3.    Order 1 of the Federal Circuit Court of Australia dated 14 May 2019 be set aside and, in lieu thereof, it be ordered that:

(a)    A writ of certiorari be issued quashing the decision of the second respondent made on 28 March 2018 in case numbers IAA18/04311-04319;

(b)    A writ of mandamus be issued requiring the second respondent to determine the review of the decision made by a delegate of the first respondent on 31 January 2018 according to law.

4.    The first respondent is to pay the costs of appeal of the appellants, either as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (FCC), namely CBN18 & Ors v Minister for Home Affairs & Anor [2019] FCCA 1265. The case before the FCC was an application for the review and setting aside of a decision of the Immigration Assessment Authority under Pt 7AA of the Migration Act 1958 (Cth). The FCC had jurisdiction under s 476 of the Act. The Authority’s decision under review was to affirm a decision of a delegate of the Minister not to grant the appellants’ applications for Safe Haven Enterprise Visas (SHEVs).

Background

2    The appellants are a family unit of nine people. The first and third appellants (CBN18 and CBP18 respectively) are husband and wife; the fourth, fifth, sixth, seventh and eighth appellants (CBR18, CBS18, CBT18, CBU18 and CBV18 respectively) are their children. They were all minors at the time of their arrival in Australia. Two of them, namely the fourth and sixth, are still minors.

3    The remaining two appellants, the second and ninth (CBO18 and CBW18 respectively), are nephews of the first appellant. They were both also minors when they came to Australia and one, the ninth appellant, is still a minor.

4    During the hearing I made orders by consent appointing the first appellant as the litigation representative of the minor appellants and amending the name of the first respondent so that he is now styled as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

5    It should be noted at the outset that the order of numbering of the appellants, i.e. first appellant, second appellant, et cetera, is different in this Court to what it was in the FCC and before the Authority. Care therefore has to be taken in cross-referencing between the various decisions.

6    The appellants are citizens of Sri Lanka. They identify as Tamils and as being of the Christian faith.

7    The fifth and eighth appellants, who are sons of the first and third appellants, arrived in Australia by boat in November 2012 aged 11 and 15 years of age. The other appellants arrived in Australia together by boat in April 2013. All the appellants were “unauthorised maritime arrivals” as referred to in s 5AA of the Act.

8    The Minister lifted the bar in s 46A of the Act in respect of any application by each of the appellants for a protection visa on 12 February 2016.

9    On 22 November 2016, the appellants lodged a combined application for SHEVs in which the first and eighth appellants (i.e. CBN18 and CBV18, the father/uncle and eldest son respectively) made claims to fear harm in Sri Lanka. The application was supported by statements of the first and eighth appellants dated 8 November 2016. The other appellants rely on admission to the first and eighth appellants’ family unit and make no individual claims for protection. The eighth appellant was 15 years of age when he arrived in Australia and is now 22 years of age.

The appellants’ claims

The appellants’ statements

10    In this section I identify the claims that the appellants made in their statements supporting their protection visa applications. I do not mean thereby to make any factual findings as to the truth of those claims.

11    The first appellant claimed in his statement in support of the protection visa application that as a child his father did not live with his family but visited them once every month to provide provisions. The first appellant later came to discover that his father worked for the Liberation Tigers of Tamil Eelam (LTTE) as a cook. The LTTE was a political and military organisation agitating for Tamil self-rule in Sri Lanka.

12    On one occasion, the family discovered that the father was in hospital. When the family went to visit him, he disclosed that he had been beaten by the Sri Lankan army because of his involvement with the LTTE. The first appellant’s father died shortly thereafter. His death certificate recorded the cause of death as a hepatic coma.

13    Shortly thereafter, intense fighting broke out between the LTTE and the army in Batticaloa. The first appellant’s family was forced to relocate to a government-run camp. After approximately one month his family moved to another area of Sri Lanka. His two older brothers could not be found.

14    In around 2008 the first appellant was detained by the authorities. They captured hundreds of men and took them to a Sinhalese school. The first appellant was questioned about his brothers’ whereabouts and suspected of supporting the LTTE. He heard from other people that his brothers were with the LTTE. He was kept for two days and severely beaten. He was released after his mother paid a bribe.

15    On many subsequent occasions plain-clothed officers with guns came into his house, demanded money and questioned him about his brothers. They covered his face and took him in a van to various places, including the jungle where he was forced to work. He was questioned, beaten, hit with wire, sprayed with chemicals, hung from the roof, and on one occasion tortured with a bag soaked in petrol. He said he suffered permanent hearing and vision damage. He was detained for days at a time and released after bribes were paid by his family.

16    The first appellant attempted to leave Sri Lanka twice, once to Singapore (but he was not permitted to extend his visa) and once to Malaysia (where he was unable to register with the United Nation’s High Commissioner for Refugees (UNHCR)).

17    At various times he was extorted by local political figures and required to provide money or work. He complained to the police to no avail.

18    The last occasion he was abducted was approximately five months before he left for Australia. He was kept for three days and required to dig a well and trench for Sinhalese people. He was interrogated about his one surviving older brother who has links to the LTTE. He was threatened that his sons would be kidnapped if he did not provide information about his brother. He became afraid for his sons and began to arrange for their departure to Australia.

19    The eighth appellant (the eldest son) also made claims for protection in his statement in support of his protection visa application. He recalled that his house was often visited by plain-clothed authorities and his father was taken away. He recalled that stones were thrown at his house on one occasion.

20    From about the age of 13 the eighth appellant became the target of authorities and was taken away to the jungle, questioned and made to perform manual labour. On another occasion he was taken into the jungle by Sinhalese speaking people and beaten with sharp branches. He stayed away from school for a month thereafter. He was abducted again at age 14, and taken to the jungle, asked about his father, slapped and later released.

21    The first and eighth appellants fear that they will be subjected to serious harm if returned to Sri Lanka due to their illegal departure and imputed support for the LTTE on account of their familial links with the LTTE. In addition, the first appellant fears that he will be targeted by Sri Lankan authorities upon return to Sri Lanka as his brother, who also came to Australia illegally, was forcibly returned to Sri Lanka and jailed at the airport. His brother was later abducted by people in a white van and seriously injured.

The appellants’ interviews and submissions

22    The first and eighth appellants participated in an interview on 16 January 2018 in which they gave further details regarding their claims for protection. Further submissions were made by the appellants’ legal representatives on 23 January 2018. In summary, the submissions contend that the appellants’ fears derive from their:

    Tamil race/ethnicity;

    Perceived political opinion (as pro-Tamil and opposed to a Sri Lankan unitary state due to the first appellant’s familial links with the LTTE through his father and brothers);

    Membership of a particular social group being failed asylum seekers who left Sri Lanka illegally.

Decision of the Delegate

23    By a decision dated 31 January 2018, the delegate refused the appellants’ application for protection visas. The delegate considered that the appellants do not engage Australia’s protection obligations in s 36(2) of the Act and found that the first and eighth appellants are not of ongoing interest to the Sri Lankan authorities and would not likely face persecution as Tamil males with familial LTTE links.

Decision of the Authority

24    By virtue of the operation of Pt 7AA of the Act, the matter was automatically referred to the Authority for review by it. The appellants’ representatives made written submissions to the Authority.

25    The Authority affirmed the decision not to grant the appellants protection visas. The Authority noted the submission from the appellants’ legal representative and had regard to it, but ultimately rejected “new information” including articles said to be related to recent political events in Sri Lanka.

26    The Authority rejected the claims of needing protection and instead found that the first appellant, and indeed the third appellant (his spouse), travelled to Australia for the purposes of accessing better education and health facilities and for a peaceful life for them and their family. In doing so, the Authority accepted the appellants’ evidence that Sinhalese people had thrown stones at the appellants’ house and that this had happened to other Tamil people.

27    The principal reason why the Authority rejected the appellants’ claims of needing protection is because at the initial screening interviews shortly after their arrival at Christmas Island, the first appellant gave answers that were inconsistent with the claim for protection. The Authority recorded in its reasons that the first appellant had stated that he had not been harmed in any way in Sri Lanka. The Authority was satisfied that he would not have said that if it was not true. The Authority did not accept the explanations that the first appellant later provided for not disclosing the significant claims of detention, harassment, threats and mistreatment at his screening interview.

28    Further, because the first appellant failed to make any mention of his or his brothers’ connection with the LTTE at the screening interview, the Authority was satisfied that his two brothers were not involved with and were not members of the LTTE. It was satisfied that the first appellant was not suspected of being a supporter of the LTTE or being a financial supporter of the LTTE.

29    The Authority found that there were significant inconsistencies between the eighth appellant’s claims at his arrival interview and his claims in his written statement some time later and at the protection visa interview. Although the eighth appellant was only 15 at the time of the arrival interview, the Authority was satisfied that he had sufficient time (over two months) to recover from his boat journey from Sri Lanka and he had time to gather his thoughts and present evidence and claims truthfully at the arrival interview.

30    On the basis of the inconsistencies, the Authority did not accept the eighth appellant’s evidence that he had been taken by the army or the police who had beaten him with branches and that he had scars from the sharp edges of the branches. The Authority found that the eighth appellant was not telling the truth about his claims of fear of harm, and that his claims that he was harmed, abducted, beaten and questioned by the Sri Lankan authorities are not true.

31    The Authority accepted that the appellants would face legal action upon their return to Sri Lanka as persons who had departed the country illegally. However, in the view of the Authority, with reference to country information cited by it, there is no real risk of harm to the appellants upon their return to Sri Lanka and thus the complementary protection requirements are not met.

Decision of the FCC

32    The grounds of appeal sought to be advanced in this Court are not covered by the grounds of review advanced before the FCC. There is therefore little purpose to be served in going into the FCC’s reasoning in any detail.

33    For completeness, there were three grounds of review raised in the FCC, namely:

(a)    That the IAA failed to provide proper reasoning regarding the throwing of stones and whether this would reoccur;

(b)    Whether acts of indecency towards one of the young girl appellants in the past could gave rise to a risk of serious harm in the future; and

(c)    Whether the risk that the children could be held in gaol for a short while in Sri Lanka on return enlivened Australia’s protection obligations.

34    With regard to grounds (a) and (b) above, the primary judge was satisfied that the matters were adequately considered by the Authority. His Honour considered ground (c) to be speculative and not raised as a claim before the Authority. The application was dismissed with costs.

Applications for leave to press grounds not raised below, to file an amended notice of appeal and to adduce new evidence

35    The two grounds of appeal in the notice of appeal are bases on which it is contended that the decision of the Authority should be quashed that were not raised in the FCC. The appellants accept that they require leave to argue these grounds. They seek such leave.

36    The appellants also seek leave to file an amended notice of appeal dated 28 October 2019. The amended notice of appeal adds one further particular to the first ground of appeal and adds a third ground of appeal that advances an argument that was also not raised in the FCC.

37    Given that none of the grounds of appeal was argued at first instance, the question of leave in respect of each of them – whether in the original notice of appeal or sought now to be introduced by amendment – raises the same considerations. They can conveniently be dealt with together. The parties accepted this approach.

38    The appellants also seek leave to adduce evidence that was not adduced in the FCC. That evidence is the following:

(1)    Transcripts of the protection visa interviews of the first and eighth appellants;

(2)    An affidavit of the eighth appellant which attaches a photograph showing a scar on one of his arms which he says is as a result of injuries he sustained when beaten by Sinhalese speaking people (referred to in [20] above), which it is said is corroborative of that account and which he offered to show his interviewers; and

(3)    An affidavit of the appellants’ solicitor attaching a country information report that refers to accounts of torture by Sri Lankan authorities including by asphyxiation using plastic bags drenched in kerosene which is said to be corroborative of the first appellant’s account of being similarly tortured (referred to in [15] above).

39    In written submissions, the Minister opposes leave being granted – to argue the new grounds, to amend the notice of appeal and to rely on new evidence – on the basis that the new grounds in substance seek a fresh trial, fresh evidence is relied upon, there is no explanation for the failure to raise any of the new grounds or adduce the evidence in the FCC, the appellants were legally represented in the FCC (albeit by different legal representatives) and the grounds have insufficient merit.

40    There are powerful considerations against allowing the appellants to argue new grounds in this Court, particularly in circumstances where they do not seek to re-agitate a single point that was argued before the primary judge and do not criticise the reasoning of the primary judge in any particular way.

41    These considerations were described by Perram J in AAM15 v Minister for Immigration and Border Protection [2015] FCA 804 at [14]. They can be summarised as follows.

42    First, to allow the new grounds would result in this Court, in the exercise of its appellate jurisdiction, deciding the entirety of the matters which were for trial in circumstances where none of the issues to be decided in this Court was ever decided in the Court below. This could be seen to be contrary to the purpose of s 476A of the Act which explicitly removes this Court’s original jurisdiction in cases of this kind.

43    Further, Pt 8 of the Act, which regulates judicial review of refugee determinations, envisages that there is one substantive trial in the FCC followed by one substantive appeal to this Court followed by a more cursory review by the High Court (through the prism of special leave to appeal). If this Court, in substance, determines a case at first instance by entertaining fresh grounds this structure will be thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). The prejudice to the Minister if I allow the grounds and one or more of them is successful is that he is in effect denied a layer of appellate scrutiny.

44    The Court in MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [68] per Lander and Middleton JJ made a similar point: the appellate court is entitled to have the benefit of the reasons for judgment of the court at first instance in respect of all arguments in conducting its rehearing of the appeal. If this Court was compelled to consider an application of this kind by reference to whether or not the new grounds would succeed, then that would have the de facto result that an appellant could raise any ground the appellant liked without reference to the arguments put before the court at first instance.

45    The appellants before me made a point that ameliorates the prejudice to the Minister, at least to some extent. It is that if I decide against the Minister, that does not finally determine the matter or the ultimate rights of the parties. That is because even if I find for the appellants, the only relief that I can give is to quash the Authority’s decision and send the matter back for reconsideration; I cannot grant the appellants protection visas. In contrast, if I decide in the Minister’s favour the appellants’ rights will be finally determined. The Minister would have no complaint in that instance.

46    The appellants referred to the judgment of Madgwick J (Conti J agreeing) in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; 147 FCR 51 at [163] in support of their application for leave. With reference to migration cases the following was said:

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.

47    At [165] further reference was made to cases concerning claims to refugee status. The observation was made that “often, unrepresented applicants who appeared to be decent, genuine but impecunious people are reduced to floundering incomplete incomprehension of the prevailing system of judicial review or the dangerous partial comprehension of those with little knowledge of that system”. Full Courts have thus been slower in such cases to assert the primacy of finality of litigation considerations than in many cases where the risk of very serious personal harm is not involved.

48    The essential point is this. 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; 150 CLR 310 at 319 per Mason J. It may be expedient and in the interests of justice to do so even in circumstances such as the present as identified at [41]-[44] above, however the considerations identified there will weigh significantly against leave in such a case. Notwithstanding that, in cases concerning refugee status where so much is personally at stake for visa applicants and they are almost invariably at a disadvantage with regard to access to adequate legal representation and an understanding of the complex proceedings under the Act, and a finding in a visa applicant’s favour does not finally determine any substantive rights against the Minister’s position (see [45] above), if a point clearly has merit and there is no other prejudice to the respondent in permitting it to be agitated, then expediency and the interests of justice might justify leave being granted.

49    The appellants accepted that there is no explanation before me why the three grounds that the appellants now seek to advance were not advanced at first instance. The appellants were represented by counsel before the FCC. The most probable inference is that the appellants’ new lawyers see the case differently. As I have explained, if that fresh insight brings forward a point that has clear merit it may be that expediency and the interests of justice will justify leave being granted to run it even though there is no other explanation for why it was not run below.

50    In my view, in order to decide the question of leave it is necessary to give consideration to the merits of the points sought to be advanced.

Grounds 1 and 3: Failure to consider and/or make findings

51    The first ground of appeal in the amended notice of appeal is that the Authority failed to properly determine or give active intellectual consideration to the first appellant’s claim for protection. This ground includes the following particulars:

•    The IAA failed to consider all of the facts and relevant information of the [first appellant’s] claim, including comparing them against known facts from country information;

•    The IAA engaged in illogical reasoning with respect to the [first appellant’s] PTSD;

•    The IAA failed to properly consider the reasons for which the [first appellant] gave inconsistent evidence at the screening interview;

•    The IAA failed to consider the scarring of the [eighth appellant], its effect on the likelihood of the existence of a well-founded fear, and whether this was corroborative of his, and the [first appellant’s] claim;

•    The IAA failed to make an obvious enquiry; being at least a visual assessment of the [eighth appellant’s] scarring, which was:

•    Unreasonable; or

•    Should have been the subject of a request under s 473DC of the Act.

•    The IAA failed to make an obvious enquiry, being information about the method by which he was tortured using petrol and a shopping bag.

52    The proposed third ground of appeal states that the “Second Respondent failed to consider a claim and make findings about whether the [first appellant] suffered from a psychological injury and other injuries, their effect on his ability to provide information, their corroborative nature, and failed to consider medical vulnerabilities in determining serious harm”.

53    The essential point that counsel for the appellants made was that the first appellant’s screening interview was given primacy in the Authority’s reasons for rejecting his later evidence about fear of persecution in Sri Lanka. That much can be accepted – clearly, the Authority’s reasoning turned on its finding that the first appellant had not raised fear of harm or persecution if returned to Sri Lanka during his screening interview. Counsel then submitted that the Authority did not adequately engage with the reasons for why the screening interview might not be reliable. Those were principally that the first appellant was confused and afraid, the interview having taken place within days of his arrival at Christmas Island, and that he was suffering from PTSD.

54    The appellants’ counsel drew attention to authorities that deal with the need for a decision-maker such as the Authority to consider the totality of the evidence and to consider the reasons why inconsistent evidence might have been given other than that the relevant person was not telling the truth. For example, in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 at [115] it was recognised that the decision-maker must approach the statutory task with a mind open to persuasion and able or willing to evaluate all the material fairly.

55    In BEL16 v Minister for Home Affairs [2019] FCA 1678 at [16] it was said that the decision-maker must reason carefully and fairly to avoid any undue propensity to scepticism. It was said that it may be an error in going about its task if the decision-maker viewed 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 particular when an interpreter has been used or due to reticence to be forthcoming with people or bodies perceived to be in authority. Inconsistencies, vagueness or omissions do not necessarily indicate a deliberate lack of truthfulness.

56    Also in BEL16 at [19], it was said that to mention a claim to the decision-maker not having mentioned it to the delegate or vice versa may be relevant to credibility, but may also be reasonably explicable.

57    Further in BEL16 at [21], with reference to AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [28], it was said that the decision-maker must be 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 that an interview or review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given.

58    Reference was also made by counsel to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALD 224 at [73(7)] where Kirby J identified that refugee cases involve special considerations where credibility is an issue. His Honour said that there is no necessary correlation between inconsistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiency; poor experience elsewhere with governmental officials; and belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear. His Honour emphasised that the process of decision-making in such a case is one for arriving at the best possible understanding of the facts in an inherently imperfect environment; it is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so.

59    The short point is that where an asylum seeker has given different accounts and offers an explanation for why that is so, the explanation must be seriously and properly considered. It may be that it is unpersuasive, but in another case it might count decisively against an adverse credibility finding or the rejection of a particular account in favour of another.

60    It is of course also the case that in considering whether error is made out the Authority’s decision must be read beneficially, without a keen eye for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272.

61    In the present case, the evidence in support of a conclusion that the first appellant’s account in his screening interview may not be the truth or the whole story includes the following.

62    First, the screening interview took place within four days of the first appellant’s arrival at Christmas Island after an inevitably harrowing sea passage. Two of his minor sons had been sent to Australia by him several months earlier, also by boat, and their whereabouts was unknown. The capacity for trauma and confusion in those circumstances is manifest.

63    Second, in his statement in support of his protection visa application, which was some 3½ years later, the first appellant sought to explain the discrepancies in information given in his screening interview and given in his application. He said that he was not made aware before or during the interview that the information provided would be used for the purposes of assessing his claims for protection. He said that he had mental health issues for which he is medicated and that the drugs make him disoriented, they make it difficult for him to think clearly and they affect his memory.

64    Also in the statement, the first appellant said that he did not disclose the circumstances of his father’s death at the time of his screening interview. He said that the interview was conducted in three parts and that he did not know what he was supposed to be saying in each part of the interview. He said that he was asked to be brief, and he was confused and afraid.

65    Third, in his protection visa interview a little more than a year later (i.e. after the statement) the first appellant said that in the screening interview he was very fearful; he did not have the strength to tell everything; he did not want to expose his country and he did not want to describe the involvement of his father with the LTTE because of fear. He said that at that time he was upset after having travelled by sea and could not remember everything. He said that he was scared at that time.

66    Later in the protection visa interview, the first appellant again explained that he did not mention matters at the screening interview because he feared that he might be deported. He said he was scared to say that he was involved with the LTTE. He also said that he could not remember a lot of things and did not disclose a lot of vital information due to memory loss and “my situation at the time”.

67    In the protection visa interview, the first appellant was asked about his ongoing mental health issues. He said that he had seen a counsellor for two or three months and that he had been taking medication for the past five years. He said that he had a letter from the counsellor.

68    Fourth, there were two letters from an accredited mental health social worker who had treated the first appellant. The first letter is dated at the time of the protection visa application and the second is dated a little more than a year later at the time of the protection visa interview. The letters are in substance the same. It was said that the first appellant was suffering from severe symptoms of depression including worsening feelings of hopelessness and worthlessness. The first appellant was also observed to be suffering from symptoms of auditory hallucinations and persecutory beliefs that he and his family members are being followed and persecuted. He was referred to a mental health services provider for further assessment and treatment for his acute psychotic symptoms that impacted his psychosocial functioning. He was then referred to a private psychiatrist who commenced him on medication.

69    All the above factors could have affected the manner in which the first appellant’s screening interview was considered by the Authority, and they were thus all required to be seriously considered by the Authority. The Authority considered them in the following way.

70    The Authority stated in its reasons that it listened to the recording of the screening interview and observed that the interview took nearly an hour, and concluded that the first appellant accordingly had sufficient time to present his claims and give evidence. The Authority recorded that the first appellant was informed at the interview that there are significant penalties for providing false or misleading information and that the provision of any false or misleading information could raise doubts about the reliability of what he says. The first appellant stated that he understood, and when asked if he had any questions he stated that he did not.

71    The Authority referred to what the first appellant said in his written statement with regard to why he did not disclose certain things in his screening interview. The Authority however rejected that explanation with reference to him having been informed at the screening interview that there are significant penalties for providing false or misleading information as referred to above.

72    Further, the Authority observed that the first appellant said that he had twice previously fled the harm that he faced in Sri Lanka to Singapore and on one occasion he had travelled from there to Malaysia to try and seek the assistance of the UNHCR. The Authority found it is not credible that an asylum seeker, who claimed that he had tried unsuccessfully to flee persecution or serious harm twice before by travelling outside Sri Lanka and had finally managed to get to Australia, in order to flee persecution or serious harm, when interviewed about why he left Sri Lanka failed to mention any such persecution or harm.

73    The Authority said that it was satisfied that the first appellant would not have said in the screening interview that he had not been harmed in any way in Sri Lanka if that was not true. It was satisfied that the first appellant did not dissemble at the screening interview and did not hesitate in giving answers. It said that it did not accept the explanations that he later provided for not disclosing his significant claims of detention, harassment, threats and mistreatment.

74    On the above basis, the Authority concluded that it was not satisfied that the first appellant has a well-founded fear of persecution for reasons of his political opinion, his imputed political opinion or his race (at para [72] of the decision). The Authority made similar findings with respect to the eighth appellant (at para [93] of the decision), and then made the composite findings that the first and eighth appellants will not be harmed because they are Tamil, because of their race, and also that there is no real chance that the other appellants will suffer harm because they are Tamils from Sri Lanka or Tamils from the north-western province.

75    The Authority then went on to consider, and reject, the appellants’ claims that they will suffer harm from the Sri Lankan authorities because they departed illegally from Sri Lanka and applied for asylum in Australia (at paras [96]-[111] of the decision).

76    It is only thereafter that the Authority dealt with the letters from the accredited mental health social worker (at para [113] of the decision). The Authority stated that it had regard to the two letters in making “the above findings”. It identified central aspects of what was stated in the letters. It then stated that it had some concerns about the second letter because if the first appellant had been attending sessions with the counsellor for a further 14 or so months after the first letter, the counsellor would have had further information to provide.

77    With reference to the counsellor’s statement that the first appellant had received counselling for his “severe symptoms of PTSD including severe flashbacks of threatening persecution”, the Authority said that it was not satisfied that the counsellor’s reports overcome the significant concerns and adverse findings the Authority made about the first appellant’s claims and evidence. The Authority also did not accept that the first appellant’s memory at the screening interview was affected by the conditions referred to by the counsellor.

78    In conclusion, the Authority stated that it placed little weight on the letters because it had found that the first appellant had not told the truth about his claims other than at the screening interview.

79    The conclusion stated by the Authority with regard to the letters is illogical and irrational. The purpose of considering the evidence of the accredited mental health social worker was in order to evaluate the reliability of the first appellant’s different accounts of the harm and persecution that he suffered, or did not suffer, in Sri Lanka; it was to give proper context to those accounts so that they might be better understood and evaluated. It is therefore illogical and irrational to reject the evidence because it is inconsistent with a conclusion already reached with regard to the very matter that the evidence was relevant to casting light on.

80    In this respect, the Authority went about its task in the wrong way. It reached its conclusion to reject the first appellant’s later accounts in favour of what he said in the initial screening interview, and then rejected the letters because they were not consistent with the earlier conclusion when, properly considered, the letters may have had a bearing on the earlier conclusion.

81    This is not an aspect of the Authority’s reasoning on which reasonable minds may differ. The only reasonable approach to the letters was to consider whether they cast any light on the veracity of the first appellant’s claims to protection – in particular with regard to whether or to what extent what he said in his screening interview is reliable. A reasonable decision-maker would not reject the letters because they were inconsistent with the finding already made that what was said at the screening interview is the truth.

82    It follows that in my view the Authority’s approach to the letters amounts to extreme illogicality or irrationality so as to give rise to jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]-[132] per Crennan and Bell JJ; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [148] per Robertson J.

83    Put differently, the Authority simply failed to consider whether, or to what extent, the letters cast any light on the first appellant’s screening interview and his failure at that time to raise substantive claims of harm in Sri Lanka. Given the primacy of the screening interview in the Authority’s reasons for rejecting the first appellant’s protection claims, that failure amounts to a failure to undertake the statutory review mandated by Pt 7AA; it amounts to a failure to give the matter “proper, genuine and realistic consideration” or to “engage in an active intellectual process” in relation to the veracity of the first appellant’s account and the role of the medical evidence: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [45]; Singh v Minister for Home Affairs [2019] FCAFC 3 at [30].

84    With reference to the authorities cited above, the Authority’s failure amounts to jurisdictional error. It follows that in my view the composite appeal grounds 1 and 3 are made out. It would do considerable injustice to the appellants if I was to refuse them leave to advance these grounds. They also do not depend on any new evidence other than the transcript of the protection visa interview which is not controversial and arguably should in any event have been included in the court book before the FCC prepared on behalf of the Minister.

85    It is significant that one of the reasons for the Authority’s rejection of the protection claims of the eighth appellant is because of its inconsistency with the versions given by the first appellant at his screening interview. It follows that if the conclusions with regard to the first appellant’s claims are be reconsidered, there must also be a reconsideration in relation to the eighth appellant. Whilst other reasons were also given for rejecting the eighth appellant’s claims, there is certainly at least a realistic possibility that those claims would not be rejected in the event that different conclusions are reached on the first appellant’s claims.

86    In the circumstances, the decision of the Authority in respect of both the first and eighth appellants, and consequently then also all the other appellants, must be set aside.

87    As an aside, I mention that there appears to be another matter of some significance that the Authority overlooked in its rejection of the first appellant’s claims for protection. The Authority recorded that the first appellant’s screening interview, from which the first appellant sought to resile and on which the Authority placed so much weight, occurred in April 2013. The Authority stated that the first appellant’s evidence changed significantly thereafter, the implication being that what he later said in support of his fear of harm in Sri Lanka was fabricated.

88    However, the Authority also recorded that the two sons who had come to Australia earlier (the fifth and eighth appellants) had given arrival interviews in February 2013; that is, more than two months before the first appellant’s screening interview. In their arrival interviews, the fifth and eighth appellants both spoke of how their father had been kidnapped and detained by the army and that even after he came back home the army would often come at night and take him away to do work for the army. Although the Authority stated that it had regard to the eighth appellant’s evidence in rejecting the first appellant’s protection claims, nowhere did it consider whether the evidence of the two sons which was given two months before the first appellant even arrived in Australia was corroborative of the first appellant’s later account and therefore in support of his explanation that he did not give a full or proper account at his screening interview.

89    Any reconsideration by the Authority of its decision to affirm the decision of the delegate would have to take into account the possible corroborative value of the arrival interviews of the fifth and eighth appellants.

Ground 2: Failure to provide all relevant review materials (s 473CB of the Act)

90    The second ground states that the “Secretary and/or the First Respondent failed to provide the Second Respondent with all relevant documents as required under s 473CB of the Act, constituting a breach thereof, depriving the Second Respondent of jurisdiction or otherwise causing it to miscarry”.

91    The particulars to this ground draw attention to references in the appeal book to medical records, or which indicate the existence of medical records, which, the appellants submit, should have been furnished by the Secretary to the Authority.

92    The principal difficulty with this ground for the appellants is that there is no evidence of what the relevant medical records might have shown, and the appellants did not utilise machinery available to them to get access to those records in advance of the hearing. However, at the hearing an explanation of what records are available to the Minister was given from which it is not possible to say that the medical records might have made any difference to the ultimate result. Some medical records were also produced by the Minister to the appellants and none of those were then sought to be relied on by the appellants as possibly making any difference.

93    This ground is simply too tenuous to warrant leave being granted to advance it for the first time on appeal. I therefore do not grant leave for the appellants to advance ground 2 in their amended notice of appeal dated 28 October 2019.

Conclusion

94    As indicated, the appeals must succeed, the decision of the Authority must be set aside and the matter must be remitted to the Authority for reconsideration according to law. In that regard, the reconsideration should be done by someone other than the person who made the original decision on behalf of the Authority.

95    Given that the grounds that were advanced in this Court were not advanced in the FCC, I do not see any reason to disturb the costs award in the FCC, i.e. the appellants should still pay the Minister’s costs in the FCC. However, the appellants, having succeeded in this Court, should have their costs of appeal.

Associate:

Dated:    23 December 2019

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