FEDERAL COURT OF AUSTRALIA

BAU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1169

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit Court of Australia on 26 June 2019 be set aside and in lieu thereof:

(a)    There be an order in the nature of certiorari that the decision of the Second Respondent made on 5 February 2018 be set aside;

(b)    There be an order in the nature of mandamus that the matter be remitted to the Second Respondent for determination according to law; and

(c)    There be no order as to costs.

3.    The First Respondent pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (“FCCA”) published as BAU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2019] FCCA 1775. By that judgment, the FCCA dismissed the appellant’s application for judicial review of the decision of the Second Respondent (“the IAA”) to affirm the decision of the delegate of the First Respondent (“the Minister”) to refuse the appellant a Safe Haven Enterprise Visa (“SHEV”).

2    On 24 July 2019, the appellant filed a notice of appeal in this Court. On 16 July 2020, the appellant sought leave to raise a new ground of appeal not agitated before the FCCA. The application was not opposed by the Minister. Leave was granted to raise that ground. Since the new ground of appeal was not agitated before the FCCA and is now the sole ground before this Court, it is not necessary to consider the FCCA’s reasons for dismissing the appellant’s application for judicial review.

3    The appellant’s single ground of appeal, as developed in the submissions made, is that the IAA’s decision is affected by jurisdictional error because the IAA overlooked important material and thus failed to consider evidence or claims provided or made by the appellant. The appellant contended that by overlooking the material before it, the IAA erroneously found that the appellant had belatedly raised new claims and made adverse credit findings against the appellant leading to the rejection of his claims.

4    To understand the basis of the appellant’s complaint, it is necessary to record some background matters before turning to the reasons of the IAA.

5    The appellant was born in Sri Lanka. He is of Tamil ethnicity and of the Hindu religion. From 1990, when he was approximately a year old to 2013, the appellant lived in a refugee camp in India. The appellant arrived in Australia on 8 June 2013.

6    In November 2016 the appellant lodged an application for a SHEV. That application was accompanied by a statement setting out the appellant’s claims. The appellant’s claims of a well-founded fear of persecution should he be returned to Sri Lanka relevantly included claims based on the appellant’s association with his father, the suspicions of the Sri Lankan Army that his father (and other family members) were involved with the Liberation Tigers of Tamil Eelam (“LTTE”) and the past harm (in particular harm prior to his family leaving Sri Lanka in 1990) inflicted upon the appellant’s father and other members of his family by the Sri Lankan Army. It is sufficient to describe the nature of those claims by setting out the summary provided at [10] of the IAA’s reasons as follows:

•    His father was arrested by the Sri Lankan Army (SLA) for refusing to smuggle weapons for the SLA into and out of Liberation Tigers of Tamil Eelam (LTTE) controlled areas. His father was detained and beaten serval times.

•    The SLA started coming to his family home and taking his father and other members of his family and torturing them including his brother who was burnt by cigarettes when he was two years old. They took his aunt, beat and killed her. These incidents occurred before and after he was born.

•    His uncle was involved in the LTTE and as a result, his father was suspected of being involved with the LTTE as well. His father was not involved with or a member of the LTTE.

•    Because of these incidents, his parents left Sri Lanka in 1990 and fled to India where they have lived in a refugee camp since.

7    These claims of past harm inflicted upon the appellant’s father and other members of his family prior to the family leaving Sri Lanka in 1990 and of the appellant’s father being suspected of having being involved with the LTTE, were ultimately not accepted by the IAA.

8    In its reasons for decision, the IAA dealt with that part of the appellant’s claim based on suspected LTTE affiliations and the claimed harm inflicted on the appellant’s family at [15]-[23]. At [15] the IAA stated that the appellant’s claims of past harm “rest, for the most part, on his claims about the SLA’s suspicion about his father’s possible LTTE involvement, and his own involvement in a protest against the Sri Lankan government while he lived in India”. The IAA went on to state that it had “significant concerns about the [appellant’s] evidence regarding his family’s problems in Sri Lanka and events in India”. The IAA also stated at [15] that it held “serious concerns about the truthfulness of parts of the [appellant’s] evidence”. Noting that the appellant was only about a year old when he left Sri Lanka, the IAA at [16] stated that it did not attach particular significance to the gaps in the appellant’s knowledge about the events that preceded his decision to leave Sri Lanka for India. Nevertheless, in a critical passage which immediately followed, the IAA stated this at [17]:

However, I consider it significant that none of the problems relating to the LTTE the applicant claims his family experienced in Sri Lanka before leaving for India were referred to before his SHEV application. For example, it was only in the written statement submitted with his SHEV application that the applicant mentioned for the first time the claim that his uncle was involved in the LTTE and that his father was suspected of LTTE involvement.

9    It is apparent that the IAA’s concerns about the truthfulness of the appellant’s claims based on past harm to his family in the context of the Sri Lankan Army’s suspicion of the family’s association with the LTTE was, at least in part, based upon the IAA’s view that those claims were new claims belatedly raised for the first time in the appellant’s SHEV application. The time at which those claims were perceived by the IAA to have been first raised led the IAA to regard the claims as of recent invention and untruthfully pressed by the appellant.

10    The IAA’s perception was mistaken. As the material before the IAA demonstrates, the claims (or at least most thereof) were not new and had been clearly articulated well before the appellant made his application for a SHEV.

11    The first and earliest occasion upon which the appellant articulated his claims was on 17 June 2014 when the then representative of the appellant provided written submissions on his behalf to the Minister’s Department (“June 2014 submission”). That submission stated that the appellant feared that if he is returned to Sri Lanka “he will be arrested, tortured and killed by the Sri Lankan Army because he will be suspected of being involved in the LTTE because of the allegations against his father, because he lived in an Indian refugee camp for most of his life and Sri Lankan refugees in these camps were often suspected of being LTTE members or sympathisers, and because he sought asylum abroad”. Later in the submission in describing the basis for the appellant’s asserted well-founded fear of persecution in Sri Lanka, the submission identified membership of a particular social group as such a basis, relevantly describing two social groups: first, “close relatives of former and/or suspected LTTE supporters”, and secondly, “Tamils who have witnessed human rights violations – [appellant’s] father was suspected of being an LTTE member and sympathiser by the Sri Lankan Army. The Army have gone to great lengths in trying to locate [the appellant’s] father, including killing his aunt”.

12    In that submission, the basis for the Sri Lankan Army’s asserted suspicion in relation to the appellant’s father was given as follows:

•    During approximately 1988 and 1989, [the appellant’s] father, a fisherman, was asked by the Sri Lankan Army to transport goods and people from an LTTE-controlled area to an Army-controlled area. His father refused and he was subsequently arrested and tortured by the Army. He was detained and beaten by the Army several times in a camp near his house. [The Appellant’s] father was also blamed for an attack which occurred at a Sri Lankan Army camp. The Sri Lankan Army would frequently go to the family home and harass [the appellant] and his family whilst his father was detained or otherwise not present. [The appellant] recalls the Army burning his elder brother with cigarette butts.

13    The next apparent opportunity that the appellant had to articulate his claims was on 1 August 2014 when the appellant participated in an “Unauthorised Maritime Arrival & Induction Interview” (“the arrival interview”).

14    In the arrival interview, the appellant stated that he could not return to Sri Lanka because his life would be in danger “because [of] what happened to my father”. He also said “because they are suspicious of my father I may be in danger as well”. Association with his father was the central expressed basis for the appellant’s fear of being targeted if he was returned to Sri Lanka. The basis for why the Sri Lankan authorities (as distinct from the Indian authorities) were “suspicious” of the appellant’s father was not explored in any meaningful detail with the appellant in the arrival interview.

15    Whilst the appellant did not expressly state the basis for the Sri Lankan authorities having a suspicion in relation to his father, that such a suspicion may have been based on events which occurred prior to 1990 when the appellant’s family left Sri Lanka for India, is not excluded by what the appellant said in the arrival interview and is at least implicit from the appellant’s statement that when his father briefly returned to Sri Lanka for the first time in 2009 “he heard that the Army and CID were looking for him”.

16    All of that information was provided by the appellant prior to the appellant making an application for a SHEV. The claims made by the appellant impugned by the IAA as of recent invention were largely longstanding claims which were made at the earliest opportunity over two years prior to the appellant’s application for a SHEV.

17    Contrary to the conclusion I have reached, the Minister contended that the first sentence of [17] of the IAA’s reasons (set out at [8] above) ought to be differently understood. The Minister argued that the second sentence of [17] should be understood as saying that the appellant’s father was suspected of involvement with the LTTE because the appellant’s uncle was involved with the LTTE and that the IAA was correct to say that the nexus between the suspicion of the father and the uncle’s involvement with the LTTE was not raised by the appellant prior to the making of his application for a SHEV. Even if so much is accepted, the submission then made as to how the first sentence of [17] should be read is unpersuasive. That is because the Minister then contended that the second sentence and the “example” there given should, despite the plain language of the first sentence, be understood as encompassing the sum of the concern expressed in the first sentence instead of an example of that concern. The submission must be rejected. In my view the expression “none of the problems relating to the LTTE the [appellant] claims his family experienced in Sri Lanka” is a reference to each of the problems recorded at [10] of the IAA’s reasons and reproduced above at [6]. The uncle’s involvement with the LTTE was referred to in the second sentence as “an example” of the IAA’s wider concern.

18    It is necessary then to identify with some precision the nature of the error or errors made by the IAA. That is so because to succeed, the appellant must demonstrate not a mere error but a jurisdictional error. It is clear that the IAA erred by overlooking material before it, namely, the articulation of the claims made by the appellant in the June 2014 submission. That may be characterised as a process error – material which should have been taken into account was not. By reason of that error, the IAA made a factual error as to the time at which the relevant claims were first raised. That factual error led to the Tribunal making a further factual error by erroneously assessing the credit of the appellant, which in turn contributed to the IAA’s rejection of the appellant’s claims. The erroneous assessment of the appellant’s credit may have also contaminated other findings made by the IAA, a matter I will later address.

19    Jurisdictional error requires a case specific inquiry which should not be analysed by reference to fixed categories or formulas: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [77] (Robertson J). An error of fact, without more, is not usually a jurisdictional error, although it may be particularly where it leads to a general finding as to a person’s credit: SZRKT at [119] and see Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [55]-[56] (Katzmann, Griffiths and Wigney JJ)). A failure to deal with a claim that has been raised which could or would be dispositive of the review can constitute a failure to conduct the review and thus jurisdictional error: SZRKT at [113]. Ultimately, jurisdictional error will be shown where the statutory task required of the Tribunal has not been performed. The statutory task of assessing whether the appellant had a well-founded fear of persecution should he be returned to Sri Lanka “could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the [appellant]” (Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [38] (Kenny, Griffiths and Mortimer JJ) most likely to give an accurate account of whether that fear was well-founded. The errors here made by the IAA were such that, if material to the outcome of the review, resulted in a failure by the IAA to perform its statutory task. That task was performed in the absence of a consciousness and consideration of an important submission and its purported performance was tantamount to a failure by the IAA to consider the appellant’s claims because those claims were regarded as of recent invention and thus likely to have been concocted.

20    The only contention made by the Minister to resist a finding of jurisdictional error on the basis of this Court finding the errors recorded above, was that the errors were not material to the outcome of the review. That was said to be so for two reasons.

21    First, the Minister contended that the Tribunal would have come to the same ultimate conclusion about the appellant’s credit because of unrelated concerns the IAA had identified and in particular the several other matters at [17] as follows:

In his SHEV interview he stated additionally that his grandfather had helped the LTTE by providing information to them. He also made the new claim that his uncle and grandfather were in hiding after the war and that when his own father went back, he too was in hiding from the authorities for the two weeks he was there because his uncle and grandfather told him the SLA and government authorities were looking for him. When it was put to him by the delegate that this evidence contradicted what he said in his SHEV statement, he denied saying in his written statement that his father was told by his father (the applicant’s grandfather) that it was safe to go back to Sri Lanka, before saying that there may have been some confusion when his statement was being taken. He later said that the Sri Lankan government released a statement saying that the war was over and everything was now peaceful which was carried in the Indian media and suggested that his father probably believed that so that may have been why he returned. He made contradictory statements about whether his father returned to Sri Lanka legally in 2009 and how the authorities would have known of his return. Like the delegate, I also consider his evidence about the shooting of his uncle and grandfather and why he initially stated they were killed when his own father was leaving Sri Lanka in 2009, unconvincing.

22    Where numerous findings about credit are made, it is possible that an erroneous finding going to credit will not compromise other findings as to a person’s credit made independently thereof: AIC15 v Minister for Immigration and Border Protection [2018] FCA 774 at [9]-[13]. However, the findings here in question were credit findings made in the context of the error made by the IAA in the first sentence of [17] which led to the appellant’s credit being wrongly impugned and the possibility of their contamination is not able to be excluded by circumstances which would support their separation from and independence of the impugned credit finding. If these findings are contaminated by the error made in the first sentence of [17] they cannot be regarded as providing an independent and unrelated basis for the IAA’s ultimate conclusion about the appellant’s credit. In my view, the real possibility that these later findings were not contaminated by the earlier expressed adverse concern about the appellant’s credit cannot be excluded and the error in question was not immaterial to the outcome of the review.

23    There is, as Beach J stated in DTN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1525 at [51], force in the observations made by Lee J in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44] and [45], that (emphasis in original):

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.” …

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.

24    The real possibility of one credit finding contaminating other findings is further discussed by Beach J in DTN16 at [52]-[60] in relation to facts not relevantly dissimilar to those here in question. In that case a tribunal erroneously made adverse credit findings against an appellant because it had wrongly concluded that there had been a “significant escalation” of the claims previously made by the appellant (DTN16 at [26]). His Honour accepted that, as the Tribunal had wrongly concluded that the appellant had evolved and exaggerated her claims, “there was a material risk that there was contamination of other factual findings on other matters” (at [55]). There is great force in his Honour’s reasoning which I respectfully adopt.

25    That reasoning in DTN16 also addressed the contamination of a finding there made by the tribunal that a claim which the appellant had made was “implausible”. The second matter raised by the Minister for asserting an independent basis for the Tribunal’s rejection of the appellant’s claim, also relies on a finding based on the implausibility of a claim. At [18] the Tribunal said this (emphasis added):

However, I find it extremely difficult to accept that the SLA would, at that time, approach a Tamil fisherman in Mannar to smuggle weapons for them into and out of LTTE controlled territory. Given the risks involved and the security environment then prevailing, I consider such a scenario inherently unlikely and I do not accept that his father was arrested by the SLA for refusing to smuggle weapons for them into and out of LTTE controlled areas. It follows that I do not accept the applicant’s claims about everything he says his family experienced because of his father’s refusal to accede to the SLA’s request - repeated questioning and beatings of his father, their killing of his aunt, his mother’s beating, his brother’s being burnt by cigarettes.

26    The Tribunal’s conclusion that “such a scenario [is] inherently unlikely” is, I consider, like the implausibility finding considered by Beach J in DTN16, “flimsy” (at [56]) or “tissue-thin” (at [58]).

27    Historical experience would suggest that the smuggling of weapons into enemy territory during a war would not be an uncommon occurrence despite that exercise being inherently risky. The Tribunal did not identify “the risks involved” which appears to be the basis for its finding of inherent unlikeliness. What were those risks? Why would the presence of risk have made an inherently risky exercise inherently unlikely? The Tribunal’s approach smacks of mere speculation but it was not the subject of a separate challenge. Nevertheless, the basis for the finding does not suggest that it could have been made with any degree of confidence. I cannot exclude the real possibility that if the adverse credit findings against the appellant had not been made, the Tribunal would not have dismissed all of the appellant’s claims of past harm solely on the basis of the “inherent unlikelihood” of the appellant’s father being pressured to smuggle weapons.

28    For those reasons, the IAA’s erroneous findings were material to the outcome of the review and constituted jurisdictional error. It follows that the appeal should be allowed, that the decision of the IAA should be quashed and the IAA directed to determine the appellant’s application according to law. I will make orders to that effect.

29    It is not in contest that the costs of the appeal should follow the event. Accordingly, I will make an order that the Minister pay the appellant’s costs of the appeal.

30    However, whether the costs order made by the primary judge should be set aside is in contest. The primary judge ordered that the Minister’s costs of the proceeding before the FCCA be paid by the appellant.

31    The following general observations of Bromberg, Kerr and Anastassiou JJ in Anees v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 67 at [22] provide some guidance as to the exercise of my discretion:

Each case must be evaluated on its own merits. Well established principles provide that a party which succeeds in an appeal on a ground advanced in the court below will ordinarily also be awarded their costs in that court. Where an appeal court grants leave to argue a new ground the position is however different. It is likely to be rare that in those circumstances discretionary factors will justify an award of costs in an appellant’s favour being substituted for that made in the court below. However, in many instances the justice of the case may lead to an appeal court concluding in the exercise of its discretion that that there should be no order as to costs in respect of the proceedings at first instance.

32    As the Full Court there stated, the justice of a case may lead to an exercise of discretion that there be no order as to costs in respect of the proceeding at first instance.

33    The appellant contended that although legally represented before the FCCA he had not been well served by his former legal representatives. In response, the Minister accepted that the appellant himself had not done anything wrong but contended that equally there was nothing in the conduct of the Minister which would warrant the costs order made in his favour by the primary judge being reversed or set aside.

34    I have come to the view that whilst the order made by the primary judge ought not to be reversed, it should be set aside with the consequence that each of the appellant and the Minister will bear their own costs of the proceeding before the FCCA. It is clear on the findings here made that the appellant, through no fault of his own, was not afforded the fair process to which he was entitled before the IAA. He should never have been put to the cost of bringing a judicial review application in the circumstances in which he did and the Minister, and through him the Commonwealth, should bear some responsibility for the IAA’s failure to perform its statutory task. That the appellant should pay his own legal costs before the FCCA seems to me to be a sufficient impost for his failure to raise there the ground upon which he was here successful. Accordingly, I will set aside the costs order made by the primary judge and order that in lieu thereof there be no order as to costs in relation to the proceeding before the FCCA.

Associate:

Dated:    14 August 2020