Federal Court of Australia

BBM18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1602

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 2 and 3 of the orders made in Federal Circuit Court of Australia proceeding SYG581 of 2018 on 25 July 2018 be set aside.

3.    The appellant’s amended application filed 29 May 2018 be remitted to the Federal Circuit Court of Australia for determination according to law.

4.    Any application for costs be made within seven days of the date of this order.

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

REASONS FOR JUDGMENT

GLEESON J:

1    The appellant appeals from a decision of a judge of the Federal Circuit Court of Australia (FCCA): BBM18 v Minister for Home Affairs [2018] FCCA 2032. In that decision, the FCCA judge dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (IAA). The decision to dismiss the application was made pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001.

2    Leave to appeal was granted by consent on 20 November 2018. On 7 November 2018, the Court had ordered that grounds 1, 2, 6, 8, 10 and 13-19 of the draft notice of appeal be struck out. Accordingly, the appeal concerns grounds 3-5, 7, 9, 11 and 12 stated in the draft notice of appeal.

Background to appeal

3    The appellant is a male Sri Lankan citizen of Sinhalese ethnicity, now aged about 60, who arrived on Cocos Island as an unauthorised maritime arrival on 18 March 2013.

4    On 24 March 2013, he participated in an interview (screening interview), recorded in a document entitled “Enhanced Screening interview transcript pro-forma”.

5    On 2 April 2013, the appellant participated in an entry interview, referred to by the IAA as the arrival interview.

6    On 15 December 2016, the appellant applied for a Safe Haven Enterprise visa (SHEV). The visa application was accompanied by a statutory declaration dated 13 December 2016.

7    On 22 March 2017, the appellant participated in a third interview, referred to as the SHEV interview. In the FCCA judgment, this is referred to as the delegate’s interview.

8    On 12 May 2017, a delegate of the Minister for Immigration and Border Protection refused the appellant’s visa application.

9    Thereafter, the delegate’s decision was referred to the IAA for review. On 8 February 2018, the IAA affirmed the delegate’s decision.

10    The appellant then applied to the FCCA for judicial review of the IAA’s decision. The appellant represented himself before the FCCA.

11    The FCCA did not have records before it of either the screening interview or the SHEV interview. On the appeal, the appellant sought to rely upon the SHEV interview transcript. The Minister did not oppose the tender of that transcript and additionally sought to rely on the “Enhanced Screening interview transcript pro-forma”. In the absence of any opposition, both documents were admitted as evidence on the appeal.

Protection claims

12    The IAA summarised the appellant’s claims for protection as follows:

•    He returned to Sri Lanka in 2008 after working in Saudi Arabia and commenced working in a liquor shop in Batticaloa.

•    In 2010 he had a problem with Tamil underworld people extorting money from him. The underworld people threatened to kill him if he did not pay them. The underworld people knew that the [appellant] had money because they knew of his previous employment in Saudi Arabia whereby he worked for 15 years at a US army base.

•    He gave money to the underworld people on four occasions. The amounts ranged between five and ten lakhs. The [appellant] did not wish to pay any money to the underworld group anymore and so he went into hiding.

•    He did not seek protection from the police because he does not trust them. Prior to him departing for Saudi Arabia, army intelligence came to his home and threatened to shoot him, however, they ended up shooting and killing his Tamil friend who was visiting at the time. They subsequently took the dead body and the [appellant] to the police station. The [appellant] attempted to lodge a report in relation to the incident and the police refused to accept the report. The police suspected that the [appellant] was involved with the LTTE. In his home area the [appellant] was the only Sinhalese person in a predominantly Tamil area. At the same time the LTTE suspected the [appellant] was an army intelligence informer and that he had tipped off the Sri Lankan army in relation to his Tamil friend’s death. The [appellant] was therefore suspected by both the LTTE and the Sri Lankan army and therefore he departed for Saudi Arabia in 1993.

•    Fellow passengers on the boat trip to Australia, who have returned to Sri Lanka, have told the CID [Sri Lankan Criminal Investigation Department] that the [appellant] is the ‘people smuggler’ behind the trip to Australia. He will be detained and investigated for that on return.

•    The CID has been twice to the [appellant’s] family home in Batticaloa to investigate these claims. The [appellant] is scared that if he is deported to Sri Lanka, the CID will arrest him at the airport, detain him for interrogation and then charge him as a smuggler.

•    He also fears harm from ‘R’, the people smuggler who arranged his trip to Australia, if he is returned to Sri Lanka. R is a prominent people smuggler and he has killed many people before. He is quite powerful and bribes all the police and other Sri Lankan security agencies. The [appellant] had a deal with R in that the [appellant] would be responsible for the boat charges in relation to the [appellant’s] other family members. After reaching Australia, the other family members have not paid the [appellant] the remaining fees for the boat journey. R has visited the [appellant’s] wife and asked her for the outstanding boat fees. If the [appellant] does not pay R the outstanding boat fees, R will kill him and the Sri Lankan police would be unable to prevent this from occurring. R is a leader of a terrorist group, used to be an LTTE member and later worked for army intelligence against the LTTE.

Issues on appeal

Legal framework

13    The power in r 44.12(1)(a) to dismiss the appellant’s application required a lack of satisfaction on the part of the FCCA judge that the appellant had raised an arguable case for the relief claimed, and the exercise of discretion: SZTTW v Minister for Immigration and Border Protection [2014] FCA 837 at [20]; Siddique v Minister for Immigration & Border Protection [2014] FCA 1352 at [19]–[21].

14    The principal issue in this Court is whether the FCCA judge erred in failing to be satisfied as to the existence of an arguable case that the IAA’s decision involved jurisdictional error. In SZTGS v Minister for Immigration and Border Protection [2014] FCA 676 at [23] and [24], I noted:

[23]    In other contexts, an appeal against a finding of satisfaction as to a matter is subject to the same principles that apply to an appeal from a discretionary decision: see Singer v Berghouse (1994) 181 CLR 201 especially at 210–212; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 especially at [19], [27], [32] and Russo v Aiello (2003) 215 CLR 643 at [27].

[24]    Applying these principles in this case, the applicant must demonstrate sufficient doubt that, in failing to be satisfied that the application had raised an arguable case for relief, the primary judge:

a.    Acted upon a wrong principle;

b.    Allowed extraneous or irrelevant matters to guide or affect him;

c.    Mistook the facts;

d.    Did not take into account some material consideration; or

e.    Reached a result that is plainly unreasonable or unjust: House v R (1936) 55 CLR 499 at 504–505.

15    The grounds of appeal mirror grounds of review raised in the FCCA. Each ground of appeal is expressed as a failure on the part of the FCCA judge to find error on the part of the IAA. The alleged errors are factual errors concerning aspects of the appellant’s claims for protection. The appellant contended that the IAA’s errors demonstrate that the IAA “declined its jurisdiction” and that, when considered separately or cumulatively, the errors reveal jurisdictional error on the part of the IAA. In respect of most grounds of appeal, the appellant’s contention was to the effect that the IAA had either mistaken the facts or reached a result that was plainly unreasonable.

16    As to what would constitute jurisdictional error by the IAA, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323, McHugh, Gummow and Hayne JJ said at [82]:

It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 if an administrative tribunal (like the Tribunal):

“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it”.

“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.

(citations omitted)

17    Jurisdictional error “is an expression not simply of the existence of an error but of the gravity of that error”: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 (Hossain) at [25] (Kiefel CJ, Gageler and Keane JJ).

18    In CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [59]-[61], the Full Court explained the principles concerning a finding of illogicality, irrationality or unreasonableness in fact finding as follows:

[59]    One of the difficulties in the appellant’s argument is the conclusion reached by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, particularly (at [131]), where Crennan and Bell JJ stated that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion.

[60]    In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J collected the following relevant principles (at [52] and [54]-[56]):

[52]    As Robertson J put it in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

...

[54]    ... The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].

[55]    Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137 [151]. Even if an aspect of reasoning, or a particular factual finding, 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: Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship [2013] FCA 566; (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

[56]    An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 at 455-456 [14]- [15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

[61]    For present purposes, there is a difficulty for the appellant in demonstrating “extreme” illogicality. Even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality, according to SZMDS (at [124]). Although the appellant contends that the implausibility and inconsistencies were only “minor”, his Honour disagreed (at [26]-[27]).

19    An error that could not have resulted in a different decision does not give rise to jurisdictional error: Hossain at [30]-[31]; AOJ18 v Minister for Home Affairs [2018] FCAFC 220 (AOJ18) at [32].

20    In considering whether an administrative decision maker’s decision was the product of, or was materially affected by, illogical or irrational reasoning or factual findings, the decision maker’s reasons should not be the subject of over-zealous scrutiny: BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 at [146], citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [272].

Consideration

IAA’s decision record

21    The IAA’s ultimate finding that the appellant did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act 1958 (Cth) followed a consideration of the appellant’s claims in which the IAA made the following findings:

(1)    The IAA had serious concerns about the truthfulness of parts of the appellant’s evidence.

(2)    The IAA did not accept the appellant’s claim that he decided to go to Saudi Arabia to work in 1993 because people came to his home to shoot him but instead shot his friend.

(3)    The appellant’s protection claims rest to a large extent on his claim to have been the victim of extortion in 2010. The IAA was not satisfied that the appellant went into hiding following extortion by an unidentified group. The IAA found that the appellant fabricated his claims of extortion and being forced into hiding to bolster his claims for protection. The incidents to which the appellant was subject (which the IAA found to have occurred in 2008) were criminal and opportunistic rather than part of systematic targeting of the appellant personally; they occurred nearly 10 years earlier and the country information indicated a greatly improved security situation since then.

(4)    The appellant fabricated aspects of his claims concerning R, a people smuggler, from whom the appellant claims to fear harm. The IAA was satisfied that, on returning to Sri Lanka, the appellant is not at risk of harm from R as he has the means to discharge his debt to R through the sale of land.

(5)    The appellant fabricated his claim to be at risk of harm as a suspected people smuggler.

(6)    The appellant was not at risk of serious harm on return to Sri Lanka, on the basis that he would be a returning asylum seeker or an illegal departee.

(7)    Taking into account those of his claims that the IAA accepted and considering them against the appellant’s profile and the country information, the IAA’s view was that, even considered together, there is not a real chance of serious harm to the appellant if he returns to Sri Lanka now or in the reasonably foreseeable future.

22    At [28] of the FCCA judgment, the FCCA judge recorded the appellant’s case that the IAA had made findings without any evidentiary basis in relation to all of the grounds of review in the FCCA. The FCCA judge rejected that argument, stating that the available evidence supported the IAA’s findings and, in any event, the FCCA was entitled to accept the IAA’s decision record as accurately reflecting the matters to which it referred, citing NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; 221 CLR 1. (The relevant passage is probably from the reasons of Kirby J at [63]). The FCCA judge then considered the grounds of review separately, and rejected each of them. The appellant did not make any direct criticism of [28] of the FCCA judge’s reasons.

23    As explained below, it is at least arguable that the IAA made errors in its assessment of the appellant’s protection claims and, concurrently, its assessment of the appellant’s credibility. These errors concern the IAA’s fact finding. Some of the errors may be characterised as irrational or unreasonable in the sense that they are matters about which minds could not reasonably differ. The materiality of the errors is not easy to assess. In my view, it is not open to conclude that they could not have resulted in a different decision.

Grounds 3 and 4

24    These grounds are directed to paras 10 and 11 of the IAA’s reasons, which concerned the appellant’s account of his reason for leaving Sri Lanka in 1993 to work in Saudi Arabia. In his statutory declaration, this issue arose under the heading “No protection from Sri Lankan authorities”.

25    At paras 10 and 11, the IAA stated:

When the delegate put to him that he hadn’t previously mentioned that it was the CID who killed his friend, he explained that it was only when the CID took him to the police that he found out they were CID. He was unresponsive when the delegate pressed him for why he nonetheless hadn’t mentioned after he arrived in Australia that it was the CID who shot his friend. I do not consider it plausible that the applicant would not have mentioned earlier something as significant as the killing of his friend by the CID particularly if, as he claimed, it was the catalyst for his decision to go to Saudi Arabia to work. Further, in his SHEV interview he did not refer to the claims in his written statement that the police refused to take his statement because they suspected he was involved with the LTTE; that at the same time, the LTTE thought he was working for army intelligence and that he tipped off the army to kill his Tamil friend; and because he was suspected on both sides he left for Saudi Arabia.

The applicant has been consistent in claiming that he had a friend who was shot and killed and I accept that this was the case. However, in view of the unsatisfactory nature of the evidence he provided at his SHEV interview about the death of his friend, I prefer his earlier evidence and I find that his friend was killed in 1988 by unknown persons and that he has fabricated the other aspects of his claims concerning the death of his friend including that he was suspected by either the police/army intelligence or the LTTE of working for the other side. It follows that while I have accepted that he went to work in Saudi Arabia in 1993, I am not satisfied that it was the death of his friend that prompted him to go there to work.

26    At para 9 of its decision record, the IAA had set out the following three accounts, attributed to the three interviews in which the appellant had participated:

•    One of his friends was killed in his house; they came in a white van in 1988. He didn’t know who killed him (screening interview);

•    Before he went to Saudi Arabia some people in a white van killed his friend (arrival interview);

•    There had been a bomb blast in Batticaloa, the CID came in a white van, he was standing outside and they pointed a weapon at him. His friend was in the house, they asked who he was, he stood up because he was scared as he was Tamil and they shot him. They took the body and the applicant to the police station, he told the police he wanted to make a complaint but they told him he couldn’t and chased him away. This happened in 1992 and that’s why he decided to go to Saudi Arabia to work (SHEV interview).

Ground 3

27    The substance of ground 3 challenges the IAA’s finding that the appellant failed to mention “earlier” the killing of a friend by the CID.

28    The FCCA judge analysed ground 3 as follows (at [29] of his Honour’s reasons):

Ground 3 appears to suggest that the Authority erred at [10] in stating that the [appellant] had not mentioned his friend being shot by the CID prior to the delegate’s interview. There is no such claim in the entry interview…. It is for the [appellant] to establish that he made this claim prior to the delegate’s interview, and he has not done so.

29    As noted above, the “delegate’s interview” refers to the 22 March 2017 SHEV interview.

30    The appellant submitted that he had made the relevant claim in his December 2016 statutory declaration. In the declaration, the appellant said relevantly:

Before I went to Saudi, a serious incident happened to me. The army intelligence once came to my house threaten to shoot me; however they ended up shooting and killing my Tamil friend who was in my house visiting me at that time.

They then took the body and me to the police station. I told them that I wanted to lodge a report of the police brutality and the police refused to accept the report. They suspected that I was involved with the LTTE as well. In my area I was the only Sinhalese and the rest are Tamils.

At the same time, the LTTE thought I was the army intelligence informer and thought that I tipped off the army to kill my Tamil friend. I was being suspected by both sides and because of this I left for Saudi on 23 September 1993.

31    The Minister submitted that, while the appellant mentioned his friend being shot by “army intelligence” in this declaration, in his screening and arrival interviews the appellant did not state that the CID or army intelligence were involved and referred to the perpetrators as “some people in a white van”. Reasonable minds could differ, the Minister argued, about whether the appellant could have been expected to mention the perpetrators being CID (or army intelligence) at his screening and entry interview, which is what the IAA must be referring to by “earlier”.

32    In setting out the appellant’s claims concerning the death of his friend at para 9 of the decision record, the IAA refer to the account in the December 2016 statutory declaration.

33    Thus, it is arguable that the IAA overlooked the appellant’s account in the December 2016 statutory declaration and thereby mistakenly concluded that the appellant had not mentioned that the CID had killed his friend prior to the SHEV interview.

34    The IAA’s finding was material to its assessment of the appellant’s credibility, as well as his claims for protection that he will not be protected by the Sri Lankan authorities.

35    I also note that the first sentence of para 10 of the IAA’s decision record is based on an inaccurate premise, in that the delegate did not put to the appellant in terms that he had not previously mentioned that it was the CID who killed his friend. The relevant passage was addressed to a comparison between the appellant’s claims at the various interviews, as follows:

Q:     Okay... The other thing I wanted to check... because again in your earlier interviews you said that ahh... when you were talking about this... people in a white van killed your friend in your house. Which is correct. But you said you didn't know who they were umm and you didn't know why. Which is a little bit different.

A:    I didn’t know who they were because after they took me to the police suddenly I found ... I realised they were CID.

Q:    Sure so after you found out it was CID. I guess what I am saying is when you arrived in Australia in your first interviews you said you didn't know who they were...

A:    Yeah, at the time of shooting I didn’t know who they were. They were wearing civil suits... because they were in civil.

36    The FCCA judge did not refer to the December 2016 statutory declaration in rejecting ground 3, saying that the appellant failed to establish that he had made the relevant claim prior to the SHEV interview. His Honour’s reasons tend to suggest that the statutory declaration may not have been drawn to his Honour’s attention, although it was in the Court Book. In any event, I accept the appellant’s contention that, by reason of the matters set out above, the FCCA judge erred in failing to be satisfied that there was an arguable case that the IAA erred in the manner set out above. The FCCA judge’s error can be characterised as a mistake as to the relevant facts.

Ground 4

37    Ground 4 is not easy to understand. In essence, it contests the IAA’s finding (at para 11 of the decision record) that the appellant “fabricated” aspects of his evidence. The ground is predicated on the basis (which I accept) that the fabrication finding was a conclusion derived in part from the IAA’s findings (at para 10 of the decision record) that the appellant had not referred to the following matters in his SHEV interview:

(a)    The refusal by police to take his statement because they suspected the appellant was involved with LTTE;

(b)    At the same time, the LTTE thought the appellant was working for army intelligence and that the appellant had tipped off the army.

38    The appellant’s complaint was, in effect, that these were not proper reasons for the fabrication finding because:

(1)    The appellant did refer to (a) above in his SHEV interview in the following passage:

A: So then they took the body also in the vehicle and they took me also to the police.

Q: Okay and when happened then?

A: Then the other offices in the police came and had look then I told them I want to make an entry in a police complaint to the police. And they said no you can’t and then chased me away.

and

(2)    The appellant was not asked questions that would have elicited the information in (b) above.

39    It is at least arguable that the IAA erred in finding that the appellant did not refer to the police’s refusal to take his statement in the SHEV interview. Although the appellant did not offer a reason for the police’s refusal in the SHEV interview, it is arguable that this omission is explained by the questions asked of the appellant at the interview. As to (b) above, it is arguable that the appellant’s failure to make a claim to that effect is explicable by the questions asked of him. In that context, and in the light of the conclusion at [33], it is arguable that the IAA erred in its assessment of the available material, and thereby concluded that the appellant had “fabricated” the claim that the appellant was suspected by each of the police/army intelligence and the LTTE of working for the other side.

40    Again, the disputed finding was material both to the IAA’s assessment of the appellant’s credibility and the assessment of his claims for protection, as identified by the IAA. In my view, it is arguable that the alleged error, if demonstrated, amounted to jurisdictional error.

41    The FCCA judge relevantly stated (at [30] of his Honour’s reasons):

Ground 4 appears to suggest that the Authority erred at [10]-[11] by relying in part on the applicant not referring at the delegate’s interview to his claims that the police refused to take his statement about his friend being shot by the CID because they suspected he was working for the LTTE, because the applicant was not asked about this and he had said it in earlier interviews. Again, it is for the applicant to establish these factual assertions and he has not done so. He has not filed a transcript of the delegate’s interview. Nor is it apparent how jurisdictional error by the Authority would be demonstrated even if the applicant’s assertions are correct. In any event, the Authority had comprehensively considered the applicant’s claims about his friend’s death and the unsatisfactory evidence the applicant provided and concluded that the applicant had fabricated his claims of being suspected by the police of working for the LTTE. No error is shown in the Authority’s reasoning and this ground goes no higher than cavilling with the Authority’s findings.

42    The FCCA judge did not have the SHEV interview transcript. By reference to that transcript, I accept that it is arguable that the IAA erred in its evaluation of the appellant’s credibility.

Ground 5

43    The IAA made the following findings at para 8 of its decision record:

(a)    the appellant had two daughters;

(b)    the appellant’s father moved his family to Batticaloa in 1983.

44    The Minister accepted that the IAA was wrong to state that the appellant has two daughters: on the evidence, he had one son and one daughter.

45    Further, the Minister ultimately did not seriously dispute that the only relevant evidence was that the appellant had moved to Batticaloa in 1977. This appears from the appellant’s entry interview. At the SHEV interview, it was suggested to the appellant that he went to live in Batticaloa in about 1983 and that the appellant was there for about 10 years before he went to Saudi Arabia. The transcript records the appellant’s answer as follows: “We came … I was in Batticaloa in 1983.”

46    In his SHEV application, in response to a requirement to identify all residential addresses where the appellant lived in the last 30 years, his earliest residence was identified as an address in Batticaloa from January 1983 to August 1993.

47    The FCCA judge found (at [31]) that the first of these errors was of no significance to the IAA’s reasoning and so was not an error of law. As to the second matter, the FCCA judge reasoned that the IAA’s finding appeared to be consistent with the information in the SHEV application but that, even if the appellant had moved to Batticaloa in 1977, this would be no more than a factual error and of no significance to the IAA’s reasoning.

48    The Minister submitted that, as the FCCA judge found, neither error was material to the IAA’s decision, citing Hossain at [31] where Kiefel CJ, Gageler and Keane JJ stated:

…as it was put in Wei v Minister for Immigration and Border Protection, “[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act”. Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.

49    In AOJ18 at [32], the Full Court applied Hossain in concluding that an error that could not have resulted in a different decision does not give rise to jurisdictional error.

50    The appellant did not attempt to demonstrate that these errors could have resulted in a different decision by the IAA. In those circumstances, I am not persuaded that the FCCA judge made any error in his Honour’s consideration of this ground.

Grounds 7 and 9

51    These grounds concerns the appellant’s claim to have been a victim of extortion in Sri Lanka.

Ground 7

52    At para 12 of its decision record, the IAA found that, while the appellant had been generally consistent that he was subjected to demands for money and threats, there were significant discrepancies between the accounts the appellant had given at different times. The IAA made several criticisms of the appellant’s evidence, concluding with:

In his SHEV interview he also made contradictory statements about whether or not he had seen his manager giving the men money and whether or not they were LTTE.

53    Ground 7 is that the IAA was wrong to find that the appellant had made “contradictory statements” in his SHEV interview about his manager and the LTTE.

54    At [33], the FCCA judge said that the appellant had failed to prove his claim that the IAA erred because he had not provided evidence of the SHEV interview.

55    On the appeal, the appellant referred to the following passage from the SHEV interview transcript and contended that it did not reveal any “contradictory statements”:

Q:    Okay. So did… did the manager or the boss of that shop use to give these people money up till then... before?

 A:    Yeah, I have seen manage[r] giving them money.

 Q:    Okay, so they had been into the shop before this time?

 A:    No not these same people. But there were several other groups.

 A:    Ahh okay. So these men that threatened you were they LTTE?

 A:    A lot of groups where there I don’t know who they were. Their identity.

…

  Q:    Okay so you stopped working there and then what happened?

 A:    Then they came... they first phoned me... they phoned me... and ah threaten and then they came to my house.

 Q:    Did they phone you on your mobile or at the shop?

 A:    When I was in the shop they called through the telephone... the shop... two times... after I resigned... left the job... they called me on my mobile.

 Q:    So when they called you on the phone what were they saying to you?

 A:    They said pay me... pay us money otherwise we will kill you.

 Q:    Okay. Did they say why?

 A:    No. The reason was that I worked in Saudi Arabia for some time so they thought I had a lot of money. Money I earned. That I brought form Saudi Arabia so they must have thought I had a lot of money. Also they thought that I was the owner of the shop... Yeah because I have been with the owner for 2 years so they thought that I had a share or partnership in the shop.

 Q:    But hadn’t he, had he been giving them money before? The boss?

 A:    Yeah, when I worked there I had seen LTTE cadres coming there and asking for money and the manager giving them money.

56    The Minister submitted that the appellant’s evidence in this passage is “certainly unclear” as to whether the same or different men had visited before and were paid by the manager, and at first seems to say he does not know if they were LTTE and then suggests they were. In any case, the Minister submitted that this was only one of a number of difficulties that the IAA noted with the appellant’s claim to have been extorted, addressed at paras 12 to 16 of the IAA’s decision record.

57    The appellant’s evidence in the SHEV interview set out above is not easy to understand. It is at least arguable that the evidence does not contain “contradictory statements” about whether or not the appellant had seen his manager giving the men money. To the contrary, the appellant appears to have said twice that he saw the manager giving the men money; there appears to be no statement to the effect that the appellant had not seen this.

58    As to whether the LTTE were involved, the appellant first said that he did not know the identity of “a lot of groups” in answer to a question about whether men who threatened him were LTTE. Subsequently, the appellant said that he had seen LTTE cadres asking for money from the shop manager and the manager giving them money. It is arguable that this evidence is not contradictory.

59    As for ground 4, by reference to the SHEV interview transcript, I accept that it is arguable that the IAA erred in its evaluation of the appellant’s credibility. Specifically, and although the appellant’s evidence is unclear, I accept that it is arguable that the IAA erred in finding that the appellant had made contradictory statements in his SHEV interview, and that there was arguably no rational basis for the IAA’s finding that the appellant’s relevant evidence was contradictory.

60    As to the materiality of this arguable error, the Minister noted that the finding was one of several findings upon which the IAA relied to reject the appellant’s claim to protection from extortion. Specifically, the IAA concluded that the appellant had “exaggerated and embellished his claims to have been extorted” and it was “not satisfied that the [appellant] paid amounts of between five and ten lakh on at least four occasions to unidentified underworld people who were extorting him and threatened to kill him if he didn’t pay”. The other relevant findings were:

(1)    It was only in his SHEV application that the appellant mentioned for the first time that he had actually paid money to the men he claimed came into the shop.

(2)    In the December 2016 statutory declaration, the appellant claimed that he had a problem in 2010 with underworld people extorting him. However, in the entry interview, the appellant said they were from groups contesting an election in March 2008.

(3)    The appellant made a new claim (in his SHEV interview) that, after the second incident, he stopped working at the shop, the extorters phoned him and warned him and then came to his house.

(4)    It was not plausible that the appellant would fail to mention in any of his previous interviews or in his written statement something as serious as a visit to his home by people who had earlier threatened to kill him.

(5)    The appellant’s claims about the extortion and associated threats evolved over time.

(6)    The appellant’s evidence in his SHEV interview about how he gave the group money was vague and undetailed and did not persuade the IAA that he had actually met the would-be extorters and handed over money.

(7)    The appellant gave inconsistent evidence about when the threats started, whether or not he paid the men money, how much he paid and who the people were who demanded money of him.

Ground 9

61    At para 13 of its decision record, the IAA said relevantly:

The applicant claimed in the written statement submitted with his SHEV application and in his SHEV interview that he was extorted because they knew he had money. However, this is not consistent with information given in an earlier interview that he didn’t know why he was asked for money.

62    The FCCA judge found (at [35]) that it was open to the IAA to find that the evidence was inconsistent “because on its face it is”.

63    The record of the entry interview includes the following:

Tell me what happened to you? After I was there for 3 months I went to work in a liquor shop, on the 10/03/2008 there was an election, before this election several people arrived by white van to my work place and asked me to provide 5 Lakhs to them. I explained there is no manager or boss and I can not provide the money. So they told me to provide 50 cases of liquor but I could not. Then they pointed a pistol to my head. At that time I was in Batticaloa and in that area there were 4 or 5 groups contesting the election but I do not know which group they are from.

why did they ask you for money? I do not know but they arrived to meet my boss and ask him but he was not there so they asked me. …

did anyone else get phone calls at the shop? as [I] know from our shop they have provided money to people from the LTTE. question repeated. no one else was threatened. why do you think these people were targeting you? I think they know that I work for a long time in Saudi and they think I have lots of money and that is why they are asking me to provide it to them.

64    In making this finding, the FCCA judge did not mistake the facts or otherwise reach a conclusion that was plainly unreasonable or unjust. The fact that the appellant stated that he thought that the extorters believed that he had “lots of money” is inconsistent with the appellant’s earlier answer that he did not know why he was asked for money.

65    The appellant submitted that the supposed inconsistency is “minor at the highest” and is also consistent with the appellant not knowing the true position but offering his own opinion about why he was asked for money. However, it was a matter for the IAA to evaluate the evidence. I am not persuaded that there was any error on the part of the FCCA judge in his Honour’s consideration of ground 9.

Ground 11

66    Ground 11 concerns the appellant’s claim to fear harm from the people smuggler, R. At para 22 of its decision record, the IAA said:

The applicant also provided contradictory evidence about whether the other members of his family owed the money to him or to R [the people smuggler] and said that while they also owed R money, because they got to know R through him, R was coming after him. He also claimed for the first time in his SHEV interview, that after he had arrived in Australia, R had gone to his house with a weapon and threatened his wife over the money he owed. It is simply not plausible that the applicant would fail to mention in his written application something as serious as a person who he claims is above the law, going to his home and threatening his wife over the payment of a debt.

67    Ground 11 is, in effect, that the appellant did not say that members of his family owed money to him.

68    The FCCA judge said (at [36]) that the appellant had not proved his contention because he had had not proved the content of the SHEV interview, and the claim that he did not assert that his family members owed him money. His Honour also found that the appellant had claimed that his family members owed him money in the statutory declaration.

69    Relevantly, in the December 2016 statutory declaration, the appellant stated:

…I had a deal with [R] that I will be responsible for my brother’s, my brother-in-law and my nephew’s boat charges. After reaching here, these three people have not paid me in full in order for me to pay [R]. [R] has gone to ask from my wife for the money.

70    The December 2016 statutory declaration does not record a statement to the effect that the appellant’s family owed money to the appellant. Nor does the SHEV interview. The former implies no more than that the appellant could or would not pay R because he had not been paid the relevant charges by his family.

71    On the appeal to this Court, the appellant submitted that there was nothing contradictory in his claims that he had accepted responsibility for the family’s boat charges, and his statement in the SHEV interview that his family members were pressuring the appellant to pay the charges because they owed the charges to the smuggler.

72    The Minister acknowledged that the relevant portion of the SHEV interview is unclear and that the description of the evidence as “contradictory” was not necessarily apposite. However, the Minister submitted, there were a number of difficulties with the appellant’s evidence about “R”.

73    It is arguable that the IAA erred in finding that the applicant had provided evidence to the effect that he was owed money by his family members and, consequently, in finding that the applicant had provided contradictory evidence concerning that matters.

74    Further, the FCCA judge mistook the facts in finding that the appellant had claimed that his family members owed him money in the statutory declaration. Rather, the appellant said that the family members had not paid him in full in order for the appellant to pay R. The fact that the appellant was relying or waiting on family members in order to pay R does not involve a claim that the family members owed the appellant money.

Ground 12

75    At para 27 of its decision record, the IAA found that documents in the Singhalese language submitted by the appellant were not genuine and that the appellant had fabricated his claim to be suspected of involvement in people smuggling operations.

76    The IAA found that the documents apparently related to two separate court cases: one involving a single individual and the other concerning a group of 20 people. The IAA found that the documents contained significant anomalies.

Ground 12(a)

77    The IAA found:

Finally, R and “S” (the same name as the [appellant’s]) are recorded as having collected the money. However, the R referred to does not correspond with the name given for R on the other document provided which I note has been translated by a different NAATI accredited translator and as referred to above appears to relate to a different court matter.

78    This finding seems to refer to the following words in a translation of one document:

A person named [R] has organised this trip and charged each person between Ra 1 lakh and 7 lakhs. Also revealed that Rajan and [S] have collected money from these suspects.

compared with the translation of another document which states:

A person named [R] organized this trip and collected between Rupees 1 lakh and Rupees 07 lakhs from these persons. It was further revealed that Rajendran and [S] also collected monies from the suspects.

79    Both translations appear to differentiate between the organiser of the trip (R) and another person (Rajan or Rajendran). The former document says that R organised the trip and charged travellers for the trip. The latter document says that R organised the trip and collected money from the travellers.

80    Ground 12(a) is that the IAA erred in making the findings set out at [27] because there was never any suggestion that “R”, the trip organiser, was the same person as Rajan (or Rajendran).

81    In addressing this ground, the FCCA judge stated (at [37]) that it was for the appellant to demonstrate why the IAA’s conclusion was not open.

82    The FCCA judge did not advert to the discrepancy between the descriptors R and Rajan or Rajendran.

83    It is arguable that the IAA’s reasoning mistakenly conflates the identity of R with Rajan or Rajendran. The translations support an inference that these are two different individuals. The Minister’s submission did not dispute this proposition, but contended that it was open to the IAA to rely on inconsistencies between the documents provided by the appellant (such as the different names Rajan and Rajendran).

84    The FCCA judge did not consider whether the IAA has arguably erred in the manner identified, based on a consideration of the translations of the documents that were before the FCCA. The IAA’s conclusion was only open if it found that differently identified people were the same person. It is at least arguable that this was an illogical inference from the translated documents. The FCCA judge’s reasons did not engage with the apparent difference in the name of the alleged people smuggler and the names attributed to the person who collected money with the appellant.

Ground 12(b)

85    The appellant challenged the finding that the translated documents contained anomalies on the basis that they concern two separate court cases. The appellant noted that the documents relate to the same incident but one concerns the prosecution of an individual, while the other concerns the prosecution of 20 individuals. According to the appellant, this provides no basis for doubting the genuineness of the documents.

86    The Minister contended that the IAA accurately stated that the documents appeared to relate to two separate cases and did not claim that this in itself was an inconsistency between the documents.

87    The relevant passage of the IAA’s decision record is as follows:

Having reviewed the documents provided, I have a number of concerns about them. Firstly, it appears that the documents relate to two separate court cases, once concerning an individual and the other concerning a group of twenty persons. Leaving that issue aside, there are a number of significant anomalies in the documents….In view of the significant inconsistencies and anomalies in the documents provided and noting the prevalence of document fraud in Sri Lanka, I do not accept that the documents are genuine…

88    As for ground 12(a), the FCCA judge stated (at [37]) that it was for the appellant to demonstrate why the IAA’s conclusion was not open.

89    I am not persuaded that there is an arguable error in the IAA’s reasons, relating to the stated concern that the documents relate to two separate court cases. The reasons indicate that the IAA left that concern aside.

90    In those circumstances, the FCCA judge did not err in failing to find any arguable jurisdictional error.

Conclusion

91    I have concluded that the IAA arguably made errors in connection with the following findings:

(1)    The appellant failed to mention “earlier” the killing of a friend by the Sri Lankan CID.

(2)    In his SHEV interview, the appellant did not refer to the claims in his written statement that the police refused to take his statement because they suspected he was involved with the LTTE; and that at the same time, the LTTE thought he was working for army intelligence and that he tipped off the army to kill his Tamil friend.

(3)    The appellant made contradictory statements in his SHEV interview about his manager and the LTTE.

(4)    The applicant provided contradictory evidence about whether the other members of his family owed the money to him.

(5)    R is recorded in the translated documents submitted by the appellant as having collected the money with the appellant for the boat trip to Australia.

92    Before concluding that the FCCA judge erred in finding that there was no arguable case of jurisdictional error, it is necessary to consider whether the IAA’s arguable errors of fact were material to the IAA’s ultimate conclusion. The IAA’s conclusion that there is not a real chance of serious harm to the appellant if he returns to Sri Lanka now or in the reasonably foreseeable future did not take account of the claims that the IAA rejected. I doubt that (4) is material to that conclusion, however, the other matters were arguably material to the appellant’s rejection of the truthfulness of the appellant’s protection claims.

93    In relation to two of these matters (being (1) and (4)), I have concluded that the FCCA judge mistook the facts. In relation to the other three matters, the FCCA judge was not in a position to identify the arguable error because his Honour was not provided with the SHEV transcript.

94    Accordingly, I am persuaded that the FCCA judge erred in his Honour’s conclusion that the appellant was unable to demonstrate an arguable case of jurisdictional error by the IAA and the appeal will be allowed with costs.

Associate:

Dated:    5 November 2020