Federal Court of Australia

DCU18 v Minister for Home Affairs [2020] FCA 1817

ORDERS

THE COURT ORDERS THAT:

1.    The appellant has leave to rely on the draft amended notice of appeal annexed to his interlocutory application filed on 14 September 2020.

2.    The appeal be allowed.

3.    Order 1 of the orders made by the Federal Circuit Court on 29 May 2019 be set aside and in lieu thereof, order that the decision of the second respondent made on 11 May 2018 be set aside and the matter be remitted to the second respondent for determination according to law.

4.    Order 2 of the orders made by the Federal Circuit Court on 29 May 2019 be set aside.

5.    The first respondent pay the appellant’s costs of and incidental to the appeal, to be fixed by way of a lump sum by a Registrar in default of agreement.

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

REASONS FOR JUDGMENT

MORTIMER J:

INTRODUCTION

1    This is an appeal from a decision of the Federal Circuit Court dismissing a judicial review application in relation to a decision of the Immigration Assessment Authority.

2    The appellant was an unaccompanied minor at the time of his arrival into Australia, aged 17. He was accepted by the Authority to be of Tamil ethnicity and to be a citizen of Sri Lanka. He arrived in Australia in October 2012, having travelled to Australia from northern Sri Lanka by boat. He was considered an “irregular maritime arrival” by Australian immigration authorities, and his protection visa application has progressed through the “fast track” review process under Part 7AA of the Migration Act 1958 (Cth).

3    The appellant’s protection claims centred around his Tamil ethnicity and the political associations he claimed would be imputed to him because of that, together with (and in part because of) his father’s claimed involvement with the Liberation Tigers of Tamil Eelam (LTTE).

4    The relevant procedural chronology is as follows. After his entry into Australia, the appellant was taken into immigration detention on Christmas Island. Relevantly to the grounds of appeal, while in immigration detention, on 26 November 2012, the appellant was first required to participate in an “age determination interview”. That process confirmed he was a minor, and this was accepted by the Minister’s delegate. A Tamil interpreter was present at that interview. An audio recording and written record of this interview were in evidence before the Authority, and Federal Circuit Court. Also while the appellant was detained, on 8 December 2012, the appellant participated in an entry interview.

5    There is then a very long gap in the chronology from these events until the appellant was able to apply for a visa. It is apparent from the appellant’s protection visa application that the appellant was held in immigration detention from his arrival in Australia in November 2012 until sometime in April 2013.

6    On 12 August 2016 the Minister exercised his power under s 46A(2) to lift the bar imposed by s 46A(1) of the Migration Act, and permitted the appellant to apply for a protection visa. The letter that provided the appellant with this information also invited him to accept assistance with his application from a registered migration agent, who had been contracted as a provider under the Department’s “Primary Application and Information Service”.

7    On 24 November 2016, the appellant applied for a Safe Haven Enterprise Visa (SHEV) Subclass XE-790. I infer from the fact that the appellant does not speak English, and from the content of the document, that the appellant’s statement attached to his visa application was prepared with the assistance of his migration agent. That statement commenced with the following:

Summary of my claims

1.    The following is only a summary of my claims for protection. It is not an exhaustive statement of the reasons why I cannot return to my country of origin. I will provide further information in relation to my protection claims during my interview with the Australian Department of Immigration and Border Protection.

Entry Interview

2.    Shortly after my arrival in Australia, I was interviewed (“the Entry Interview”). During the Entry Interview I was asked a number of questions including dates, biodata and my reasons for corning to Australia. I was not made aware before or during the Entry Interview that the information I provided during this interview would be used for the purposes of assessing my claims for protection. As such there are discrepancies between the Entry Interview and the attached application. Please note that the Entry Interview is not correct for the purpose of this protection visa application.

8    The appellant attended a SHEV interview before a delegate of the Minister on 20 October 2017, almost a year after his visa application was lodged. Following the SHEV interview, the appellant’s then migration agent provided a submission to the delegate containing additional information in support of his claims.

9    The fact that the appellant participated in three separate interviews and also provided further information about his claims in the post-interview submission is important in assessing the findings of the Authority and the grounds of appeal. Transcripts of the three interviews were in evidence on the appeal, as annexures to two affidavits of Ebony Jaqueline Back, affirmed 14 September 2020 and 12 October 2020. The Minister did not object to these affidavits and their annexures being read on the appeal.

10    On 31 January 2018, the delegate refused to grant the appellant a SHEV. His visa application was therefore referred to the Immigration Assessment Authority for review, in accordance with s 473CA of the Migration Act.

11    On 11 May 2018, the Authority affirmed the delegate’s decision. On 14 June 2018, the appellant applied for judicial review of the Authority’s decision in the Federal Circuit Court. The appellant was assisted in filing his application by Australian Migration and Legal Services, however they ceased to act for the appellant before the hearing. The appellant thus did not have the benefit of legal assistance in preparing submissions or at the hearing before the Federal Circuit Court. The circumstances surrounding the notice of ceasing to act are set out in the Federal Circuit Court’s reasons at [22]-[26], extracted in part below.

12    On 29 May 2019, the Federal Circuit Court dismissed the judicial review application. On 16 June 2019, the appellant filed a notice of appeal from that decision in this Court. The notice of appeal was filed by the appellant while self-represented.

Delays in finalising the appeal

13    There has been some delay in the finalisation of the appeal partly due to a series of difficulties with the appellant’s legal representation. Some of these difficulties are set out in the appellant’s affidavit affirmed on 12 November 2019, which was read on the appeal without objection by the Minister. The appellant deposes that he had retained a solicitor from Australian Migration & Legal Services from early June 2018 with the intention that that solicitor would represent him in the Federal Circuit Court proceeding, but that for reasons that are unclear (and on the evidence were unclear to the appellant) that solicitor for some time failed to contact the appellant, and subsequently ceased to act for the appellant in April 2019, shortly before the Federal Circuit Court hearing.

14    After the appeal was filed, on 12 November 2019 a notice of acting was filed by FourLion Legal, as the appellant’s legal representatives. On the same date, his legal representatives filed an interlocutory application seeking an adjournment of the hearing scheduled for 15 November 2019. The interlocutory application was supported by the appellant’s 12 November 2019 affidavit. The appellant further deposed that he had first sought assistance from FourLion Legal in late August 2019. That firm filed a Freedom of Information request on the appellant’s behalf, seeking documents from the Department. The appellant deposed that at the time of the 15 November 2019 hearing, the documents requested in the FOI request had not been received. I made orders on that date allowing time for the appellant to file an amended notice of appeal.

15    On 2 December 2019, the appellant’s legal representatives filed a further interlocutory application seeking leave to rely on an amended notice of appeal. The appeal was listed for hearing on 11 February 2020. However, on 6 January 2020, Ms Sam Hemachandra of FourLion Legal filed a notice of ceasing to act. In correspondence sent by email to the Court on 6 January 2019, it was asserted by Ms Hemachandra that she had been unable to contact the appellant to obtain instructions from him.

16    The appellant appeared in person at the 11 February 2020 hearing. In substance, the appellant gave evidence that his previous solicitors had refused to assist him further because he was unable to pay a further sum of money requested for their services, despite his evidence that he had already paid significant amounts of money. He produced a number of receipts and emails, which were tendered. His evidence was he had paid Ms Hemachandra over $13,000. His evidence was:

THE INTERPRETER: So she asked for more money. And I couldn’t make that payment, so I didn’t even answer her phone call.

HER HONOUR: I see. I see.

THE INTERPRETER: So when she speaks to me once, she charges $90.

HER HONOUR: I see. So you didn’t want to call her because she would charge you more money?

THE INTERPRETER: Yes, your Honour.

HER HONOUR: Yes.

THE INTERPRETER: For one email, they charge $40.

17    When I indicated I was inclined to adjourn the matter because of the situation with his legal representation (to which counsel for the Minister properly did not object) the appellant then gave this evidence:

HER HONOUR: All right. Well, we will get that sent as well. And thank you, DCU18. There’s no rush this afternoon, so don’t worry. We will just take this step by step.

THE INTERPRETER: I’m working so hard. I would like to show my hands to you. It’s - - -

HER HONOUR: It’s all right.

THE INTERPRETER: Because - - -

HER HONOUR: I can see you have paid a lot of money for no result yet.

THE INTERPRETER: For courts alone, I have paid $17,000.

18    I accept the appellant’s evidence. He struck me as an honest and somewhat earnest person.

19    The matter was adjourned and on the basis of the appellant’s evidence about how he had been treated by several members of the legal profession, the Court made a referral for pro bono assistance. The referral was accepted by counsel for the appellant also in February 2020. In September 2020, the appellant secured the assistance of solicitors from Allens, acting pro bono. The Court expresses its gratitude to counsel and her instructors for their effective and efficient assistance to the appellant, and to the Court, in contrast to the behaviour of the appellant’s two former sets of legal representatives. The Court also acknowledges the fair and appropriate approach taken by the Minister in this appeal.

Further amended interlocutory application

20    On 12 October 2020, the appellant filed a further amended interlocutory application and further amended notice of appeal, seeking leave to rely on four new grounds of appeal and to rely on evidence not adduced in the Federal Circuit Court. That evidence consisted of a further affidavit by the appellant himself, and the two affidavits of Ebony Back, a solicitor at Allens. Her first affidavit annexed a transcript of the appellant’s SHEV interview and some country information referred to in the delegate’s decision. Her second affidavit annexed transcripts of the appellant’s age determination interview and the arrival interview. The Minister has consented to the granting of the leave sought.

Grounds of appeal

21    The appellant does not press the grounds that were raised before the Federal Circuit Court on appeal. Instead, the four grounds of appeal are in essence grounds of judicial review. In this sense, the error asserted in the reasoning of the Federal Circuit Court is the failure to identify jurisdictional error in the decision of the Authority, by reference to the four matters set out in the further amended notice of appeal.

22    The grounds of appeal are as follows (with the particulars omitted):

1.    The Federal Circuit Court erred by failing to find that the Second Respondent (the Authority) had constructively failed to exercise jurisdiction by failing to consider relevant information contained in the review material before it, which error materially affected:

(a)    the Authority’s consideration of an integer of the Appellant's claim - namely that the Sri Lankan army’s escalating interest in him and threats towards him had caused him to withdraw from school - and led it to reject that claim without rational, logical and probative basis:

(b)    the Authority’s overall conclusion as to the Appellant's credibility and the outcome of its review.

...

2.    The Federal Circuit Court erred by failing to find that the Authority had constructively failed to exercise jurisdiction by misunderstanding the Appellant’s written submissions before the delegate and making findings or inferences of fact (particularly at Decision, [19]) without rational, logical and probative foundation, which errors materially affected the Authority’s overall conclusion as to the Appellant’s credibility and the outcome of its review.

…

3.    The Federal Circuit Court erred by failing to find that the decision of the Authority was affected by jurisdictional error in that the Authority had acted legally unreasonably by concluding that the Appellant was not of interest to the Sri Lankan authorities in 2011 and 2012, which conclusion lacked evident and intelligible justification and was based on findings or inferences concerning the operation of Sri Lanka’s Prevention of Terrorism Act (PTA) not supported by logical grounds: Decision (AB11 ), [14], [21], [28] and [36].

…

4.    The Federal Circuit Court erred by failing to find that the decision of the Authority was affected by jurisdictional error in that the Authority had acted legally unreasonably in making a finding that only former LTTE members who had been released from rehabilitation camps were made subject to monthly reporting requirements (Decision, [27] (AB17)), which finding lacked rational, logical and probative foundation or an evident and intelligible justification.

23    Taking into account the particular and unusual circumstances of the appellant’s attempts to secure legal representation, and the wholesale failure of two sets of solicitors to provide him with the assistance he had sought, and apparently paid for, it is in the interests of the administration of justice that leave be granted to the appellant to rely on the further amended notice of appeal, his own affidavit and the two affidavits of Ms Back.

The Authority’s Decision

24    In understanding the appellant’s claims and how they were dealt with, it is important to recall that the appellant fled Sri Lanka in mid to late 2012, while he was still school-aged. The Authority summarised the appellant’s protection claims as follows (at [4]):

•    The applicant is a Tamil male who was born in Jaffna, Jaffna District in the Northern Province of Sri Lanka.

•    In 2011, when passing through Sri Lanka Army (SLA) checkpoint on his way to school the applicant was stopped and questioned by the SLA officers. The SLA officers would also take his bicycle and he would be forced to walk to school. On two occasions when his bicycle was taken by the SLA officers did not return it.

•    The harassment at the checkpoint increased and the SLA threatened to shoot the applicant if he did not tell them what they wanted to know. The applicant’s parents became worried for the applicant’s safety and it was decided that the applicant should withdraw from his studies.

•    The applicant then commenced working with his father at the family rice mill. While working at the family rice mill the applicant witnessed the SLA come and ask his father questions about the LTTE and saw his father beaten with a wooden stick.

•    One week later, the Criminal Investigation Department (CID) went to the applicant’s family home and stated they were monitoring and investigating people and questioned the applicant’s family about people in the area.

•    Shortly after this event, the applicant’s father told the applicant he could no longer stay in Jaffna because if he did the CID and SLA would come and take him for questioning. To avoid the Sri Lankan authorities the applicant’s father took him to Colombo. In Colombo, the applicant came to know that his father was required to sign in at the CID office in Jaffna each month and on this basis his father had to return to Jaffna. His father told him that on return to Jaffna if he was questioned about his whereabouts by the CID they may discover he was in Colombo so his father made the arrangements for him to depart Sri Lanka.

•    Since the applicant’s arrival in Australia, his mother has contacted him and told him that his younger brother has been questioned about his whereabouts and physically assaulted by the CID. She told him the reason the CID was looking for him was because his father was a member of the LTTE prior to his birth and because he had stopped going to school and because his father was ill and no longer active that they suspected him of having joined the LTTE.

•    On return to Sri Lanka he will be harmed by the Sri Lankan authorities who will perceived him as pro-LTTE and anti-Sri Lankan government because he is a young Tamil male, his former residence in the Northern Province, his familial relationship to his father who was member of the LTTE and subjected to reporting requirements and his return as a failed asylum seeker.

25    The Authority accepted these claims in part, but not entirely. At [8] it accepted the appellant’s claims that he was stopped by SLA officers at a checkpoint and that they took, and on two occasions kept, his bicycle. The Authority at [10] also accepted that the appellant withdrew from his schooling, but did not accept that this was “because of the events involving the SLA”.

26    The Authority explained these findings by drawing attention to discrepancies between information the appellant gave at the age determination interview, the entry interview and the SHEV interview (at [11]-[13]):

On 28 November 2012, approximately 1 month after the applicant’s arrival in Australia, the applicant participated in an age determination interview. There is a recording and two written records of this interview. At this interview, the applicant stated that he had stopped attending school because his “father was wheezing” and was no longer able to work in the family business and as there was not enough money for the family he stopped his studies and started to work in the family rice mill.

On 8 December 2012, approximately one week later, the applicant participated in an entry interview with the Department. The applicant was asked about his education. He stated that he had not been able to complete his studies but did not give a reason why. When the applicant was asked why he had left Sri Lanka, he stated that his father had been suffering from asthma and that he had been working alone in the family business. He stated that the CID would come and ask him for alcohol and cigarettes and demand money from him. He stated when he told the CID that he had no money they would beat him. He made no mention of any events involving the SLA or that these events had led to him withdrawing from his studies.

In the protection visa statement the applicant claimed he was not made aware that the information he had provided to the Department at his entry interview would be used for the purpose of assessing his claims for protection and that it ‘is not correct for the purpose of this protection visa application’. I have considered the applicant’s explanation however I am unpersuaded that it explains the omissions and differences in the information he has provided to the Department.

27    The Authority accepted the appellant was harassed by the SLA on his way to and from school (at [14]):

I am satisfied that the events at the checkpoints were isolated events and a reflection of the routine harassment of the Tamil population at that time and each time the applicant was released, it was because the SLA officers did not genuinely suspect him, or regard him as a threat. I am also satisfied that these events ceased when the applicant withdrew from his studies in 2011 and he no longer needed to pass through the checkpoint to get to school.

28    The Authority partially accepted the appellant’s claims about what had happened while he was working in his family’s rice mill (at [18]-[19]):

I accept when the applicant was working at his family rice mill, on one occasion the SLA came and questioned and physically assaulted his father. I accept his father required medical treatment for the injuries he sustained. I accept after this event, approximately one week later, the CID went to the applicant’s family’s home and told his family that people were being monitored and investigated and questioned his family about people in the area. …

I do not accept however that when the applicant was working at the family rice mill, the SLA regularly interrogated his father and beat him in front of the applicant. This contention was not made until the post interview submission and is contradicted by the evidence provided by the applicant in the protection visa statement and interview. In the protection visa statement, the applicant stated that the event involving the SLA at the family rice mill “was the first time” he had witnessed the SLA come and question and physically assault his father and that his “father had not told [him] whether that had come before” but he did not claim that the questioning nor the physically assault of his father at the family rice mill occurred on more than one occasion at the protection visa interview.

29    The Authority did not accept the appellant’s claims about why he moved to Colombo and found (at [21]):

I do not accept that after the CID attended the applicant’s family home the applicant was of interest to the Sri Lankan authorities and this led to his father taking the applicant to Colombo. DFAT information indicates that at the time of the CID’s attendance at his family home, under the Prevention of Terrorism Act 1979 (PTA) the Sri Lankan authorities had the power to detain a person without charge for three-month periods, not exceeding a total of 18 months. I am satisfied that had the applicant been of interest to the CID as claimed he would not have been merely questioned by the CID at his home. I am satisfied that the applicant was not of interest to the Sri Lankan authorities or perceived by the authorities as a person with links to the LTTE or Tamil separatism when his father took him to Colombo in 2012.

30    At [23]-[24] the Authority dealt with the appellant’s claim that after his arrival in Australia his mother contacted him to tell him that his younger brother had been beaten by the CID, that the police were still looking for the appellant, and that the appellant’s father had formerly been a member of the LTTE. The Authority noted that at the protection visa interview, the appellant had not been able to provide any details of his father’s involvement with the LTTE.

31    The Authority at [25] then set out the information that had been provided in the post-interview submission to the Department:

The post interview submission contended that after the protection visa interview the applicant had obtained from his family members in Sri Lanka further details about his father’s membership of the LTTE and reporting requirements, that being:

•    In 1987, his father joined the LTTE when he lived next to a high-ranking LTTE member in Jaffna and with whom worked closely, and also knew other high ranking LTTE members;

•    His father’s LTTE name was “N” and he was initially an LTTE fighter and later commanded other LTTE fighters;

•    In 1995, in the Battle of Jaffna his father was severely injured and was unable continue fighting for the LTTE and when Jaffna came under the control of the Sri Lankan authorities his father and his family moved to an LTTE controlled area;

•    In 2001, his father and family including the applicant moved back to Jaffna and his father maintained a low profile; and

•    His father no longer operates the family rice mill and continues to have monthly reporting obligations.

32    These submissions were accompanied by an explanation as to why they had not been previously provided by the appellant, which the Authority considered at [26]. The submissions contended the appellant had not been advised and had not understood, that it was necessary to obtain and provide these details. The Authority rejected this submission on the basis that the appellant had been provided with sufficient information, including in Tamil, about the nature of the protection visa interview for the Authority to be satisfied that

prior to attending the applicant was aware of the nature of the protection visa interview and that it presented an opportunity for him to provide full disclosure of his claims for protection and I consider that had these details had any credible basis he would have sought to ascertain and provide this information to the Department prior to the post interview submission. He did not.

33    At [27] the Authority made findings on the contentions set out in the post-interview submission:

I do not accept the applicant’s father was subjected to any reporting requirements by the Sri Lankan authorities including that he was required to sign in at the CID office in Jaffna on a monthly basis. The information before the delegate indicates that after the civil conflict ended it was former LTTE members who were detained and released from rehabilitation centres who were required to register with their local military unit and subjected to ongoing monitoring and reporting requirements; the level which would depend on whether they were low or high profile former members of the LTTE. I have rejected the applicant’s claims that his father was a member of the LTTE and other than the applicant’s evidence that on one occasion his father was questioned and physically assaulted before being released by the SLA at the family rice mill, the applicant has not claimed nor is there any credible evidence before me to indicate that Sri Lankan authorities have detained, arrested or charged the applicant’s father for any reason. Furthermore, at the protection visa interview when the applicant was asked whether his father had been detained and held in a rehabilitation or detention camp for any period of time. He stated that as far as he was aware the Sri Lankan authorities never took his father.

34    The Authority accordingly at [28] did not accept that the appellant “was of interest to the Sri Lankan authorities or perceived by the authorities as a person with links to the LTTE or Tamil separatism”. The Authority also rejected the appellant’s claim that his father was an LTTE member and subject to reporting requirements.

35    From [29]-[47] the Authority considered at some length the appellant’s claim that he will be harmed by the Sri Lankan authorities if returned to Sri Lanka in light of its findings as to the appellant’s history and the country information before it.

36    On the basis of the country information provided by DFAT that “under the Sirisena government, the monitoring and harassment of Tamils in day-to-day life has significantly decreased”, and that conditions for Tamil people in Sri Lanka had significantly improved since the appellant left, the Authority found that there was no real chance of harm to the appellant on the basis of his Tamil ethnicity: [35].

37    In the context of its previous findings, the Authority not satisfied that (at [37]):

the applicant will be imputed with any type of profile arising from his past or family’s circumstances on return to Sri Lanka. I am not satisfied that as returning 23 year old Tamil male he will be perceived to have a pro-LTTE or anti-Sri Lankan government political opinion, on return to Sri Lanka now or in the reasonably foreseeable future.

38    At [40] the Authority considered the appellant’s claim that he feared harm as a returned asylum seeker, and was not satisfied on the basis of the country information before it that the appellant faces a real chance of harm as an asylum seeker. From [41]-[46] the Authority considered the possibility that, as he left Sri Lanka illegally by boat, the appellant would face a period of detention on return. These findings are not the subject of any of the grounds of appeal.

39    Finally at [49]-[52] the Authority considered whether Australia’s complementary protection obligations apply to the appellant and found, for the reasons it had already expressed, that they do not.

The Federal Circuit Court’s Decision

40    The Federal Circuit Court summarised the decision of the Authority from [10]-[19]. Three grounds of review were raised, which appeared to have been drawn by the appellant’s former lawyer.

41    At [22] the Federal Circuit Court noted that only the Minister had filed written submissions in advance of the hearing and that the then applicant had not received a copy of those submissions. The Federal Circuit Court stated at [23]:

I gave the applicant the option of having the Minister’s submissions read to him by the interpreter or to respond to the submissions to be made orally by the Minister’s solicitor advocate. The applicant took the second option. I am satisfied that the applicant was not disadvantaged by that course.

42    At [24]-[25], the Federal Circuit Court considered the appellant’s request, made at the hearing, for an adjournment, but did not find that in the circumstances an adjournment was required:

The applicant, at the outset, and later during his oral submissions, sought an adjournment. This was based on the fact that his former solicitor has apparently withdrawn his services. At the time his application was filed, the applicant was represented by Ganasan Arujunan of AUM Legal. Mr Arujunan filed a fresh Notice of Address for Service on 17 April 2019 that simply updated his address for service. It follows that the applicant was legally represented by Mr Arujunan at least between 14 June 2018 and 17 April 2019. However, the applicant appeared today self-represented. The only foreknowledge the Court or the Minister had of that was a fresh Notice of Address for Service filed personally by the applicant on 14 May 2019.

The solicitor did not file a notice of withdrawal in accordance with Rule 9.03 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules). This had several consequences. The first was that the applicant was left to deal with his case on his own. The second is that the Court was required to arrange for a Tamil interpreter at very short notice. This is an unfortunate situation. It was, however, not, in my view, a situation requiring an adjournment of the hearing. As I explained to the applicant, the grounds in his application had been professionally prepared and he has the advantage of those. The applicant was not able to tell me why his former solicitor had withdrawn his services. He confirmed that he had not withdrawn his instructions. The reason for the withdrawal of services by the solicitor is therefore a mystery.

43    The Federal Circuit Court proceeded to consider the grounds of review brought by the appellant and found that none disclosed any jurisdictional error. Its reasoning on the grounds as set out in the judicial review application before it cannot be criticised.

The Parties’ appeal Submissions in Summary

Ground 1

The appellant’s submissions

44    The appellant submits that the Authority failed to consider relevant information before it on its review, namely portions of the age determination interview and entry interview recordings. There is no debate the Authority had the recordings of these two interviews, and a summary written record of each, but did not have full transcripts of the kind now before the Court. The appellant submitted:

More particularly, during the Age Interview, while the Appellant was recalling incidents of harassment and having been beaten by Sri Lankan authorities, he became distressed. This caused the interviewer to interrupt as follows (at [209]-[215]):

Interviewer: We don’t need to talk about your claims at the moment, that's for a later interview so…

[A departmental officer then suggested a break, which offer was declined.]

Interviewer: …they'll discuss your claims for asylum at another interview so we just need to talk about your age at this stage, so, yeah, it’s okay, you don’t have to go on any further about it, okay?

Similarly, during the Arrival Interview, the following exchange took place (at [316]-[335]) (emphasis added):

Interviewer: Why did you leave Sri Lanka?

Appellant (translated): Because of CID.

Interviewer: Can you give me a little… [inaudible]?

Appellant (translated): Okay, my dad is suffering from reason of asthma so I, so I have to go and look after the business at the rice mill. CID comes and they ask for alcohol…They ask for cigarettes. … They ask me to go and buy them for them … and then they ask for money.

…

Appellant (translated): So, I’ll be alone working in my business, looking after my dad’s business. ... when I said ‘I don’t have any money to give you’, they beat me with [inaudible] the wood.

Interviewer: That’ll do.

Translator: That’ll do ok.

(Footnotes omitted; original emphasis.)

45    The appellant submits that it may be inferred from the fact that the Authority did not refer to this material that the Authority did not consider it. He contends the Authority’s reasoning at [13] (extracted above at [26]) precludes an inference that the Authority turned its mind to this material and decided it was irrelevant.

46    The appellant submits that the failure to consider this information was material in two respects:

(a)    First, it caused the IAA to fail to engage intellectually with an integer of the Appellant’s claim — namely, that the SLA was showing escalating interest in him and had threatened to shoot him, which led him to abandon his studies. Such failure is demonstrated by the IAA having not made any specific finding on the Appellant’s various claims set out at [9]. Seemingly, the IAA considered it unnecessary to make any findings about whether there had been an escalation in interest or any threat to shoot the Appellant because it had already rejected this integer of the Appellant’s claim for lacking credibility. The Decision provides no reason why it was not plausible that Appellant had been subjected to escalating threats and harassment by Sri Lankan authorities in 2011 or why this would not have caused him to withdraw from school. The IAA's conclusion rested solely upon the supposedly inexplicable “evolution” of the claim.

(b)    Secondly, this error cannot be excluded as having led or contributed to the IAA’s negative assessment of the Appellant’s credibility overall. That overall assessment was based on an accumulation of factors, including its finding at [10] that this aspect of the Appellant’s claim had “evolved over time”. Had the IAA not overlooked the relevant exchanges in the Age and Arrival Interviews, it might have formed a different view as to the Appellant’s credibility overall, and hence, assessed his evidence and the substance of his claims differently.

(Footnotes omitted.)

47    The appellant submits that therefore the Authority’s failure to consider the portions of the interviews extracted above was material to the outcome of the Authority’s review and therefore the Authority’s failure to consider these aspects of the appellant’s interviews in assessing both the credibility of his claim and the credibility of the appellant was an error affecting the Authority’s exercise of its jurisdiction.

The Minister

48    The Minister submits that ground 1 fails because:

(a)    It should not be inferred that the Authority failed to consider any portion of the interview evidence merely because the Authority did not refer to it in its reasons: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]. The Authority accurately summarised the relevant evidence from the age determination interview and entry interview at [11]-[12]. The Authority’s findings as to credibility rested on the fact that the appellant had volunteered a different explanation as to why he left school at the age determination interview to the explanation later given at the SHEV interview.

(b)    Even if the Authority did not consider these matters, there is no jurisdictional error because these matters were not mandatory relevant considerations to the Authority’s decision-making task. The Authority’s reasons demonstrate that it

assessed the appellant’s claims and all relevant integers thereof, as it was required to do: see AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18]; NABE v Minister for Immigration and Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55], [60], [68]. The matters that are referred to at particular (g) do not amount to a claim or an integer of a claim. The IAA also considered at [13] the appellant’s explanation for any inconsistency.

(c)    In any event if error were established it was not material in the sense required by Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45] per Bell, Gageler and Keane JJ. Had the Authority found that the appellant had left school because of the SLA harassment he had experienced, this would not necessitate a finding that the appellant was likely to face harm on returning to Sri Lanka in the future. Additionally, and contrary to the appellant’s submissions, the Authority made no general adverse credibility findings, but rather assessed each claim individually. The Authority’s consideration or lack thereof of the relevant interview portions could not therefore be understood as material to the Authority’s approach to the appellant’s credibility.

Ground 2

The appellant

49    The appellant submits that the Authority erred in its understanding of the appellant’s post-interview submissions and therefore its findings about whether the appellant’s father was interrogated and beaten (at [19] of its reasons) were legally unreasonable. In particular, the appellant draws attention to the Authority’s understanding of his claims in the post-interview submission. He contends the Authority understood one of these claims to be that the SLA regularly beat the appellant’s father in front of the appellant and that this contention was “contradicted” by the appellant’s earlier evidence. The pivotal issue, the appellant submits, is that the following claim from the post-interview submission was taken out of context:

•    When [the Appellant] worked at his father’s mill, the Sri Lankan army regularly interrogated his father and beat him in front of [the Appellant].

This sentence was quoted by the Authority at [17]. The appellant submits it must be read together with the next paragraph in the submission:

•    One week later, the CID visited [the Appellant’s] house and informed them that movements of people in the neighbourhood were being monitored and investigated.

(Original emphasis)

50    In this context, the appellant submits, it is clear that the first, quoted paragraph should be read as a claim that the appellant’s father was interrogated regularly, and (separately) was beaten in front of the appellant once, as was accepted by the Authority and consistently with the remainder of the evidence. That is, the appellant submits that “in the context of this evidence, it is apparent that the word ‘regularly’ in the sentence qualified only the word ‘interrogated’”. It was not open to understand the claim as being that the appellant’s father was regularly beaten in the context of the opening words of the next sentence because “it is not possible for an event to occur one week after incidents recurring repeatedly over time”.

51    The appellant relies on observations of the Full Court in W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 concerning inconsistencies in the accounts of protection visa applicants, and submits:

…when considering an application for a protection visa, administrative decision-makers often approach their task ‘with an eye keenly attuned to finding inconsistency, for [they] see inconsistency as a stamp of falsehood.’ However, as the Full Court explained, supposed ‘inconsistencies’ in an applicant’s claims or evidence may be readily explained by a number of circumstances, including ‘by looseness in language.’ Here, the supposed ‘contradiction’ identified by the IAA at [19] is wholly explained by the migration agent’s loose language when attempting to summarise, somewhat clumsily, the Appellant’s claims. The IAA’s over-stringent and unreasonable approach to construing the sentence at issue led it to a conclusion that was illogical, irrational, and lacking probative foundation — namely, that the SHEV Submissions belatedly raised a new and inconsistent claim.

52    The appellant submits that this error had a material effect on the Authority’s assessment of the appellant’s credibility and that without this error the Authority may have approached other claims “in a different light” and accepted more of the appellant’s claims.

53    The appellant relies on DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30] in support of his submission that findings as to credibility “are not beyond scrutiny on judicial review” where, as in this case, the “credibility finding is tainted by jurisdictional error”. The error in this case was reliance on a “false premise”, being the “mistaken and unreasonable conclusion that the SHEV Submissions contained a new and inconsistent claim”.

The Minister

54    The Minister submits that the appellant’s contention is itself based on a misreading of the Authority’s decision and the material before it. The Authority at [18] accepted the appellant’s evidence as advanced in his written statement and protection visa interview; at [19] it did not accept the claim from the post-interview submission that when the appellant was working at his family’s rice mill, the SLA regularly interrogated his father and beat him in front of the appellant.

55    The Minister highlights the chronology of events as presented by the appellant in his evidence other than the post-interview submission and argues that in this context it was not legally unreasonable for the Authority to treat the post-interview submission as raising a new claim:

The IAA correctly identified at [19] that the appellant had claimed in his written statement that the event involving the SLA at the rice mill was the first time he witnessed the SLA come and question and physically assault his father, and that his father had not told him whether they had come before, and that he did not claim at the protection visa interview that the questioning or physical assault of his father occurred on more than one occasion. This is to be seen in the context that the appellant commenced working in the family mill in June 2011 and continued working there until his father took him to Colombo in approximately October 2012. In trying to advance a construction of this particular claim in the post interview submission that is not inconsistent with his other claims, the appellant has overlooked the opening words of the claim, namely, ‘when [the appellant] worked at his father’s mill…’

As the IAA noted at [20], the appellant claimed that he relocated to Colombo ‘shortly after’ the CID attended his house a week after the incident at the rice mill. The appellant’s evidence at [20]-[25] of his written statement is clearly referring to the one incident only at the mill, addressed by the IAA at [15], [16] and [18]. The evidence at [32] of the appellant’s written statement, relied on at particular (b)(ii), is clearly referring to a period after the appellant had left home and was about to depart for Australia, and not while he worked at his father’s mill.

56    The Minister contends that, further, there was no material disadvantage to the appellant caused by the Authority treating this as a new or varied claim, because the Authority accepted the appellant’s relevant evidence as it appeared in his written statement and SHEV interview, and because this finding did not impact any other finding.

Ground 3

The appellant

57    The appellant submits that the Authority’s conclusion that the appellant was “not of interest” to the Sri Lankan authorities was legally unreasonable in that it “lacked evident and intelligible justification and was based on inferences not supported by logical grounds”. The appellant impugns the chain of reasoning from the finding that the appellant was not detained under the PTA, to the finding that the appellant was, therefore, “not of interest to the Sri Lankan authorities or perceived to have links with the LTTE or Tamil separatism” and then to the conclusion that he therefore is not at risk of harm on return. The appellant contends that the relevant country information before the Authority did not support these inferences and there was no probative basis for them.

58    In particular, the appellant contends the country information suggested the opposite, and the Authority overlooked that information:

(a)    due to the Sri Lankan authorities remaining sensitive to the possible re-emergence of the LTTE, they continue to monitor and surveil individuals without necessarily detaining such persons (whether under the PTA or otherwise): January DFAT Report, [3.29];

(b)    throughout the civil conflict and afterwards, individuals have faced monitoring and harassment based on imputed or actual LTTE links, without necessarily being detained under the PTA or other security regulations: January DFAT Report, [3.8], [3.31], [3.38], [3.47]; and

(c)    extensive surveillance and intimidation continues to be used as a tool of control by the Sri Lankan authorities, both in respect of former detainees under the PTA and in respect of “anyone deemed to have had any link to the LTTE during the conflict”: UNHCR Report, [42].

59    Given the Authority expressly relied on these sources, the appellant submits the Authority’s finding the appellant was “of no interest” to the Sri Lankan authorities was legally unreasonable and “deprived the Appellant of the possibility of a different outcome on review”.

The Minister

60    The Minister submits that ground 3 “overstates the IAA’s finding at [14] … [because] [t]his paragraph does not amount to a finding that the appellant was not of interest to the authorities simply on the basis that he was not detained under the Prevention of Terrorism Act”. Rather, the existence of the Act and the fact that none of the powers under the Act had been exercised against the appellant were merely “part of the reason” for the Authority’s finding that the appellant was not of interest to the Sri Lankan authorities. The Minister submits that:

The IAA’s findings in this regard were open on the evidence before it and were not illogical, irrational or unreasonable: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010); (2010) 240 CLR 611 at [131] and [135] per Crennan and Bell JJ.

61    The Minister contends the Authority’s finding and reliance on the non-exercise of powers under the PTA should also be understood in the context of its earlier findings

that the appellant had been stopped a number of times at a checkpoint on his way to school, but after he stopped his studies and went to work at the family mill there was only one incident at the mill in the time that the appellant worked there which involved the questioning and assault of the father, and not the appellant.

Ground 4

The appellant

62    The appellant submits that the Authority’s finding at [27] that only former LTTE members who had been released from rehabilitation camps were made subject to monthly reporting requirements was legally unreasonable. The appellant contends that this finding went beyond the scope of the DFAT country information on which the Authority relied and therefore had no probative basis.

63    The appellant contends that this finding had a material effect on the outcome of the review, because the Authority failed to consider the appellant’s claim that his father was subject to reporting requirements, which was “a core aspect of the Appellant’s claim for protection”.

The Minister

64    In answer to Ground 4 the Minister submits that, contrary to the appellant’s submissions, the Authority did not make a finding that “only” former LTTE members who had been released from rehabilitation camps were subject to reporting requirements. Rather, the Authority at [27] summarised the country information indicating that this had been one situation, which accurately reflected the country information reports before the Authority.

65    The Minister submits the appellant had given only one reason that his father was subject to reporting requirements, being that he was a former LTTE member. It was therefore open to the Authority to find that the appellant’s father was not subject to reporting requirements and therefore was not a former LTTE member because

the 2017 DFAT Report stated that any remaining high-profile former LTTE members who came to the attention of the Sri Lankan authorities would likely be arrested, detained and prosecuted, and that any other low profile LTTE members who came to the attention of the Sri Lankan authorities would be detained and may be sent to the remaining detention centre (AB 204-205).

66    Further, the Minister contends that the Authority, by noting the appellant’s evidence that his father had been interrogated by the SLA did not include a claim that his father had been detained, arrested or charged by the Sri Lankan authorities, demonstrated that it “was considering here whether there might be some reason aside from the claimed former LTTE membership why the appellant’s father might be subject to ongoing monitoring and reporting”.

67    The Authority’s findings were therefore not legally unreasonable. The Minister also contends that “[t]his ground of appeal also seeks to impermissibly attack the merits of the IAA’s decision”.

Resolution

68    Each of the appellant’s grounds of appeal challenges aspects of the Authority’s fact finding. As the Full Court said in DAO16, jurisdictional error is capable of being identified in the fact finding of an administrative decision maker. However, the Court’s scrutiny of fact finding is undertaken for the purpose of identifying legal error, and not for the purpose of quarrelling with the outcome of the decision maker’s reasoning. Findings of fact, or reasoning processes, which are legally unreasonable may be capable of resulting in a decision maker such as the Authority exceeding its jurisdiction, in substance because it has not performed the task given to it under the statutory scheme; here, in Part 7AA of the Migration Act. The powers and functions conferred by that scheme are conditioned by an implication that those charged with reviewing decisions will exercise those powers and perform those functions rationally and reasonably, acting on the basis of probative material.

69    In BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24; 273 FCR 170 at [30], the Full Court (McKerracher, Colvin and Jackson JJ) outlined the principles applicable to the assessment of compliance with what the Full Court described as this “implied standard”:

The following principles, as stated in Vo v Minister for Home Affairs [2019] FCAFC 108 at [43] (Derrington, Banks-Smith and Colvin JJ) when considering whether there had been jurisdictional error by the Administrative Appeals Tribunal by reason of a breach of the implied standard of reasonableness in making factual findings, apply equally to the review of a decision by the Authority:

(1)    the test for unreasonableness is stringent and extremely confined: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [11], [52], [135];

(2)    where reasons have been provided then the reasons are the focal point for assessing whether the decision was unreasonable: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [46]‑[47];

(3)    unreasonableness will not be demonstrated on the basis of a complaint about the weight given to particular evidence or material because determination of the weight to be given to evidence or material is a matter entrusted to the Tribunal: Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [4]‑[5];

(4)    it is for the Tribunal to reach conclusions about credibility and unreasonableness is not shown by complaints about credibility findings alone, but may be demonstrated where a finding on credit on an objectively minor matter of fact is used as a basis for rejecting the entirety of the claimant’s evidence (a conclusion to be reached with a high degree of caution): CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [40]‑[45] and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 ; (2018) 258 FCR 175 at [30];

(5)    generally speaking, the Tribunal has the authority to reach conclusions about the inferences that might be drawn from particular evidence or material;

(6)    the Tribunal is not required to refer to every piece of evidence placed before it: ETA067 v The Republic of Nauru [2018] HCA 46 at [13];

(7)    ...

(8)    mere strong disagreement with factual reasoning does not establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40];

(9)    a decision (not just a part of a decision) which lacks an evident and intelligible justification is unreasonable: SZVFW at [10], [82];

(10)    a decision that no reasonable person could have arrived at is one circumstance in which the decision may be unreasonable, but there may be others - the category is not limited to such instances: SZVFW at [10], [59], [82], [89], [133]; and

(11)    there must be an error that is so grave both as to its nature and the significance of its subject matter that it results in a decision that has been reasoned in a manner that it is not authorised: Hossain at [25], [30]‑[31].

70    In ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 383 ALR 407, the plurality explained how a Court on judicial review can approach its assessment of the Authority’s task where contentions about legal unreasonableness are in issue (at [20]-[21]):

Compliance with the implied condition of reasonableness in the performance by the Authority of its duty to review the decision of the delegate necessitates not only that the decision to which the Authority comes on the review has an “intelligible justification” but also that the Authority comes to that decision through an intelligible decision-making process. Thus, as has been recognised, there can be circumstances in which the Authority can transgress the bounds of reasonableness by treating particular information as the reason or part of the reason for the decision to which it comes without first exercising its powers to get and if appropriate to consider, as new information, further information capable of being provided by the referred applicant.

Answering the question therefore requires an examination of the decision-making pathways reasonably open to the Authority in reviewing the decision of a delegate to determine for itself whether the criteria for the grant of a protection visa have been met where the review material that it is obliged to consider in making that determination leaves out information that was available to and required to be considered by the delegate.

(Footnotes omitted.)

71    See also Raibevu v Minister for Home Affairs [2020] FCAFC 35 at [67]-[69] and the decisions collected therein.

Ground 1

72    I accept the premise of the appellant’s arguments on this ground, which is that the appellant’s narrative in his protection visa application (and especially in his statement in support of it) was that he experienced an escalation in harassment, and an apprehension of further harassment, from the Sri Lankan authorities in 2011, either directly himself or indirectly through how his father was treated, and this is what caused him to flee, first to Colombo and then out of Sri Lanka.

73    Several matters should be noted about the Authority’s finding at [10] of its reasons. First the description that the appellant’s evidence has “evolved” is also a finding made by the delegate:

Given the applicant’s claims regarding his father’s involvement with the LTTE have evolved throughout the Arrival interview, SHEV application/interview and then the post-interview written submission, it is difficult to ascertain the credibility of the applicant’s claims in this regard.

74    Yet, the delegate does not see this ‘evolution’ as necessarily indicating falsity. That is a rational approach, in contrast to the Authority’s. Where a person is asked, and indeed required, to tell her or his story on a number of occasions, in a number of different settings, to a number of different people, sometimes over a period of years (as in the appellant’s case) human experience is that there will be variations. Indeed, absolute consistency may indicate falsity rather than the opposite: see my observations in AIC16 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2019] FCA 531 at [14]-[15], and the authorities referred to therein.

75    Indeed, rather than any “evolution”, what the Authority describes in [11] and [12] are two accounts with different content. It is not the case that one account can be said to have “evolved” from the other. Nor is it the case that, objectively, they are incompatible with each other.

76    I find that from the content of the Authority’s reasons in these passages it is more likely than not that the Authority listened to at least some part of the recordings, as well as reading the interview notes. For example, the description “father was wheezing”, in the Authority’s quotation marks, is not in the written record but appears to be quotation from the recording. The transcript annexed to Ms Back’s affidavit records the following:

[DCU18]    My father has wheezing.

Interpreter    Translation

[DCU18]    My father is unable to work. He didn’t have enough money for the family. My father is a sick person.

Interpreter     Translation

[DCU18]    So I stopped my studies and came to the mill to work there.

77    It is only a few answers after this one that the appellant is told by the interviewer that he “doesn’t need to go further” about his asylum claims. The topic changes to details about the appellant’s schooling, presumably to assist in establishing his correct age. However, the evidence is that the topic was changed because the appellant became upset. The record of this age determination interview states:

When asked why [the appellant] came to Australia, he became emotional, detailing the harassment he was receiving from the CID (?) who had beaten him on several occasions. He was visibly upset and crying when he explained that these people were now starting to involve his older sister. He was obviously concerned for her wellbeing. The interviewers ceased this line of questioning as this information would form part of his claims for protection later and we did not want to upset the client any further.

78    The second interview was a week later (the entry interview). I note (and accept) the appellant’s counsel’s submissions that parts of the written record in evidence do not reflect what the appellant actually says, but are cut and pasted from other answers given during the interview. An example (which I accept) is the written answer to question 6, which is a cut and paste from an earlier answer to an earlier question. In the transcript which is in evidence, the appellant is not asked why he left school. He is asked what was the highest level of education he attained, to which he answers (through an interpreter) Year 11. He is then asked if he finished grade 11, and the answer given is

He didn't complete the O level. June [inaudible] up to 2011 he left school.

79    A few questions later he is asked if had ever been employed. It is at this point he describes helping his father at the rice mill. The questioning then moves over a wide range of other topics, and after some time the questioner asks:

Why did you leave Sri Lanka?

80    To which the appellant responds:

Because of CID.

81    On being prompted for more information he says:

Okay, my dad is suffering from reason of asthma so I, so I have to go and look after he business at the rice mill. CID comes and they ask for alcohol.

82    There is then the following exchange:

[DCU18]    They ask for cigarettes. They make me…

Interpreter    Translation

[DCU18]    They ask me to go and buy them for them.

Interpreter    Translation

[DCU18]    and then they ask for money.

Anna    They asked him to what?

[DCU18]    Buy alcohol and cigarette for them. And they demand money from him.

Interpreter    Translation

[DCU18]    So, I’ll be alone working in my business, looking after my dad's business.

Interpreter    Translation

[DCU18]    Ok, when I said ‘I don't have any money to give you’, they beat me with [inaudible] the wood.

Anna    That’ll do.

Interpreter    That’ll do ok.

[pause in questioning, typing sounds]

83    The questioner then changes topic again.

84    Thus, it is factually correct, as the Authority finds at [12] that

He made no mention of any events involving the SLA or that these events had led to him withdrawing from his studies.

85    At [13], the Authority considers and rejects the appellant’s explanation which I have extracted at [7] above that he was not aware what he said at the entry interview would be used in assessing his protection visa application.

86    The appellant contends the Authority was being “too selective” in its approach, and discounted without consideration the facts that in the first interview, the appellant was told to stop and had become upset, and in the second interview was also told he had said enough.

87    I accept that the Authority appears to have been selective, and appears not to have considered the passages to which the appellant has referred, where he was expressly told by the person in authority during those interviews that he need not say more. It appears not to have considered his age, and the fact he became upset. It appears not to have considered that the purposes of these interviews were unrelated to any protection visa application, the appellant being under Australian law unable to make any such application. The cessation of questioning on matters which would go to whether the appellant could fulfil certain visa criteria indicates that on each occasion the questioner well understood such topics were not germane to the purpose of the interviews. The Authority does not appear to have taken that fact into account. It has apparently not taken into account that the appellant was not directly asked by either questioner why he left school. It does not appear to have taken into account that during the protection visa process itself, the appellant’s account had remained consistent; in the sense that when asked to explain why he left school, the appellant gave the same account in his statement, and in his SHEV interview. The Authority does not appear to have considered the fact that the delegate accepted the appellant’s account of harassment at checkpoints by the SLA, and that this was why he left school, in part because

DFAT confirms the existence of military checkpoints in the north until 2015.

88    The appellant’s narrative of his harassment by the SLA was an important component of his account of why he feared persecution in the future, based on what had happened to him in the past. For the Authority to discount this, and reject any causal relationship with him leaving school, isolated these events from the appellant’s account of had happened to his father, which he had witnessed, and been told about. Thus the treatment of his narrative about his harassment by the SLA was on any view material to the outcome of the review, in the sense that term is used in SZMTA. It was one of the two core components of his narrative about past persecution based on his ethnicity.

89    The question is whether the Authority’s approach (in what it did, and what it did not do) reaches (and overcomes) the threshold for legal unreasonableness. Can it be said that no member of the Authority, acting reasonably, would have approached the assessment of the appellant’s narrative in the way this Authority member approached it? As I have explained, I consider the approach was incomplete and lacked a reasonable appreciation of the circumstances and content of the age determination interview and the entry interview. However, as the appellant accepts, it can be inferred the Authority listened to the recordings of those interviews. It is clear it had regard to the written records of them. However it did not have the advantage of seeing or hearing the appellant itself, which is another reason why thoroughness with the material containing records of what he actually said, and the context in which he said it, should be seen as highly significant.

90    As I explained in DPI17 v Minister for Home Affairs [2019] FCAFC 43; 269 FCR 134 at [78]-[95] and [108]-[112], I consider the circumstances where this threshold is met are rare. Even more so on only one aspect of reasoning in a decision, unless it is obviously determinative – cf Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437.

91    In this case, the failures to which I have referred mean that the Authority’s reliance on the absence of a narrative from the appellant during the age determination interview and the entry interview about his harassment by the SLA causing him to leave school could not, in the circumstances, reasonably and rationally be seen as affecting his credibility. In considering what could be drawn from the absence of this narrative in the two early interviews, it was irrational for the Authority not to have considered the circumstances I have set out at [87] above. The appellant put forward this narrative, at the appropriate time, when he made his protection visa application. In the circumstances outlined above, no decision maker acting reasonably would have seen it as some kind of recent invention or untrue embellishment, and taken it as adversely affecting the appellant’s credibility. The causal link between the appellant leaving school and escalating harassment by the SLA at checkpoints was capable of being objectively significant to the level of threat he faced in the past, and went to supporting the remainder of his narrative.

92    While I may have been reluctant to reach a conclusion that this aspect of the Authority’s reasoning was so irrational as to be legally unreasonable in a way which, alone, materially affected the performance of its task, as I explain below, there are other aspects of the Authority’s reasoning which in my respectful opinion combine to render a significant portion of its overall reasoning about the appellant’s narrative of what happened to him in Sri Lanka irrational, and legally unreasonable.

Ground 2

93    The nub of this ground, the appellant submits, is that at [19], the Authority makes an adverse credit finding against the appellant, based on a misunderstanding not of anything said by the appellant, but something said on his behalf by his representative in a written submission.

94    I accept this submission. The Authority has misunderstood and misread what the agent was contending. It demonstrates the danger, where there is no oral hearing to enable such matters to be clarified and explored, in a decision maker in this form of review parsing accounts given by applicants, and in particular the danger of going one step further and parsing what an applicant’s representative might say in a submission. A non-English speaking visa applicant is not, and cannot be, responsible for the language used by a representative in a submission, especially when there is no hearing at which the representative’s account can be put to the visa applicant and explored. Even more so when the visa applicant does not speak English, and what has been said to his representative has, on the evidence, been said through an interpreter. No reasonable decision maker could descend to such a level of particularity about the contents of an agent’s submission and then use what was said by the representative, not by the visa applicant, as a matter which rationally affects whether or not the visa applicant is giving a credible account of what happened to him in the past.

95    The delegate also picked up on the language used by the representative, and indeed that may well be why the Authority also focussed on it. My impression is that the structure and content of the Authority’s reasons follows the delegate’s reasoning (for example, the coincidental use of the term “evolved”). Of itself there is nothing erroneous in doing so. However, and perhaps because the delegate had better context because of a more in-depth assessment after an interview with the appellant, the delegate’s reasons disclose a different appreciation of the way this aspect of the narrative was described in the representative’s submission:

In addition, I also note that in the Arrival interview the applicant made no reference to his father being questioned or beaten by the SLA at the mill. I have taken into consideration the time constraints and other shortcomings inherent within Arrival interviews and this factor, in conjunction with the fact that the applicant was a minor on arrival in Australia, means that as per my earlier finding, I am prepared to accept that in 2011, following the end of the civil conflict in 2009, the SLA visited the applicant’s father on occasion at the mill and questioned him. Based on the aforementioned inconsistencies however, in conjunction with the fact that the applicant only referred to his father being beaten on one occasion in his initial written claims and during the SHEV interview, I do not accept that the applicant’s father was beaten regularly and find that he was only beaten on one occasion.

96    This was a level of appreciation and understanding that was missing from the Authority’s reasoning. The Authority simply took the words of a submission not made by the appellant, misconstrued them and applied them against the credibility of the appellant.

97    The Minister submitted this aspect of the Authority’s reasoning was not material because it was simply the rejection of a submission and not part of the Authority’s credibility findings. I do not accept that submission. A substantial part of the Authority’s reasoning in the review concerned, correctly, the appellant’s narrative about what had happened to his father, including his father’s membership of the LTTE. It is apparent from the narrative given by the appellant that there was a factual connection, as the appellant related his experiences, between what had occurred at his family’s rice mill during the visits from the SLA and their treatment of his father, and his father’s membership of the LTTE. So much was obvious.

98    The Authority found the appellant’s father was not a member of the LTTE. At [24], it described the appellant’s evidence on this as “vague and unconvincing”. It is clear that the Authority’s finding at [19] informed its views. As a number of judges in this Court have emphasized, the assessment of credibility is not linear, despite the linear way an assessment may appear in a set of reasons.

99    I respectfully agree with the following passage from the reasons of Beach J in DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525 at [51]-[52], and also with the passages from the reasons of Lee J, which his Honour extracts:

But more generally there is force in the observations of Lee J in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44] and [45] that:

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.

Moreover, and on a related aspect, one must be cautious in taking the carefully expressed linear reasoning of the Tribunal and arguing that a later credibility finding in the sequence of the written reasons cannot have affected a credit finding earlier in the sequence. The logic, structure and flow of reasons does not necessarily dictate how in reality credibility findings on one aspect may or may not have consciously or subconsciously informed another aspect.

100    The appellant’s contentions on ground 2 should be accepted. Like ground 1, this aspect of the Authority’s reasoning standing alone might not be characterised as sufficiently material to the outcome of the review as to indicate that the Authority’s performance of its task had miscarried. However, when combined with the impugned reasoning underpinning ground 1, and the impugned reasoning underpinning ground 3, a significant portion of the Authority’s process of reasoning about the appellant’s credibility and his narrative was both irrational and legally unreasonable.

Ground 3

101    This ground concerns in particular the Authority’s findings at [14] and [21] of its reasons, read with [28] and [36]. The Authority accepts but discounts the appellant’s narrative about being stopped by the SLA at checkpoints (having already disbelieved there was any causal connection between what happened to him at the checkpoints and him leaving school). The absence of a claim of having been detained under the Sri Lankan Prevention of Terrorism Act is what caused the Authority to discount the importance of this aspect of the appellant’s narrative. The unstated premise in the Authority’s reasoning is that the only people at risk of real harm from the SLA were those who were detained under the PTA; thus leading the Authority to conclude that the appellant was released by the SLA after they questioned him and took his bicycles “because the SLA officers did not genuinely suspect him, or regard him as a threat”.

102    The appellant points to other aspects of the country information relied on by the Authority which were probative of the proposition that that Tamils could be “of interest” to the SLA and the Sri Lankan CID, and at risk of serious harm, even if not detained under the PTA. I accept such material was present in the country information relied on by the Authority, and appears to have been overlooked in favour of a narrower focus on the question whether powers under the PTA were exercised against a person.

103    There is further irrationality, and an internal inconsistency, in the Authority’s finding that is the subject of ground 3. While the Authority somewhat flippantly describes what it found happened to the appellant as “routine harassment of the Tamil population”, there was no probative material relied on by the Authority which could have led it to reason that, in 2012, it was only Tamils who were “genuinely suspected” or seen as a “threat” who were at risk of serious harm from the SLA. Further, the account accepted by the Authority (at [18]) that the appellant’s father was physically assaulted by the SLA severely enough to require medical treatment when, on the Authority’s view, he was not an LTTE member, is inconsistent with its own reasoning at [14].

104    If the contentions made under ground 3 stood alone, it is doubtful the appellant could demonstrate such a material flaw in the Authority’s reasoning about the risk of serious harm extending only to those detained by the SLA as to have materially affected the performance of the Authority’s task. As the Minister submitted, this was but one strand of a series of findings by the Authority as to why it considered the appellant was not, in the Authority’s language at [21], “of interest to the Sri Lankan authorities or perceived by the authorities as a person with links to the LTTE”. However, this aspect of the Authority’s reasoning must be read with the reasoning challenged in grounds 1 and 2.

Ground 4

105    This ground concerns the findings in [27] of the Authority’s reasons, and the appellant’s claim that his father had to report monthly to the SLA, which the Authority rejected, in substance because it had rejected the proposition that his father was a former member of the LTTE (although the delegate had accepted this). It was in that context that the Authority relied on the country information as supporting the view it reached that those subject to monitoring and reporting requirements were former LTTE members. I accept the Minister’s submissions that there is a probative basis in the DFAT report for this proposition, and indeed I note it was one accepted by the delegate, although the delegate addressed the country information in much more detail, and did so in the context of having found the appellant’s father was a member of the LTTE.

106    Ground 4 fails.

Conclusion

107    By the three of his four grounds of appeal, the appellant has persuaded the Court that there are substantive irrationalities in the decision making of the Authority, all of which affected or influenced its rejection of important aspects of the appellant’s narrative about what had happened to him in Sri Lanka. There were two major themes in the appellant’s narrative – what happened to him at the hands of the SLA (and its effects), and what happened to his father. The irrationalities raised by the first three grounds of appeal affected the Authority’s reasoning on both these themes. As the decisions at [99] above explain, it is not possible in these circumstances to place one aspect of a decision maker’s reasoning on credibility into some kind of compartment and to be confident irrationalities or errors in that reasoning could not realistically have affected the decision maker’s overall reasoning on the outcome of the review, and in particular on the credibility to be attached to the appellant’s narrative.

108    In a situation such as the one facing the Authority on review, the extent to which it accepted what had happened in the past to the appellant, and to his father (including whether it accepted that his father was a former LTTE member) was a central component of the assessment of what might happen to the appellant in the future if he were returned to Sri Lanka. Of course, that prospective assessment was to be undertaken by the Authority on the basis of probative material about the circumstances in Sri Lanka at the time of its review and into the reasonably foreseeable future, which were then post-war circumstances. However, as the country information revealed, at the time of the Authority’s review the situation in Sri Lanka remained complex for members of the Tamil community with certain profiles, real or imputed. That is why the Authority’s reasoning about how much of the appellant’s narrative about his past experiences and the attributes of his family it accepted was material.

109    The Authority’s reasoning is irrational in the senses I have described in relation to each of the three grounds which I consider have merit. That has led it to approach its findings on credibility, and on the level of interest the Sri Lankan authorities might have in the appellant, in a way which is legally unreasonable to a material extent. There is at least one further example, not the subject of any ground of appeal but which should be mentioned because it confirms my view the Authority’s reasoning was irrational in more than a tangential or passing sense. At [24]-[25], when dealing with the central claim by the appellant about his father’s membership of the LTTE, and the submission of further material from Sri Lanka to the delegate about this, the Authority finds:

I find it difficult to accept that had the applicant found out that his father had been a member of the LTTE after his arrival in Australia that he would not seek to ask his mother for further details about the nature of his father’s role with the LTTE, particularly given his claims in the protection visa statement and interview that he feared he would be harmed on return on this basis.

110    The artificial compartmentalisation in this reasoning should not pass without being identified. The Authority is describing an event (the presentation of further information specifically about the appellant’s father) which occurred within the time period for the initial consideration of the appellant’s SHEV application – that is, before the delegate. The appellant had been prevented by Australian law from making a protection visa application until 12 August 2016. It took almost a year from the date of the application for the appellant to be interviewed. The visa consideration process then took a further three months before there was a decision. There could be no reasonable and justifiable expectation that the appellant commence, without any legal or migration assistance, as a minor and as a non-English speaking person, accumulating substantiating information to assist his claims, when he could not have reasonably been expected to anticipate for himself what kind or level of information might be required. It would make a mockery of the visa consideration process, including provision for qualified assistance (which includes migration and legal advice), for there to be a presumption that material which is sought and presented during this process, on an ongoing basis, should pre-emptively be characterised as false. Especially so when it involves the complicated process of communicating with family in another country, and the country from which a person is seeking asylum. That is what, in my respectful opinion, the Authority did on this review. In this case, the additional information is contained in the submission of the migration agent, after the SHEV interview. The Authority had no evidence whatsoever about why there was no supplementary statement by the appellant, whose decision it was to simply put the material into the agent’s post interview submission, or who decided about what precisely would be said. However, it can comfortably be inferred none of those decisions were made by the appellant, and were made by his migration agent. It is irrational to use that sequence of events as a basis to impugn the credibility of the appellant, particularly without inviting him to an interview and asking for an explanation, or seeking one from the migration agent. That is not to suggest the Authority was required to take such a course; but it is to find that there was no probative basis whatsoever for the Authority to make the finding it did. The reasoning demonstrates a misunderstanding by the Authority about the visa consideration process, and indeed it demonstrates something of a “quest to disbelieve” in the Authority (see AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 at [24]).

111    While this was not an aspect of the Authority’s reasoning on which the appellant relied in his grounds of appeal, as I have noted, its presence should not be ignored. It fortifies my view that, read as a whole, a significant portion of the Authority’s reasoning was irrational, and led it to conclusions no reasonable decision maker could have reached about the appellant’s narrative of what had happened to him in the past. In turn, these irrationalities affected the Authority’s approach to assessing what risk the appellant faced on return to Sri Lanka.

112    The appeal must be allowed. The Federal Circuit Court erred in not making orders setting aside the Authority’s decision on the basis it was affected by jurisdictional error. Given that the arguments presented on appeal were not made to that Court through no fault of the appellant, the Federal Circuit Court cannot be criticised for the approach it took. The error identified in dismissing the judicial review application is one exposed for the first time on appeal.

113    Indeed, the orders and notes to its orders made by the Federal Circuit Court relating to the conduct of the appellant’s former legal representatives in that Court were justified. The conduct of the appellant’s former legal representatives in this Court did not appear to be any better. The appellant is substantially out of pocket because of their conduct, and in a way which cannot be at least partially remedied by the usual order as to the costs in the Federal Circuit Court, an order which would usually be made when an appeal is allowed. What approach might be taken by the appellant to recouping those costs, or having those lawyers account for their conduct, is not a matter for this Court on the appeal.

Associate:

Dated:    21 December 2020