Federal Court of Australia

BVLD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 6

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review be dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to his application.

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

REASONS FOR JUDGMENT

BEACH J:

1    The applicant, who is a citizen of Sri Lanka presently in immigration detention on Christmas Island, seeks judicial review of a decision of the second respondent (the Tribunal) to affirm a decision of a delegate of the first respondent (the Minister) under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke a decision under s 501(3A) to cancel the applicant’s protection (class XA) (subclass 866) visa (the visa).

2    The applicant has advanced two grounds of review.

3    First, it is said that the Tribunal found that the applicant’s daughter had been psychologically impacted by the applicant’s criminal conduct, but had no probative evidence to support that finding.

4    Second, it is said that the Tribunal had reasoned illogically or irrationally by finding, on the one hand, that the applicant’s account to a psychologist of his experiences in Sri Lanka was truthful, but then finding, on the other hand, that the applicant had misled that psychologist.

5    In summary, in my view these grounds have not been made out and so the application must be dismissed.

Background

6    In 2005 the applicant arrived in Australia as a 20 year-old holding a student visa.

7    Whilst studying in Melbourne, the applicant met his ex-wife. They married in June 2007. The applicant’s daughter, an Australian citizen, was born in December 2008.

8    In 2010 the applicant racked up his first criminal convictions in relation to a series of driving offences.

9    On 10 October 2012, the applicant was granted the visa, with a delegate of the Minister concluding that if the applicant was returned to Sri Lanka he would be suspected to have supported the Liberation Tigers of Tamil Eelam. On that basis the delegate determined that there was a real chance that the applicant would suffer a threat to his life or liberty.

10    In December 2013, the applicant was convicted in relation to a domestic violence incident in August 2013, during which he hurt his young daughter and made threats to harm himself with a knife. He was given a 12 month community corrections order.

11    In September 2014, the applicant was convicted of contravening that order. He was sentenced to and served three months’ imprisonment.

12    In February 2015, the applicant was convicted of negligently causing serious injury and driving whilst disqualified. In August 2014, the applicant had been drinking and speeding, and crashed the car he was driving into a light pole, seriously injuring his passenger. I should note that by this time the applicant had a history of alcohol abuse. He was sentenced to a cumulative term of imprisonment of three years and ten months, with a non-parole period of two years and six months.

13    On 21 February 2017, a delegate of the Minister cancelled the visa under s 501(3A) which provided:

The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

14    On 14 March 2017, the applicant requested that the mandatory cancellation be revoked in accordance with an invitation given under s 501CA(3)(b).

15    On 5 May 2020, a delegate of the Minister exercising power under s 501CA(4) decided not to revoke the mandatory cancellation, which decision was notified to the applicant on 6 May 2020. Section 501CA(4) provided:

The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

   (b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section     501); or

(ii)    that there is another reason why the original decision should     be revoked.

16    On 12 May 2020, the applicant applied to the Tribunal to review the delegate’s decision refusing to revoke the mandatory cancellation. On 29 July 2020, the Tribunal affirmed the delegate’s decision.

17    Before turning to the grounds of review I should make the following points.

18    It was common ground before the Tribunal and before me that the applicant had not passed the “character test” referred to in s 501CA(4)(b)(i) and as defined under s 501(6) which I do not need to set out. Accordingly, the principal issue that the Tribunal had to address under s 501CA(4)(b)(ii) concerned satisfaction as to “another reason” why the cancellation decision under s 501(3A) should be revoked.

19    Now there is a wide decisional freedom as to whether there is satisfaction that a claimed “another reason” for revocation was such a reason. Further, to be satisfied is to feel an actual persuasion of the requisite matter. But if there is no relevant satisfaction then the cancellation decision could not be revoked.

20    Further, a decision-maker’s state of satisfaction or non-satisfaction may be vitiated if it is based upon findings of fact which were not supported by some probative material or could not be supported on rational or reasonable grounds. But findings need not be based on direct evidence. Reasonable inferences can be drawn. Further, in the present context the rules of evidence do not apply.

21    Put slightly differently, in the present context the power to revoke under s 501CA(4)(b)(ii) a cancellation decision is subject to an implied condition that the state of satisfaction concerning whether there is “another reason” is to be formed on the basis of findings of fact that are reasonably or rationally open to be made on the evidentiary materials before the decision-maker, whether directly or inferentially.

Grounds of review

22    Let me now turn to the grounds of review.

Ground 1: Weight given to matters for which there was no probative evidence

23    The applicant says that in purporting to reach a state of satisfaction concerning whether there was “another reason” why the mandatory cancellation should be revoked, the Tribunal took notice of and placed weight on the emotional impact of the applicant’s domestic violence on his daughter. But the applicant says that there was no evidence before the Tribunal on this issue.

24    The applicant’s submissions ultimately focused on the Tribunal’s conclusion at [144] where the Tribunal said:

Finally, paragraph 13.2(4)(h) requires the decision-maker to consider evidence that the child has suffered or experienced any physical or emotional trauma arising from the noncitizen’s conduct. Similarly, this has already been addressed extensively in the Tribunal’s deliberations above. The contents of those reasons are referred to and repeated. Once again, they have been taken to an account and weigh against the Applicant.

25    The reference to paragraph 13.2(4)(h) was a reference to a paragraph of Direction 79, which provided:

13.2    Best interests of minor children in Australia affected by the decision

…

(4)    In considering the best interests of the child, the following factors must be considered where relevant:

…

(h)    Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

26    The applicant says that the reference to “this has already been addressed extensively” (at [144]) picks up the Tribunal’s earlier discussion of the impact of the applicant’s domestic violence offending. The applicant points out that the Tribunal’s earlier discussion of impact included speculation about the psychological or emotional impact on the applicant’s daughter. But the applicant says that there was no evidence of an actual psychological or emotional impact.

27    At [74], the Tribunal relevantly said:

The crimes he committed against his daughter, including biting her, were reprehensible, appalling and intolerable. In addition to the physical harm that she obviously suffered there is also the possibility of psychological effects. These effects arise from the physical injuries that she suffered, the mental scarring that potentially would have occurred from being present in the family home observing the Applicant’s behaviour towards her mother, effectively seeing her abused, degraded and dehumanised. One cannot begin to imagine the harmful mental effects this would have on an impressionable four-year-old girl. No child should be subjected to such insensitive and inhumane treatment. There is also the potential side effect on her as she grows up that these memories may have upon her, and her feeling of self-worth and place in our society. It has an unfortunate potential that is often seen, to make her feel degraded and believe that her place in society is not what it might otherwise be. The potential for it to limit her capacity to achieve all that is potentially available to her is alive and real. These could be long-term, real, lasting effects of the Applicant’s terrible criminal behaviour.

28    I should note here that the Tribunal used the language of “the possibility of psychological effects” and “the mental scarring that potentially would have occurred”.

29    Further, at [75], [76], [124], [132], [137] and [138], the Tribunal also said:

There was then the indignity which the Applicant’s daughter had to face as an impressionable four-year-old when taken to the Dandenong police station. Any police station is a forbidding environment, few more so than Dandenong. That an impressionable four-year-old girl had to attend such a place with her mother after having been assaulted by her father and having witnessed her father assault her mother must have been a horrifying experience. As was apparent from the police notes, she then had to relive the experience telling the police officers of what had occurred to her. No child should be forced to confront this horrible experience. It was all caused by the Applicant’s violent offending.

Similarly, the assaults on his wife, recounted earlier in these reasons, were completely unjustifiable. It is disturbing that whether or not he was under the influence of alcohol, or that he was suffering from undiagnosed PTSD, he had resorted to using a large knife in the way that he did. For both his wife and daughter this must have been a frightening experience. There is also the potential that, in the inflamed situation caused solely by his actions, the outcome could have been even worse. Resort to knives in any shape or form cannot be condoned. It is fully understandable why his wife, having grabbed her daughter from the Applicant, was forced to resort to locking herself in her car. The fear that his wife and daughter must have experienced as he was trying to smash the car window to gain access to them would surely have been a most horrifying experience. It also was intolerable and an experience that no woman or child should have to endure. It is behaviour that Australia does not tolerate. It is unacceptable and it was very serious behaviour.

…

Were he to re-offend in the way he did against his wife and daughter, it would be thoroughly unacceptable. Although his daughter has grown up somewhat since the incidents concerned, for her to be physically and emotionally affected in a serious way by a repeat of such conduct is a risk that the Tribunal cannot countenance. Similar considerations apply to his wife if there were to be a repeat of such conduct.

…

However, the relationship between them has to some extent been difficult. The acts of domestic violence he perpetrated upon his daughter and upon his ex-wife in her presence must be relevant to an assessment of this factor. There is no evidence from the Applicant’s former wife beyond the very short letter that she wrote to the sentencing judge on the occasion of the Applicant’s appearance in the County Court of Victoria in February 2015 which has previously been referred to. In that letter his former wife states that, amongst other things, the Applicant loves his daughter more than anything in the world. It would have assisted considerably if there were evidence from her which may give some insight into the defect if any on the Applicant’s daughter as a result of his acts of domestic violence, her attitude towards restoring contact with him and any other relevant matters. Given the long period where there has been no contact, the relationship between father and daughter must of necessity be very limited. If it is to be restored it will take some time and require careful and calculated steps to be undertaken.

…

The further factor to be considered by the Tribunal under paragraph 13.2.(4) is the impact of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child. Much of this is already being canvassed. In many respects the Tribunal was required to engage in some task of speculation. There is no evidence before the Tribunal as to the particular effect of the Applicant’s acts of domestic violence upon his daughter. Whilst it is somewhat speculative, it seems unlikely that she would not to some extent have been affected. It is for that reason, as noted earlier, that it is unfortunate there has been no evidence from the Applicant’s former wife that might have assisted in addressing this consideration more accurately.

As to likely future conduct, it is largely dependent upon the Applicant, if he is released into the community, continuing to remain abstinent from alcohol and having recourse to various health care and support facilities available to him. The Tribunal has expressed its concerns about the Applicant’s capacity to do this in several places throughout these reasons. They are referred to in their full force and effect. The interests of the child must be paramount. Any risk of her being exposed to a repeat of the previous conduct is unacceptable. The fact that she may well have increased in age does not diminish the potential for severe consequences to her in the event of a repeat of the conduct concerned. In many respects as a young girl just on the threshold of her teenage years a repeat of such conduct could have even more devastating consequences. It could have the potential to inflict upon her emotional and mental difficulties, developmental problems and a sense of isolation. It may affect her capacity to properly engage in a complete education and ultimately may affect her career and life path. This risk must weigh strongly against the Applicant.

30    Again, these paragraphs are referring to potential effects and risks. I also note that [124] is under the heading “Risk to the Australian community should the Applicant reoffend”.

31    The applicant says that the Tribunal went further at [137], observing that “Whilst it is somewhat speculative, it seems unlikely that she would not to some extent have been affected [by the applicant’s domestic violence]”.

32    The applicant says that it should be inferred from the Tribunal’s reasons that the Tribunal found that the applicant’s daughter had experienced some psychological or emotional impact or trauma as a result of the applicant’s domestic violence offending and weighed that against the applicant in its assessment of whether there was “another reason” why the mandatory cancellation should be revoked.

33    The applicant says that such a finding of the Tribunal was made without any probative basis. He says that there was no evidence before the Tribunal of any emotional impact of the applicant’s offending on his daughter, which he says that the Tribunal acknowledged.

34    The applicant says that there was no reasonable foundation in the evidence for the inferences drawn by the Tribunal. Moreover, he says that in the context of the broad discretion in s 501CA(4), it should be concluded that the error was a sufficiently “critical step” in the outcome of the review.

35    Now I would reject this ground. But in order to explain my conclusion it is necessary to set out some further detail as to the domestic violence offending.

36    The Tribunal explained (at [46] to [51]):

The domestic violence convictions were two counts of intentionally causing injury, recklessly causing injury, and two counts of assaults with a weapon. These convictions occurred as a result of a series of incidents that are detailed in the Victoria Police Family Violence Event Incident report. Once again whilst the content of that documentation speaks for itself (the contents of the entries in the police database were, save for a few exceptions and qualifications from the Applicant, largely accepted by the Applicant in cross-examination, which is canvassed later in these reasons), some of the salient facts should be reproduced for the purposes of these reasons.

On 8 August 2013, at a time when it is common ground that the Applicant had been drinking heavily, he tightly held his daughter around both arms causing her to cry out in pain. He then bit his daughter on her right arm causing a red mark. His wife than intervened and took their daughter away from him.

The next day an argument developed between the Applicant and his wife. The report states that the Applicant verbally abused his wife. At that time their daughter asked her mother for a biscuit. This prompted a response from the Applicant in which he struck his daughter in the back causing her pain and to burst out crying. Again, his wife took the child away from her father.

Apparently, the increasingly violent behaviour of the Applicant prompted his wife to inform him on 10 August 2013 that their relationship was over and that she would be leaving the matrimonial home. The response of the Applicant was to take a chef’s knife and commence sharpening it. Once he had completed sharpening the knife, he held the point of it to his throat in the presence of his wife and daughter. At the same time, he stated to them that he would kill himself. He then held the knife to his chest. After doing so he then attempted to hand the knife to his daughter yelling at her “kill me”. His wife then immediately picked up her daughter and walked out of the home and sought refuge by locking herself in her car.

Once in her car she telephoned a female support service known as “1800 Respect”. Soon after, the Applicant followed his wife and daughter to the car, took off his shirt wrapped it around his fist and attempted to smash the window of his wife’s car, as the police described it, in order to get to her. Fortunately, he did not succeed in doing so.

The Applicant’s wife was able to make her way to Dandenong police station with her daughter to make a report concerning these incidents. Her daughter was examined and spoken to by the police at the police station. The police notes recorded that she detailed the pain she felt on the occasion of the assault. The police applied for and obtained a Family Violence Safety Order. The Applicant was then arrested by the police and was interviewed. He made no admissions during that interview and was described by the police notes as not remorseful and not taking any notice of how serious the charges were. Following completion of the interview process, an out of sessions court hearing was conducted and the Applicant was remanded in custody. The fact that he was remanded in custody must demonstrate the seriousness with which the out of sessions bail justice, or Magistrate, viewed the evidence before them and the risks they considered that the Applicant necessarily posed to both his wife and daughter.

37    Now at [74] of the Tribunal’s reasons, which I have already set out, in the context of considering the nature and seriousness of the applicant’s conduct for the purposes of cl 13.1.1 of Direction 79 (as identified at [73]), the Tribunal referred to the possibility that the applicant’s conduct had psychological effects on the daughter, being or arising from mental harm that “potentially would have occurred from being present in the family home observing the Applicant’s behaviour towards her mother, effectively seeing her abused, degraded and dehumanised”. The Tribunal contemplated the potential effects of the daughter’s memory of these events as she grows up. The Tribunal considered that there could be such effects of the applicant’s conduct.

38    So, [74] was replete with reference to potential effects. But I do accept that the sentence “One cannot begin to imagine the harmful mental effects this would have on an impressionable four-year-old girl” can be construed as referring to the actual effect. But if so, this was referring to when the daughter was a four year old. All later effects are referring to the potential. And as to a statement of actual effect at the time, there is nothing unreasonable or baseless in the inference drawn by the Tribunal, particularly given the “horrifying” ([75]) and “frightening” ([76]) experience that had occurred including the physical hurt to the daughter.

39    Now ultimately, in relation to the nature and seriousness of the applicant’s offending, the Tribunal held that the applicant’s conduct must be viewed as “very serious” ([79]), and this weighed against revoking the cancellation decision.

40    The Tribunal then at [124] of its reasons in the context of considering the risk to the Australian community should the applicant commit further offences, considered that a risk of the daughter being “physically and emotionally affected” by a repeat of such conduct weighed heavily against revoking the cancellation decision. Accordingly and consistently, at [138] the Tribunal spoke in the language of possibility, using words such as “potential”, “could” and “may”.

41    But the Tribunal in these passages ([124], [137] and [138]) was not making definitive findings that the daughter had experienced particular psychological harm as a consequence of the applicant’s conduct, or that she would experience some such particular harm in the future if the applicant’s conduct were to be repeated. Rather, the Tribunal was contemplating that there was a realistic possibility that she had and that she would.

42    Further, the Tribunal at [132] acknowledged the absence of evidence from the applicant’s wife, and that “[i]t would have assisted considerably if there were evidence from her which may give some insight into the [effect] if any on the Applicant’s daughter as a result of his acts of domestic violence”. Further, the Tribunal at [137] acknowledged that “[t]here is no evidence before the Tribunal as to the particular effect of the Applicant’s acts of domestic violence upon his daughter”.

43    So, beyond contemplating the possibility that the daughter might have been affected by the applicant’s past conduct or might be affected by such conduct if repeated, the Tribunal’s conclusion was highly qualified. Consistently, the Tribunal recorded that it “seems unlikely that [the daughter] would not to some extent have been affected”.

44    Now in my view these conclusions were open to the Tribunal. Such conclusions were rational and based upon inferences which were and could reasonably be drawn.

45    Further, it was not necessary for the Tribunal to have direct evidence from the daughter or the mother or indirect evidence from an expert in order to form these highly qualified conclusions. The very nature of the applicant’s conduct, considered in the context of ordinary human experience, plainly had the potential to cause psychological effects and to have some extent affected the daughter.

46    Moreover, it is not impermissible for a decision-maker to reason in appropriate circumstances based upon ordinary human experience without specific evidence (YKSB v Minister for Home Affairs [2020] FCA 476 at [51] and [52] per Mortimer J but cf DQM18 v Minister for Home Affairs [2020] FCAFC 110 at [54] to [60] per Bromberg and Mortimer JJ). Further, the present case has no analogy with a case where there was speculation by the decision-maker about cultural and social circumstances in another country (Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 144).

47    Let me then return to the Tribunal’s reasons at [144] which for convenience I will set out again:

Finally, paragraph 13.2(4)(h) requires the decision-maker to consider evidence that the child has suffered or experienced any physical or emotional trauma arising from the noncitizen’s conduct. Similarly, this has already been addressed extensively in the Tribunal’s deliberations above. The contents of those reasons are referred to and repeated. Once again, they have been taken to an account and weigh against the Applicant.

48    Now it is agreed that the daughter suffered physical trauma. And as to emotional trauma, the Tribunal’s earlier reasons fairly read pick up such a trauma at, for example, [47], [49] and [74] to [76]; moreover, “emotional trauma” is a lower level and informal formulation than some formal diagnostic psychological or psychiatric harm that may be classified in, say, the Diagnostic and Statistical Manual of Mental Disorders (US, DSM-5). But as to continuing or later psychological effects or harm, the Tribunal spoke in the language of possibility. Further, the conclusions at [144] must be read in light of what has gone before.

49    In my view this “no evidence” ground in essence fails.

50    First, there was a clear basis to infer emotional trauma at the time to the daughter.

51    Second, there was a proper basis to infer potential psychological effects thereafter to the daughter or a real risk thereof.

52    Third, not only was the conclusion in [144] supported by the prior paragraphs, but the relevant findings of fact in each prior paragraph that I have set out were reasonably and rationally based on the material before the Tribunal, whether directly or by reasonable inference drawn therefrom.

Ground 2: Irrationality / illogicality

53    Let me now deal with the second ground which asserts irrationality or illogicality by reason of what was said to be inconsistency in the Tribunal’s reasons.

54    I should say at the outset that it may be accepted that it is an implied condition on the formation of a jurisdictional state of satisfaction that it be one that could be formed by a reasonable and rational person. Further, where irrationality or illogicality is asserted, as Crennan and Bell JJ said in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [133] “the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”. At [135] they went on to say:

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.

55    Let me turn then to the applicant’s case on this ground.

56    In the applicant’s visa application he claimed that in 2004 he was abducted and mistreated by Sri Lankan authorities because he was perceived to be an LTTE collaborator. That claim was accepted as credible by the delegate of the Minister.

57    But before the Tribunal it was revealed that the applicant had whilst he was in prison given an account to a psychologist of the past harm he suffered in Sri Lanka that was inconsistent with the claims advanced in his visa application.

58    The applicant says that the Tribunal resolved the inconsistency at [198] and [199]:

The Tribunal cannot accept this explanation. It acknowledges that in the mobile FMHS report the Senior Clinical Psychologist did explain to the Applicant that there were “limits of confidentiality and storage of case documents”. However, it hardly explains his evidence in the witness box. The Applicant gave his evidence on this topic almost with an air of flippancy. His demeanour whilst giving the evidence had an aura of complete unreality to it. The Tribunal considers after having heard the evidence that it is more likely than not that the Applicant told the truth about what really happened in Sri Lanka to the Senior Clinical Psychologist. It is apparent that the individual treatment sessions the Applicant had with her achieved much progress in identifying his problems both with alcohol and mental health. It is apparent from both the contents of the Mobile FMHS report and the clinical notes that the Applicant gained much confidence from his interactions with her in addressing his undoubted problems. They developed a close professional rapport. He clearly opened up to her in a way that he had not done in the past because he recognised the benefit of availing himself of the professional treatment opportunity that was open to him. In his evidence, he conceded that he gained a lot from the sessions. The Senior Clinical Psychologist took a detailed history from him. In the clinical notes that are in evidence, not to mention the Mobile FMHS report, it is apparent that the Applicant’s background and his experiences both in Australia and Sri Lanka were explored in depth.

On the preponderance of the evidence it appears to the Tribunal that the Applicant was more likely than not to have opened up and been candid with the Senior Clinical Psychologist. It finds the version that was given to her more likely than not to be the correct one. It cannot accept that the story given to her about being taken “hostage” or subjected to threats from these two acquaintances was made up as he asserted in the witness box. That being the case it cannot accept the version of events concerning his treatment at the hands of the Sri Lankan police and security authorities in August 2004 that he gave in his earlier statements, both for the purposes of this application, and for the purposes of this Protection Visa application in 2010.

59    In other words, the Tribunal found that the applicant told the truth in his account to the psychologist. And it did not accept the applicant’s explanation to the Tribunal that the story given to the psychologist was “made up as he asserted in the witness box”.

60    But the Tribunal went on to find, on the basis of the applicant’s evidence before the Tribunal, that he was prepared to deliberately mislead a healthcare professional. This was said to be an important factor that “must weigh heavily against the Applicant in terms of the risk of him reoffending”. The Tribunal said at [203] and [204]:

Even on his own evidence, it is of concern to the Tribunal that he would, as he readily admitted to doing, deliberately give a false patient history to the Senior Clinical Psychologist in the course of 25 individual treatment sessions. It reflects particularly poorly upon him. This poor conduct is also amplified by the fact that he acknowledged the progress that it made concerning his mental health and alcohol issues. If he is, as he says, prepared to deliberately mislead a healthcare professional to the extent that he did, how can one possibly be satisfied that if he is released into the community he will properly engage with professional help if he needs it, which invariably he will, in the future.

The Applicant’s evidence concerning what he says was the made-up story given to the Senior Clinical Psychologist is also an important factor that must weigh heavily against the Applicant in terms of the risk of him reoffending touched on in the analysis of the requirements of paragraph 13.1.2 of Direction 79 referred to above.

61    The applicant says that the Tribunal’s reasoning at [203] and [204] is logically inconsistent with the prior finding that the applicant told the truth to the psychologist. Either the applicant told the truth to the psychologist or he did not; in a contemporary application of Aristotle’s law of non-contradiction, he could not have done both. The applicant says that in light of the findings that the Tribunal made at [198] and [199] as to the truth of the account given to the psychologist, it was not open to the Tribunal to reason as it did at [203] and [204].

62    In summary, the applicant says that the Tribunal rejected that the applicant had been harmed in 2004 in a way that engaged non-refoulement obligations on the basis that the account given to the psychologist was the true account. But the applicant says that at the same time, the Tribunal considered that the applicant’s preparedness to deliberately mislead a health professional counted against him in terms of his risk of reoffending. The applicant says that the Tribunal’s reasoning in this regard was irrational or illogical.

63    I would reject the applicant’s submissions. Let me delve more deeply into the Tribunal’s reasoning.

64    The Tribunal in considering whether Australia has non-refoulement obligations in relation to the applicant noted (at [188]) that the applicant had given several versions of his alleged experiences in Sri Lanka.

65    In one version, in a statement given in support of his request for revocation of the cancellation decision, the applicant said that in August 2004 he had been taken by Sri Lankan officers from his house and beaten. That version differed from the one that he had given in support of his visa application. Further, in his evidence to the Tribunal there were other differences.

66    Further, the applicant had also given a different version to a psychologist that he had seen on some 25 occasions whilst a prison inmate. Extensive clinical notes of these consultations were obtained by the Tribunal. But the Tribunal observed (at [195]) that “nowhere in those contemporaneous clinical notes of those treatment sessions is there any reference to him being taken into custody by Sri Lankan police, or authorities and being subjected to any beating, interrogation or other harsh and undue treatment as he now alleges”. Further, the Tribunal also referred to other differences in the version of events given to the psychologist.

67    Now at the hearing before the Tribunal, the applicant said that the version that he had given to the psychologist “was made up”. His explanation for why he allegedly lied to the psychologist, as recounted by the Tribunal (at [197]), was as follows:

… The reason he said it was made up was because other inmates in the prison had told him that he did not have to tell the Senior Clinical Psychologist everything. He said he feared that if he did tell the Senior Clinical Psychologist what actually happened it would be passed on to the Australian police who would then contact the Sri Lankan police and he would be handed over to them. He said he got scared this would happen, but nonetheless, wanted his problems addressed and that is why he made up “part of the story”. A reason for giving the false version of the history to the psychologist was that he had difficulties opening up and speaking freely. He said it was a “similar situation that occurred” and he didn’t want to engage with traumatic memories and he wanted the problems he was facing addressed so he could deal with them and move on.

68    But the Tribunal did not accept as persuasive the applicant’s explanation for why he would lie to the psychologist. The Tribunal considered it more likely than not that the applicant had told the psychologist the truth about what happened in Sri Lanka (see [198], [199] and [205]). Accordingly, the Tribunal was not satisfied that the different version of the story which the applicant gave to the Tribunal was truthful, and this reflected adversely on his credibility ([199] to [202]).

69    The Tribunal then said that (at [203]):

Even on his own evidence, it is of concern to the Tribunal that he would, as he readily admitted to doing, deliberately give a false patient history to the Senior Clinical Psychologist in the course of 25 individual treatment sessions. It reflects particularly poorly on him.

70    Now the Minister submitted that what the Tribunal was doing was expressing its concerns about the applicant’s credibility in alternative ways. On the applicant’s version of events to the Tribunal, which the Tribunal considered was more likely to be incorrect, the applicant had lied to the Tribunal. But on the applicant’s version of events given to the psychologist, which the Tribunal considered was more likely to be correct, the applicant by his disavowal of that version before the Tribunal had lied to the psychologist.

71    The Minister says that the Tribunal’s statement at [204] reflected on either pathway the Tribunal’s concern as to the applicant’s credibility. Read fairly, so the Minister submits, what the Tribunal was saying was that the applicant’s evidence concerning what he says was the made-up story given to the psychologist gave rise to credit issues either way, whether he had lied to the psychologist or he had lied to the Tribunal. In short, according to the Tribunal the applicant could not be trusted, including responsibly to engage in the professional help that he may require in order to avoid reoffending.

72    The Tribunal went on to say at [205]:

For these reasons the Tribunal cannot find the Applicant to be a generally credible witness as contended for him and referred to above. It cannot accept his evidence as to what happened in August 2004 at the hands of Sri Lankan police. It finds that the version of events given to the Senior Clinical Psychologist referred to above where he was subjected to some form of physical threat and extortion by two acquaintances, more probably than not, was the correct one and indeed what actually happened to him. For this reason, the Tribunal cannot accept that it is alleged treatment at the hands of police in August 2004 which provides a factual foundation for the risk that he asserts he is exposed to from the police and security agencies in Sri Lanka.

73    Accordingly, so the Minister says, there is nothing irrational about the Tribunal’s reasoning in expressing alternative reasoning, as compared to engaging in contradictory reasoning.

74    Now the applicant and the Minister have put forward different ways in which the Tribunal’s reasoning should be analysed. But there is a third way as I put to both counsel.

75    I do not consider that there is any contradiction. Moreover, I do think that the Tribunal was expressing alternative reasoning as such.

76    On an assessment as to the more probable version of what occurred in Sri Lanka, the Tribunal accepted what the applicant told the psychologist.

77    Now the applicant told the Tribunal that he had given a false version to the psychologist. But the Tribunal did not accept this.

78    But it is in that context that the Tribunal then said (at [203]), which is worth setting out again:

Even on his own evidence, it is of concern to the Tribunal that he would, as he readily admitted to doing, deliberately give a false patient history to the Senior Clinical Psychologist in the course of 25 individual treatment sessions. It reflects particularly poorly upon him. This poor conduct is also amplified by the fact that he acknowledged the progress that it made concerning his mental health and alcohol issues. If he is, as he says, prepared to deliberately mislead a healthcare professional to the extent that he did, how can one possibly be satisfied that if he is released into the community he will properly engage with professional help if he needs it, which invariably he will, in the future.

79    But this was not then saying that the applicant had given a false version to the psychologist which would then have potentially had the Tribunal in a contradiction. Rather, it was taking the applicant’s own evidence, which indicated that he was prepared to lie to a health professional, as a confessed propensity that he might mislead or deceive a health professional in the future. That is clear from the last sentence of [203].

80    So this was not the applicant’s counsel’s version of a contradiction. And nor was it necessarily the Minister’s counsel’s version of a choice between alternatives. Rather, it was saying in effect that “you told the truth to the psychologist, and you were not credible on earlier occasions. But now out of your own mouth, and to avoid this conclusion, you have demonstrated a propensity to mislead a healthcare professional”. In context and consistently, this interpretation explains and justifies the Tribunal’s conclusion as to its doubts concerning properly engaging with professional help in the future.

81    But if I am incorrect as to this third version, then in any event I would accept the Minister’s counsel’s version of alternative pathways to an adverse credibility finding.

82    This ground of review is not made out. And as both grounds of review have failed, the application must be dismissed with costs.

Associate:

Dated:    15 January 2021