Federal Court of Australia
DDP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 275
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
WHEELAHAN J:
Introduction
1 The appellant appeals a decision of the Federal Circuit Court made on 27 May 2020, which dismissed an application for judicial review of a decision of the Immigration Assessment Authority. The Authority had affirmed an earlier decision of a delegate of the Minister to refuse to grant the appellant a Safe Haven Enterprise (Subclass 790) visa. For the following reasons, the appeal should be dismissed with costs.
Background
2 The appellant is a 36 year old citizen of Sri Lanka. On 24 September 2012, the appellant arrived at the Cocos Islands as an unauthorised maritime arrival.
First application for a protection visa – invalid application
3 On 28 October 2013, the appellant made an application for a Permanent Protection (Subclass 866) visa. The application was supported by a statutory declaration dated 28 October 2013. However, by the operation of s 46A(1) of the Migration Act 1958 (Cth), that application was deemed to be invalid.
Second application for a protection visa – valid application
4 On 17 September 2015, the Department notified the appellant that the Minister had exercised his power under s 46A(2) of the Act to “lift the bar” to allow the appellant to make a valid application for a Temporary Protection (Subclass 785) visa or a Safe Haven Enterprise (Subclass 790) visa.
5 On 12 January 2016, the appellant made an application for a Safe Haven Enterprise (Subclass 790) visa, which is a class of “protection visa” by operation of s 35A(3A) of the Act. The appellant attached to his application some identity documents and a statutory declaration made on 7 January 2016. By his application and statutory declaration, the appellant made the following claims –
(1) He is a Tamil Hindu, who lived his entire life in the Jaffna province in the north of Sri Lanka before departing to seek asylum in Australia.
(2) Since his childhood, he was subjected to harassment, intimidation and beating by the Sri Lankan Army (SLA), which occupied the Jaffna province.
(3) After stopping his schooling because of the war situation, he worked in his uncle’s garage, and later as a three wheel taxi driver.
(4) In 2004-2005, there was a ceasefire between the SLA and the Liberation Tigers of Tamil Eelam (LTTE). During that time, his uncle’s garage was frequented by LTTE leaders, and he was compelled to transport people “for the LTTE functions”.
(5) In 2006, the ceasefire collapsed, and the SLA started arresting and killing people who were suspected of having connections to the LTTE.
(6) On or about 20 April 2006, he witnessed an incident which he described in the following terms –
… I have witnessed four of my colleagues (Three wheel drivers) were shot and killed by persons either suspected or closely working with the Sri Lankan Army. The assassins came on a motor bike and dragged out my colleagues Kiso, Thasan, Kannan and Kavi of their vehicles and shot them at point blank range. Another passer-by who happened to walk past the three wheel stand was also shot and killed by them. It was at night and the assassins [wore] helmets and not possible to identify them.
(7) Immediately after the incident, he and three of his colleagues were taken by the SLA and detained at an SLA camp for approximately two months. He was interrogated about his association with the victims of the incident and his involvement with the LTTE, and he was beaten as the SLA believed that he was associated with the LTTE.
(8) After his release, he was forced to work as an informer for the SLA. He was required to provide the SLA with details of the passengers whom he serviced in his three wheel taxi. He felt that his life was in danger as the SLA kept a close eye on him and monitored his movements, that he was a “traitor” to other villagers, and that he was disliked and ostracised.
(9) He informed the SLA about customers who used his taxi service from the time of his release from the SLA camp in 2006 until he fled Sri Lanka in September 2012. During 2007-2009, there were various “incidents” that occurred at the locations where he had dropped his customers. Those incidents included killings, rape and theft. He gave an example of a named customer, who was shot and killed a few days after he notified the SLA of the details of that customer’s taxi hire.
(10) He lived in constant fear of being falsely accused of having links to the LTTE. He is a Tamil from the north of Sri Lanka, and Tamils are perceived to have links to the LTTE and are frequently targeted by the army. He heard that young Tamil males, including three wheel taxi drivers like him, were being specifically targeted by unknown persons suspected of having links to the SLA. Because of that, and because he had been forced to provide details of his passengers to the SLA, he decided to flee.
(11) Since arriving in Australia, he heard from his mother in Sri Lanka that the SLA had on several occasions attended his house in Sri Lanka looking for him, and harassed his brothers. Both of his brothers had fled Sri Lanka, with his younger brother successfully obtaining asylum in Switzerland, and the location of his older brother unknown.
(12) He believed that if he returned to Sri Lanka, he would be at risk of being harmed and possibly killed by the SLA or members of the Tamil paramilitary groups, as he is a Tamil who originates from the north of Sri Lanka who previously came to the adverse attention of, and was tortured by, the SLA on account of his ethnicity and perceived involvement with the LTTE. He feared that he would need to continue to work as an informant for the SLA. He also feared that he would be harmed by persons residing in his village, as many passengers who used his taxi service in the past suspected that he may have links with the SLA.
(13) He claimed that the fact of his visible scars from his torture in 2006, coupled with the fact that he fled Sri Lanka illegally and claimed asylum in Australia, could exacerbate the risk of him being harmed by the authorities.
(14) He claimed that it is not possible to seek protection from the police in Sri Lanka as the police turn a blind eye when Tamils are targeted by the SLA and the paramilitary groups. He also claimed that it is not possible to relocate as the whole of Sri Lanka is controlled by the SLA, and as he does not speak Sinhala and is a Tamil from the north of Sri Lanka, he will not survive elsewhere.
6 On 16 February 2016, the appellant attended an interview before a delegate of the Minister in relation to his application and claims for protection.
7 On 23 February 2016, the appellant’s representative lodged for the delegate’s consideration extensive submissions in support of the appellant’s visa application, which referred to and attached country information. That submission was framed on the first page as follows –
We take this opportunity to provide country information in support of the Applicant’s claims for protection. It is our submission that this information supports the Applicant’s claim that he is at risk of persecution if he returns to Sri Lanka. As discussed below, Sri Lanka has a long history of persecuting those people it suspects of supporting, or being involved or connected with, the LTTE or its proclaimed aims. In light of this, combined with the fact that he is a member of the minority Tamil population, we submit that the possibility the Applicant will experience serious harm within the reasonably foreseeable future cannot be dismissed as remote or insubstantial and, in these circumstances, the Applicant's fear of persecution should be accepted as well-founded.
(Emphasis added.)
8 On the last page of the submission, the following was stated (inter alia) as part of the conclusion –
The Applicant is a young Tamil from Jaffna, national of Sri Lanka, is outside his country of nationality and has no prior or effective protection in a third country. He has expressed a fear of encountering harm that is a consequence of a pattern of systematic and discriminatory conduct and is sufficiently serious to amount to persecution for the purposes of section 5J of the Act. In light of the available information, there is no reason to conclude that the Applicant's fears are not genuine and we submit that country information also founds a conclusion that his fears are well-founded. As it is the state and its proxies that are the agents of persecution, he cannot anticipate state protection. Nor is it possible or reasonable for him to relocate to another part of Sri Lanka to avoid the real chance or risk of serious or significant harm.
The Applicant's absence from Sri Lanka will be known to the Sri Lankan Army & CID. Accordingly, it cannot be dismissed as too remote or insubstantial a chance that his background, previous activities and familial links to the LTTE will be further examined upon his return to Sri Lanka, should he come under the close scrutiny all returnees are subjected to that can be for 24 to 48 hours. The additional investigation he would be subjected too upon his return to his home area would also see him exposed to a real chance of serious and significant harm. It is quite plausible that he would be scrutinised and interrogated about his link to the LTTE. A person of his profile would be of adverse concern and face a real chance of serious harm, including torture, loss of liberty and/or loss of life.
The delegate’s decision
9 On 5 August 2016, the Department notified the appellant of the delegate’s decision not to grant him a visa. The delegate found that the appellant did not satisfy the criteria in ss 36(2)(a) or (aa) of the Act. The delegate prepared a protection visa assessment which recorded the decision to refuse to grant the appellant a protection visa, and included reasons for the decision. The delegate addressed the appellant’s claim to have witnessed the shooting incident on or around 20 April 2006. In summary, the delegate relevantly –
(1) questioned the appellant’s credibility, due to inconsistent accounts of the shooting incident and subsequent events given by the appellant in two irregular maritime arrival entry interviews, various written material, and the protection visa interview;
(2) found it “highly unusual” that the appellant had been inconsistent with regard to the number of people that were alleged to have been shot and how many of those were his friends;
(3) did not accept the appellant’s explanation for his inconsistent accounts of when he was detained by the SLA in connection with the shooting;
(4) identified differences between the appellant’s account of the shooting incident and that given in a “TamilNet” article that the appellant had furnished to the Department, and noted that this was a further issue regarding the appellant’s credibility. It was noted that the appellant had submitted that the article may not be correct and may be hearsay;
(5) placed some weight on the TamilNet article and the differences between the incident described in the article and that described by the appellant;
(6) placed some weight on the appellant’s inconsistent accounts of the incident;
(7) did not accept the appellant’s explanation of why he had been inconsistent, and found it unlikely that the appellant could forget how many friends he saw be shot or provide such inconsistent explanations;
(8) accepted that the appellant knew a number of three wheel taxi drivers who were killed in 2006;
(9) did not accept that the appellant witnessed the shooting incident he described or was immediately detained afterwards; and
(10) accepted that the appellant was questioned and mistreated by the SLA as he was a young Tamil male three wheel taxi driver at the site of a shooting.
10 In relation to inconsistent accounts of the shooting incident, the delegate referred to an account in a record of an irregular maritime arrival entry interview on 4 October 2012 where at question 21 the appellant was asked why he left Sri Lanka, to which the appellant’s response was recorded as, “[s]ix to seven years ago five friends (were) shot. Nothing happened to me but I had a fear this would happen to me.” The delegate stated that no further questions were asked about the appellant’s protection claims. There is no contemporaneous record of the interview of 4 October 2012 before the Court.
11 The delegate stated that the appellant attended a second irregular maritime arrival entry interview on 11 January 2013. There is before the Court a document titled “Entry Interview”, which is incorrectly dated 11 January 2012 on the first page, and which I find to be the document to which the delegate referred. In that document, under the heading “Reason to leave”, a question is recorded: “Why did you leave your country of nationality (country of residence)?” In a box under that question the following was recorded –
Why did you leave Australia [sic]? Problems with the army.
What problems were you having? Some of my friends were killed by the army, they were shot dead, and I visited the area that they were shot dead the next day, and the army took me and questioned me.
When did that happen? 5-6 six years ago.
When was the last time you felt threatened by the army? 2012.
Why did you feel threatened then? This is due to the previous incident.
What is the most recent time that one of your friends was shot? 5 or 6 years before.
Why were your friends killed? I don’t know, that’s the reason.
Your friends were killed 5-6 years ago, is this the first time you started making arrangements to leave Sri Lanka? Yes, this is the first time.
12 In response to a question which asked whether police and security or intelligence organisations “impacted” on day to day life in the appellant’s home country, the Entry Interview document recorded the following response –
Only the army.
How did they impact on your day-to-day life? Some of my friends were shot dead, and therefore they questioned me about who killed them. They want to know why I visit this place where my friends were shot.
How often did they question you? Once
13 The delegate referred also to the TamilNet article that the appellant had submitted to the Department, and to which the appellant had referred in his statutory declaration dated 28 October 2013 in support of his first application for a protection visa that was rejected as being invalid. In his statutory declaration, the appellant had referred to the TamilNet article as documentary evidence that supported the occurrence of the killing of the other taxi drivers that he described. Relevantly, the article described an incident that differed in material details from that described by the appellant in both of his statutory declarations (compare [5(6)] above). The article described an incident where soldiers took five civilians, namely a municipal council official, an electrical mechanic, a farmer, and two auto-rickshaw drivers to their camp, and later brought them out into open terrain near the camp and gunned them down. The article referred to the five persons who were shot as four villagers who had been travelling in an auto-rickshaw and were taken to the SLA camp, and a fifth person, was an auto-rickshaw driver who went searching for them.
14 The delegate stated that at the appellant’s interview relating to his application for the protection visa, (to which the Authority referred in its reasons as the “SHEV interview”), the appellant was asked a number of questions about his claim, and to comment on inconsistencies. The delegate regarded the appellant’s responses at the interview as giving rise to further inconsistencies, in particular, in relation to how many people had been killed in the shooting incident, and in relation to how many of those were his friends. Further inconsistencies that were put to the appellant were his account that he had been detained immediately upon the SLA arriving at the scene of the shooting, and the account recorded in the Entry Interview document that he visited the area in which the people were shot the next day, and was then taken in by the army and questioned. The delegate also recorded that he put to the appellant the inconsistencies between the appellant’s accounts and the TamilNet article that the appellant had submitted as part of his 2013 visa application.
Reference to the Immigration Assessment Authority for review
15 On 9 August 2016, the Department notified the appellant that the delegate’s decision to refuse to grant him the visa had been referred to the Immigration Assessment Authority for review.
16 On 29 August 2016, the appellant’s representative lodged with the Authority submissions in support of the appellant’s visa application that were accompanied by: (1) a statutory declaration of the appellant dated 28 August 2016; (2) a letter from a psychologist dated 18 October 2014; and (3) country information. The submissions referred to an adverse credibility finding made by the delegate which the representative submitted was unreasonable in the circumstances of the case, and which the representative submitted was dealt with in the accompanying statutory declaration of the appellant.
17 In his statutory declaration dated 28 August 2016, the appellant addressed the delegate’s findings in relation to his claim to have witnessed the shooting incident on or around 20 April 2006 –
2. At paragraph 28 the delegate found issues about my statement given on 4th October 2012 at the arrival interview. I believe that it was the first interview I had in Australia. I was very confused about the process and the interpreter was rude and told me to give very brief answers like yes or no. He told me that I would be given further opportunities later to give details of my reason for leaving Sri Lanka. I told at the interview that six or seven years ago five people including my friends were shot by the Army. I feared that this could also happen to me. My memory was that he asked me along the lines further whether I was injured in that incident and I said I was not injured.
3. At paragraph 29, the delegate stated that I had given conflicting information about my protection visa application. On or about 11th January 2013 at another interview I again told, that some of my friends were shot and soon after the incident I was taken by the Army. This incident happened at night and I may have told that I was taken by the Army on the following day of the shooting. I did not say that I visited the place (crime scene) the next day. This apparent inconsistency could have been as a result of poor translation.
4. I have witnessed the shooting incident as I was at the auto stand with my auto. Four of my colleagues (three of them were my close friends) and another passer by were shot dead. I was consistent with this information and it was amply clarified by my agent during the interview prior to the utilisation of the natural justice break. I do not understand why the delegate was not satisfied and complained I was not consistent on this matter.
(The above passages are set out verbatim.)
18 In the letter dated 18 October 2014 that was enclosed with the submissions, a psychologist referred to having seen the appellant on seven occasions in 2014, and stated that the appellant’s presentation was “best described as a chronic depression marked by low mood”, and that he “suffers from poor motivation, low self-confidence and some intermittent anxiety”.
19 On 5 September 2016, the appellant’s representative submitted to the Authority by email a further letter from the appellant’s psychologist which was dated 3 September 2016, and which was described as a “Confidential Report/Psychological Assessment”. In the report, the psychologist referred to having seen the appellant on three additional occasions in 2016. In the body of the report the psychologist stated that the appellant “presented with deficits in his concentration, retention and memory and attention span which I believe were caused by posttraumatic stress symptoms, anxiety and depressed mood.” Later in the report, the psychologist advanced the opinion that the appellant qualified for diagnosis in the following “subscales” –
• Major Depressive Disorder;
• Posttraumatic Stress Disorder;
• Panic Disorder;
• Psychosis;
• Agoraphobia;
• Social Phobia;
• Generalised Anxiety Disorder; and
• Somatisation Disorder.
The Authority’s decision
20 On 4 October 2016, the Authority affirmed the delegate’s decision to refuse to grant the appellant a protection visa. In its statement of reasons the Authority identified the information to which it had regard, which included the material given to it by the Secretary pursuant to s 473CB of the Act. The Authority also considered whether pursuant to s 473DD of the Act it could have regard to the further material that had been provided to the Authority by the appellant’s representative. In relation to that further material, the Authority stated that -
(1) the appellant’s representative’s submission dated 29 August 2016 was not “new information”, and the Authority had considered it;
(2) the appellant’s statutory declaration dated 28 August 2016 was not “new information”, and the Authority had considered it;
(3) the first letter from the psychologist dated 18 October 2014 was provided to the Department prior to the delegate’s decision, and therefore was not “new information”, and the Authority had considered it;
(4) the country information that had been attached to the appellant’s representative’s submission dated 29 August 2016 was “new information”, which did not contain credible personal information and for which there were not exceptional circumstances to justify that it be considered, and so the Authority did not consider it; and
(5) the psychologist’s report dated 3 September 2016, was “new information” containing credible personal information not previously known, and had it been known, may have affected the delegate’s consideration of the appellant’s claims. There were exceptional circumstances to justify that it be considered and the Authority considered it.
21 In relation to the Authority’s decision to consider the psychologist’s report dated 3 September 2016, the Authority stated at [7] (inter alia) –
… Because the information is from the applicant’s treating psychologist and is relevant to his capacity to provide information about his circumstances, I am satisfied that the information in the report is credible personal information which was not previously known and, had it been known, may have affected the consideration of his claims. Because of what the report reveals about the applicant’s psychological condition I am satisfied that there are exceptional circumstances which justify its consideration.
(Emphasis added.)
22 The Authority then summarised the appellant’s claims for protection. At the outset of its summary, the Authority stated that “[t]here are significant inconsistencies in the [appellant]’s claims as presented at different stages of processing.” The Authority summarised the appellant’s claim that he had witnessed the shooting in April 2006, including by setting out a detailed account of what the Authority characterised as inconsistencies in the appellant’s various accounts of that event given at different stages. The Authority also summarised the appellant’s claims that he was detained by the SLA, that he had links with the LTTE, that he acted as an informant for the SLA, and in relation to his family members.
23 Under the heading “Factual findings”, the Authority was critical of the appellant’s accounts, stating –
23. It is clear from the summary of the applicant’s claims set out above that he has provided a most unsatisfactory account of the circumstances which he claims led him to leave Sri Lanka. There are significant discrepancies between his own accounts presented at different times, and between his version of events and an independent media report that he himself submitted in support of his claims. Aspects of his account are, in my view, highly implausible.
24. I accept that the applicant is not well educated, although he states that he attended school for nine years and it is not evident that he is illiterate, as his representative submitted at the SHEV interview. I accept that he and his family suffered displacement as a result of the war and that as a resident of Jaffna, he probably witnessed traumatic events over the war years. I accept that, as noted in the psychological report, he suffers from depression, anxiety and a range of other psychological conditions which have resulted in “deficits in his concentration, retention and memory and attention span”. I also note, however, that the psychologist’s report itself contains discrepancies as to the applicant’s circumstances - for example, it states that the applicant’s father was killed by the army, whereas he stated in his application that his father died of natural causes; the report also indicates that three of the applicant’s brothers have fled - one to India, one to Switzerland and one whose whereabouts is unknown, whereas in the information provided to the Department he indicates that only two brothers have left. While I accept the diagnosis, I do not accept the report as independent corroboration of the applicant’s claims, or as evidence of the circumstances which led to the applicant’s conditions. I accept that the applicant’s circumstances in Australia have been difficult, although he has had the benefit of legal representation in relation to both his 2013 protection visa application and his SHEV application.
25. I have taken these factors into account in assessing the applicant’s claims, but consider that much of his evidence is, at best, unreliable, and I do not accept many of his claims.
26. Although the applicant says that the interpreter at the arrival interview was rude and told him to speak briefly, I consider it significant that what the applicant said at the two initial arrival interviews about the reasons for his departure from Sri Lanka is broadly consistent with the account in the Tamilnet report which he submitted in support of his 2013 protection visa application. Given the problems with his later evidence about the claimed shooting incident, I prefer this earlier version of events. I find that the four people named in the Tamilnet article, whose names are consistent with those provided by the applicant in his subsequent statutory declarations, were murdered by the SLA, as reported by Tamilnet, in open land near the army camp. I do not accept that the applicant witnessed the murders of four auto-rickshaw drivers at the stand where he and several drivers were waiting. I consider it possible that the auto-rickshaw driver reported in the article as having been stopped by the SLA when he went looking for the missing persons was, in fact, the applicant, consistent with his claim in the entry interview that he was stopped by the SLA when he visited the site where the people were shot the following day.
27. It is not clear why the applicant’s representative submitted that the Tamilnet report was unreliable and should be given no weight, especially when it was submitted by the applicant himself in support of his claims. In any event, as noted above, there are numerous problems with the applicant’s later evidence about the shootings. Despite his representative’s arguments to the contrary at the SHEV interview, it is clear that the applicant has provided different evidence as to the number of people who were shot at different times - at the entry interviews he said five people; in his statutory declarations he said four drivers and a passer-by; at the SHEV interview he said that three of his driver friends and a passer-by were shot, and when the delegate put the discrepancies to him, he responded that five or six people were killed but he only mentioned the three friends who he knew. As noted above, the initial claim that five people were killed is consistent with the Tamilnet report, which is also consistent as to the names of the victims provided by the applicant.
28. Information that was considered by the delegate indicates that a number of auto-rickshaw drivers were shot around the Jaffna area in 2006. Interestingly, there are no reports in the information provided by the applicant or considered by the delegate of an incident similar to the one now described by the applicant - that is, where four drivers and a passer-by were shot in front of other drivers at an auto-rickshaw stand. I do not accept that the incident, as described in his protection visa and SHEV applications, in fact took place. I accept that the applicant may have known other drivers who were killed, and I accept that he may have been frightened. However, I do not accept that this was why the applicant left Sri Lanka. There is no credible information to indicate that the applicant was at risk of harm as a three wheeler driver in the years after the end of the war and prior to his departure from Sri Lanka, and the evidence suggests that if the authorities did have concerns about him they had ample opportunity to kill or harm him.
29. As I do not accept that the applicant witnessed the shooting of auto-rickshaw drivers in the circumstances described in his SHEV application, I do not accept that he was arrested and detained by the SLA immediately afterwards. As noted above, I consider it plausible that, as he stated at the entry interview and consistently with the Tamilnet article, he was “stopped” and questioned when he went to the site the next day. However, I do not accept that the applicant was detained for two or three months and questioned as he subsequently claimed. Apart from the fact that I do not accept the version of events which he claims led to this lengthy detention, his evidence about what happened during this detention and the reasons for it are, in my view, not credible. First, I do not accept that the applicant would have been questioned about who killed the drivers when, according to his own evidence, they were shot either by the army, or by paramilitaries associated with the army. Second, if the applicant had really been suspected of having links with the LTTE, it is not apparent why he too would not have simply been killed. Third, he has given inconsistent and somewhat implausible accounts of why he and the other drivers were suspected of having links with the LTTE. He stated initially that the drivers were compelled to drive LTTE family members and associates to Heroes’ Day functions, but later said that the reason they were under suspicion was that the Heroes’ Day event was held near the auto stand. As noted above, although the applicant had claimed in his 2016 statutory declaration that LTTE leaders frequented his uncle’s garage, and it was because of this association that the applicant had been required to drive them around, he did not mention this connection at any earlier stage of his application. Indeed, in both arrival interviews and in his 2013 statutory declaration he stated that neither he nor his family had any association with the LTTE and he did not mention his uncle’s connection at the SHEV interview until the earlier claim that he did was explicitly put to him. In these circumstances, I do not accept that there was a significant LTTE connection through his uncle. I accept that LTTE members may have had their vehicles repaired at his uncle’s garage and that the applicant would have given LTTE members rides from time to time. I do not consider that this association would have been viewed as significant by the Sri Lankan authorities either during the war or subsequently, and I do not accept that the applicant came to the adverse attention of the Sri Lankan authorities because of actual or imputed links to the LTTE. I do consider it plausible that three wheeler drivers would have been regarded as a useful source of information about the movements of LTTE members, and I accept that in these circumstances, the applicant may have been asked to provide information to the SLA from time to time. I do not accept, however, that he was required to inform the army camp of every night hire that he undertook over a six year period.
30. I accept that he may have come to be known as an informer, although I do not accept his evidence that people knew this because they realised that people were harmed a few days after they rode in his three wheeler. I do not consider it credible that people would have made this connection, given the delay between the contact with the applicant and the alleged harm, and given the differing nature of the various kinds of harm that the applicant says was done - thefts, robberies, rapes and one killing. Indeed, the applicant’s evidence about the various kinds of harm being done to people he informed on appears somewhat implausible, although I am prepared to accept that if any of the people of whose movements he informed the SLA were in fact known or suspected of having LTTE links they may well have been targeted, but it seems more likely that they would have been detained or killed rather than robbed or raped. I do not accept the applicant’s claim that they were targeted because the authorities wanted information about the applicant, or that they were harmed while being questioned about him. Had the authorities wanted information about the applicant, I consider that they would have detained him and asked him, rather than forced him to identify other people who they then asked about the applicant. In any case, I note the applicant claimed that these incidents of harm ceased after 2009, and whatever is the truth of the matter, I consider that the events were related to the security situation in place during the war. Even if the applicant was still required to pass information to the authorities from time to time after the end of the war, I am satisfied that no harm came to any person who he informed on after 2009. He says that people stopped talking to him and declined to use his services, but he nonetheless remained in Sri Lanka in his village over the six year period that he says he experienced these difficulties.
31. Having regard to all of the applicant’s evidence and the other information before me, I accept that the applicant knows auto-rickshaw drivers who were shot around 2006, and possibly over a more extensive period during the war years. I do not accept that he witnessed such shootings, although I accept that he may have been the rickshaw driver referred to in the Tamilnet article who was “stopped” by the army when he visited the site of a shooting looking for the victims.
24 The Authority considered the appellant’s claimed history of, and consequential risk due to, a real or imputed connection with the LTTE. At [39] the authority held –
39. … the credible information before me does not suggest that the applicant was ever of any real interest to the authorities because of actual or suspected links with the LTTE. Nor does the credible information indicate that the applicant has been subjected to any form of serious or significant harm because of his ethnicity, his actual or imputed support for the LTTE or his job.
25 At [40] the Authority referred to the risk associated with being of Tamil ethnicity and a prior resident of areas that were controlled by the LTTE, and stated –
40. UNHCR’s 2012 “Guidelines for assessing the eligibility of Sri Lankans for asylum” assess that there is no longer a presumption of a requirement for protection simply for reason of being of Tamil ethnicity and a prior resident of areas previously under the control of the LTTE. I am satisfied that the applicant is not at risk of harm now or in the reasonably foreseeable future for these reasons. The Guidelines set out categories of people who may be at risk of harm because of certain past links to the LTTE, but I am satisfied that the applicant does not fall within any of those categories.
26 At [41] the Authority referred to the evidence of torture and mistreatment of persons taken into detention, but considered that there was no real chance that the appellant would be subjected to such harm –
41. I accept that some people who had certain links with the LTTE may continue to be at risk of harm, especially if they are taken into detention by security authorities as part of the process of monitoring, given the evidence about the prevalence of torture and mistreatment in detention. However, the applicant's evidence does not suggest and I find that he has no connection with the LTTE and is not imputed by the authorities to have any connection with the LTTE. There is no credible evidence to suggest that the applicant has been subjected to even routine monitoring since the end of the war in 2009. In these circumstances, and given the changed security conditions in Sri Lanka (albeit accepting that human rights abuses still occur) I find that there is no real chance that he would be subjected to harm now or on return to Sri Lanka in the reasonably foreseeable future as a person with suspected LTTE connections for any reason including his Tamil ethnicity, his prior residence in LTTE controlled areas, and his occupation as a three wheeler driver.
27 At [47] the Authority addressed the risk of the appellant being questioned and detained upon his return to Sri Lanka as a failed asylum seeker, and stated (inter alia) –
47. I accept that as a person who left Sri Lanka illegally the applicant will probably be investigated and questioned on return. This could involve an interview, contact with the police in his home area, his neighbours and family, and checking criminal and court records. Based on the country information I accept that there may be some risk of further investigation or prolonged detention or harm if a returnee is identified as having an adverse profile, such as a serious criminal record or suspected connection to the LTTE; there have been reports of returnees being subjected to mistreatment in these circumstances. The delegate considered whether the applicant might face harm on return as a failed asylum seeker and considered reports of the mistreatment of returning failed asylum seekers, including information provided by the applicant. The weight of country information, however, indicates that those asylum seekers who were subjected to mistreatment on return had connections of some kind with the LTTE, or there was some reason for the authorities to suspect such links, or they had been politically active overseas. The applicant appears to have no criminal record, and I do not consider that his past interactions with the SLA in Jaffna would cause problems for him now, given that there is no information before me to suggest that this had ongoing repercussions after the end of the war. I find that if the applicant is investigated upon return, the authorities will quickly establish that he has no relevant adverse profile. In these circumstances, I find that the applicant would not be subjected to any mistreatment on arrival back in Sri Lanka that would extend beyond routine processing or which would amount to serious harm. …
28 A footnote numbered 10 to the above passage cited a number of publications that appear from their description and context to comprise country information.
The Federal Circuit Court proceeding
29 The application to the Federal Circuit Court was heard on 31 July 2018. The appellant was represented by a solicitor, who also appeared for him at the hearing. On the morning of the hearing, the appellant sought and obtained leave to file an amended application. The primary judge heard substantive argument on the proposed amended ground of review, and gave leave to the parties to file further written submissions, which the Minister did.
30 By his amended application the appellant sought judicial review of the decision of the Authority on a single ground of review that was accompanied by particulars –
That the Authority failed to give proper and realistic consideration to the information in the second Psychological Assessment dated 5 [sic] September 2016
Particulars
(a) The Authority accepted the diagnoses.
(b) The Authority did not reject the opinions.
(c) Although accepting the diagnoses, the Authority did no more than note that the history given to the report writer contained more inconsistencies.
(d) The report was not presented to the Authority with the intention of corroborating the applicant’s factual claims.
(e) The report was given to the Authority with the intention of explaining that the applicant had major problems with concentration, retention and memory and attention span[.]
31 On 27 May 2020, the primary judge dismissed the application. Her Honour accepted a submission on behalf of the Minister that the 2016 psychological assessment was provided to the Authority by the appellant without comment, and that no context was provided about what it was directed to demonstrate. Her Honour held that in the context of the other material that the appellant submitted to the Authority, it had not been clearly articulated that the appellant’s psychological conditions were a cause of any inconsistencies. Her Honour concluded that, absent submissions on the matter to the Authority, it was not for the Authority to hypothesise on the extent to which the appellant’s psychological conditions inhibited his capacity to provide evidence. Her Honour went on to note that it was apparent from the Authority’s reasons when read as a whole that, contrary to the appellant’s submissions to the Court below, the Authority had considered the psychological assessment for purposes additional to corroborating the appellant’s claims, such as considering the appellant’s capacity to provide information, concluding at [46] –
46. The Authority did not fail to give the Assessment proper, genuine and realistic consideration. It gave the Assessment the requisite consideration that was necessary in [the] absence of any proper basis or explanation for what purpose the Assessment was provided. The Authority considered the Assessment at its highest, and made findings in light of the Assessment, as it was entitled to do in its fact-finding function.
The appellant’s grounds of appeal to this Court
32 On the hearing of the appeal both the appellant and the Minister were represented by counsel. The appellant sought, and with the Minister’s consent I granted, leave to file an amended notice of appeal. That notice of appeal raises two grounds, accompanied by particulars –
1. The Federal Circuit Court at first instance erred in not finding that the Second Respondent (“the Authority”) fell into jurisdictional error in that it was unreasonable.
Particulars
(a) The Authority was unreasonable in that the [inconsistencies] it perceived in the Appellant’s evidence were not a logically probative basis for its rejection of the Appellant’s claim to have witnessed the killings of a number of persons, colleagues, friends or passers-by, and then to have been arrested detained tortured and interrogated. (Authority’s Decision and Reasons, [23]-[29])
(b) Further or in the alternative to particular (a), the Authority said:
“I accept that, as noted in the psychological report, he suffers from depression, anxiety and a range of other psychological conditions which have resulted in “deficits in his concentration, retention and memory and attention span”. (Psychological Report dated 3 September 2016; Authority’s reasons [24]),
The Authority, however, did not have an actual intellectual engagement with, or a real consideration of the psychological report and the Appellant’s mental health in assessing the significance of the inconsistencies it saw in his evidence, for its assessment of the Appellant’s credibility, and the credibility of his claims.
2. The Federal Circuit Court at first instance erred in not finding that the Authority fell into jurisdictional error in that [it] failed to consider relevant considerations, including relevant evidence, information or other material.
Particulars
(a) The Authority failed to consider the limited scope of the Arrival Interview and the Entry Interview, which were not directed to the exploration of detailed claims for protection, in assessing the significance of inconsistencies it saw within the Appellant’s evidence. (Authority’s Decision and Reasons, [23]-[29])
(b) The Appellant refers to and repeats particular (b) to Ground 1 of the Notice of Appeal.
(c) The Authority failed to consider with an actual intellectual engagement the evidence and information before it and relating to the torture of persons in detention, or otherwise under the control of police, military, or other authorities of Sri Lanka, apart from evidence relating to those suspected of a connection with the LTTE.
(d) Further or in the alternative to particular (c), the Authority failed to consider and to determine the question whether the Appellant may be at risk of harm by torture or other serious ill-treatment at the hands of the authorities in Sri Lanka, apart from a profile as a supporter of the LTTE.
33 The grounds of appeal other than particular (b) of grounds 1 and 2 raise issues that were not raised at first instance, and the appellant sought leave to advance these grounds. Although the appellant obtained leave to file the amended notice of appeal, I reserved on the separate question whether leave should be given to the appellant to rely on matters not raised at first instance. The reasons for the Court’s practice of requiring leave to raise on appeal an argument not raised at first instance include the distinct roles of a court exercising original jurisdiction, and a court exercising appellate jurisdiction, and the statutory scheme for the judicial review of decisions of the Authority, which confers original jurisdiction on the Federal Circuit Court: see the observations of Markovic, O’Callaghan and Anastassiou JJ in BXT17 v Minister for Home Affairs [2021] FCAFC 9 at [22]-[23]. Leave to raise a new argument may be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]. That may occur where a new ground clearly has merit.
34 In this appeal, I heard full argument on all issues that were raised by the appellant, and because the Minister did not claim to suffer any prejudice, I considered that the merits of the new issues was likely to be the leading consideration in determining whether to give leave to raise them.
The parties’ submissions
35 As a preliminary matter, I shall refer to the appellant’s first irregular maritime arrival entry interview on 4 October 2012 as the “arrival interview”, the appellant’s second irregular maritime arrival entry interview on 11 January 2013 as the “entry interview”, and the appellant’s interview with the delegate on 16 February 2016 as the “SHEV interview”.
Ground 1(a)
36 The appellant submitted that the inconsistencies in the appellant’s evidence identified by the Authority were not a logically probative basis for rejecting the appellant’s version of events with respect to the three wheel taxi driver shootings and his two or three month-long detention which was said to have followed. The appellant submitted that there was only one instance of a “clear inconsistency” in the appellant’s evidence, being a statement made at the SHEV interview. Counsel for the appellant stressed that the SHEV interview took place nearly ten years after the relevant events, and that the events themselves may have been traumatic to recall. In this regard, the appellant submitted that the Authority had accepted the psychological diagnosis made in the psychological report. The other inconsistencies pointed to by the Authority were explained by the appellant as being the result of possibly incorrect recording of the entry interview, instructions from the interviewer to the appellant to be brief, the short duration of the entry interview being one hour and 17 minutes, including time required for interpretation resulting in “effectively only about 40 minutes or less of communication”, and the “brevity” and “steering” of the interview by the apparent use of “directive questions” which did not invite responses to any other topics. In those circumstances, the appellant submitted that it was unreasonable for the Authority to reject the appellant’s claims of having witnessed the shooting incident and to have been subsequently arrested, detained, tortured, and interrogated.
37 In oral submissions, counsel for the appellant emphasised the difference in approach taken by the delegate and the Authority: the delegate relied on inconsistencies in the appellant’s evidence to reject the proposition that the appellant witnessed the shooting incident, but accepted that he had been questioned and mistreated by the SLA; the Authority, on the other hand, rejected both that the appellant had witnessed the shooting incident, and also that he had been detained and questioned immediately afterwards. Whilst counsel accepted that it was open to the Authority to make different factual findings from the delegate, counsel submitted that if it did so without seeking further information, which it did not in this case, the Authority should have had careful regard to all of the things that may bear upon the proper assessment of credibility, including the psychological diagnosis. Counsel submitted that the Authority had not done so, and that had it done so, the Authority may have accepted that the appellant had been detained and mistreated, and that may have affected the Authority’s assessment and therefore its decision.
38 In response, counsel for the Minister identified that the appellant’s first ground of appeal relied on a claim of legal unreasonableness. Counsel submitted that the Court must be conscious not to permit principles of legal unreasonableness to become a form of merits review, citing Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [30] (French CJ). Counsel submitted that it was accepted that there was at least one inconsistency in the appellant’s claims, being the statements by the appellant in the SHEV interview. In addition, there were inconsistencies about the circumstances in which the shootings were said to have taken place, namely whether the event took place in an open field, or at an auto-rickshaw stand. Counsel submitted that there was therefore an intelligible justification for the Authority not to accept that the shooting incident, as described in the appellant’s statutory declarations, took place.
Grounds 1(b) and 2(b)
39 Consistent with the structure of the parties’ submissions, it is convenient to deal with particular (b) to grounds 1 and 2 together.
40 Counsel for the appellant largely relied on the arguments that were advanced before the primary judge. Counsel submitted that the Authority failed to consider the effect of the appellant’s psychological diagnosis in its assessment of the significance of inconsistencies in the appellant’s evidence and credibility. Counsel submitted that the inconsistencies were “arguably slight” given the length of time that passed since the events being recalled and the trauma of those claimed events. Given this, counsel submitted that it was incumbent on the Authority to consider and determine whether the psychological diagnosis may have affected the appellant’s ability to give reliable and consistent evidence.
41 Counsel for the appellant relied on Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [37]-[38] in submitting that the Authority should have undertaken active intellectual engagement with the question of the appellant’s possibly limited ability to give consistent and reliable evidence, and that the Authority’s references to the psychological report fell short of such engagement. Counsel for the appellant accepted in oral submissions that the psychological report did not deal with the appellant’s psychological state at the times of giving his various accounts, but noted that the report detailed the psychologist’s consultations with the appellant which occurred in 2014 and 2016. Counsel submitted that it should be inferred that the appellant’s psychological state was largely constant from 2014 to 2016, which is temporally proximate to the appellant’s statutory declaration in 2013.
42 Counsel for the appellant submitted that the Authority operated within the statutory context established by ss 5J, 5H, 36(2)(a) and (aa) of the Act, with the effect that if the Authority was to make an unfavourable decision towards the appellant, it must be because it did not consider there to be a “real chance” of significant harm. In that context, it was submitted that the Authority ought to have given clear, conscious and careful attention to the possible effect of the psychological diagnosis on the appellant’s evidence.
43 In response, counsel for the Minister submitted that the appellant’s claims on appeal should be rejected for the same reasons given by the primary judge. The primary judge held that it was clear from the Authority’s reasons that it appreciated that the psychologist’s report was relevant to the appellant’s capacity to provide reliable information, and referred to the relevant aspect of the report at [7] and [24]-[25] of its statement of reasons (see [21] and [23] above). Her Honour held at [43] that, when read as a whole, it was apparent that the Authority had turned its mind to the appellant’s psychological conditions and resulting deficits and, at [25] of its reasons, the Authority had stated that this was one of the factors that it had taken into account. In addition, counsel for the Minister relied on [24] of the Authority’s statement of reasons, where the Authority accepted that the appellant’s mental health conditions had resulted in “deficits in his concentration, retention and memory and attention span”. Counsel submitted that the Authority’s conclusions were open for the reasons it gave, and that there was nothing that was legally unreasonable in concluding that, notwithstanding the opinions expressed in the psychologist’s report, the inconsistencies in the appellant’s evidence resulted in it being unreliable.
44 In response to the appellant’s submission in reliance on the decision of the Full Court in Minister for Home Affairs v Omar, counsel for the Minister submitted that the appellant had not made a significant and clearly expressed argument before the Authority as to the effect of the psychological assessment on the appellant’s credibility, and had not provided context for the report. Counsel submitted that, nonetheless, the Authority had taken the report into account.
Ground 2(a)
45 There is some overlap between the matters going to this ground and those argued in relation to particular (a) of ground 1, summarised at [36] and [37] above. Counsel for the appellant dealt with particular (a) of grounds 1 and 2 together during the course of oral submissions, and I will avoid extensively repeating the overlapping matters here.
46 In summary, counsel for the appellant submitted that the Authority had placed “decisive weight” on the inconsistencies between the arrival interview, the entry interview, and the TamilNet article, as opposed to the appellant’s later evidence, while failing to have regard to the limited scope of the arrival and entry interviews. That limited scope was said to arise from the length of time between the interviews and the subject events, the short duration of the interviews, and the recording of those interviews in a summary format, which was not a verbatim transcript. Counsel for the appellant submitted that the form of the entry interview indicated both brevity and the steering of the interview by directive questions that did not invite responses to any other topics. Counsel submitted that had the Authority had regard to this limited scope, when taken together with the appellant’s subsequent clarification about inconsistencies between the interviews, the Authority may have assessed the evidence differently, and that may have affected the Authority’s decision. The appellant argued that the Authority’s decision was therefore affected by jurisdictional error of the kind identified in ASV16 v Minister for Immigration and Border Protection [2018] FCAFC 141 at [24]-[26], namely a failure to consider important or significant information which may have affected the outcome of the review by the Authority.
47 In response, counsel for the Minister submitted that the appellant had not made any submission to the Authority that weight should not be placed on the entry interview because it was brief, confined, and steered by directive questions. Counsel submitted that the question of what weight should be attached to the entry interview by reason of these features was not an argument that was squarely raised before the Authority, or one that clearly emerged from the material.
48 Counsel for the Minister further submitted that the Authority did not place “decisive weight” on the entry interview alone, but placed weight also on the TamilNet report which the appellant had furnished, and the discrepancies between the entry interview, the statutory declarations and the SHEV interview.
Grounds 2(c) and 2(d)
49 Particulars (c) and (d) of ground 2 were dealt with together by the parties, and I shall adopt that structure.
50 Counsel for the appellant submitted that the Authority’s reasons did not engage with a significant body of material before it that related to the general risk of torture by the authorities for people in Sri Lanka, and in particular, persons in detention. Relatedly, counsel submitted that the Authority failed to consider and determine whether the appellant might be at risk of harm at the hands of the Sri Lankan authorities. Counsel submitted in relation to both propositions that the Authority only considered material relating to persons suspected of some connection with the LTTE. Counsel for the appellant accepted that the Authority did not need to refer to every piece of evidence before it, but submitted that the material going to the general risk of torture was important to the appellant’s explicit claim to fear of torture, and submissions about torture in Sri Lanka. As such, counsel submitted that the Authority had failed to consider important information which, if accepted, may have affected the Authority’s decision, therefore resulting in jurisdictional error.
51 In response, counsel for the Minister submitted that the appellant had not claimed to fear harm on account of a general risk of detention and torture upon return to Sri Lanka, but that his claim to fear harm was linked to his past, and on account of his perceived involvement with the LTTE. Counsel further submitted that, in any event, the Authority had given consideration to whether the appellant faced a general risk of harm from detention or torture upon return to Sri Lanka, and relied on the Authority’s reasons at [47], an extract from which is set out at [27] above.
Consideration
52 I shall consider the issues raised by the grounds of appeal in the same order as the parties’ submissions.
Ground 1(a)
53 The duty of the Authority to review decisions that are referred to it under Part 7AA of the Act is imposed on the implied condition that the duty must be performed within the bounds of reasonableness: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 94 ALJR 928 at [3] (Kiefel CJ, Bell, Gageler and Keane JJ). Findings by the Authority on material questions of fact are therefore amenable to judicial review on the ground of excess of power if material findings are attended by legal unreasonableness. However, in discharging the Court’s function to review decisions of the Authority on the ground of legal unreasonableness, care should be taken not to exceed that supervisory role by undertaking a merits review. That is because the merits of the referred application for a protection visa, to the extent that they can be distinguished from legality, are for the Authority as the repository of the duty to undertake a de novo review: Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 36 (Brennan J); Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [66] (Hayne, Kiefel and Bell JJ). The test for legal unreasonableness is therefore necessarily stringent: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11] (Kiefel CJ). Without being definitive, a factual finding as to a material matter may be outside the scope of the statutory review function conferred on the Authority if there was no evidence to support it, or if there was otherwise no intelligible justification for the finding, or if the finding was the product of illogical or irrational reasoning such as reasoning that is arbitrary or capricious, or if it was one at which no rational or logical decision maker could arrive on the same evidence: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]-[131], [135] (Crennan and Bell JJ). These overlapping categories represent different ways in which excess of power may arise. However, any illogical or irrational reasoning, or the absence of an intelligible foundation, must involve more than emphatic disagreement with the result by the reviewing court: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [40] (Gleeson CJ and McHugh J).
54 In relation to the appellant’s claims about the occurrence of the shootings, the Authority had before it the appellant’s answers to questions recorded in the record of the entry interview, and a briefer account that was referred to in the delegate’s reasons as having been given in the course of the arrival interview. It was well open to the Authority to consider that these accounts accorded in material respects with the incident described in the TamilNet article that the appellant had submitted to the Department and to which he had referred in his statutory declaration dated 28 October 2013. There was an inconsistency between this information, and the accounts recorded by the appellant in his statutory declarations. That inconsistency was put to the appellant and his representative by the delegate during the SHEV interview. A second area of inconsistency was the answers given by the appellant to the delegate in the course of the SHEV interview relating to the number of people who were shot, and how many of those were his friends.
55 There were a number of threads to the Authority’s reasons for rejecting the appellant’s claims, evident at [28] and [29] of its statement of reasons, which included the inconsistencies referred to above. The Authority considered relevant that amongst the information that it possessed there were no reports of a shooting incident at an auto-rickshaw stand similar to the one described by the appellant in his statutory declarations. At [26] of its reasons, the Authority referred to the correlation between the names of the persons whom the appellant claimed were killed, identified by him in his statutory declarations, and the names identified in the TamilNet article. The Authority considered the appellant’s claim that he had been detained for two to three months and questioned was not credible in circumstances where the appellant claimed that the persons were killed by the SLA or by paramilitaries associated with the SLA. At [29], the Authority referred to a number of matters that it considered were inconsistent with the notion that the appellant was perceived as having links with the LTTE. It was the combination of all these matters that led the Authority to reject the appellant’s claims that he had witnessed the shootings, and that he had subsequently been taken in and detained by the SLA.
56 In his statutory declaration of 28 October 2013, the appellant stated that he had been present when the claimed 2006 shooting incident took place. He stated that at the initial interview this information may have been incorrectly recorded, and that it was possible that the interpreter at the initial interview may have misinterpreted what he had stated. In his statutory declaration dated 28 August 2016 that was enclosed with his representative’s submissions to the Authority, the appellant claimed that at the time of the arrival interview on 4 October 2012 he was very confused, that the interpreter was rude, and that the interpreter told him to give brief answers. The appellant did not address the circumstances of the entry interview of 11 January 2013 in the 28 August 2016 statutory declaration. In my view, it is evident from what the Authority stated at [26] of its reasons that it gave consideration to what the appellant had claimed about the circumstances of the arrival interview. The appellant’s claim that there had been a misinterpretation or incorrect recording of what he had said was necessarily rejected by the Authority on the ground that what he was recorded as having said was broadly consistent with the account in the TamilNet article that the appellant had submitted to the Department in 2013. That was a course of reasoning that was open to the Authority.
57 The passage in the psychologist’s report that stated that the appellant had presented with “deficits in his concentration, retention and memory and attention span” caused by posttraumatic stress symptoms, anxiety and depressed mood was referred to and accepted by the Authority. The Authority is to be understood as stating at [25] of its reasons that this opinion was one of the factors that it took into account in assessing the appellant’s claims.
58 I do not accept the appellant’s argument on appeal that the presence of inconsistencies in the appellant’s evidence was not a logically probative basis on which to reject the appellant’s claims. This argument involved a challenge to the merits of the Authority’s decision. The Authority was not bound to accept the appellant’s claims that there may have been a misinterpretation of what he had said in the arrival interview or the entry interview, or that what was recorded was a result of the appellant being told by the interpreter to be brief. The suggestion that the interviewer used “directive questions” appears to have been raised for the first time on appeal. Nor was the Authority bound to reject or diminish the significance of what the Authority considered to be the appellant’s inconsistent evidence by reference to the psychologist’s opinion. The psychologist’s opinion, which was accepted by the Authority, was expressed in a conclusory fashion in relation to the appellant’s presentation to the psychologist, and was expressed with a degree of imprecision. The nature and extent of the deficits were not explored in the context of a report that purported to record some aspects of the appellant’s history. It is also significant that, as the primary judge held at [34], the psychologist’s report was simply provided to the Authority by the appellant’s representative without comment. It was not proffered as an explanation for the inconsistencies in the appellant’s accounts that the delegate had identified.
59 Nor do I accept that the apparent difference in approach between the delegate and the Authority gave rise to legal unreasonableness on the Authority’s part. As counsel for the appellant accepted, it was open to the Authority to make different factual findings from the delegate, and I do not accept the suggestion that the Authority failed to have regard to matters bearing upon the proper assessment of credibility: cf ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 94 ALJR 928 at [23]-[25] (Kiefel CJ, Bell, Gageler and Keane JJ), [69]-[70] (Nettle J). Indeed, error of the kind considered in ABT17 v Minister for Immigration and Border Protection was not raised as a ground of appeal. In any event, the Authority’s conclusion on the appellant’s claimed detention and questioning was not of itself the reason for the Authority’s decision to affirm the delegate’s decision.
60 I consider that the challenge that the appellant seeks to make on the ground that the Authority’s rejection of the claims was legally unreasonable is tantamount to an invitation to this Court to review on the merits the Authority’s conclusions. As I have indicated at [55] above, there were a number of threads to the Authority’s reasons for rejecting the appellant’s claims, and I reject the appellant’s case that it was not open to the Authority to reason as it did, which involved preferring one account of events over another.
Grounds 1(b) and 2(b)
61 I do not accept that the Authority fell into jurisdictional error by failing to give appropriate consideration to the opinion of the psychologist concerning “deficits in [the appellant’s] concentration, retention and memory and attention span”, to which the Authority referred, and stated that it accepted.
62 The psychologist’s opinion in the 2016 report concerned the state of the appellant’s presentation during six consultations in 2014 and three consultations in 2016, though I note the earlier report identified seven consultations in 2014. The 2016 report did not proffer any developed opinion about the scale or effect of the deficits. Counsel for the appellant submitted that the Authority should have considered explicitly, and have found, whether it was possible that the appellant’s ability to give accurate evidence was affected by the posttraumatic stress disorder and by the major depressive disorder, and whether it was compounded by the passage of time.
63 It is apparent from the Authority’s reasons read as a whole that it did not consider that the accepted deficits in the appellant’s concentration, retention and memory and attention span that appeared on presentation to the psychologist carried such weight that it led the Authority to prefer the appellant’s claims in his statutory declarations over the information given in the arrival interview and the entry interview in the context of the other circumstances to which the Authority referred, including the contents of the TamilNet article.
Ground 2(a)
64 I do not accept that the Authority fell into any jurisdictional error of the type alleged by particular (a) of ground 2. The appellant had claimed in his statutory declaration dated 28 August 2016 that in the arrival interview of 4 October 2012 the interpreter was rude and had told him to give very brief answers. The Authority referred to this explicitly at [26] of its reasons, and I do not accept that the Authority failed to consider this claim. No similar claim was made by the appellant in his statutory declaration in relation to the entry interview of 11 January 2013, and there was no claim by the appellant before the Authority that in terms relied on a claim that there were “directive questions” at the interviews.
65 It was open to the Authority to rely on the correlation between the information recorded in the records of the arrival interview and the entry interview, and the account in the TamilNet report, which the appellant had submitted in support of his invalid 2013 application for a protection visa. I do not accept the appellant’s claim that the Authority put decisive weight on that correlation, but it was no doubt an important element to its reasoning that it considered together with the other circumstances to which it referred. In my view, the submissions in support of this ground were little more than a claim that the Authority should have treated the appellant’s responses to the questions in the two interviews differently in a way favourable to the appellant by giving them diminished weight. Such a submission would seek only to assail the merits of the Authority’s evaluation of the totality of the material before it.
Grounds 2(c) and 2(d)
66 The appellant claimed a risk and a fear of torture, and of possibly being killed if he returned to Sri Lanka. That fear was based upon claims that: (1) the north of Sri Lanka was highly militarised; (2) the appellant had previously been subjected to torture, and the fear of being tortured again; (3) that he had been forced to work as an informer; (4) he feared that he would be harmed if he continued to provide information to the authorities; (5) he feared being falsely accused of having links to the LTTE as he was a Tamil from the north of Sri Lanka, and that Tamils who originate from the north are frequently targeted by the authorities; (6) he had learned from his mother that, since arriving in Australia, Sri Lankan authorities had gone to his house in search of him several times and that they had harassed his brothers; (7) his perceived involvement in the 2006 killing of the three wheel taxi drivers; and (8) he had visible scars due to torture that he claimed to experience in 2006 coupled with the fact that he fled Sri Lanka illegally and claimed asylum in Australia. At [7] and [8] above I have set out extracts from the submissions of the appellant’s representative to the delegate which summarised the appellant’s claims.
67 In addition, the submission of the appellant’s representative to the delegate referred to country information, including a DFAT country report of 16 February 2015 which the representative submitted –
(a) recorded credible reports of disappearances and torture carried out by the Sri Lankan security forces against the Tamil population;
(b) stated that DFAT assessed that there have been credible reports of torture carried out by Sri Lankan security forces during the civil conflict and in its aftermath, with the reports coming from a wide range of actors, including political activists, suspects held on criminal charges and civilians detained in all parts of Sri Lanka, including in relation to suspected LTTE connections. The submission also stated that incidents of torture were not confined to any particular ethnic, religious or political group; and
(c) referred to country information relating to the risk of detention and torture upon return to Sri Lanka.
68 I do not accept the submission of the appellant that the Authority failed to consider his claims to the extent that they pointed to some general risk of torture. The Authority found that the appellant was neither a member nor a supporter of the LTTE. The Authority did not accept that the appellant had been detained for two months in 2006 in the circumstances claimed, although it accepted that it was plausible that he had been questioned on other occasions. The Authority did not accept that the appellant was of any adverse interest to the Sri Lankan authorities after the war, and held that the credible information before the Authority did not suggest that the appellant was ever of any real interest to the authorities because of any actual or suspected links to the LTTE, or that he had been subjected to any form of serious or significant harm because of his ethnicity, his actual or imputed support for the LTTE, or his job as a three wheel taxi driver. The Authority did not accept that there was any real chance that the appellant would be subjected to harm now or in the foreseeable future upon his return to Sri Lanka on account of suspected LTTE connections, his Tamil ethnicity, his prior residence in LTTE controlled areas, or his occupation as a three wheel taxi driver. The Authority was not satisfied that the appellant faced serious harm upon return to Sri Lanka as a result of having passed information onto the SLA in the past, and considered the possibility that he would be required to provide information to the authorities upon his return as being remote. Finally, for the reasons the Authority gave at [47] of its statement of reasons (see [27] above), it was not satisfied that there was a real chance that the appellant would face serious harm on his return to Sri Lanka as a failed asylum seeker. The Authority referred to the weight of country information as indicating that those asylum seekers who were subjected to mistreatment upon return had a connection of some kind, or a suspicion of some link, with the LTTE. In the case of the appellant, the Authority did not accept the existence of such a connection or suspicion.
69 Having reviewed the claims advanced by the appellant in his statutory declarations and in the submissions of his representative, fairly understood they were anchored in the claims relating to his ethnicity as a Tamil from the north, his claimed past activities, and a risk arising from his return to Sri Lanka as a failed asylum seeker and as having departed illegally. In his statutory declaration dated 28 August 2016 the appellant summarised his claims –
14. I am scared that if I am forced to return to Sri Lanka I will be arrested and detained indefinitely because of my past and for fleeing the country without the permission of the SLA. … If I ever return to Sri Lanka, I am scared that the local SLA will immediately come looking for me and I will be taken away and detained indefinitely.
(Emphasis added.)
70 The Authority considered these claims and did not accept them.
71 I do not consider that the appellant made some other substantial and clearly articulated claim that rested on a residual general risk of harm that was detached from the appellant’s claimed circumstances, or that such a claim was apparent on the material before the Authority: cf, NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [55]-[63] (Black CJ, French and Selway JJ). The country information to which the appellant’s representative referred in the submissions to the delegate was advanced to give support to the claims concerning the risk of harm that the appellant made based upon his claimed circumstances. The Authority treated the references to the country information in this way at [41] of its reasons (see [26] above). The Authority linked the risk of harm to a risk of detention by the authorities in Sri Lanka, and found that there was no real chance of this occurring on account of the claims that the appellant had advanced.
72 For the above reasons, having regard to the claims that were advanced by the appellant, I do not accept that the Authority failed to consider the evidence relating to the torture of persons in detention or otherwise under the control of the authorities in Sri Lanka, or consider whether the appellant was at risk of such in the terms claimed by particulars (c) and (d) of ground 2.
Conclusion
73 For the above reasons, although the appeal was carefully and skilfully argued by counsel for the appellant, there is insufficient merit in the new issues raised by particular (a) of ground 1, and ground 2 of the amended notice of appeal to justify leave being given to raise them, and leave is therefore refused to raise those issues. Otherwise, the appeal will be dismissed with costs.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan. |
Associate:
