Federal Court of Australia

AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1252

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to rely on appeal ground 3, and be refused leave to rely on appeal ground 1A, in the amended notice of appeal filed on 19 July 2022.

2.    The appellant have leave to rely on:

(a)    the amended transcript of the protection visa interview annexed to the purported affidavit of Daniel R Taylor dated 7 July 2022; and

(b)    the affidavit of Aaron Chelliah, and the annexure thereto, affirmed on 8 July 2022.

3.    The appellant be refused leave to rely on the affidavits of Suphaneela Sivakumaran, and the annexures thereto, affirmed on 5 and 8 July 2022.

4.    The appeal be allowed.

5.    Orders 3 and 4 of the primary judge on 27 January 2022 be set aside and in lieu thereof the following be ordered:

(a)    The decision of the second respondent on 16 November 2018 to affirm the decision of a delegate of the first respondent not to grant the applicant a protection visa be set aside.

(b)    The review of the decision of a delegate of the first respondent not to grant the applicant a protection visa be referred again to the second respondent differently constituted for a fresh review of the decision according to law.

(c)    The first respondent pay the applicant’s costs.

6.    The first respondent pay the appellant’s costs of the appeal, excluding the costs of the affidavits referred to in order 3 above.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    The appellant appeals from a decision of the Federal Circuit and Family Court of Australia (Division 2) (the Division 2 Court) dismissing his application for judicial review of a decision of a reviewer at the Immigration Assessment Authority. The Authority’s decision affirmed a decision of a delegate of the relevant Minister not to grant the appellant a protection visa.

2    For the reasons that follow, I am persuaded that appeal grounds 2 and 3 must succeed.

Background

3    The background to the matter as set out at [3]-[9] of the primary judge’s reasons (ie, J[3]-[9]) is repeated below, with some additional detail.

4    The appellant is a citizen of Sri Lanka. He entered Australia at Christmas Island by sea in November 2012 without a visa. He is an “unauthorised maritime arrival” within the meaning of s 5AA of the Migration Act 1958 (Cth).

5    Officers of the Department of Immigration and Citizenship conducted an enhanced screening process interview of the appellant on 3 December 2012 on Christmas Island, with the assistance of a Tamil interpreter. The written record of the interview is 12 pages. As will be seen, it was not provided to the Authority for its review of the delegate’s decision. It was in evidence before the Division 2 Court.

6    An officer of the Department conducted an “irregular maritime” arrival interview of the appellant on 31 December 2012 on Christmas Island, with the assistance of a Tamil interpreter. As is typically the case, the record of the arrival interview is in the form of a pre-printed questionnaire with limited fields for the recording of answers. There was, however, a recording of the full interview and a transcript of that recording was sought to be tendered in this Court. It forms the basis for appeal ground 3.

7    In September 2016, the Department sent the appellant a letter inviting him to apply for a protection visa and advising him that the Minister had exercised the power under s 46(2) of the Act to lift the bar in s 46A(1) which had, until that time, prevented him from applying for a protection visa.

8    In September 2017, the appellant lodged a valid application for a protection visa. In a statutory declaration supporting his application he provided information relating to a number of issues, including the following:

9.     On 26 December 2004, I was affected by the tsunami and I sought refuge at the school…

10.    After the tsunami, the LTTE asked me to join them. I refused as I was the only one in my family supporting, my wife and father.

11.    The LTTE detained me in a bunker for some time and demanded that I work for them. LTTE told me not to worry about providing for my family because they would pay me. I still refused. They beat me. A leader came to see me and threatened me saying that if I do not work for them, they would send me into the forest.

12.    I was afraid so I told them that I could not fight but I that could work for them doing office work. I said that I could drive and so they told me to work as a driver for them. I worked as a driver for them for about three months transporting LTTE members from one office to another office. Sometimes, they also told me to put up banners in front of the office or go to the market and buy vegetables and meat for them.

13.    After some time, there was a split between the Tamil Tigers and the Karuna group and there were fights between the two groups. The Karuna group joined with the Sri Lankan government and started to attack.

14.    At that time, I left LTTE and came home to Batticaloa and resumed my fishing…

9    The statutory declaration recorded (at [51]) that it was “taken over the telephone with the assistance of a telephone interpreter but my statement and my application form were not read back to me due to time constraints”.

10    The appellant also made the following claims:

(1)    he was forced to transport 10-12 LTTE cadres by boat sometime after leaving the LTTE and returning to Batticaloa;

(2)    he was beaten on multiple occasions by the Sri Lankan Army (SLA) for his involvement with the LTTE and fears further harm from the SLA and from paramilitary groups because of his involvement with the LTTE;

(3)    he feared harm from the Taila Makkal Viduthalai Pulikal (TMVP) due to claims of previous harassment and beatings by the TMVP following his involvement with the LTTE;

(4)    he assisted the Tamil National Alliance (TNA) with election campaigning by installing posters and fears harm from paramilitary groups due to his work with the TNA; and

(5)    he feared harm as a returned failed asylum seeker to a western country.

11    The appellant attended an interview conducted by an officer of the Department on 2 February 2018 to discuss his claims for protection (protection visa interview – also referred to as the SHEV interview). The appellant was assisted by a migration agent and the migration agent provided submissions on the appellant’s behalf before and after the protection visa interview.

12    A delegate of the Minister made the decision on 16 May 2018 to refuse to grant the appellant a protection visa. The matter was then referred to the Authority for review pursuant to s 473CA of the Act.

13    The appellant’s solicitor and migration agent provided a written submission to the Authority on 10 July 2018, and a further written submission on 1 November 2018.

14    The Authority affirmed the decision of the delegate to refuse to grant the appellant a protection visa on 16 November 2018.

15    The appellant filed an application for judicial review of the Authority’s decision in the Division 2 Court on 31 December 2019, which was over one year outside the 35 day time limit imposed by s 477(1) of the Act. He sought an extension of time which was granted and which is not challenged in the appeal.

16    The Division 2 Court hearing took place on 24 September 2021. The appellant was represented. The primary judge held that all three grounds of review failed and dismissed the application.

17    The appellant filed a notice of appeal from the decision of the Division 2 Court in this Court on 1 February 2022.

The Delegate’s decision

18    The delegate found that the appellant did not have a well-founded fear of being persecuted on return to Sri Lanka for the essential and significant reasons of his race or his membership of a particular social group (Tamils from the North and East of Sri Lanka), for being a failed asylum seeker, or for being convicted of a criminal offence in NSW. The delegate was therefore not satisfied that the appellant was a refugee as defined by s 5H(1) of the Act and a person in respect of whom Australia has protection obligations pursuant to s 36(2)(a) of the Act.

19    Also, in respect of complementary protection pursuant to s 36(2)(aa) of the Act, the delegate was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Sri Lanka, there is a real risk that the appellant will suffer significant harm.

The Authority’s decision

20    The Authority’s decision record states that the following information was before it:

    The material given by the Secretary under s 473CB of the Act.

    A written submission from the appellant’s legal representative dated 9 July 2018, which provided a DFAT Country Information Report on Sri Lanka published on 23 May 2018, which was after the delegate made his decision. The Authority decided there were exceptional circumstances to justify consideration of the report as new information.

    A further written submission from the appellant’s legal representative dated 31 October 2018 informing of recent political events in Sri Lanka. The Authority was satisfied that this information could not have been provided before the delegate’s decision was made, and that there were exceptional circumstances to justify consideration of the new information.

21    As mentioned, the material given by the Secretary to the Authority under s 473CB of the Act did not include the written record of the enhanced screening process interview.

22    The Authority summarised the appellant’s claims for protection as follows (as written):

•    He was detained, threatened and beaten for three months by the LTTE after the 2004 tsunami disaster because he had refused to join.

•    He worked as a driver for Liberation Tigers of Tamil Eelam (LTTE) and also put up banners.

•    At the time that the Karuna Group was formed, split from the LTTE and aligned with the government the applicant ceased working for the LTTE as a driver.

•    A LTTE member threatened to kill the applicant unless he transported some stranded LTTE cadre using his fishing boat.

•    The Tamil Makkal Viduthalai Pulikal (TMVP) abducted the applicant and interrogated him about working for the LTTE and wanted him to identify other members. He was beaten and tortured until he lost consciousness. He woke up at a private hospital with his parents.

•    He was often rounded up by the Sri Lankan Army (SLA) and beaten on multiple occasions on LTTE suspicion. He withdrew from his studies.

•    He married his wife and lived with her and her parents in Trincomalee to avoid the harassment in Batticaloa.

•    The TMVP located the applicant in Trincomalee and between 2008 and 2012 would come to his house to interrogate him. They showed him photos of a LTTE member the appellant recognised who was shot dead a few days later.

•    He fled Sri Lanka and travelled to Malaysia on [redacted]. He was refused immigration clearance at Kuala Lumpur upon arrival and was deported back to Sri Lanka.

•    Upon return to Sri Lanka the applicant was held for two or three days and interrogated by the authorities. He told the authorities he had travelled to Malaysia for a holiday and his family assisted in his release by paying a bribe. He went into hiding.

•    He started working for a Tamil National Alliance (TNA) candidate. He assisted in the election campaign by putting up posters.

•    On 6 August 2012, he was harassed by unknown people who told him not to put up the posters. That same evening, he received an anonymous phone call from a man who threatened to kill him if he continued working for the TNA. He fled to Trincomalee and went into hiding.

•    He fled Sri Lanka illegally by boat with the assistance of people smugglers.

•    Since coming to Australia his wife has been questioned many times by the TMVP about the applicant’s whereabouts. She has been forced to move residences many times. His mother has been questioned many times by men who may be Criminal Investigation Division (CID) officers. He has also heard that a fellow TNA campaigner was shot and killed.

•    He fears he will be harmed upon return as a person who has sought asylum in Australia.

23    The Authority was not satisfied as to the veracity of a number of the appellant’s claims. The Authority found that there were inconsistencies in the appellant’s evidence regarding his marriage, and was not satisfied that he delayed registering the marriage out of safety concerns for himself or his family or due to reasons relating to his LTTE profile. The Authority was not satisfied that the appellant was targeted by the Sri Lankan Army on suspicion of actual LTTE involvement.

24    More generally, the Authority found the appellant’s claims in relation to his involvement with the LTTE to be implausible. Of particular relevance to the appeal are the Authority’s comments at [13]-[14] of its reasons (ie, A[13]-[14]):

13.    The applicant claimed that it was after the tsunami occurred on 24 December 2004 that he was approached to join the LTTE. He stated in his written evidence that he refused to join as he was the only one supporting his wife and his father. The applicant claimed that on refusal to join he was detained and kept in a bunker for three months. He was beaten and threatened that if he did not cooperate with them he would be killed and thrown into the forest. He told the delegate that he was refused food and water and the ground in the bunker was uneven. It was on account of these conditions that he eventually agreed to assist the LTTE, however he refused to carry weapons and told them he would not fight so they allocated him as a driver on account of having a driver’s licence. During the period he worked for the LTTE he would put up banners and transport LTTE members from one office to another and go to the market and buy vegetables and meat for them. He continued to perform this work until the Karuna Group formed and defected from the LTTE. He told the delegate at interview that after the split the Karuna Group aligned itself with the government and the LTTE fled and he did not have anything to do with them after this time.

14.     I found there were a number of anomalies with the applicant’s statements. Firstly, the applicant claimed that it was sometime soon after the tsunami in December 2004 that he was approached by the LTTE and refused to work for them. He claimed that he was supporting his wife and father at this time as a fisherman however the applicant’s evidence indicates his wife was only twelve years old at the time and he did not claim to have married her in an informal capacity until 2008. Secondly, the applicant claimed that he was detained for three months, beaten, deprived of food and water, and threatened due to his refusal to work for the LTTE. Despite this treatment, when the applicant succumbed to the LTTE demands he was able to negotiate his position within the organisation as a driver and opted out of fighting in the war. I am not satisfied that a LTTE prisoner would be in a position to negotiate his role in their organisation nor opt out of combat had the LTTE required him to do this. I find the applicant’s claim implausible. Finally, country information indicates that Colonel Karuna broke away from the LTTE in March 2004, which was nine months before the December 2004 tsunami and before the applicant purportedly joined the LTTE. At interview the delegate put this timeline discrepancy to the applicant who reasoned that the Karuna Group had split from the LTTE in March 2004 but it was not until later that they joined the Sri Lankan government in fighting against the LTTE. The applicant’s representative provided the same reasons for the inconsistency in a post interview submission and provided an article from British Broadcasting Company (BBC) News in support of these claims. I am not satisfied that the article assists the applicant’s claims. It states that it was in 2004 that Colonel Karuna defected and began fighting alongside government forces against the Tigers which is incongruent to the applicant’s timeline of claimed events.

25    At A[15], the Authority found that it was plausible, and accepted, that as a Tamil fisherman, the appellant was on one occasion prior to mid-2007 forced to transport stranded LTTE cadres by sea. However, the Authority found that the appellant’s claims in relation to further involvement with the LTTE were implausible and was not satisfied that the appellant was beaten, tortured and forcefully recruited by the LTTE soon after December 2004 or that he worked as a driver for the LTTE.

26    The Authority found that the appellant had fabricated his claims of abduction and torture by the TMVP and his subsequent admission to hospital. Further, the Authority did not accept as credible the appellant’s claims that he was interrogated by the TMVP, had identified an LTTE member who was later killed, was detained in Sri Lanka for three days after being deported from Malaysia or had campaigned for the TNA (A[16]-[19]).

27    The Authority stated the following with regard to it rejecting a number of the appellant’s claims:

24.    I also have substantial doubts that the applicant lived in Trincomalee from 2008 to 2012 as he has claimed and suspect he lived in Batticaloa. His SHEV application listed his employment history from 2009 to 2012 as a carpenter in Batticaloa for an employer named “[redacted]”. [A place is Batticaloa – redacted] is also listed as the place of birth of his first son in [redacted] on the birth certificate provided by the applicant. I note that at interview the applicant informed the delegate that he had visited his newborn son in the Batticaloa hospital on more than one occasion. The marriage certificate dated [redacted] also has Batticaloa listed as the place of marriage. The delegate had similar suspicions regarding the applicant’s residency and claims and reminded him that he had provided conflicting residential and employment history at the interview conducted on Christmas Island in 2012 (Arrival Interview). At this interview the applicant stated he had only ever lived at the one address in Batticaloa since birth until departure in 2012. He also stated that he had only ever engaged in employment in Batticaloa. An explanation for these inconsistencies (and the omission of his involvement in the LTTE and his problems with the TMVP) was provided in the applicant’s written statement. It stated that a fellow asylum seeker on Christmas Island had told him that the Australian government were passing information onto the Sri Lankan government and he was afraid that he would be harmed as a result. At the SHEV interview he stated the non-disclosure of the information at arrival interview was to protect his family from harm in Sri Lanka. However, the applicant had claimed that prior to his departure from Sri Lanka his wife and child were already being targeted by paramilitary groups on account of his adverse political profile and were constantly on the move to avoid detection. I do not accept the applicant’s reasons for his non-disclosure of information at arrival interview. I am not satisfied that the applicant resided in Trincomalee or was in hiding there. Nor am I satisfied that his wife and children have ever been targeted by the paramilitary and have been forced to change residences on account of any such adverse interest.

28    Ultimately, the Authority did not accept that the appellant will face a real chance of serious harm or a real risk of significant harm on return to Sri Lanka as a result of his Tamil ethnicity, his illegal departure from Sri Lanka or as a failed asylum seeker. The Authority found that the appellant does not meet the requirements of being a refugee under s 5H(1) and therefore is not a person in respect of whom Australia has protection obligations under s 36(2)(a). Further, the Authority found that the appellant does not meet the complementary protection criteria in s 36(2)(aa).

29    The Authority therefore affirmed the delegate’s decision not to grant the appellant a protection visa.

The Division 2 Court’s decision

Ground 1

30    The primary judge granted the appellant leave to rely on an amended application dated 21 September 2021 but refused him leave to rely on a further amended application dated 23 September 2021. Ultimately, in a careful and detailed judgment, her Honour dismissed the application.

31    Ground 1 below was that the Secretary, at the time that the delegate’s decision was referred to the Authority, did not consider or form a view on the relevance to the review of certain material including the audio recording of the appellant’s enhanced screening process interview and the case assessment and biodata interview, thus not complying with their mandatory obligation under s 473CB(1)(c) of the Act. As will be seen, ground 1 below coincides with ground 2 in the appeal.

32    The evidence before the Court below included a written record of the enhanced screening process interview, but there were no audio recordings in evidence, nor was there any evidence to confirm that the audio recordings were in the Secretary’s possession and control at the time of the referral to the Authority. In those circumstances, her Honour interpreted ground 1 below as asserting that the alleged breach of s 473CB(1)(c) extended to the written record of the enhanced screening interview (J[74]). Her Honour was satisfied that the written record of the enhanced screening process interview is a record that was in the Secretary’s possession at the time of the referral to the Authority and that it is material that was relevant to the Authority’s review, and that there was therefore a breach of s 473CB(1) (J[77]). Her Honour was not satisfied on the evidence before her that the audio recordings of the enhanced screening process interview and the case assessment and biodata interview were within the Secretary’s possession at the time of the referral, and therefore found that the alleged breach of s 473CB(1)(c) in relation to that material was not established (J[78]).

33    With respect to materiality, her Honour did not accept the appellant’s submission that the information in the enhanced screening process interview would have supported his claim to have been involved with the LTTE “at the time of the split with the Karuna group”, because the information in the interview suggests that the appellant joined the LTTE in June 2004, whereas the information before the Authority was that the appellant had said that he did not have anything further to do with the LTTE after the Karuna group split from the LTTE, which country information indicated took place around March 2004. Her Honour reasoned that it could be inferred that the Authority would have had the same concern about the inconsistency in the appellant’s timeline whether he claimed to have been taken by the LTTE in June 2004 or December 2004 (J[86]). Further, her Honour found that the information in the enhanced screening process interview sheds no light on any events in 2007 and does not shed any light on the use of the word “split” in relation to the split between the LTTE and the Karuna faction. Accordingly, she did not accept that the breach of s 473CB(1) of the Act with respect to the written record of the enhanced screening process interview could realistically have deprived the appellant of the opportunity of a successful outcome in this regard (J[87]).

34    With respect to credibility, her Honour found that there is nothing in the Authority’s reasons to suggest that it drew any adverse credibility inference against the appellant as a result of his failure to refer to any involvement with the LTTE at an earlier stage. Further, the information in the enhanced screening process interview could only realistically have caused the Authority to view the appellant’s credibility in a more positive light if the information was consistent with the other information before the Authority. Her Honour found that the inconsistencies between the two sets of information were so significant that the Secretary’s failure to provide the written record of the enhanced screening interview process could not realistically have deprived the appellant of the opportunity of a successful outcome (J[88]). Therefore, the breach of s 473CB(1) was not material and did not amount to jurisdictional error.

Grounds 2 and 4

35    Grounds 2 and 4 below essentially asserted unreasonableness, illogicality or irrationality in relation to certain findings of fact made by the Authority, and also included a contention that the Authority had misinterpreted or misunderstood the appellant’s claims (J[91]). Review ground 4 coincides with appeal ground 1.

36    In view of the conclusion that I have reached with regard to appeal grounds 2 and 3, it is unnecessary to consider her Honour’s reasoning in rejecting review grounds 2 and 4.

Ground 3

37    Ground 3 alleged that the Authority unreasonably failed to consider exercising the discretion in s 473DC(3)(b) of the Act to invite the appellant to provide new information at an interview on a number of identified subjects (J[149]). Her Honour was not satisfied that the Authority did not consider the exercise of the discretion under s 473DC(3)(b) of the Act, and stated that even if it could be inferred that the Authority did not do so, any such failure was not unreasonable for any of the reasons articulated (J[150]-[177]).

38    This ground is not the subject of any appeal ground so it is not necessary to consider it any further.

The appeal

39    The appellant filed a notice of appeal on 1 February 2022 which contained two grounds of appeal (grounds 1 and 2).

40    Mr Daniel Taylor, a solicitor, appeared for the appellant in the appeal, as he had done in the proceeding below. It is to be noted that Mr Taylor’s conduct of the proceeding below was the subject of adverse comment by the primary judge (J[32]). Her Honour specifically mentioned the failure to progress the case in a timely manner, the piecemeal presentation of the case in the lead up to the hearing and the apparent disregard of Court orders (J[33]). Exactly the same comments apply to the conduct of the appeal. Just as the primary judge expressed, the Court is grateful for the assistance given to it by lawyers who appear on a pro bono basis representing people, such as asylum seekers, who are in very difficult circumstances and who would likely be self-represented were it not for such public-spirited lawyers. The contribution of such lawyers to the proper administration of justice is enormous. However, such lawyers are under the same obligations as any other to present their client’s case in a timely, organised, efficient and sensible fashion. Unfortunately, that cannot be said for the way in which this appeal was conducted.

41    The consequence of the way in which issues were brought forward in the appeal is that the Court did not have the benefit of focussed written submissions on behalf of the appellant dealing with each of the issues. The consequence of that was that the Minister was not able to present responsive written submissions. Rather, the appeal was presented in a rambling and disorganised way in oral submissions which has substantially burdened the Court. The conduct of an appeal in this Court in such a manner is unacceptable and runs the risk of a personal adverse costs order.

New and amended grounds of appeal

42    On 9 July 2022, ie, five days before the hearing, Mr Taylor filed an affidavit annexing a proposed amended notice of appeal.

43    At the commencement of the hearing on 14 July 2022, Mr Taylor sought leave to rely on additional particulars to grounds 1 and 2 as well as two additional grounds of appeal (labelled grounds 1A and 3) which raise points that were not the subject of any review ground before the Division 2 Court.

The grounds of appeal

44    The appellant’s grounds of appeal as outlined in the amended notice of appeal can be summarised as follows:

    Ground 1A: [ie, new ground] the Authority’s review of the delegate’s decision was materially affected by interpretation errors in the appellant’s protection visa interview in relation to the timing of the appellant’s association with the LTTE, such that the Authority misunderstood the appellant’s evidence.

    Ground 1 [ie, ground 4 below]: The Division 2 Court erred in finding that the Authority did not make a jurisdictional error by misunderstanding or failing to consider the appellant’s claims made orally in the protection visa interview with respect to his service to the LTTE up to and during the time that the LTTE was expelled from the Eastern Province and that he would therefore be a person of adverse interest to the authorities.

    Ground 2 [ie, ground 1 below]: The Division 2 Court erred in finding that the error of the Secretary in failing to refer the enhanced screening process interview to the Authority under s 473CB(2)(c) of the Act was not material, in that it was supportive of the appellant’s oral evidence to the delegate that he joined the LTTE after the split with the Karuna faction, and served with them for an extended period of time, therefore possibly leading to different findings including on the appellant’s credibility.

    Ground 3: [ie, new ground] The Authority’s credibility findings in relation to the appellant were materially affected by its failure to have regard to the appellant’s claims in the enhanced screening process interview and arrival interview, in particular the audio recording of the arrival interview.

New evidence on appeal and new grounds of appeal

45    Mr Taylor also sought leave to rely on new evidence on appeal pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) being:

    A purported (ie, unwitnessed) affidavit of Mr Taylor dated 7 July 2022 annexing an amended transcript of the protection visa interview indicating errors due to the use of voice to text technology in the original protection visa interview transcript which was before the Authority and the Division 2 Court.

    Two affidavits of Suphaneela Sivakumaran (a NAATI Level 3 Tamil translator) affirmed on 5 July 2022 and 8 July 2022, annexing Ms Sivakumaran’s translations of certain excerpts of the protection visa interview. The translations consist of English, and English translations of all Tamil dialogue, in the audio recording of the interview.

    An affidavit of Aaron Chelliah affirmed on 8 July 2022 annexing a transcript of the arrival interview conducted with the applicant on 31 December 2012 prepared from an audio recording.

46    Mr Reilly, who appeared for the Minister, quite properly took the position that the amendments to the notice of appeal, other than the new grounds, gave rise to no prejudice to the Minister and that the Minister did not oppose them. In relation to the new grounds, and the new evidence said to support them, Mr Reilly said that until he had heard the argument in support of them, he was not in a position to know whether they created any prejudice to the Minister in dealing with them, but that in the event that prejudice became apparent he would raise it. In the event, no prejudice was raised.

47    I ordered that the appellant have leave to file, and forthwith file, the amended notice of appeal. I made it clear that the appellant was not yet granted leave to rely on grounds 1A and 3 until I had heard from both parties in relation to those grounds.

48    No particular issue arises from Mr Taylor’s purported affidavit correcting the transcript of the protection visa interview. The appellant should have leave to rely on that affidavit.

49    The affidavit of Mr Chelliah annexes a transcript of the appellant’s arrival interview. The audio recording of that interview was extensively referred to by the delegate. I assume, to the benefit of the Minister, that the audio recording was provided to the Authority by the Secretary, although the recording, or the fact that it was listened to, is not referred to in the Authority’s reasons. Although the transcript of the interview is in a sense “new evidence”, it is in substance merely a more convenient way of having regard to what was said in that interview than having to listen to the audio recording. Although the transcript could presumably have been produced prior to the hearing in the Division 2 Court, and therefore formed part of the evidence before that Court, there is no identifiable prejudice in the transcript being tendered in this Court. Moreover, the point sought to be made in reliance on the transcript, being that agitated by appeal ground 3, is closely related to and essentially caught up in appeal ground 2.

50    In the circumstances, the appellant should have leave to rely on Mr Chelliah’s affidavit and to advance appeal ground 3.

51    The same is not true of the specialist interpretation evidence that Mr Taylor sought to rely on. First, the explanation for why that evidence was not brought forward in the proceeding before the Division 2 Court is unsatisfactory. In essence, Mr Taylor did not seek instructions on whether there were interpretation difficulties until his preparation for the appeal hearing. Those difficulties would have become apparent at a much earlier stage if the requisite preparation had been done when it should have been done.

52    Secondly, I am not persuaded that there are reasonable prospects of success in reliance on the interpretation errors. That requires some explanation.

53    There are two legal principles at the heart of appeal grounds 1A and 1. The one is that the Authority is engaged in a de novo consideration of the merits of the decision that has been referred to it under s 473CC(1); its task is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met: Plaintiff M174/2016 v Minister [2018] HCA 16; 264 CLR 217 at [17]. The Authority must examine the review material provided to it by the Secretary in order for the Authority to form and act on its own assessment of the relevance of that material to the review of the referred decision: ABT17 v Minister [2020] HCA 34; 269 CLR 439 at [7].

54    The other principle was articulated in DVO16 v Minister [2021] HCA 12; 388 ALR 389 at [18] – the High Court held that there are only two potential ways in which translation errors in a recording of a protection interview provided to the Authority by the Secretary as part of the review material might result in non-compliance with any condition of a decision of the Authority expressed in or implied in Pt 7AA. The first of those, discussed at [19]-[21], depends on the Authority having known or reasonably having been alerted to the interpretation errors such as to make its decision based on those errors a decision that was not open to a reasonable member of the Authority cognisant of the statutory obligation of the Authority ordinarily to conduct its review without accepting or requesting new information or interviewing the referred applicant. That is not relevant to the present case. The second way, discussed at [22]-[23], is the one that is presently relevant. In that regard, the High Court explained as follows (at [23]):

Just as mistranslation of words spoken during a protection interview has the potential to result in the delegate failing to understand and therefore to consider the substance of a claim in fact raised by the applicant in his or her own language, so the same mistranslation has the potential to result in the Authority failing to understand and therefore to consider the substance of the same claim. Mistranslation in that way has the potential to result in the Authority failing to discharge the core element of its overriding duty, namely to assess the claims to protection in fact made by the applicant against the criteria for the grant of the visa in determining for itself whether or not it is satisfied that the criteria for the grant of a visa have been met.

55    That is to say, the Authority must “understand and … consider the substance” of each claim made by the protection visa applicant, and assess the claims to protection in fact made. In doing so, a mistranslation of any relevant claim that results in a failure by the Authority to discharge that overriding duty will give rise to a breach of the Authority’s obligations under s 473CC(1).

56    The appellant has the burden of bringing his case within that characterisation of error.

57    The key factual issue at the heart of appeal grounds 1A and 1 is the appellant’s account of the circumstances in which, and when, he came to work with or for the LTTE, and the circumstances in which, and when, he ceased working with or for the LTTE. It is errors in translation relevant to those circumstances that have the potential to give rise to the error of the second type identified in DVO16.

58    The point that the appellant wishes to make is that when he worked with the LTTE it was during the time that the Karuna group had split from the LTTE, and not that he was there at the time that the split occurred. Also, he wishes to say that he was there at a later time when the Karuna group joined the government and together they attacked the LTTE and caused the LTTE to flee from the area.

59    The appellant’s evidence in the protection visa interview, even as corrected by the specialist interpreter, is not clear on these issues. For example, in the extract identified as “SS1”, the following is recorded as being a question that he was asked and the answer that he gave to it:

Interpreter:    [Tamil] When did you stop driving the Movement around?

Appellant:    [Tamil] Because the Movement separated into two… at the time, the Movement separated into two and the Karuna group, the Pillayan group and all fought with Prabhakaran. I was there at the time. After the Karuna group joined the government, I… from the Movement… the members of the Movement ran away from our place and hid, so it was during that time that I left everything and came home.

60    The appellant is fairly understood to have said in that exchange that he was with the LTTE at the time that the Karuna group split and that it was at the time that the Karuna group joined the government that he left the LTTE and went home. In other words, the corrected translation does not support his case. That is one of the key extracts relied on as showing mistranslation. It can be accepted that there was significant mistranslation, but for the reasons given, that does not assist the appellant.

61    The other errors in interpretation are problems of incomplete answers, or summaries, being given by the interpreter and questions of nuance. I am not persuaded that any of them is of such a nature as to have resulted in the Authority having failed to understand or to consider the substance of the appellant’s claims; they do not establish a failure by the Authority to have discharged its overriding duty under s 473CC(1). There may nevertheless be a case, with reference to appeal ground 1, that the Authority failed to understand or to consider the substance of the appellant’s claims, but that does not arise from the interpretation errors. However, it is not necessary to consider appeal ground 1 in view of my conclusion on appeal grounds 2 and 3.

62    For those reasons, the appellant should be denied leave to advance appeal ground 1A or to rely on the affidavits of Ms Sivakumaran in the appeal.

Consideration of related grounds 2 and 3

63    The primary judge’s finding that the written record of the enhanced screening process interview is a record that was in the Secretary’s possession at the time of the referral to the Authority and that it was a document that was relevant to the review is not challenged by the Minister. The sole issue in relation to that record is whether or not the Secretary’s failure to give it to the Authority under their obligation to do so pursuant to s 473CB(1) of the Act was material in the sense that the failure could realistically have deprived the appellant of the opportunity of a successful outcome.

64    It is necessary to consider whether the decision that was in fact made by the Authority could have been different had the relevant condition been complied with (ie, if the enhanced screening interview record had been provided to the Authority) “as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”: MZAPC v Minister [2021] HCA 17; 390 ALR 590 at [38]. With reference to that passage, it was recently explained in Nathanson v Minister for Home Affairs [2022] HCA 26, a decision post-dating the primary judge’s decision in the present case, at [33] that the standard of “reasonable conjecture” is “undemanding”.

65    It is to be noted that the earliest account of the appellant’s claims given by him that was before the Authority was the form in which certain information from the appellant’s arrival interview was recorded by an officer of the Department and the audio recording of that interview. The interview was on 31 December 2012.

66    However, the appellant had been interviewed earlier that month, on 3 December 2012, in the enhanced screening process at Northwest Point Immigration Detention Centre on Christmas Island. No transcript or recording of that interview was before the Authority. A record of it was, however, before the primary judge. In answer to a series of questions by officers of the Department, the appellant made the following claims (amongst others):

(1)    In relation to his reasons for coming to Australia:

In 2004 when the tsunami hit our area, I was displaced and in that camp. At that time the LTTE was getting people to do work relief work to do with the tsunami and I was working for them and because I was working for them I was suspected as being involved with them.

(2)    He said that he was taken by the LTTE in June 2004 “and made to work during the time of the tsunami”. He had to cook for them, “and watering the gardens and such tasks”.

(3)    He said that he was with the LTTE for three months.

(4)    He said that after working for the LTTE, he worked for the Tamil United Front. He did election work for them. He said that one day some people unknown to him came in a white van and threatened him for working for the Tamil National Alliance. He said that that occurred around 6 August that year, ie, 2012. He gave further details about this incident.

(5)    He said that after that incident he was “shuffling between my home, my mother’s home and my wife’s place to avoid these people and then one day they came and took my father and beat him up, and asked where I was staying”. The people said that the appellant had been involved with “the tigers” (ie, the LTTE), and that is why they were looking for him. The appellant gave further details about this incident. He later returned to this incident and said that on the day that the people came to him they did not mention the “tigers”, but only his work for the Tamil National Alliance. He said that when others went missing “we learned they were after me as they were suspecting I was involved with the tigers”.

(6)    The appellant said that he then sought protection from “the church priest and stayed with him for 10 days”. He explained that although he is Hindu, he sought protection from a Catholic priest.

(7)    The appellant was asked where he was staying before he was in hiding with the priest. He said that he was staying in different places, his mother’s house, his wife’s house and his uncle’s place to avoid being captured. Later he explained that what had happened was in Batticaloa and that he went to his wife’s area in Trincomalee where he considered it safer. He explained why he had that view. The appellant also explained that he considered that remaining in one place in Batticaloa was unsafe so to avoid being harmed he stayed in different places in Batticaloa.

(8)    The appellant said that after he had left by boat for Australia, two people had been enquiring about him at his home and at his neighbour’s house. He said that he cannot say definitely who they are, but he believed that they are from the TMVP (Karuna and Pillayan’s breakaway faction).

(9)    It was suggested to the appellant that it looks like he had a low profile. In response, he said that he worked for the LTTE in 2004 so he was suspected of being involved with the LTTE which is the reason why he was targeted. He said that after Pillayan won the election and “became Chief Minister”, “his people were more active and they are trying to hunt down people” who they suspected of being supporters of the LTTE. He described the people as TMVP people and that their leader is Pillayan.

67    It is to be observed that the information given by the appellant in the enhanced screening process interview was detailed and extensive. In contrast, only the briefest responses are recorded in the arrival interview form, being the interviewers’ summary of the answers given by the appellant during that interview.

68    There are a number of respects in which the enhanced screening interview transcript may have assisted the appellant had it been available to the Authority.

69    First, the Authority found it to tell against the appellant that in his arrival interview he had stated that he had only ever lived at one address in Batticaloa, since his birth until his departure in 2012, in contrast with what he said thereafter, ie, during the protection visa application process. This point is made by the Authority at A[24] which is quoted in full at [26] above. However, in the enhanced screening process interview the appellant described in detail how he had stayed at different places in Batticaloa and also at Trincomalee. This evidence supports what he said later and undermines the Authority’s criticism of him in relation to the places where he stayed.

70    The criticism of the appellant on this issue also directs attention to the record of the arrival interview on which the Authority relied as the basis for its criticisms. Question 12 in Part B asked for his most recent address in Sri Lanka, in response to which an address in Batticaloa is recorded. Question 13 asked for previous addresses, to which a “not applicable” answer is recorded. Question 14 asked whether he had “lived” anywhere else, to which the answer “no” is recorded. It is those recorded answers on which the Authority based its finding that in the arrival interview the appellant said that he had only ever lived at one address.

71    However, the transcript of the arrival interview indicates that the line of questioning during the interview was as follows:

Officer: What was the address where you were staying immediately before you departed Sri Lanka?

Appellant: In Batticaloa, [specific street address – redacted] Batticaloa

Officer:     When did you start living at that address, what date?

Appellant: From the time of my birth till I left. Ten days before leaving, I went to my mother in law’s place.

Officer: I don’t need to know about that, but all your life you stayed in this one address?

Appellant: I don’t know how to say it because for 10 days I might go to my mother in law’s house stay there and come back, but this was my mainstay.

Officer: As I said to you before, I only need details of places where you stayed, anywhere else where you stayed for one month or more.

Appellant: This is the address.

72    Thus, the Authority relied on the summarised answers recorded by the interviewing officer in the arrival interview form, rather than on the answers actually given by the appellant in the interview, and then held the summary answers against the appellant when the answers actually given would have exposed the fallacy of the criticism.

73    Further, the appellant’s enhanced screening process interview may have altered the Authority’s conclusions on the extent of the inconsistencies in the appellant’s evidence on where he lived before departing Sri Lanka and its acceptance of his explanation for the inconsistencies, which is relevant to its general credibility findings. The Authority at A[24] stated that it did not accept the appellant’s explanation in his written statement for the inconsistencies between the arrival interview and later information in relation to his living and employment history prior to leaving Sri Lanka. However, his explanation does not appear to have been offered in relation to that point. Rather, it is a general statement under the heading “Background” that simply says:

When I first arrived at Christmas Island in Australia, another man who had come by boat told me not to tell everything to the Australian government because the Australian government was passing information to the Sri Lankan government and I was afraid that this information would be released in Sri Lanka and I would be harmed as a result.

74    The Authority at A[24] also referred to the protection visa interview during which it was put to the appellant that there were inconsistencies in the information he provided at the “interview at Christmas Island” and the protection visa application in relation to his “residential and employment history” and where he was “living and where you were working in the years leading up to your departure from Sri Lanka on route to Australia in 2012”. It is unclear which interview at Christmas Island the officer was referring to – the enhanced screening process interview or the arrival interview. The officer also does not appear to have put specific inconsistencies to the appellant in relation to where he lived before departing Sri Lanka. The appellant, evidently distressed, responded that the reason he did not disclose the information at Christmas Island – although it is not clear what information was being referred to – was because he was considering the risk of harm to his family. It must also be acknowledged that six years had passed between the interviews conducted at Christmas Island and the protection visa interview during which he was questioned about the inconsistencies.

75    The detailed information provided by the appellant in the enhanced screening process interview summarised at [65(7)] above about his movements between different places prior to leaving Sri Lanka may have altered the Authority’s perception of the extent of the inconsistencies in the appellant’s evidence, as well as the delegate’s line of questioning in relation to the perceived inconsistencies and the appellant’s responses. Consequently, that information may have led to the Authority reaching a different decision in relation to its acceptance of his general explanation for not disclosing information at Christmas Island and their general findings on his credibility.

76    Secondly, the Authority found it to tell against the appellant that in his arrival interview he had omitted his involvement with the LTTE and that he had problems with the TMVP. Again, this is apparent in A[24]. However, the written record of the arrival interview before the Authority shows that in answer to the question why he left his country of nationality, he included that he was harassed and feared the opposition party, “the Pulliyan Group”, and later it is recorded that he said that he is “afraid of Pulliyar Group”. In his enhanced screening process interview, the appellant said that the leader of the TMVP is “Pillaiyan” (AB352). He said in the protection visa interview that the TMVP was the Karuna and Pillayan faction that left the LTTE (AB371 and 373). Thus, when he spoke of the TMVP he was speaking of the Pillayan group or the alliance between Karuna and Pillayan. There is therefore no foundation to the criticism that he had not mentioned his problems with the TMVP during the arrival interview. That error is further exposed by the fact that in his enhanced screening process interview the appellant dealt in detail with his involvement with the LTTE and his problems with the TMVP. If the Authority had had the record of that interview it might realistically have reached a different conclusion on the point.

77    The criticism is put in reverse at A[19] where the Authority said that the appellant stated at his arrival interview that he feared harm from the Pillayan group but that he did not mention that during the protection visa interview. However, in the protection visa interview the appellant spoke on many occasions about his problems with the TMVP including that he had been abducted and interrogated by them and that his wife was interrogated by them (AB377-378, 381). What he said in his enhanced screening process interview is consistent with this – that as a “former LTTE” he was being hunted by “TMVP people. Their leader is Pillaiyan”. Had the enhanced screening process interview been available to the Authority, it might realistically have made a difference to the Authority’s criticism of the appellant in A[19].

78    The primary judge was in error (at J[88]) where her Honour said, as a reason for denying the materiality of the Secretary’s failure to provide the record of the enhanced screening process interview to the Authority, that there is nothing in the Authority’s reasons to suggest that the Authority made any adverse credibility inference against the appellant as a result of his failure to refer to any involvement with the LTTE at an earlier stage, such as in his arrival interview. The Authority explicitly made such an adverse credibility finding at A[19] and [24].

79    Thirdly, the Authority was not satisfied that the appellant had resided in Trincomalee or was in hiding there (A[24]). However, as discussed at [68] above, in his enhanced screening process interview the appellant gave a detailed account of going into hiding in Trincomalee and moving between there and Batticaloa. This is supported by the evidence he gave in the arrival interview about moving between Batticaloa and his mother-in-law’s home, which the appellant says is in Trincomalee, which evidence was omitted from the written record of that interview before the Authority.

80    The primary judge reasoned that the information in the enhanced screening process interview could only realistically have caused the Authority to view the appellant’s credibility in a more positive light if the information was consistent with other information provided by the appellant which was before the Authority. Her Honour accepted the Minister’s submissions that there were a number of ways in which the information the appellant provided in the enhanced screening process interview was inconsistent with other information he provided to the Authority (J[88]).

81    There is no doubt that some of the information given by the appellant in his enhanced screening process interview conflicts with some of the information given by him, or recorded as having been given by him, at other times. However, there are also respects in which information given by him in his enhanced screening process interview serves to confirm, or is confirmed by, information given by him at other times. As already canvassed, the appellant was interviewed on numerous occasions over a long period of time, including in respect of events that had taken place a long time before he was questioned about them and in traumatic and uncertain circumstances, and sometimes in circumstances where the appellant had little trust in those questioning him. Added to that, there are many occasions on which different people representing him sought to articulate his case in writing. The difficulties in that regard included difficulties of access to the appellant and taking instructions on the telephone through an interpreter, as recorded at [51] of his statutory declaration (see [9] above). Even the most honest and well-intentioned witness will be exposed to inconsistencies in their accounts in those circumstances. Such inconsistencies do not necessarily mean that the whole account, or its major narratives, must to be rejected. See W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 at [15] per Lee, Carr and Finkelstein JJ and ASB17 v Minister for Home Affairs [2019] FCAFC 38; 368 FCR 271 at [45] per Griffiths, Mortimer and Steward JJ.

82    An assessment of credibility is not necessarily linear: VAAD v Minister for Immigration and Multicultural Affairs [2005] FCAFC 117 at [79], citing Gleeson CJ in Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; 204 CLR 82 at [4]; BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189; 281 FCR 594 at [101]. Moreover, adverse findings on credibility may well, expressly or implicitly, be linked with one another so that it is impossible, or unrealistic, for a reviewing Court to be confident that an error in one strand of credibility reasoning does not infect other strands: AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 at [20] per Mortimer J.

83    Undoubtedly, the anatomy of decision-making, particularly with respect to the weighing of different evidence and reaching judgments on credibility, is complex; disbelief of someone at one point might carry over to affect the decision-maker’s disbelief at other points, and vice versa. See SZFTQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44]-[45] per Lee J citing Kirby J in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; 221 CLR 1 at [81]. The logic, structure and flow of reasons does not necessarily dictate how in reality credibility findings on one aspect may or may not have consciously or subconsciously informed another aspect: DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525 at [52] per Beach J.

84    The importance of a witness’s first account of particular events is often emphasised. There are sometimes circumstances in which that account is regarded to be less reliable, particularly where there is an explanation for why a full or accurate account was not given up-front. But generally what the witness first said on a subject is regarded as particularly important. Indeed, that is reflected in the Authority’s approach to the arrival interview which, to the Authority, was the first record of the appellant’s account, although, as explained, it overlooked at least some of what was said in that interview but not recorded. For a first record to be left out of account can, and usually will, be expected to have an influence on the ultimate assessment of the witness’s story.

85    In those circumstances, as a matter of reasonable conjecture, the ultimate assessment of the appellant’s claims, and in particular the rejection of key aspects of his claims, may well have been different had the Authority had available to it the record of the appellant’s enhanced screening interview or had it considered the audio recording or transcript of the appellant’s arrival interview. The failure by the Secretary to provide the enhanced screening record to the Authority was therefore material in the requisite sense, and that failure was thus a jurisdictional error by the Secretary. The same applies to the Authority’s failure to have regard to certain claims of the appellant in the arrival interview as available to it in the audio recording.

86    Appeal grounds 2 and 3 should therefore succeed.

Disposition

87    For those reasons, the appeal should be allowed. Orders 3 and 4 of the primary judge on 27 January 2022 should be set aside and in lieu thereof there should be orders quashing the decision of the Authority on 16 November 2018 to affirm a decision of the Minister’s delegate to refuse the appellant a protection visa. There should also be an order of mandamus that the Authority decide the review again, differently constituted, according to the requirements of the law. That would include that the Secretary provide to the Authority the appellant’s enhanced screening process interview and the Authority consider the audio recording of the appellant’s arrival interview.

88    There is no apparent reason why the Minister should not pay the appellant’s costs of appeal, save that those costs should not include the costs of the preparation of the affidavits of Ms Sivakumaran affirmed on 5 July 2022 and 8 July 2022, and the translations annexed to those affidavits, as leave to rely on them is refused.

Associate:

Dated:    21 October 2022