Federal Court of Australia

BUW16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 238

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court of Australia (as it then was) made on 12 March 2020 be set aside and in lieu thereof, the Court orders that:

(a)    the decision of the Administrative Appeals Tribunal (Tribunal) dated 27 June 2016 be set aside;

(b)    the matter be remitted to the Tribunal to be determined according to law; and

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

3.    The first respondent is to pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

HALLEY J:

Introduction

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA), (now the Federal Circuit and Family Court of Australia (Division 2)): see BUW16 v Minister for Immigration and Border Protection [2020] FCCA 498 (J).

2    The primary judge dismissed an application for review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 27 June 2016 (DR or decision record). In that decision, the Tribunal affirmed the earlier decision of a delegate of the first respondent (Delegate) on 16 August 2013 to refuse to grant the appellant a Protection (Class XA) (Subclass 866) visa (Protection Visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Migration Act).

3    For the reasons outlined below, the appeal is to be allowed.

Factual Background and procedural history

Circumstances of the application for a Protection Visa

4    The appellant is a citizen of Sri Lanka.

5    On 20 June 2012, he arrived in Australia as an unauthorised maritime arrival.

6    On 19 November 2012, the appellant applied for a Protection Visa. The appellant provided a statutory declaration dated 15 November 2012 in support of the application.

7    In his statutory declaration, the appellant claimed to fear harm from Sri Lankan authorities and paramilitary groups, including the Karuna group, a pro-government paramilitary group, on the basis of his Tamil ethnicity, imputed political opinion and because he departed Sri Lanka illegally.

8    The appellant claimed that on 20 August 2010, a member of the Karuna group, Senadirajah, asked the appellant to use his motorbike. In fear that there would be serious consequences if he did not comply with the request, the appellant handed his motorbike to another member of the Karuna group, Chandru. The appellant claimed that he was arrested a few days later as his motorbike had been used in a robbery. The appellant claimed that the police released him and he subsequently gave evidence in court against members of the Karuna group who took his motorbike. The appellant claimed that the court case resulted in the Karuna members being jailed and he was subsequently threatened by those who were convicted.

9    On 9 May 2013, the appellant attended an interview with the Delegate.

10    On 16 August 2013, the Delegate refused the appellant’s application for a Protection Visa.

11    On 3 September 2013, the appellant applied to the Tribunal for a review of the Delegate’s decision to refuse the appellant’s application for a Protection Visa.

12    On 28 July 2014, the appellant attended a hearing before the Tribunal.

13    On 15 December 2015, the application was transferred to another Tribunal member.

14    On 6 June 2016, the appellant attended a second hearing before the Tribunal.

15    On 27 June 2016, the Tribunal affirmed the Delegate's decision. The Tribunal wholly rejected the appellant's claims, singularly and cumulatively, as it was ultimately not satisfied that the appellant had suffered any of the harm that he had claimed to have suffered.

16    On 18 July 2016, the appellant commenced proceedings in the FCCA. He was subsequently granted leave to rely on an amended application, filed on 12 November 2018, for judicial review of the Tribunal’s decision (Amended Application).

17    On 12 March 2020, the primary judge dismissed the Amended Application.

Decision of the Tribunal

18    The Tribunal summarised the substance of the submissions and evidence of the appellant at DR [10]-[23].

19    The Tribunal concluded at DR [26] that the appellant’s application for a Protection Visa continued to be a valid application and at DR [27]-[29] that the appellant was a citizen of Sri Lanka with Tamil ethnicity from Batticaloa.

20    The Tribunal then considered at DR [30]-[60] whether the appellant had suffered any of the claimed harm. It focused on what it described as the “motorbike incident” (at DR [39]-[50]), the appellant’s entry interview (at DR [51]-[53]) and claims in relation to the appellant’s “returning uncle” (at DR [54]-[60]). The Tribunal found that the appellant’s account of the motorbike incident was vague and lacked sufficient details suggesting it was fabricated (at DR [49]), the appellant’s failure to mention significant claims in his entry interview that he subsequently sought to advance raised serious doubts about the veracity of the appellant’s claims and his general credibility (at DR [53]) and it was difficult to accept that the appellant was unable to provide further details about the uncle’s claimed mistreatment given its alleged severity (at DR [55]).

21    I consider in more detail the Tribunal’s reasons in my consideration of the appeal grounds.

Decision of the primary judge

22    The appellant sought judicial review of the Tribunal’s decision before the FCCA pursuant to s 476 of the Migration Act.

23    By the Amended Application, the appellant raised four grounds challenging the decision of the Tribunal. At the hearing on 20 February 2019, Ground 3 in the Amended Application was abandoned.

24    The three remaining grounds in the Amended Application were advanced in the following terms:

1.    The applicant appeared before the Administrative Appeals Tribunal (“the Tribunal”) differently constituted on 28 July 2014 (“the First Hearing”) and gave evidence. The Tribunal, in its decision dated 27 June 2016, did not consider the applicant’s evidence given at the First Hearing. The Tribunal is required to consider all evidence given by an applicant at a hearing. For the Tribunal to not consider the evidence given by the applicant at the First Hearing is a jurisdictional error.

2.    The Tribunal, in the course of finding at [31] that it was “not satisfied that the applicant suffered any of the claimed harm”, repeatedly found that it had “doubts” about aspects of the claims and the applicant’s credibility: see for example at [34], [36], [38], [40], [41], [42], [44] and [45]. See also reference “on balance” at [57]. The language used by the Tribunal indicated that the Tribunal had a real doubt as to whether its findings on material questions of fact were correct. In the circumstances, the Tribunal ought to have considered the possibility that its finding that it was “not satisfied that the applicant has suffered any of the claimed harm” was wrong.

…

4.    The Tribunal found at [40] that “the applicant has now changed his evidence”. This finding contributed to the Tribunal’s conclusion that [31] that it was “not satisfied that the applicant has suffered any of the claimed harm”. A review of the applicant’s evidence indicates that the applicant had not, in fact, changed his evidence. The Tribunal’s incorrect finding that the applicant had changed his evidence involved jurisdictional error.

25    In his reasons for judgment delivered on 12 March 2020, the primary judge rejected each of the remaining grounds in the Amended Application and made an order dismissing the Amended Application.

26    The primary judge observed at J [29] that Ground 1 was amplified at the hearing as a complaint that the Tribunal member “didn’t listen and have proper regard to…the audio recording of the applicant’s evidence at the first Tribunal hearing”. The primary judge concluded by reference to selected passages in the transcript of the second Tribunal hearing and in the decision record, that the Tribunal member had considered the evidence of the appellant and his wife at the first Tribunal hearing and nothing put by the appellant in support of Ground 1 established jurisdictional error (at J [31]-[57]). This ground was not advanced on appeal to this Court.

27    The primary judge rejected Ground 2 on the basis that it followed from a fair reading of the decision record as a whole that the Tribunal had “no real doubt” that its findings were correct (at J [58]-[60]). This ground was not advanced on appeal to this Court.

28    Ground 4, however, is advanced on appeal to this Court.

29    With respect to Ground 4, after reviewing the transcript of the alleged change in the evidence of the appellant, the primary judge concluded at J [65]-[67]:

65    In my view a fair and legally reasonable reading and construction of the Applicant’s evidence in this regard, as reproduced at [63] above before the emboldened line inserted into the transcript, was that Chandru was with Senadirajah at the police station.

66    The evidence given by the Applicant after the line at [63] above is to the effect that the second person at the police station was not Chandru and that he did not know the identity of that second person. On that reading of the transcript it was open to the Tribunal to find, as it did at [40] of its Decision Record, that the Applicant had “changed his evidence”.

67    For myself, I doubt that I would have reached that conclusion, but rather would have come to the view that perhaps there was a misunderstanding between the Member and the Applicant and that they were in some way at cross purposes and that overall the Applicant’s evidence did not justify a view that he was being inconsistent. Nevertheless, that is not the test. I am not able to say that no rational or logical administrative decision-maker could have arrived at the Tribunal’s view in this case that the Applicant had changed his evidence, because different minds might reach a different conclusion of the sense and meaning of what was said in the above exchange as evidenced by the transcript. There is of course the further consideration that a transcript must necessarily fail to exactly reproduce the nuances of the hearing it seeks to reproduce in writing.

30    The primary judge further concluded at J [68] that even if he was mistaken in concluding it was legally reasonable for the Tribunal to find that the appellant had changed his evidence, any error in the context of the evaluation of the appellant’s claims as a whole was a “minor and venial one” and therefore, would not have given rise to jurisdictional error.

Leave to rely on new grounds of appeal

31    On 12 December 2022, the appellant lodged an amended notice of appeal (Amended Notice of Appeal) with three grounds of appeal. It was stated in the Amended Notice of Appeal that “The grounds originally pleaded are entirely replaced by the following”. Both parties acknowledged, however, that Ground 2 in the Amended Notice of Appeal raised the same contention as Ground 3 in the Amended Application before the primary judge.

32    At the commencement of the hearing, the first respondent confirmed that it was not prejudiced by the raising of grounds that had not been raised before the primary judge. The first respondent, however, submitted that the appellant had provided no explanation for why the grounds were now being raised. The first respondent submitted that an absence of an explanation was particularly significant given that some of the contentions advanced in Ground 1 of the Amended Notice of Appeal had been raised in Ground 3 of the Amended Application but had been abandoned on the second day of the hearing before the primary judge.

33    The appellant’s explanation in response was that he had changed legal representatives and referred the Court to the decision of Stewart J in CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 272 FCR 513; [2019] FCA 2190 at [49]:

The appellants accepted that there is no explanation before me why the three grounds that the appellants now seek to advance were not advanced at first instance. The appellants were represented by counsel before the FCC. The most probable inference is that the appellants’ new lawyers see the case differently. As I have explained, if that fresh insight brings forward a point that has clear merit it may be that expediency and the interests of justice will justify leave being granted to run it even though there is no other explanation for why it was not run below.

34    I accept, for the reasons that follow, in particular with respect to Ground 1, that the appeal grounds not raised or abandoned before the primary judge have clear merit. I am satisfied for that reason and because of the serious consequences for the appellant if he is unsuccessful, that it is expedient and in the interests of justice and given the absence of any claimed prejudice by the first respondent that leave be granted to rely on the Amended Notice of Appeal.

Relevant principles

35    An administrative decision maker is required to engage in what has been described by the Full Court of this Court in a number of recent cases as “an active intellectual process” with the “relevant matters or criteria”: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [35], [46] (Griffiths, White and Bromwich JJ); CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131; [2019] FCAFC 155 at [76] (Allsop CJ, Kenny and Snaden JJ). In this regard, findings require a probative basis and “some intellectual engagement that is beyond stereotyping and speculation”: DQM18 v Minister for Home Affairs (2020) 278 FCR 529; [2020] FCAFC 110 at [53] (Bromberg, Mortimer and Snaden JJ).

36    As the High Court, however, explained in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [26] (Kiefel CJ, Keane, Gordon and Steward JJ), in scrutinising the decisions of decision makers, it is necessary for the Court to recognise that:

Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

(Citations omitted.)

37    In M1, their Honours Kiefel CJ, Keane, Gordon and Stewart JJ relevantly also stated the following in respect of the requisite level of engagement required by an administrative decision maker:

24    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

25    It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

(Citations omitted.)

38    Illogicality and irrationality do not solely arise in respect of a decision maker’s ultimate conclusion or decision. Both may also arise in respect of findings or reasoning leading to the ultimate conclusion or decision, albeit that the overarching question is whether the decision is affected by jurisdictional error: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [132] (Crennan and Bell JJ); see also Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [150]-[156] (Robertson J); ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at [47] (Griffiths, Perry and Bromwich JJ); CGA15 v Minister for Home Affairs (2019) 268 FCR 362; [2019] FCAFC 46 at [58]-[61] (Murphy, Mortimer and O’Callaghan JJ).

39    Further, the existence of error is not sufficient to establish jurisdictional error. It is also necessary to establish materiality. An error is only material if there is a realistic possibility that the decision in fact made could have been different had the error not occurred: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45] (Bell, Gageler and Keane JJ); CRL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 917 at [71], [83] (Stewart J). A majority of the High Court recently declined to revisit the explanation of materiality in SZMTA, describing it as “sound in principle and consistent with precedent”: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [2]-[3] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

Ground 1

40    Ground 1 was in the following terms:

The Appellant provided documentary evidence to the Administrative Appeals Tribunal (“the Tribunal”) concerning legal proceedings in Sri Lanka. The Tribunal failed to have proper regard to those documents, in that it:

1.    Failed to properly consider whether, having regard to the documents, they were genuine,

a.    Gave the documents no weight, without having regard to the documents,

b.    Failed to consider that the documents were corroborative of the Appellant’s claims,

c.    Rejected the evidence of the documentary material on the basis that it was inconsistent with a conclusion already reached with regard to the matter that the evidence was relevant to casting light on (see CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2190 at [79]).

And the Federal Circuit Court failed to make such a finding.

41    In CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 272 FCR 513; [2019] FCA 2190, Stewart J stated at [79]:

The conclusion stated by the Authority with regard to the letters is illogical and irrational. The purpose of considering the evidence of the accredited mental health social worker was in order to evaluate the reliability of the first appellant’s different accounts of the harm and persecution that he suffered, or did not suffer, in Sri Lanka; it was to give proper context to those accounts so that they might be better understood and evaluated. It is therefore illogical and irrational to reject the evidence because it is inconsistent with a conclusion already reached with regard to the very matter that the evidence was relevant to casting light on.

Submissions

42    The appellant advances the following principal submissions in support of Ground 1.

43    First, the appellant submits that the Tribunal gave no consideration as to whether original and translated copies of court documents concerning a hearing in a court in Batticaloa in Sri Lanka (Court Documents), that he provided to the Tribunal to corroborate his evidence, particularly in relation to the “motorbike incident”, were genuine. He submits that it must be presumed that the Tribunal proceeded on the basis that the Court Documents were fabricated. If it did not, then its conclusion that the claims made by the appellant were fabricated, cannot follow.

44    Second, the appellant submits that in order to come to a conclusion that the documents were fabricated, the Tribunal needed to consider the documents themselves, and whether there were indicators of fabrication. He submits no such exercise was undertaken. The Court Documents, on their face, contain indicators of legitimacy – they appear to be documents from a court file, they are couched in legal terms and include date stamps. The documents also contain what would be considered unnecessary if they were fabrications, for example, details of an identification line-up.

45    The appellant submits that any claim must be determined with respect to his actual circumstances. He submits that it is not sufficient to rely only on a consideration of country information. Yet, he submits that (a) the only comment on which it can be supposed that the Tribunal relied is at [57] where the Tribunal asserts that document fraud can occur in Sri Lanka. (b) the Tribunal did not consider whether document fraud did, or was likely to have occurred in this case and (c) he invited the Tribunal to investigate the authenticity of documents but no such investigation appears to have been conducted.

46    Third, the appellant submits that it is not acceptable for the Tribunal to reject the evidence of the documentary material on the basis that it was inconsistent with a conclusion already reached when that material was relevant to casting light on the conclusion. He submits that the passage at DR [59] confirms that the conclusion at DR [58] was made before there was any consideration of the Court Documents.

47    In his written submissions, the appellant had also sought to contend that the Tribunal had failed to have regard to an extract from an information book of the Batticaloa Police Station and a translation that corroborated some of his claims. The appellant, however, at the hearing of the appeal conceded that the Tribunal had expressly referred to the extract from the information book at DR [20].

48    The first respondent submits that the appellant’s contention is, in substance, that the Tribunal failed to give proper, realistic and genuine consideration to the Court Documents. The first respondent submits that (a) this contention rises no higher than a request for this Court to engage in merits review, (b) a complaint that the Tribunal failed to give reasons is not consistent with the decision record, and (c) the Tribunal was not obliged to make any inquiries as to whether the Court Documents were genuine as it was not an obvious inquiry about a critical fact, the existence of which was easily ascertainable to constitute a failure to review.

Consideration

49    The first appeal ground has four interrelated limbs.

50    The appellant contends that the Tribunal (a) failed to consider whether the Court Documents were genuine, (b) gave the documents no weight, without having regard to them, (c) failed to consider that they were corroborative of the appellants’ claims, and (d) rejected the documents on the basis that they were inconsistent with a conclusion already reached.

51    The critical reasoning of the Tribunal on this issue is set out below:

57    The Tribunal is mindful of the fact that the incidents are claimed to have occurred years earlier and it would be unreasonable to expect the applicant to have clear and consistent recollection of those events. The Tribunal is also mindful that omissions, inconsistencies, lack of: clarity could be due to a number .of reasons including the passing of time, memory issues, but also they could suggest fabrication. The Tribunal comprehensively assessed the applicant's claims and whilst the Tribunal appreciates that some of the evidentiary problems noted above may be perceived as being minor and in isolation it would be unreasonable to draw adverse conclusions, however, when considered cumulatively, the Tribunal is satisfied that they are indicative that the applicant has fabricated substantial aspects of his claims, specifically those relating 'to the Karuna group. The applicant has provided copies of court documents relating to the claim that he gave evidence in court proceedings and as discussed in the course of the hearing, the Tribunal indicated that the Tribunal would further consider the weight that it would place on those documents and that document fraud could occur in Sri Lanka. Similarly, in relation to the evidence of the wife and the statement that she had provided, The Tribunal has carefully considered the totality of the evidence before it and has decided that on balance and given the Tribunal's concerns above about the applicant's evidence, the Tribunal is not satisfied that the applicant has suffered any of the claimed harm.

58    In consideration of the evidence as a whole and given the Tribunal's concerns about the applicant's credibility, the Tribunal does not accept that the applicant was ever forced to join the LTTE, or that the LTTE ever came to his home when he was not there, that his mother was ever taken by the LTTE for training, or that his mother or brother was ever detained by the LTTE, or that he was asked to pay any bribe when he had to report to the STF, or that he personally or through another person gave alcohol or food or money, or that he was ever pressured by the Sri Lankan army, or that he was ever perceived by anyone to be wealthy, or that he was ever targeted by anyone for any perception of wealth, or that anyone ever demanded money from him, or that the motorbike incident as claimed ever occurred, or that he was ever pursued by any member of the Karuna group, or that Chandru and Senadirajah (if they exist) were members of the group, or that the applicant was a witness in proceedings against them or against anyone in relation to theft as claimed, all that he had received any threatening calls, or any such callers had demanded any sum of money from him, or that when he refused to give the money they threatened him, or that he mentioned the threats to the judge who ordered the removal of their phone numbers, or any threats became more severe because of the corruption of the police, or that when he returned to Sri Lanka from Saudi Arabia, he stayed at home in fear of being targeted, or that he was targeted for any reason including but not limited to a perception of being wealthy, or that his uncle on returning from Australia to Sri Lanka suffered any of the claimed harm.

59    In essence and for the stated reasons, the Tribunal does not accept that the applicant has suffered any of the claimed harm or that there is a real chance of any such harm occurring to the applicant in the reasonably foreseeable future. In reaching those findings, the Tribunal has considered the court documents and the evidence of the wife but they do not overcome the Tribunal's concerns about the applicant.

(Emphasis added.)

52    The profound difficulty with the approach taken by the Tribunal is that in rejecting all of the evidence given by the appellant, as made clear at DR [58], it has necessarily put into sharp focus the relevance and weight that it had given to any evidence that might have corroborated the claims made by the appellant.

53    The Court Documents corroborated significant elements of the evidence given by the appellant, including the following references to the following persons and events:

(a)    a person on a red motorbike and a second person had allegedly stolen a gold or diamond necklace from a young woman;

(b)    the motorbike was known to be primarily used by the appellant;

(c)    “Chandru”, a person described as “Sinnarajah” and a statement of Rajan Chandru;

(d)    two persons were charged in connection with the alleged robbery and there was a subsequent trial before a magistrate in Sri Lanka;

(e)    the victim the subject of the alleged robbery was only able to identify the second person charged in connection with the alleged robbery in an identification parade;

(f)    the first person charged in connection with the alleged robbery was taken into custody and charged because of a statement of the appellant; and

(g)    the second person charged in connection with the alleged robbery pleaded guilty prior to the delivery of judgment by the magistrate but it would appear from the magistrates translated written reasons for judgment that the first person charged was released as the victim could not identify him in the identification parade.

54    The Tribunal only made two references to the provision of any corroborative or probative evidence by the appellant. The first reference was at DR [45]:

The Tribunal asked the applicant about what had happened subsequently and he stated that the police asked him to return and provide an oral statement. The Tribunal asked him why they wanted an oral statement rather than a written one and he stated that they wanted to use the document in court. This was subsequently changed when he said he was requested to sign a copy of the document which he did. The Tribunal asked him if he had a copy of the signed document and he stated that he does not. The Tribunal indicated that it is difficult to understand why he does not have a copy and he said he did not know. He said subsequently the police sent him home and kept the bike. He said he subsequently went to court. The Tribunal is not persuaded by the applicant's explanation and is of the view that the fact that the applicant changed his evidence and was inconsistent in relation to this aspect of his claims, as well as the fact that he has not provided any corroborative documents of this claim raises doubts about the claim and the applicant's general credibility.

(Emphasis added.)

55    The second reference was at DR [52]:

The Tribunal noted that at the entry interview, the applicant did not claim that members of the Karuna faction threatened him, and that he did not mention that he provided his motorbike to the group which was involved in a robbery that subsequently led to him becoming a witness in criminal court proceeding. The Tribunal indicated to the applicant that the fact that he did not mention the group or the motorbike incident at entry interview could raise doubts about the veracity of his claims. When asked to respond to, comment on and/or whether he needed further lime, the applicant stated that when he came to Australia, he was told not to mention anything and because he was uncertain as to whether he could provide corroborative evidence of his claims. The applicant has made a number of claims, most of which are not independently supported by probative evidence. The Tribunal is not persuaded or convinced by the applicant's explanation.

(Emphasis added.)

56    Given the findings made by the Tribunal at DR [45] and [52], it must necessarily follow that the Tribunal placed no weight or significance on the corroborative evidence of the appellant’s claims provided by the Court Documents.

57    Notwithstanding the extent to which the Court Documents provided independent corroboration of material aspects of the appellant’s claims, the Tribunal made, at best, a fleeting reference to the Court Documents and did not provide any reasons for why it had not given any weight or significance to them. The generic observation at DR [57] that “document fraud could occur in Sri Lanka” does not carry with it any finding that the Court Documents were fraudulent, unreliable or could be ignored. It does not rise higher than an almost self-evident proposition that “document fraud” can occur at any time in any country. The Tribunal did not address whether there were any indicia, either in the manner in which the Court Documents were procured by the appellant or the form or content of them which may have provided a basis for a concern or finding that the documents were fraudulent.

58    The Tribunal’s failure to address in any substantive or transparent manner the potentially significant corroborative evidence provided by the Court Documents is even more inexplicable in the following exchange between the Tribunal member and the appellant (A) through his interpreter (TI) during the second Tribunal hearing:

M    : I know you have provided the court documents which you say it relate to the prosecution of the three offenders who stole the jewellery.

TI    : Sorry. I didn't get that. I didn't get it clearly. Can you please tell me loudly please.

M    : You have provided documents that you say it relate to the prosecution of the three offenders who stole the jewellery.

M    : I do not know what I think yet of your documents. I know that document fraud can occur in Sri Lanka.

TI     : Interpretation made to applicant but did not wait for response nor response was not conveyed to the member. The member also does not wait to get the response.

M     : What it means it I need to think very carefully about how much weight I will place on the court documents you have provided. What it basically means is that after I consider all evidence before me I may decide that the court documents do not corroborate your claims.

TI     : Interpretation made to applicant but did not wait for response nor response was not conveyed to the member. The member also does not wait to get the response.

TI    : Sorry. Can I ask you one thing officer. Is that corroborate means going along with the same thing? (Clarifies with the member)

M    : Sorry. I don't understand what you say?

TI    : No. You used the word corroborate. What is it? (Dialogue with member)

M    : Corroborate. Support.

TI    : Okay. Okay. thank you. (Speaks to the member)

M    : Do you understand?

A     : Yeah.

M    : Do you want to say something about that?

TI     : If you have doubt on this document you can always clarify with Batticaloa High Court.

M    : Ah.. I am not.. I don't have to do anything personally all I need to do is to make sure that he had a fair hearing and I conducted a review in a proper manner. But need to discuss my concerns with you and what you do with that is up to you.

59    The jurisdictional error by the Tribunal was not a failure to give sufficient weight to the corroborative evidence provided by the Court Documents or a failure to make an obvious inquiry about a critical fact.

60    Rather, I am satisfied that the jurisdictional error was a failure to consider whether the Court Documents were genuine, a failure to give the Court Documents any genuine consideration and a failure to consider the extent to which they corroborated significant aspects of the appellant’s claims. Properly understood, Ground 1 is not a request for this Court to engage in merits review.

61    As I have explained above, notwithstanding the Tribunal’s representation during the second hearing that it would consider the Court Documents, there are only cursory references to the documents in the decision record. For this reason, and given the extent of the corroboration provided by the documents, I am also satisfied that I should draw the inference that the Tribunal gave the documents no weight on the basis that they were inconsistent with a conclusion that had already been reached.

62    By effectively putting the Court Documents to one side, the Tribunal deprived itself of the ability to identify, understand and evaluate meaningfully the appellant’s claims and determine the appropriate weight or persuasive quality that it should give to them.

63    A decision maker will fail to give proper and genuine attention to evidence in a manner that gives rise to jurisdictional error, subject to materiality considerations, if they make “uncritical references” to important evidence without “actually consider[ing] what significance and weight it deserved”: CWX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 673 at [49] (Gleeson J) citing NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [212] (Madgwick J).

64    In NAJT, Madgwick J stated at [212] (Conti J agreeing at [229]):

Nevertheless, given the potential importance of the letter and the delegate's fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to 'have regard' to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; 109 FCR 152 at [58], a 'decision-maker may be aware of information without paying any attention to it or giving it any consideration'. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration - had in Black CJ's phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in 'an active intellectual process' in relation to the letter - yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so."

65    The significance of the failure to have any genuine regard to the Court Documents is best demonstrated by the Tribunal’s finding at DR [58] that it did not accept that the appellant was “a witness in proceedings against them or against anyone in relation to theft as claimed”. Unless the Court Documents could be disregarded as unreliable or fraudulent this central finding is inexplicable. The existence and conduct of the court proceedings were fundamental to the appellant’s contentions that he was at risk of harm by reason of the evidence he gave against a member of the Karuna group.

66    By rejecting the appellant’s evidence that he was ever a witness in any court proceedings in relation to the theft of the motorbike, the Tribunal failed to give any genuine consideration to this claim for protection by the appellant. Moreover, the rejection of the appellant’s evidence on this issue on the basis that it was a fabrication, was an important pillar of the adverse findings made by the Tribunal that it considered were sufficiently serious that it could reject all of the appellant’s evidence.

67    While it is often stated that credit findings are the exclusive domain of the Tribunal, such findings do not shield the Tribunal’s decision-making process from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] (Flick J). Credit findings based on a false premise may give rise to jurisdictional error: SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093 at [34]-[36] (Logan J).

68    I am satisfied that the flaws in the Tribunal’s decision making amounted to jurisdictional error. The erroneous findings directed at the alleged absence of any corroborative evidence was critical to the Tribunal’s decision to reject, on a root and branch basis, all of the appellant’s claims. I am satisfied that there is a realistic possibility that had the Tribunal had regard to the corroborative evidence of the appellant’s claims in the Court Documents, it would not have concluded that it could reject all of the appellant’s claims on the basis of its concerns about the appellant’s credit. In those circumstances, I consider that there is realistic possibility that having then considered the appellant’s claims, rather than rejecting all of the appellant’s claims on the basis that it did not accept any evidence given by the appellant, it might have come to a different decision.

69    The appellant has established Ground 1 and is therefore, entitled to succeed on the appeal. The Tribunal erred on a question of law and that is sufficient to dispose of the appeal. It is appropriate, however, to consider the other grounds of appeal in the event that the matter goes further.

Ground 2

70    Ground 2 was stated by the appellant in the following terms:

2.    The Tribunal made an erroneous finding, that the Appellant had changed his evidence ([40] of its decision). The Federal Circuit Court failed to find that the Tribunal had made the erroneous finding.

71    Ground 2 was expressed in the same terms as Ground 3 in the Amended Application before the primary judge.

72    At DR [40] the Tribunal stated:

The applicant gave evidence that when he went to register in 2010, he saw Senadirajah at the police station talking to another officer. He said Senadirajah took his phone number and about 2 days later, he was called and told that they would be sending Chandru who was involved in the Karuna group. The Tribunal asked the applicant how he knew that Chandru was with the group and the applicant stated that he knew that because he saw Chandru with Senadirajah at the police station. The Tribunal asked the applicant if he could remember when exactly he went to the police station and the applicant stated he does not recall the date but it was after he returned to Sri Lanka in 2010. The Tribunal referred to the statutory declaration provided by the applicant on support of the visa application and noted that he had mentioned the date of 20 August 2010 as being the date when he went to the police station. The applicant now changed his evidence and said when he got to the police station, he did not see Chandru. The applicant said when he went to the police station, he saw two men, namely Senadirajah and another person. The Tribunal repeatedly asked the applicant who that other person was and he stated that he did not know who that second person was but he had assumed that because that other person w.as with Senadirajah, he was with the Karuna group.: The Tribunal is of the view that the inconsistencies raise doubts about the veracity of applicant's claims and credibility.

Submissions

73    The appellant submits that the evidence given by him before the Tribunal does not support the finding that he changed his evidence concerning when he saw Chandru at the police station. He submits that his evidence was consistent. His evidence was to the effect that he attended the police station on more than one occasion and that he did not see Chandru on the first occasion but instead saw him on a later occasion.

74    The first respondent submits that it was open for the Tribunal to find that the appellant’s evidence about seeing Chandru at the police station had changed. It submits that the primary judge was correct in finding that on a fair and reasonable reading and construction of the appellant’s evidence before the Tribunal that he had given evidence that Chandru was with Senadirajah at the police station but later gave evidence that he did not know the identity of the second person.

75    The first respondent further submits that even if the inconsistent finding was erroneous, it could not amount to jurisdictional error because the appellant’s claims did not include any claim that the second person present at the police station had threatened him and the finding was “immaterial, or not critical, to the Tribunal’s ultimate credibility findings”.

Consideration

76    As observed by the primary judge at J [62]-[63], the allegedly inconsistent evidence given by the appellant was recorded in the following extracts of the transcript of the evidence given by the appellant to the Tribunal:

Member:     okay. So what happened when you returned to Sri Lanka in 2010?

Applicant:     I got married and was living at my wife’s place and the law of country at that time was that anyone coming new coming into the area should register themselves with the local police station. When I went there for reporting or registering I saw two individuals from Karuna group there.

Member:     Who did you see and how do you know they are from Karuna group?

Applicant:     One of the person was my father’s far relative.

…

Applicant:     First time I met him after I come back from Qatar when I went to police station register myself with the police, soon on seeing me he recognized me he asked me that I am the son of Sivanesarasa.

Member:     When you went to register in 2010?

Applicant:     After I got married I went to register.

Member:     And where did you see him?

Applicant:     Kaluvachikudy Police Station.

Member:     And what was he doing there?

Applicant:     He was with the police officers inside.

Member:     So what was he talking to them? About what?

Applicant:     He was just chatting there and when I went to register myself he saw me and when I was walking out he saw me and after that he started talking to me.

Member:     So what happened after that? He saw you and talking and what happened after that?

Applicant:     Then actually I left after but actually they got my phone number. I think after a couple of days I think, they called me that they want my motorbike.

Member:    Who is they?

Applicant:     Senadirajah called me and said that he will send Chandru to Pickup.

Member:    And who is Chandru?

Applicant:     Chandru is a member. He was in the movement and was with Senadirajah.

Member:     Where did you mean the movement as LTTE?

Applicant:    Yes.

Member:     When did he join the LTTE? (unclear).

Applicant:    I only met with him after they separated from the LTTE.

Member:     Was chandru also a member of involved with the Karuna group or not?

Applicant:    Senadirajah rang me and said that he will send the person to pick up the bike but I didn’t know Chandru. He was asking the bike on Friday and I said I can’t give on that day and I will give tomorrow.

Member:    That’s not I am asking you about that at the moment? Could you please listen to me carefully to my questions (unclear) I need to understand what? you explain me. I was asking about Chandru. Was he also involved with the Karuna group?

Applicant:     Yes.

Member:     How do you know that?

Applicant:     He was with Senadirajah.

Member:     He was with him?

Applicant:     Yes.

Member:     When you say with him, when did you see him with him and how, when? (unclear).

Applicant:     He sent Chandru to pick up the motorbike.

Member:     I am asking you how you know that Chandru was involved with the Karuna group?

Applicant:     I have seen them together in the Police afterwards.

Member:     Let’s step back a little bit. So when did you actually go to the police station to register?

Applicant:     I don’t know the exact date. But in 2010 after I got married I went there.

Member:     And when you got to the police station did you see Chandru and Senadirajah together?

Applicant:     I didn’t see Chandru at that time.

Member:     So he wasn’t at the police station at that time?

Applicant:     At that time no.

Member:     In the statutory declaration that you have provided in support of your application you do gave a date when you went to the police station which was 20 August 2010?

Applicant:     Yes.

Member:     But you also say that you saw two members of Karuna group at police station.

Applicant:     That person was not Chandru. The Second person was not Chandru.

Member:     So whose is that?

Applicant:     I don’t know. I haven’t seen him after.

(Emphasis and emboldened line added by the primary judge.)

77    With respect, I cannot accept the primary judge’s findings at J [65]-[66] that it was open for the Tribunal to conclude that the appellant had “changed his evidence”. I do not agree that “a fair and legally reasonable reading and construction of the appellant’s evidence” before the emboldened line was that the second person with Senadirajah at the police station was Chandru and that after the emboldened line, the appellant’s evidence was that he did not know the identity of the second person who was with Senadirajah at the police station.

78    It is readily apparent from the above extract that the references to Chandru being “with Senadirajah” were not in response to questions about who was present at the police station but rather about him being in the Karuna group. So much is clear from the following: (a) the questioning prior to the first “with Senadirajah” reference had moved on beyond a visit to the police station and was focusing on what happened after the visit, (b) the “Chandru is a member. He was in the movement and was with Senadirajah” evidence was in response to a general question, “And who is Chandru”, (c) the questioning then focused on whether Chandru was a member of the Karuna group, culminating in the second “with Senadirajah” reference that was advanced as the reason why the appellant believed Chandru was with the Karuna group, (d) any ambiguity about what the appellant meant by “with Senadirajah” was then immediately clarified by the explanation then given by the appellant that he considered that Chandru was “with Senadirajah” because Senadirajah “sent Chandru to pick up the motorbike”, and (e) the subsequent confusion about whether Chandru was present at the police station “with Senadirajah” reflected a misunderstanding on the Tribunal’s part as to the appellant’s evidence rather than any change of evidence and was simply explained on the basis that Chandru was not one of the two members of the Karuna group present at the police station.

79    With respect, the emboldened line inserted by the primary judge gave rise to an impermissible construction of the appellant’ evidence.

80    The Tribunal sought to rely on the alleged inconsistency as raising doubts about the veracity of the applicant's claims and credibility. Ultimately, those “doubts” combined with other “doubts” caused the Tribunal to reject the whole of the claims advanced by the appellant. Nevertheless, the inconsistency was only one of a large number of “inconsistencies” that the Tribunal relied upon to reject all of the appellant’s claims. In isolation, the Tribunal’s error could not be said to be critical or central to the Tribunal’s credit findings against the appellant. The error was not material and therefore, no jurisdictional error has been established.

81    For the foregoing reasons, Ground 2 must be rejected.

Ground 3

82    Ground 3 was expressed in the following terms:

The Tribunal failed to provide the Appellant with procedural fairness, in that it:

a.    Failed to approach the matter with a mind open to persuasion, and

b.    Questioned the Appellant in a manner that was unreasonable, or procedurally unfair.

And the Federal Circuit Court failed to make such a finding.

Submissions

83    The appellant submits that the Tribunal (a) rejected the credit of the appellant on the basis of inconsistencies that it had identified in his evidence that were “often, trivial, irrelevant or unfair”, (b) recognised that the appellant was not expected to have a perfect memory and a clear and consistent recollection of events that occurred many years ago but then drew inferences that he was unable to provide precise answers or where there were irrelevant inconsistencies, (c) drew adverse conclusions as to why peripheral information was not included in his evidence, and (d) conducted his interview in a manner that was unfair and was badgering, repetitive and rude, approached matters from a pre-determined position and with a mind not open to persuasion.

84    The first respondent submits that an allegation of a failure to bring an open mind such that a decision maker has prejudged a matter is a serious charge that must be distinctly made and clearly proved. It submits that none of the four matters relied upon by the appellant are sufficient to discharge that burden. It submits that the findings made by the Tribunal were open on the evidence before it and the transcript of the questioning of the appellant by the Tribunal cannot fairly be characterised as being unfair, badgering, repetitive or rude.

Consideration

85    I am not satisfied that the matters advanced by the appellant are sufficient to establish that the Tribunal did not approach the appellant’s claims with an open mind or that the Tribunal had in any relevant sense prejudged the matter.

86    Counsel for the appellant referred this Court to several exchanges in the transcript of the second Tribunal hearing between the Tribunal member and the appellant.

87    The first significant exchange between the Tribunal member and the appellant occurred as follows (M is the Tribunal member and I is the interpreter for the appellant):

M    : What happened after you were released from police?

I    : They said coming in the morning and give a statement a verbal statement tomorrow.

M    : A verbal statement.

I    : yeah. Evidence. Yeah.

M    : Did you?

I    : Yeah. The next day I went and gave the statement.

M    : Why was the police want a verbal statement. What is the use of it?

I    : To submit to the court.

M    : If it is a verbal statement, how can they submit it to the court? I can't understand? Normally the police would have a written statement they use it as evidence in court.

I    : When I say they wrote it.

M    : Did you sign it?

I    : yes.

M    : Where is the copy of it?

I    : That's with the police.

M    : Normally the police give a copy of your statement.

I    : I have given the papers from the courts.

M    : I didn't see a written statement from the court documents that you gave today.

I    : Next day I showed whatever I told them and they wrote it and asked me to sign it and they have taken the statement with them.

M    : So you do not have the copy of the statement that you have signed.

I    : No.

M    : I find it difficult to understand why the police would not have given a copy of the statement you have signed and that you could not have provided with that copy to the department or to the tribunal to corroborate your claims.

I    : I don't know why they didn't give it to me but I got a letter from court asking me to attend or summon to the courts. [CB 435-436]

88    The second significant exchange occurred as follows (M is the Tribunal member and TI is the interpreter for the appellant):

TI    : Police took me to STA camp and took my signature. They did not take me but asked me to come there and I went there to put the signature.

M     : They didn't take you but asked you come and sign.

TI    : yeah. Every week I should go and put my signature.

M     : When did this happen?

TI    : In 2007 when I came from overseas.

M    : What month?

TI     : I came back on 18 February 2007 and this happened after that.

M    : When did it happen?

TI    : In Thumbankazhini.

M     : When? When? Two months earlier. Is that the answer?

TI    : No he said the name of the place. Thumbankazhini.

M    : Okay. I am asking and I will give you just one more opportunity when were you asked to sign. Can you tell me when please?

TI    : Everybody who comes from overseas should go and register with them. So I was asked to come and put the signature. This happened after February 2007 after I came back from overseas. I have to go every week to put the signature.

89    The Tribunal’s questioning of the appellant was direct, abrupt, and at times might have been construed as bordering on patronising and exhibiting a considerable degree of scepticism. Nevertheless, this is not sufficient to establish that the Tribunal failed to bring an open mind to the appellant’s claims or that the Tribunal had in any relevant sense prejudged the matter.

90    Further, I accept that many of the inconsistencies identified by the Tribunal appear to be relatively minor and at times might fairly be described as “nitpicking” given the time which had elapsed between the relevant events and the Tribunal hearing. This is not sufficient, however, to establish that the Tribunal failed to bring an open mind to the appellant’s claims or that the Tribunal had in any relevant sense prejudged the matter.

91    For the foregoing reasons Ground 3 must be rejected.

Disposition

92    It follows for the foregoing reasons that the orders of the primary judge dismissing the application for judicial review of the Tribunal’s decision should be set aside and the appeal should be allowed with costs.

Associate:

Dated:    21 March 2023