Federal Court of Australia

CVW16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 73

ORDERS

THE COURT ORDERS THAT:

1.    The application to file an amended notice of appeal in the form annexed to the appellant’s submissions filed on 21 December 2022 is refused.

2.    The appellant’s application to lead fresh evidence on appeal is refused.

3.    The appeal is dismissed.

4.    The appellant is to pay the first respondent’s costs of the appeal, as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from orders of the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (Div 2)) made on 2 December 2019 dismissing an application for judicial review of a decision of the second respondent (Tribunal): see CVW16 v Minister for Immigration [2019] FCCA 3478. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) to refuse the appellant a Protection (Class XA) visa.

background

2    The appellant is a Sri Lankan citizen of Tamil origin. On 16 August 2012 he arrived in Australia as an irregular maritime arrival.

3    On 21 August 2012 the appellant participated in a preliminary interview with officers of the Department of Immigration and Citizenship (as the Minister’s Department was then known), which I will refer to as the biodata interview, which included:

    question 20, “Are you seeking Australia’s protection?”, to which the appellant answered “Yes”;

    question 21, “Why?”, to which the appellant answered “afraid of the army”; and

    under the heading “Case Assessment Additional Information”, question 5, “Are there any observations which might suggest the client may have suffered torture and/or trauma? (This will be explored further at the follow-up meeting with CM)”, the response “beaten by the army whilst in the camp”.

4    On 22 September 2012 the appellant participated in an irregular maritime arrival entry interview. In part C of the entry interview he was asked the question “Why did you leave your country of nationality (country of residence)?”. The form recorded questions put to, and answers given by, the appellant.

5    On 16 January 2013 the appellant applied for the visa. In a statutory declaration dated 14 December 2012 provided with his application (appellant’s 2012 statement) the appellant made the following claims:

(1)    he lived in a village controlled by the Liberation Tigers of Tamil Elam (LTTE) during the civil war. In 2006 the LTTE took his older brother but he subsequently escaped and went into hiding;

(2)    the LTTE threatened his family, asked about his brother and assaulted and detained his father until the appellant’s brother returned to the LTTE. His brother managed to escape from the LTTE again;

(3)    between 2009 and 2010 the appellant and his family lived in the Arunachasan camp where he was interrogated by the army about his and his brother’s involvement with the LTTE;

(4)    in 2010 after the appellant and his family returned to their village, the civil authorities came to his home on several occasions and asked about his brother. They did not believe the appellant when he said that he did not know his brother’s whereabouts;

(5)    the appellant was fearful that he would be detained by the authorities and arranged an agent to assist him to travel to Australia via India. In February 2010 he travelled to India but could not board the boat to Australia and so lived in a village in the jungle in India;

(6)    while he was in India the appellant was informed by his father that his brother was in a detention centre in Sri Lanka. As a result, the appellant thought that he could return safely to Sri Lanka and did so in May 2011;

(7)    after his brother was released from detention, Tamil people, about whom the authorities were suspicious, were being abducted by men with their faces covered. Men with their faces covered came to the appellant’s house, although at the time he was hiding in his sister’s home. The men asked the appellant’s father whether the appellant was involved in the LTTE. His father denied that to be the case but the men said they did not believe him. After this event men in plain clothes visited the house three or four times asking for the appellant;

(8)    on 28 July 2012 the appellant left his hometown to flee to Australia and on 29 July 2012 he departed Sri Lanka; and

(9)    the appellant claims that he will be killed if he returns to Sri Lanka because he will be suspected of involvement with the LTTE.

6    On 3 December 2013 the appellant attended an interview with a delegate of the Minister (PV interview).

7    On 13 February 2014 the delegate refused the appellant’s application for the visa.

8    On 3 March 2014 the appellant applied to the Tribunal for review of the delegate’s decision.

9    On 17 February 2016 the appellant attended a hearing before the Tribunal. He provided a further statement in support of his claims and further submissions. On 24 March 2016 the Tribunal wrote to the appellant asking him to comment on four matters which it said were inconsistencies in his claims (24 March Letter). Those matters were:

(1)    in the appellant’s 2012 statement the appellant claimed that civil authorities came to his home “two or three times and questioned [the appellant] about [his brother]” and in the PV interview the appellant repeated this claim, but at the hearing before the Tribunal the appellant said that the men had not spoken to him but had instead spoken to his father and they had accused the appellant of being in the LTTE, but had not asked for information about his brother;

(2)    in the appellant’s 2012 statement the appellant said that he had gone into hiding at his sister’s house after masked men started abducting Tamil people but during the Tribunal hearing the appellant claimed that he had gone into hiding at his sister’s house after being detained by the CID;

(3)    in the appellant’s 2012 statement the appellant said that men in plain clothes had been to his family home three or four times while he was in hiding. This was not mentioned in the PV interview but during the Tribunal hearing the appellant said that people had gone to his family home once but never returned; and

(4)    in the appellant’s 2012 statement the appellant said that his brother was released from detention after he returned from India in 2012 but in later submissions he claimed that his brother returned home while he was in India. During the PV interview the appellant said that when his brother was released from detention, his brother’s papers were taken by authorities, and he was required to report regularly to authorities. His evidence at the hearing was that his brother’s papers were taken after he left Sri Lanka but then he said it occurred shortly before he left Sri Lanka.

10    On 27 April 2016 the appellant, through his representative, responded to the 24 March Letter.

11    On 9 September 2016 the Tribunal affirmed the delegate’s decision.

the Tribunal’s decision

12    The Tribunal accepted that the appellant was a Tamil from Sri Lanka, his brother was forcibly recruited to join the LTTE, his father was ill treated by the LTTE and that he spent time in a camp between 2009 and 2010. However, the Tribunal did not accept the appellant’s claims that he was harassed and threatened on a number of occasions after he was released from the camp or that members of his family were harassed after his departure from Sri Lanka because of their association with him: Tribunal’s reasons at [14]-[15].

13    The Tribunal explained its findings by detailed analysis of the appellant’s claims, including the inconsistencies in the appellant’s evidence identified in the 24 March Letter. The Tribunal also had regard to country information about the situation in northern Sri Lanka, Tamils generally, failed asylum seekers and persons who depart Sri Lanka illegally. Having regard to those matters the Tribunal rejected the appellant’s claim to fear harm on the basis of a well-founded fear of persecution for a reason recognised by the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. For essentially the same reasons the Tribunal found that the appellant did not meet the complementary protection criteria in s 36(2)(aa) of the Migration Act 1958 (Cth).

Federal circuit court proceeding

14    The appellant applied for judicial review of the Tribunal’s decision in the Federal Circuit Court and was granted leave to rely on an amended application in which he raised the following ground of review:

The applicant claimed, and the Administrative Appeals Tribunal (“the Tribunal”) accepted, that the applicant “spent about a month in his village before travelling to India in February 2010”: CB 234 [18]. The applicant claimed that he was questioned by the authorities in this period. The Tribunal found at [22] that “the applicant gave inconsistent evidence regarding these events because his claims are not true.” The Tribunal fell into jurisdictional error in making this finding. Specifically, the Tribunal, in moving from the finding of “inconsistent evidence” to the conclusion of “his claims are not true”, failed “to appreciate the particular nature of the task, or to perform it reasonably and fairly” as explained in AVQ15 v Minister [2018] FCAFC 133 at [28]. The Tribunal’s error was material.

15    In addressing that ground, counsel for the appellant:

(1)    took the primary judge to the appellant’s 2012 statement at [11] where the appellant said:

In 2010, my family and I returned to our village. The civil authorities came to my home two or three times and asked me about my brother. They did not believe me when I said that I did not know where he was. Young boys in situations like mine went missing during this time. I started hiding.

(2)    took the primary judge to the 24 March Letter and the appellant’s response in his letter dated 27 April 2016 where it was submitted that:

In our submission, [the appellant] did not say in [the appellant’s 2012 statement] that the “civil authorities” questioned him on each of the two or three occasions. Rather, the sentence in the [appellant’s 2012 statement] states that they “...came to my home two or three times and asked me about my brother.” Had the sentence been meant to read as though [the appellant] had been questioned on all visits, the sentence would have read, “the civil authorities came to my home two or three times and asked me about my brother on each visit.”

(3)    drew attention to what occurred at the interview before the delegate and the appellant’s response to the question about how life was for the appellant and his family when they returned to their village in 2010. Counsel for the appellant referred to the delegate’s reasons where the delegate noted the appellant being asked questions at the PV interview, in particular, “why he was questioned” and the appellant’s claim that the authorities came to ask him about his brother’s whereabouts and involvement in the LTTE. The delegate also referred to a question about how the local authorities would know about the appellant’s brother’s involvement in the LTTE: see CVW16 at [25]-[28].

16    The primary judge referred to the Tribunal’s reasons at [20]-[22] and to the submissions made by counsel for the appellant that: there was no inconsistency between the appellant’s evidence to the Tribunal; that the authorities questioned his father about the appellant and the fact that the appellant did not refer to this in the appellant’s statement; there was no inconsistency between the appellant’s end position that the authorities questioned both the appellant’s father about the appellant and about his brother; the questioning by the authorities did not support an inconsistency; and that this was a material finding in the Tribunal’s adverse determination in respect to the appellant’s credit and accordingly the Tribunal had fallen into jurisdictional error in its conclusion that the appellant’s claims were not true or in its evaluation of the appellant’s credibility in relation to his claims: see CVW16 at [31].

17    The primary judge rejected these submissions, finding that no jurisdictional error had been made out. At [32] of CVW16 the primary judge said:

The difficulty with the submissions advanced by Mr Zipser is that it is apparent, as acknowledged in paragraph 20 of Mr Zipser’s submissions, that the [appellant] gave evidence to the Tribunal referred to in paragraph 20 of the Tribunal’s reasons that the authorities had questioned his father about the [appellant] and denied that the authorities had questioned the [appellant] about his brother.

18    At [36]-[37] his Honour said:

36.    The Court accepts the first respondent’s submissions that, when the Tribunal’s reasons are read as a whole, it cannot be said that there was any material evidence that was overlooked or not considered by the Tribunal and the inconsistencies found by the Tribunal were not insignificant and trivial matters.

37.    The Tribunal identified in its reasoning the nature of the [appellant’s] claims in respect of the questioning by authorities. The Tribunal also took into account the implausibility of the applicant’s claims and the country information before the Tribunal. The Tribunal took into account the difficulty faced by the applicant understanding questions and the difficulty giving evidence. The Tribunal’s reasons reflect comprehensive assessment of the [appellant’s] credibility and an appropriately nuanced assessment in that regard. The assessment was not reached unreasonably or without consideration of critical evidence.

the appeal

19    By an amended notice of appeal the appellant seeks to raise three grounds on appeal. It was not in dispute that grounds 1 and 3 were new grounds, not raised before the primary judge. The appellant contends that ground 2 in the amended notice of appeal is not new and concerns the ground raised in the amended application before the primary judge. The Minister disputes that to be so.

20    To the extent that the grounds are new, the appellant requires leave to amend his notice of appeal to rely on them. The Minister opposes the application to amend. In summary, he makes four submissions.

21    First, the Minister submits that this is an appeal and not an opportunity for the appellant, having not succeeded in his application before the primary judge, to conceive of new grounds of review. The Court’s function is to correct error in the judgment of the Federal Circuit Court, a function which would be subverted if an appellant, without good reason, is permitted to re-run trials or advance points that were not taken at first instance.

22    Secondly, the Minister submits that the appellant was legally represented before the Federal Circuit Court by experienced counsel, and no explanation has been given by the appellant as to why the arguments he now seeks to advance were not raised below.

23    Thirdly, the Minister submits that there has been delay on the part of the appellant in notifying his intention to amend to rely on new grounds, on the original timetable only days before the first hearing.

24    Fourthly, the proposed grounds of appeal have no intrinsic merit to warrant a grant of leave.

25    The appellant also seeks to rely on affidavits that were not relied on before the Federal Circuit Court, although no formal application has been filed pursuant to s 27(a) of the Federal Court of Australia Act 1976 (Cth) and r 36.57 of the Federal Court Rules 2011 (Cth). They are:

(1)    the first sentence of paragraph 5 of an affidavit affirmed by the appellant on 27 November 2022;

(2)    an affidavit affirmed by Jared Simion on 23 November 2022 annexing a copy of the transcript of the entry interview;

(3)    an affidavit affirmed by Aaron Chelliah on 28 November 2022 annexing a copy of the transcript of the PV interview;

(4)    an affidavit affirmed by Alexander Balasanthiran on 28 November 2022 annexing part 1 of the transcript of the hearing before the Tribunal; and

(5)    an affidavit affirmed by Joshua Chelliah on 28 November 2022 annexing part 2 of the transcript of the hearing before the Tribunal.

26    The Minister also opposes that application and submits that the appellant has not established the evidence could not, with reasonable diligence, have been adduced at trial, or that the evidence “very probably” would have led to a different result.

27    The Minister relies on an affidavit affirmed by Hongyi Gao on 24 February 2023 annexing copies of the biodata interview and Case Assessment Additional Information form.

Legal principles

Leave to raise a new ground on appeal

28    The Court will grant leave to argue a ground of appeal not raised before the primary judge if it is expedient in the interests of justice to do so and where the new points to be advanced have merit, there is an explanation for the failure to take the points below and there is no real prejudice to the respondent in permitting the new grounds to be agitated: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]-[48].

29    In Han v Minister for Home Affairs [2019] FCA 331 Bromwich J considered an application for leave to rely on a new ground on appeal which, as is the case here, was opposed by the Minister. At [8]-[12], in setting out the applicable principles, his Honour said:

8    It may be convenient, and in many cases it will be entirely appropriate, to decide the question of whether to grant leave to advance an entirely new proposed ground of review in the form of a ground of appeal by giving dominant, but not exclusive, weight to the merit of the proposed ground. Merit is necessary, but not of itself ordinarily sufficient. Other features will generally need to be absent or present. Possible further considerations for the granting of leave in addition to merit include such things as an acceptable explanation for the ground not being run below, the nature and extent of any injustice (beyond a merely adverse result) that may result if the issue raised is not addressed, and the lack of prejudice to the opposing party. The decision to grant or refuse leave is then made by weighing the competing considerations, which are sometimes finely balanced.

9    The approach of relying predominantly on merit as the basis for leave becomes more problematic when there is no adequate explanation for the ground not having been advanced at the trial in the court below and other circumstances also tell against leave being granted. Care needs to be taken to ensure that a focus on merit does not have the troubling practical effect that a new ground sought to be raised is effectively heard and determined by this Court in the exercise of its appellate jurisdiction as though leave was not required. If that happens, the appellant may get to run an appeal which in truth is a new trial upon nothing more compelling than the fact that it might have succeeded if it had been run below. If the argument in support of the proposed ground finds favour, leave is then granted, and the appeal is allowed. If the argument does not find favour, leave is refused and the appeal dismissed. The grant or refusal of leave then turns on the success or failure of the new ground, making leave a mere formality. If so, an important principle in the administration of justice may be lost in the process.

10    Appeals, even appeals by way of rehearing such as this appeal, are not to be relegated to the role of only providing an opportunity to conduct a second trial upon a different basis, the first trial having failed. Longstanding and much-cited authority of the High Court makes this abundantly clear, supported by related considerations raised by numerous cases in the Full Court of this Court, of which only few will be cited.

11    In University of Wollongong v Metwally (1985) 60 ALR 68 (also reported as University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481) it was stated by all six justices of the High Court sitting that (60 ALR at 71; 59 ALJR at 483):

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

12    The above passage from Metwally was quoted in Coulton v Holcombe (1986) 162 CLR 1 at 8. In Coulton v Holcombe, the following (again, much-cited) observations were made by four justices of the High Court as to the application of the principle to appeals by way of rehearing (at 7):

To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards…

30    After referring to the decision in VUAX, Bromwich J observed at [15] that it was plain that merit alone is generally not enough for the grant of leave and that the weaker the point the greater the need for other aspects to be favourable, such as the explanation for not taking the point below and prejudice to the opposing party.

Leave to rely on fresh evidence on appeal

31    The Court has power, in its discretion, to receive further evidence on appeal: see s 27 of the Federal Court Act.

32    Rule 36.57 of the Rules provides that a party may apply for the Court to receive further evidence on appeal. The application must be filed at least 21 days before the hearing of the appeal and be accompanied by an affidavit stating briefly but specifically, the facts on which the application relies, the grounds of appeal to which the application relates, the evidence that the applicant wants the Court to receive and why the evidence was not adduced in the court appealed from.

33    In BVZ21 v Commonwealth of Australia [2022] FCAFC 122 at [12] a Full Court of this Court (Markovic, Thomas and Halley JJ) said the following about the power under s 27 of the Federal Court Act:

The Court has the power to admit fresh affidavit evidence on an appeal pursuant to s 27(a) of the Federal Court of Australia Act 1976 (Cth). The power to admit further evidence is remedial and its primary purpose is to ensure that proceedings do not miscarry. In exercising the discretion, the Court will normally need to be satisfied that the further evidence, had it been adduced at trial, would very probably have meant that the result would have been different, and further that the party seeking to adduce the evidence was, at trial, unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence: Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [15]-[16] (Griffiths, Mortimer and White JJ).

Should leave be granted to rely on proposed grounds 1 and 3?

34    The appellant has not explained why proposed grounds 1 and 3 were not raised below. This is not a case where the appellant was unrepresented before the primary judge. As the Minister points out he was represented by experienced counsel before the primary judge. That factor weighs against a grant of leave to raise the new grounds.

35    While there may be no prejudice to the Minister in that he has now had time to meet the new arguments, an absence of prejudice is not sufficient of itself to lead to a grant of leave.

36    The final matter is the merit of proposed grounds 1 and 3, which I examine below.

Proposed ground 1

37    Proposed ground 1 is in the following terms (omitting particulars):

1.    The Tribunal breached the procedural fairness obligations, by failing to be cognizant of or consider the Biodata Interview and the claims made by the Appellant in it, failing to make reasonable efforts to obtain the Biodata Interview, and failing to listen to the audio of the Entry Interview and the claims made there which were not recorded in the written record of the entry interview.

(Underlining omitted.)

38    This ground concerns the biodata interview and the audio recording of the appellant’s entry interview. In summary, the appellant contends that the Tribunal breached its procedural fairness obligations owed to him by failing to be “cognizant of” or to consider the biodata interview and the claims made in it, failing to make reasonable efforts to obtain the biodata interview and by failing to listen to the audio recording of the entry interview and the claims made therein which he alleges were not recorded in the written record of that interview. As to those matters the appellant contends that the Tribunal’s failure on both counts meant that it made its credibility findings without being aware of his claims and “without considering the demeanour of the [appellant] including as a person who had been subjected to beating in detention by the army”.

39    In support of this ground the appellant seeks to rely on the affidavit of Mr Simion affirmed on 23 November 2022 (Mr Simion’s affidavit) (see [25] above). There is no explanation as to why this evidence was not adduced before the primary judge, nor does the appellant contend that he could not, with reasonable diligence, have been made aware of this evidence. As will become apparent from my consideration of the merit of proposed ground 1, I am not satisfied that the evidence, which comprises a transcript of the entry interview, would, if adduced before the primary judge, “very probably have meant that the result would have been different”. Accordingly, I would not grant leave to the appellant to rely on Mr Simion’s affidavit on the appeal.

Appellant’s submissions

40    The appellant submits that the Tribunal’s review miscarried because it did not indicate that it was aware of the existence of or make reasonable searches to obtain the biodata interview and did not consider the claims made therein or take them into account when considering the appellant’s credibility. The appellant also contends that the assessment of his credibility miscarried because the Tribunal did not listen to the entry interview when assessing his credibility or his claims. The appellant submits that the claims he made in the biodata interview “were material to the decision as there was no cognizance or consideration of the level of adverse interest of the authorities extending to beating of him by the army in the camp” and that he said during the biodata interview that the reason he fled Sri Lanka was because he “feared the army, and threat to my life and fled”. The appellant makes the following further submissions in relation to the biodata interview:

(1)    the consideration of the claims made in it and the awareness of its existence were necessary to the review. They were distinct claims and directly relevant to the consideration of his credibility;

(2)    distinct claims were made in the biodata interview which were relevant in their own right and to the assessment of his credibility; and

(3)    the failure to “cognize” the existence of the biodata interview meant that the Tribunal was not aware of the interviews in which the appellant had engaged.

41    The appellant also submits that the failure on the part of the Tribunal to listen to the entry interview meant that in assessing his credibility the Tribunal was not aware that during that interview he had made claims not recorded in the written record. He contends that he claimed that the reason why he was under suspicion was because his brother was in the LTTE and in the entry interview he claimed that this was the reason why the CID was looking for him. The appellant submits that, while ambiguously expressed, it was clear that his claims should be understood to mean that the CID did take him away and not just that he hid or was not home.

42    The appellant submits that the entry interview case officer told him that she had enough information. He contends that the Tribunal had an obligation to listen to those interviews prior to making a decision and that this obligation was magnified due to the failure to consider the distinct claims made in the biodata interview that he was beaten by the army in the camp. He says that the Tribunal’s finding that he did not raise the allegation that he was taken by the CID after returning from India prior to the hearing was unfair.

43    The appellant identifies several exchanges in the transcript of the entry interview (annexed to Mr Simion’s affidavit) which he contends are not referred to in the written record of that interview and points to other parts of the transcript which he contends reveal that he seemed confused or that he did not understand the questions put to him through a Tamil interpreter.

44    The appellant submits that it was procedurally unfair that the Tribunal identified its concerns and issued the 24 March Letter without listening to the entry interview or the PV interview or being aware of the biodata interview. The appellant notes that the Tribunal acknowledged that it had failed to listen to the entry interview and submits that it misunderstood his evidence for that reason. The appellant submits that there is a perception of bias arising from the fact that the Tribunal’s process, by which it formed its concern, was admitted by it to be erroneous and this procedural unfairness could only be remedied by issuing a second natural justice letter.

45    The appellant submits that the Tribunal’s interpretation of confused answers as untruthful failed to consider differential diagnoses: that there may be other reasons for those answers, in particular, as the appellant is a survivor of war and trauma and, on his claims, torture. Further, the appellant submits that failure to listen to the audio recordings gives rise to a reasonable apprehension of bias by reason of a “lack of due care on the part of the Tribunal”. The appellant contends that the natural justice obligation on the Tribunal includes listening to the audio recordings and the Tribunal could not fairly assess his claims and credibility when it did not listen to the audio recording of the entry interview and acknowledged that it did not listen to the PV interview prior to issuing the 24 March Letter.

46    The appellant submits that natural justice includes the obligation to give consideration to relevant matters which clearly emerge from the materials, referring to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55], [58]-[61] and [68], and that therefore the Tribunal was bound to listen to the entry interview and to make reasonable efforts to obtain the biodata interview and, at the very least, to take into consideration the existence of that interview. Further, the appellant submits that in the absence of an audio recording of the biodata interview the Tribunal was bound to put to him that it might find that interview was not relevant.

47    The appellant submits that a reading of the Tribunal’s decision reveals that it was not aware that the antecedent biodata interview was referred to extensively throughout the entry interview and, based on aspects of the transcript, submits that it is established that either the Tribunal did not listen to the entry interview or did not intellectually engage with its content.

48    The appellant submits that no reasonable Tribunal could fail to take reasonable steps to obtain the biodata interview. He says, had the Tribunal listened to the entry interview and had it obtained or at least been aware of the existence of the biodata interview, its credibility findings could readily have been different. The appellant submits that the written record of the biodata interview raising distinct claims and the absence of the audio of the biodata interview were each matters which gave rise to a natural justice obligation, as did the existence and availability of the audio file of the entry interview.

Consideration

49    The appellant’s submissions can be reduced to three contentions, namely that the Tribunal breached its procedural fairness obligations by failing to:

(1)    be aware of, or to consider, the biodata interview;

(2)    make reasonable efforts to obtain the biodata interview; and

(3)    failing to listen to the audio recording of the entry interview and the appellant’s claims made during the interview that were not recorded in the written record.

50    The Minister accepts that the biodata interview was before the delegate but was not before the Tribunal. The appellant contends, in effect, that he advanced a claim in his biodata interview that he was beaten by the army and that he fled Sri Lanka because of his fear of the army. He says that the Tribunal failed to consider that claim or make inquiries to discover it and that, in failing to consider the claim, its credibility findings were materially affected.

51    The Tribunal’s obligation to consider claims made by an applicant did not appear to be in dispute.

52    In Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42] Allsop J (with whom Spender J agreed) relevantly said:

… The requirement to review the decision under s 414 of the Migration Act 1958 (Cth) (the Act) requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act, eg ss 54, 57, 65, 414, 415, 423, 424, 425, 427 and 428 and the express reference in reg 866 to the “claims” of the applicant eg 866.211, make it clear that the Tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant. …

53    The Tribunal is required to consider claims that are expressly made and to consider claims that clearly arise from the materials before it: see NABE at [60], [68].

54    As the Minister submits, the appellant did not make any claim, either in his protection visa application or to the Tribunal, including in the submissions provided by his representatives, that he had been beaten by the army or that he specifically feared harm from the army. Nor did any such claim “arise squarely” from the material before the Tribunal. It was a matter for the appellant to advance evidence and argument in support of his claim for protection to the Minister’s Department and to the Tribunal on review: see Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] (Gummow and Hayne JJ).

55    By analogy, the Minister relied on the decision in Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47. In that case the appellant contended that the primary judge erred in not upholding her submission that the Tribunal had not given proper, genuine and realistic consideration to her claim that in China she assisted people “from organisation of social justice called ‘Falong Gong’” (referred to as the Falun Gong point).

56    The Falun Gong point was made by the appellant in her personal circumstances form seeking revocation of the cancellation of her visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth). A delegate of the Minister refused revocation of the cancellation of the appellant’s visa and the appellant sought review of that decision by the Tribunal. Before the Tribunal the appellant gave evidence that everything in her personal circumstances form was true and about the difficulties she would face if she returned to China but did not mention the Falun Gong point in doing so. Nor was that point mentioned by the appellant or her lawyer in the course of the hearing or in her statement of facts, issues and contentions. The Tribunal did not make a specific finding in relation to the Falun Gong point.

57    At [70] of Hong, Bromwich and Wheelahan JJ held that in the circumstances of that case, and without more, “it was not enough for a claim to be advanced before the Tribunal, so as to require it to be considered as part of its irreducible jurisdictional task, for the appellant to rely upon two sentences in the original personal circumstances form accompanying the appellant’s visa cancellation revocation request”. Their Honours referred to the manner in which the appellant had made her claims including that:

(3)    The appellant had adequate opportunity to advance and develop any material matter before the Tribunal through evidence, written contentions, and submissions at the hearing.

(4)    Although the appellant stated in her evidence in a compendious way that everything in the personal circumstances form was true, her evidence fell to be considered in its totality. When the appellant was asked about difficulties that she believed she would experience if she went back to China, she gave the evidence that we have set out under [31] and [32] above, which referred to her claimed health issues as an impediment to gaining employment. In response to questions in examination–in-chief, and in cross-examination, the appellant made no reference to having helped people who had an association with Falun Gong as being a possible impediment to employment. Furthermore, no reference to Falun Gong featured in the appellant’s statement of facts, issues and contentions that was prepared by the legal practitioner who represented her before the Tribunal, or in the submissions that were made to the Tribunal on her behalf at the hearing.

58    As the Minister submits, the same can be said here. The biodata interview material was before the delegate. However, the delegate did not consider any claim that the appellant had been beaten by the army and feared the army. Despite that, the appellant did not complain to the Tribunal about any oversight on the part of the delegate nor did he make a claim that he feared the army.

59    The Tribunal was not under any obligation to consider the reference to the army that appeared in the record of the biodata interview. That interview preceded the appellant’s application for the visa. In making the visa application the appellant did not refer at any point to fearing the army or to having been beaten by the army. The Tribunal did not fall into error, by denying the appellant procedural fairness or otherwise, in failing to “indicate an awareness” of the existence of the biodata interview.

60    Neither was the Tribunal’s failure to address the biodata interview relevant to its credibility findings. Those findings were made by the Tribunal in two parts of its reasons.

61    First, at [22] of its reasons where the Tribunal said:

I acknowledge that it not uncommon for honest applicants to give differing accounts of past events. I also acknowledge that the applicant’s youth and background and the stressful nature of providing information in formal setting could have contributed to some of the confusion in his evidence. However, I do not accept that he would have been confused about whether he himself had been questioned by officials about his brother or his father had been questioned about him. I believe that the applicant gave inconsistent evidence regarding these events because his claims are not true.

62    The findings at [22] were based on the inconsistencies found by the Tribunal between the claims made by the appellant in the appellant’s 2012 statement and the evidence he gave before the Tribunal, which the Tribunal recorded at [20]-[21] of its reasons.

63    Secondly, at [33] where the Tribunal said:

It is certainly true that the applicant’s evidence during both his interview with the delegate and the hearing was sometimes confused and I accept that this may sometimes have occurred because he misunderstood questions he was asked. However, this does not explain why he initially claimed that he had gone into hiding in 2011 because he was fearful of masked men but stated at the hearing that he had gone into hiding after being detained by the CID and accused of belonging to the LTTE. While these claims are not mutually exclusive, I do not accept that the applicant would have failed to mention that he had been detained by the CID and accused of belonging to the LTTE prior to the hearing if this had occurred. And if fear of abduction or detention by masked men in 2011 was a major reason for his decision to go into hiding at his sister’s house in 2011,1 believe that he would have repeated this claim during the hearing. I believe these inconsistencies occurred because the applicant has not given truthful evidence. I do not accept that he was questioned by the CID in 2011 and accused of being an LTTE member or that he went into hiding in 2011 because he feared that he would be abducted by masked men or for any other reason. I find that he concocted these claims to support his application for protection.

64    The findings at [33] were based on the fact that the appellant made the claim that he had been detained by the CID and accused of belonging to the LTTE for the first time at the hearing. The appellant does not contend that this claim was made at the biodata interview.

65    The Tribunal’s findings of inconsistency in the appellant’s claims were based on evidence given after the biodata and entry interviews and properly supported the credibility findings made by the Tribunal.

66    The appellant suggests that the Tribunal was obliged to make inquiries in order to obtain the biodata interview. However, the Tribunal does not have a general obligation to inquire. Its duty is to review although “[i]t may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review” and thus give rise to a jurisdictional error for constructive failure to exercise jurisdiction: see Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [25]. Here there was no obvious inquiry to make about a critical fact. The information before the Tribunal, including that provided by the appellant, did not suggest that the appellant had made any additional claims in the biodata interview.

67    I turn to consider the appellant’s contentions concerning the Tribunal’s failure to listen to the audio recording of the entry interview. I do not accept that there was any obligation on the Tribunal to listen to the audio recording, particularly in circumstances where it had the written record of the entry interview available to it and that record included a summary of the answers given by the appellant in relation to the reason why he left his country of nationality or residence, which the appellant does not submit is inaccurate.

68    The appellant submits, by reference to a transcript of the entry interview annexed to Mr Simion’s affidavit, that there were material matters omitted from the written record. He relies on the following passages (emphasis added):

1102    Interpreter: [Translates Case officer]. This one and the suspicious reason.

1103

1104    Case officer: this one and the suspicious reason… Was there any incident in these last two

1105    years where you were put under suspicion?

1106

1107    Interpreter: [Translates Case officer]. They have come to taking me away sometimes I just

1108    hide or sometimes I’m not at home when they coming to take me.

And:

1156    Case officer: How many times altogether do you think they came searching for you?

1157

1158    Interpreter: [Translates Case officer]. Two or three times.

1159

1160    Case officer: And are these the reasons you left Sri Lanka.

1161

1162    Interpreter: [Translates Case officer]. Ys.

1163

1164    Case officer: I got enough information there, I think.

And:

1195    Case officer: Okay, but you said before, you told me before the CID, what organisation is

1196    that?

1197

1198 Interpreter: [Translates Case officer].

1199

1200    Case officer: What is the CID?

1201

1202    Interpreter: [Continues to interpret]. He said yes.

1203

1204    Case officer: So, what is the CID is that an intelligence organisation?

1205

1206    Interpreter: Yeah, Central Intelligence Department.

1207

1208    Case officer: Sorry

1209

1210    Interpreter: Central Intelligence Department, that’s the narration

1211

1212    Case officer: Okay, Central, Intelligence

1213

1214    Interpreter: Department

1215

1216    Case officer: And they came looking for you, didn’t they?

1217

1218    Interpreter: [Translates Case officer]. Yes.

1219

1220    Case officer: why would they come looking for you?

1221

1222    Interpreter: [Translates Case officer]. For this reason.

1223

1224    Case officer: For what reason you tell me.

1225

1226    Interpreter: [Translates Case officer]. Because my brother was in LTTE they thought I was in

1227    LTTE as well.

69    The effect of this evidence is a claim by the appellant that the CID came looking for him at his home because his brother was in the LTTE. However, that was a matter that was before the Tribunal. At [30] of its reasons the Tribunal recorded that:

At the hearing the applicant confirmed that he had returned from India in May 2011 and then worked as a fisherman for about 3 or 4 months and again claimed that he went into hiding at his married sister’s house and in the nearby jungle after this. He also worked casually at a quarry. When asked why he had gone into hiding he said he said he had been questioned by the CID at a camp who told him that they believed that he was involved in the LTTE because his brother was a member and because so many Tamils were recruited in the final stages of the war. They threatened to detain him but he was released after 30 minutes. After that he went home and then to his sister’s house. …

(Emphasis added.)

70    That being so, I do not accept that the transcript relied upon by the appellant (see above) reveals any material matter which was absent from the written record of the entry interview or not otherwise before the Tribunal.

71    The appellant relies on AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1252. That case concerned a review by the Immigration Assessment Authority of a decision of a delegate of the Minister refusing a protection visa under Pt 7AA of the Act. On 3 December 2012 the appellant had attended an enhanced screening process interview on Christmas Island with the assistance of a Tamil interpreter. The written record of the interview was not provided to the Authority for its review. It was not in dispute that the record of the enhanced screening process interview was relevant to the review and was in the Secretary’s possession at the time of the referral to the Authority.

72    At [63] Stewart J identified the issue in relation to the written record of the enhanced screening process interview to be “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”.

73    In considering that issue, Stewart J observed that the earliest account of the appellant’s claims that was before the Authority was the form in which information from his arrival interview, which took place on 31 December 2012, was recorded by a Departmental officer, and the audio recording of that interview. At [66] his Honour referred to the earlier enhanced screening process interview and observed that no transcript or recording of that interview was before the Authority but that a record of it was before the primary judge.

74    Justice Stewart summarised the information given by the appellant in the enhanced screening process interview and noted that it is “detailed and extensive” in contrast to the brief responses recorded in the arrival interview form. His Honour was of the view that there were a number of ways in which the enhanced screening process interview transcript may have assisted the appellant had it been available to the Authority: AAI20 at [67]-[68]. Justice Stewart then proceeded to explain each of those matters and how the absence of any record of the enhanced screening process interview before the Authority affected its findings. In doing so his Honour also referred at one stage to the transcript of the arrival interview on which the appellant sought to rely on the appeal, noting (at [72]) that the Authority’s reliance “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” did not assist.

75    However, the appellant’s reliance on AAI20 is inapt. The facts of this case are different to those before the Court in AAI20. First, in AAI20 the Authority undertook its review pursuant to the strict regime in Pt 7AA of the Act. Secondly, the parties accepted that the written record of the enhanced screening process interview was relevant to the review and that the Secretary had failed to provide it to the Authority contrary to s 473CB of the Act. It was against that acknowledged failure that Stewart J undertook his analysis. Thirdly, in AAI20 the Authority had neither the written record of the enhanced screening process interview nor an audio recording of it. None of those facts can be found here: the review was carried out under Pt 7 of the Act; the appellant had an opportunity to appear before Tribunal; the Tribunal had available to it the record of the entry interview which the appellant did not contend was inaccurate; and, in any event, to the extent the appellant relies on a transcript of the entry interview, the matters he highlights were before the Tribunal and considered by it.

76    The final aspect to consider of proposed ground 1 is the contention at particular (e) that the “[t]ribunal breached the obligation of procedural fairness because the [appellant] did not know what information which he had previously given to the Tribunal was or was not being considered”.

77    The appellant makes no submissions in support of this particular. That said, the Minister considers, I assume inferentially, that the appellant relies on BBS15 v Minister for Immigration and Border Protection (2017) 248 FCR 159 in support of the contention.

78    In BBS15 the then Refugee Review Tribunal (RRT) rejected the appellant’s claim that he was a Christian convert because there was no material to corroborate his claim that he attended church. However, there was uncontested evidence before the primary judge that an officer of the Minister’s Department had received a supporting letter from the appellant’s pastor as part of his application for a visa but, because of an administrative error, the letter was not provided by the Secretary to the Tribunal with the review documents.

79    The appellant contended that the RRT had failed to provide him with a reasonable opportunity to be heard in accordance with s 422B and s 425 of the Act in that: the RRT, by representations it made, had caused him to understand that the documents he had provided to the Department in support of his visa application and relevant to his review would be obtained and considered by it; he had relied on that understanding; and, as a consequence, he had conducted his part of the review on a false premise.

80    The Full Court (Griffiths, Kerr and Farrell JJ) held that the RRT had denied the appellant procedural fairness because it had conducted the review in a manner that created an impression in the appellant that it had all of the documents relevant to the review which the appellant had provided to the Department. At [106] their Honours said:

None of the cases purports to narrow the principle established by the High Court in Muin and Aala. That is, it is a failure of s 425 of the Act if the failure to provide information causes the Tribunal (even innocently) to mislead an applicant to mistakenly believe that a state of affairs exists and that in turn affects the manner in which the case is conducted to the applicant’s detriment. In any event we would be bound by the hierarchy of precedent to apply the reasoning of the High Court.

81    The appellant seems to suggest that he was under a misapprehension that his biodata interview was before the Tribunal. However, as the Minister submits, the appellant does not give any evidence that he laboured under such a misapprehension; the biodata interview was not connected to the appellant’s protection visa application, such that he could have reasonably expected it to be before the Tribunal; and, in contrast to the position in BBS15, the Tribunal did not say anything to the appellant during the hearing that would give him the impression that it possessed or considered the biodata interview. There is no evidence before me capable of leading to conclusions of the type referred to in BBS15 at [7].

82    In my view proposed ground 1 lacks merit.

Proposed ground 3

83    By proposed ground 3, as orally amended by the solicitor appearing for the appellant at the hearing, the appellant contends that the Secretary, at the time the delegate’s decision was referred to the Tribunal, did not consider or form a view about the relevance of the biodata interview and thus did not comply with the mandatory obligation under s 418(3) of the Act.

84    The appellant did not press a number of his written submission in relation to this proposed ground. He submits that the Tribunal was on notice of the biodata interview and should therefore have taken reasonable steps to obtain it.

Consideration

85    This ground has no merit and is contrary to established authority.

86    Section 418(3) of the Act requires the Secretary, as soon as practicable after being notified that an application for review has been made to the Tribunal, to give to the Registrar of the Tribunal “each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision”.

87    In Muin v Refugee Review Tribunal (2002) 68 ALD 257 at [45]-[46] Gaudron J said:

[45]    So far as the tribunal’s decisions are concerned, relief by way of constitutional writ pursuant to s 75(v) of the Constitution is available only if the decision in issue involves jurisdictional error, including constructive failure to exercise jurisdiction. It is conceivable that a failure by the secretary to comply with the requirements of s 418(3) of the Act might, in some cases, result in or contribute to jurisdictional error on the part of the tribunal. However, that is not to say that the secretary’s non-compliance with s 418(3), of itself, will necessarily result in jurisdictional error on the part of the tribunal.

[46]    Section 418 of the Act imposes an administrative duty on the secretary, the evident purpose of which is to enable the effective and efficient exercise by the tribunal of its review functions. But there is nothing in the Act to suggest that the secretary’s compliance with s 418(3) is either a precondition to the tribunal’s conduct of review proceedings or to its making of a decision on review. Accordingly, it does not, of itself, constitute an error which would entitle the plaintiffs to relief by way of constitutional writ either prohibiting the defendants from acting upon the tribunal’s decisions or quashing those decisions. And if neither of those steps is taken, there is no basis for the issue of mandamus.

See too at [179]-[183] (Gummow J); [251] (Hayne J).

88    The proposition that the Secretary’s compliance with s 418(3) of the Act is not a jurisdictional precondition to the Tribunal’s conduct of a review has been applied in a number of cases in this Court, both at first instance and on appeal.

89    In SZOIN v Minister for Immigration (2011) 191 FCR 123 the appellant relevantly contended that the Tribunal’s decision was infected by a breach of the requirements of procedural fairness because there had been a breach of s 418 of the Act amounting to jurisdictional error by the Secretary failing to provide to the Tribunal medical and psychological records referable to the appellant which were in the Secretary’s possession, care and control.

90    Justices Bennett and McKerracher surveyed the authorities commencing with Muin. At [53] their Honours found that the documents in question were relevant because “they were capable of explaining not only the demeanour of the appellant in the course of giving his evidence but also his unwillingness or inability due to his mental condition to discuss the very issues involving trauma resulting from his claimed treatment by the militia”. At [54] their Honours continued:

We agree with the Minister and the Full Court in WAGP that the objective relevance of a document is not the test to be applied by reason of s 418(3), except perhaps in an extreme case where the document was so clearly critical that it could only be inferred that failure to supply it to the Tribunal meant there was no discharge of the obligation to form a view. In our view, the Medical Reports are relevant but not “crucial” to the appellant’s claim.

91    Their Honours rejected the Minister’s argument that the obligation imposed by s 418(3) of the Act was not ongoing and that the Secretary was not required to consider what additional new documents were relevant to the review. They inferred that the Secretary did not continue to form a view as to whether documents coming into his control were relevant to the ongoing review and that there was a conscious decision that the task had been completed and there was no ongoing obligation. At [57] Bennett and McKerracher JJ held that the obligation under s 418(3) does not continue indefinitely but that it is an obligation to produce documents which the Secretary considers to be relevant to the review and continues until the review is completed.

92    Their Honours then turned to consider whether the Secretary’s breach in that case was a breach by the Tribunal as contended by the appellant. At [64]-[66] they said:

64    More recently in SZNZK v Minister for Immigration and Citizenship (2010) 115 ALD 332 at [20] Perram J followed French J in Applicant S1693 of 2003 [2004] FCA 1512, noting that an error in the performance of a function under s 418 by the Secretary cannot result, at least without something more, in a jurisdictional error by the Tribunal. His Honour observed that this follows from the fact that it has been held that a breach of s 418 does not constitute jurisdictional error.

65    We cannot agree that WAGP was clearly wrong. It is not only directly in point insofar as the crucial question is concerned but is also based on sound reasoning which is consistent with the approach taken by members of the High Court in Muin and also with S487 and SZNZK.

66    Although it is regrettable (and in our view did not accord with the requirements of s 418(3)) that the Medical Reports were not made available to the Tribunal, the error on the part of the Secretary in complying with s 418(3) (including continuing compliance until completion of the review) does not give rise to the result that the Tribunal’s decision is tainted with jurisdictional error.

93    After considering the second argument in the appeal, based on the decision in R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330, at [73] Bennett and McKerracher JJ concluded that:

However, it does not follow that the Secretary’s failure can be visited on the Tribunal. Nor can it be said, in light of the specific statutory regime dealing with the Secretary’s duty, that the decision of Ex parte A, if it be part of the law of Australia, would apply. The breach of s 418(3) in this case was not a precondition to the exercise by the Tribunal of its review function, nor did it vitiate the Tribunal hearing or the decision-making process. Unlike SZFDE at [52] it cannot be said that the jurisdiction of the Tribunal remained “constructively unexercised”.

94    In BBS15 at [93] the Full Court accepted the proposition that a breach of the duty imposed by s 418(3) of the Act does not found jurisdictional error in the Tribunal but noted that none of the cases cited on behalf of the Minister involved a party being misled by a Tribunal about the materials before it so as to have caused them to conduct their part in a hearing to their substantive disadvantage.

95    At [103] the Full Court considered SZOIN, observing that in that case:

However, the plurality appears to have accepted that there might be an extreme case where the Secretary’s failure to give the Tribunal a document would be “so clearly critical that it could only be inferred that failure to supply it to the Tribunal meant there was no discharge of the obligation to form a view” (at [54]). Moreover, the plurality, at [64], cited with approval Perram J’s reasoning in SZNZK at [20] that:

an error in the performance of a function under s 418 by the Secretary cannot result, at least without something more, in a jurisdictional error by the Tribunal.

In our opinion the caveat expressed by the words “at least without something more” in that passage recognises and accommodates the exceptions required by the High Court’s decisions in Muin, AALA and SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [65].

96    At [105] the Full Court relevantly said:

The cases cited for the First Respondent settle a question not resolved by Muin, that is, whether in and of itself a failure of the Secretary to comply with his or her duty is sufficient to constitute jurisdictional error in the Tribunal. They resolve that question in the negative, subject to the possibility of an extreme case as adverted to in SZOIN.

97    At [106] the Full Court concluded that none of the cases it had reviewed narrowed the principle established in Muin and AALA (see [80] above).

98    Here the Minister concedes that the biodata interview material was not provided by the Secretary to the Tribunal. That is, the Minister admits the breach of s 418(3) of the Act. As the Minister submits, the question for the Court is whether the consequence of that admitted breach resulted in a jurisdictional error.

99    As is evident from the authorities summarised above, jurisdictional error may arise as a consequence of a failure by the Secretary to comply with the obligation under s 418(3) if the failure results in a denial of procedural fairness. That was not the case here.

100    While the appellant submits that he was under a misunderstanding that the biodata interview material was before the Tribunal, he does not explain on what basis that submission is made or can be maintained. My observations and findings at [81] above apply equally here.

101    Proposed ground 3 has no merit.

Conclusion on proposed grounds 1 and 3

102    Having regard to the matters set out at [35]-[36] above and the lack of merit in each of the grounds, leave to raise proposed grounds 1 and 3 for the first time on appeal is refused.

Ground 2

103    By ground 2 the appellant contends that:

2.    The Tribunal fell into jurisdictional error in making its finding. Specifically, the Tribunal in moving from the finding of "inconsistent evidence" to the conclusion of "his claims are not true" [at 22 and 33-36] failed to appreciate the particular nature of the task or to perform it reasonably and fairly as explained in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 at [28]. The Tribunal's error was material.

Particulars

i.    The Appellant claimed and the Administrative Appeals Tribunal (the "Tribunal'') accepted that the Appellant "spent about a month in his village before travelling to India in February 2010 [CB 234 [18]]. The Appellant claimed that he was questioned by the authorities in this period. The Tribunal found at [22] that the "applicant gave inconsistent evidence regarding these events because his claims are not true"

ii.    The Tribunal breached the obligation of procedural fairness in issuing the Natural Justice letter by failure to listen to the entry interview of 22 September 2012 in that the audio record contained matters not referred to in the written record of audio interview.

iii.    The Tribunal breached the obligation of failing to be cognizant of or consider the Biodata interview, and failed to take reasonable steps to obtain it.

104    An issue arises as to whether this ground is new or whether it arises from the ground argued before the primary judge. The single ground before the primary judge is set out at [14] above. It is evident that the appellant’s solicitor has: first, rearranged the ground so that it is now repeated in the chapeau and in particular (i) but has failed to assert any error on the part of the primary judge in his rejection of the ground; and added two new particulars as (ii) and (iii). I note that particular (iv), which is also new, is not pressed.

105    In his written submissions in support of ground 2 the appellant submits that he did not understand the context of why he had inconsistent information because he had additional interviews and therefore he did not understand what information was before the Tribunal and what he was being asked. He submits that the Tribunal’s reasoning at [20] was not a direct question and the Tribunal did not consider that he had previously raised claims of torture, that claim was not considered and therefore he was incapable of comprehending complex questions. The appellant submits that there is nothing in the reasoning to convey consideration by the Tribunal of other difficulties faced by asylum seekers, including not knowing what is in front of the Tribunal.

106    The appellant also made extensive oral submissions in support of ground 2 and in doing so sought to rely on evidence which was not before the primary judge namely Mr Simion’s affidavit, the affidavit affirmed by Aaron Chelliah on 28 November 2022 annexing a copy of the transcript of the PV interview and the affidavits of Messrs Balasanthiran and Chelliah both affirmed on 28 November 2022 annexing part 1 and 2 respectively of the transcript of the hearing before the Tribunal.

107    Despite there being some similarity between ground 2 and the ground relied on before the primary judge I am not satisfied that ground 2 as argued on appeal is the same as the ground that was before the primary judge. The appellant adds two new particulars and seeks to raise an entirely new argument. Accordingly in my opinion he requires leave to rely on ground 2.

108    As to the question of leave, my observations at [29]-[30] above apply equally here, leaving the question of merit of the ground which I consider below.

109    As set out above, particular (i) of ground 2 contends for the same error on the part of the Tribunal as was argued before, and rejected by, the primary judge. The appellant makes no submissions as to how the primary judge is said to have erred in reaching his conclusion and rejecting the ground. In any event I am satisfied that there is no error in the primary judge’s reasoning. The Tribunal identified the inconsistencies in the appellant’s account over time in relation to matters critical to his claims for protection. It did not misunderstand or fail to engage with those claims.

110    By particular (ii) the appellant contends that the Tribunal denied him procedural fairness in issuing the 24 March Letter by failing to listen to the audio recording of the entry interview “in that the audio record contained matters not referred to in the written record of audio interview”. The solicitor appearing for the appellant took me to different parts of the transcript of the entry interview, the PV interview and the hearing before the Tribunal and submitted that the Tribunal erred at [20]-[21] of its reasons in not considering or misunderstanding a claim made by him. At [20]-[21] the Tribunal said:

20.    During the hearing on 17 February 2016 the applicant told me that he left Sri Lanka because the authorities wanted to arrest him. He said that people wearing masks had come to his home and spoken to his father. They accused him of being in the LTTE. He said that after that some boys who had been in the camp with him and who also had brothers in the LTTE were arrested, so he left for India. I pointed out that he had previously stated that the men who came to the house had spoken to him and asked where his brother was. The applicant said he had been questioned in the IDP about these things, but not after he returned home. He confirmed that the officials had questioned his father about him (the applicant), not his brother. I noted that he had been questioned in the IDP camp and released which suggested that he was not suspected of being in the LTTE at that time and asked why he thought they had been concerned about him after he returned home. He said that he did not know.

21.    On 24 March 2016 the Tribunal wrote to the applicant to invite him to comment on these discrepancies. In response his representative said that both the applicant and his father had been questioned after his release from the IDP camp and submitted that I had misunderstood his written submission. He submitted that the applicant’s statement “The civil authorities came to my home two or three times and asked me about my brother” should not be taken to mean that he had two or three encounters with the authorities as it did not specifically state this. He also correctly pointed out that I had misunderstood the applicant’s evidence during his interview with the delegate as he had not repeated the claim that he questioned by officials in early 2010. The information in the letter was based on my understanding of the delegate’s written statement of reasons. However, when I reviewed the recording of that interview it became clear that this was not correct.

111    At [20] the Tribunal accurately recorded the claim made by the appellant in his protection visa application and evidence given by the appellant about men wearing masks who came to his house and asked his father whether he worked for the LTTE. At the Tribunal hearing the Tribunal member asked about that incident. Before me the solicitor for the appellant accepted that there were no material inaccuracies in the Tribunal’s recitation of the evidence given by the appellant at the hearing. On my own review of the transcript of the Tribunal hearing I am satisfied that the Tribunal accurately summarised the appellant’s evidence and the discrepancies in his account when compared to evidence he had previously given.

112    At [21] the Tribunal referred to the 24 March Letter in which it invited the appellant to address its concerns about the discrepancies it had identified in his evidence. That is, the Tribunal put the matters it had raised at the hearing and its concerns to the appellant in writing for comment. The Tribunal recorded the answers given on behalf of the appellant and in fact took steps to clarify its understanding and misapprehension of the events, including by listening to the audio recording of the PV interview and explained that it did so.

113    The appellant does not explain why the Tribunal was required to listen to the entry interview in circumstances where the Tribunal explored the issues with the appellant at the hearing, at [20]-[21] of its reasons identified its concerns, issued the 24 March Letter to enable the appellant to provide an explanation and made its findings based on the evidence and other relevant material, including listening to the PV interview.

114    By particular (iii) the appellant contends that the Tribunal breached “the obligation of failing to be cognizant of or consider the Biodata interview” and failed to take reasonable steps to obtain it. In relation to that particular, my observations and findings at [51]-[66] apply equally. There is no need to repeat them.

115    The appellant refers to AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83. However, AVQ15 can be distinguished on its facts.

116    In that case the Tribunal rejected the appellant’s application for review on the basis of inconsistencies in the appellant’s evidence. The appellant raised two grounds on appeal, the first of which was that the primary judge erred by failing to find that the Tribunal engaged in irrational or illogical reasoning, or constructively failed to exercise its jurisdiction or failed to carry out its statutory task by failing to consider relevant information. A Full Court of this Court (Kenny, Griffiths and Mortimer JJ) upheld that ground. Their Honours commenced their analysis with some general observations. At [21] the Full Court noted that the ground was directed to the Tribunal’s findings that there were inconsistencies in the appellant’s written claims and the evidence he gave before the Tribunal. At [23] their Honours observed that:

A decision-maker is entitled to rely upon inconsistencies in assessing a visa applicant’s credibility but it is important that the process be conducted fairly and reasonably, taking into account that the assessment of the reliability, and credibility, of accounts given by asylum seekers is well recognised as involving a number of particular features and considerations, and calls for a careful and thoughtful approach.

117    At [26] the Full Court said:

Consistently with its task on review, and bearing the reality to which the Full Court in W375/01A referred steadily in mind, appropriate attention has to be given by a decision-maker (here, the Tribunal) to all relevant material in making a finding of inconsistency which then underpins an adverse credibility assessment. As will shortly emerge, this did not occur here because the Tribunal overlooked what the appellant had earlier told a Departmental officer at the appellant’s interview and this material was highly relevant to the question whether the appellant had given inconsistent evidence in support of his case.

118    At [29] the Full Court commenced its explanation of why in its view ground 1 was made out:

With those general observations in mind, we will now explain why we consider ground 1 should be upheld. As the following analysis reveals, the Tribunal’s finding of inconsistencies in the appellant’s evidence, which findings underpinned its adverse assessment of the appellant’s credibility, overlooked significant information which was before it and which potentially put a different light on those findings. This information is recorded in the first paragraph of the appellant’s statutory declaration and in the written transcript of the appellant’s earlier interview with the Departmental officer, a copy of which was before the Tribunal. Inexplicably, in its reasons for decision the Tribunal made no express reference to the transcript of interview. This was notwithstanding that the appellant declared in his statutory declaration that he would provide further information to the Department in support of his case.

119    In contrast, here the appellant contends that the Tribunal breached its obligation to afford him procedural fairness and fell into error by failing to engage with material it did not have, namely the audio recording of the entry interview (particular (ii)) and the biodata interview (particular (iii)). The Tribunal is not said to have, and did not, overlook “significant information which was before it”.

120    In my opinion ground 2 has no merit and leave to raise it for the first time on appeal is refused. Nor has the appellant established that the new evidence which he seeks to lead in support of this ground (see [106] above) would, if adduced before the primary judge, “very probably have meant that the result would have been different”. Accordingly, I would not grant leave to the appellant to rely on that evidence on appeal.

conclusion

121    It follows from the above that I am not satisfied that it is in the interests of justice to allow the appellant to rely on his amended notice of appeal by which he raises three new grounds on appeal. His application to file the amended notice of appeal is refused. Similarly, I am not satisfied that he should be permitted to lead fresh evidence on appeal. That application, made informally, is also refused.

122    The appeal should otherwise be dismissed and, as the appellant has been unsuccessful, he should pay the Minister’s costs, as agreed or taxed.

123    I will make orders accordingly.

Associate:

Dated:    13 February 2024