Consideration of related grounds 2 and 3
63 The primary judge's finding that the written record of the enhanced screening process interview is a record that was in the Secretary's possession at the time of the referral to the Authority and that it was a document that was relevant to the review is not challenged by the Minister. The sole issue in relation to that record is whether or not the Secretary's failure to give it to the Authority under their obligation to do so pursuant to s 473CB(1) of the Act was material in the sense that the failure could realistically have deprived the appellant of the opportunity of a successful outcome.
64 It is necessary to consider whether the decision that was in fact made by the Authority could have been different had the relevant condition been complied with (ie, if the enhanced screening interview record had been provided to the Authority) "as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined": MZAPC v Minister [2021] HCA 17; 390 ALR 590 at [38]. With reference to that passage, it was recently explained in Nathanson v Minister for Home Affairs [2022] HCA 26, a decision post-dating the primary judge's decision in the present case, at [33] that the standard of "reasonable conjecture" is "undemanding".
65 It is to be noted that the earliest account of the appellant's claims given by him that was before the Authority was the form in which certain information from the appellant's arrival interview was recorded by an officer of the Department and the audio recording of that interview. The interview was on 31 December 2012.
66 However, the appellant had been interviewed earlier that month, on 3 December 2012, in the enhanced screening process at Northwest Point Immigration Detention Centre on Christmas Island. No transcript or recording of that interview was before the Authority. A record of it was, however, before the primary judge. In answer to a series of questions by officers of the Department, the appellant made the following claims (amongst others):
(1) In relation to his reasons for coming to Australia:
In 2004 when the tsunami hit our area, I was displaced and in that camp. At that time the LTTE was getting people to do work relief work to do with the tsunami and I was working for them and because I was working for them I was suspected as being involved with them.
(2) He said that he was taken by the LTTE in June 2004 "and made to work during the time of the tsunami". He had to cook for them, "and watering the gardens and such tasks".
(3) He said that he was with the LTTE for three months.
(4) He said that after working for the LTTE, he worked for the Tamil United Front. He did election work for them. He said that one day some people unknown to him came in a white van and threatened him for working for the Tamil National Alliance. He said that that occurred around 6 August that year, ie, 2012. He gave further details about this incident.
(5) He said that after that incident he was "shuffling between my home, my mother's home and my wife's place to avoid these people and then one day they came and took my father and beat him up, and asked where I was staying". The people said that the appellant had been involved with "the tigers" (ie, the LTTE), and that is why they were looking for him. The appellant gave further details about this incident. He later returned to this incident and said that on the day that the people came to him they did not mention the "tigers", but only his work for the Tamil National Alliance. He said that when others went missing "we learned they were after me as they were suspecting I was involved with the tigers".
(6) The appellant said that he then sought protection from "the church priest and stayed with him for 10 days". He explained that although he is Hindu, he sought protection from a Catholic priest.
(7) The appellant was asked where he was staying before he was in hiding with the priest. He said that he was staying in different places, his mother's house, his wife's house and his uncle's place to avoid being captured. Later he explained that what had happened was in Batticaloa and that he went to his wife's area in Trincomalee where he considered it safer. He explained why he had that view. The appellant also explained that he considered that remaining in one place in Batticaloa was unsafe so to avoid being harmed he stayed in different places in Batticaloa.
(8) The appellant said that after he had left by boat for Australia, two people had been enquiring about him at his home and at his neighbour's house. He said that he cannot say definitely who they are, but he believed that they are from the TMVP (Karuna and Pillayan's breakaway faction).
(9) It was suggested to the appellant that it looks like he had a low profile. In response, he said that he worked for the LTTE in 2004 so he was suspected of being involved with the LTTE which is the reason why he was targeted. He said that after Pillayan won the election and "became Chief Minister", "his people were more active and they are trying to hunt down people" who they suspected of being supporters of the LTTE. He described the people as TMVP people and that their leader is Pillayan.
67 It is to be observed that the information given by the appellant in the enhanced screening process interview was detailed and extensive. In contrast, only the briefest responses are recorded in the arrival interview form, being the interviewers' summary of the answers given by the appellant during that interview.
68 There are a number of respects in which the enhanced screening interview transcript may have assisted the appellant had it been available to the Authority.
69 First, the Authority found it to tell against the appellant that in his arrival interview he had stated that he had only ever lived at one address in Batticaloa, since his birth until his departure in 2012, in contrast with what he said thereafter, ie, during the protection visa application process. This point is made by the Authority at A[24] which is quoted in full at [26] above. However, in the enhanced screening process interview the appellant described in detail how he had stayed at different places in Batticaloa and also at Trincomalee. This evidence supports what he said later and undermines the Authority's criticism of him in relation to the places where he stayed.
70 The criticism of the appellant on this issue also directs attention to the record of the arrival interview on which the Authority relied as the basis for its criticisms. Question 12 in Part B asked for his most recent address in Sri Lanka, in response to which an address in Batticaloa is recorded. Question 13 asked for previous addresses, to which a "not applicable" answer is recorded. Question 14 asked whether he had "lived" anywhere else, to which the answer "no" is recorded. It is those recorded answers on which the Authority based its finding that in the arrival interview the appellant said that he had only ever lived at one address.
71 However, the transcript of the arrival interview indicates that the line of questioning during the interview was as follows:
Officer: What was the address where you were staying immediately before you departed Sri Lanka?
Appellant: In Batticaloa, [specific street address - redacted] Batticaloa
Officer: When did you start living at that address, what date?
Appellant: From the time of my birth till I left. Ten days before leaving, I went to my mother in law's place.
Officer: I don't need to know about that, but all your life you stayed in this one address?
Appellant: I don't know how to say it because for 10 days I might go to my mother in law's house stay there and come back, but this was my mainstay.
Officer: As I said to you before, I only need details of places where you stayed, anywhere else where you stayed for one month or more.
Appellant: This is the address.
72 Thus, the Authority relied on the summarised answers recorded by the interviewing officer in the arrival interview form, rather than on the answers actually given by the appellant in the interview, and then held the summary answers against the appellant when the answers actually given would have exposed the fallacy of the criticism.
73 Further, the appellant's enhanced screening process interview may have altered the Authority's conclusions on the extent of the inconsistencies in the appellant's evidence on where he lived before departing Sri Lanka and its acceptance of his explanation for the inconsistencies, which is relevant to its general credibility findings. The Authority at A[24] stated that it did not accept the appellant's explanation in his written statement for the inconsistencies between the arrival interview and later information in relation to his living and employment history prior to leaving Sri Lanka. However, his explanation does not appear to have been offered in relation to that point. Rather, it is a general statement under the heading "Background" that simply says:
When I first arrived at Christmas Island in Australia, another man who had come by boat told me not to tell everything to the Australian government because the Australian government was passing information to the Sri Lankan government and I was afraid that this information would be released in Sri Lanka and I would be harmed as a result.
74 The Authority at A[24] also referred to the protection visa interview during which it was put to the appellant that there were inconsistencies in the information he provided at the "interview at Christmas Island" and the protection visa application in relation to his "residential and employment history" and where he was "living and where you were working in the years leading up to your departure from Sri Lanka on route to Australia in 2012". It is unclear which interview at Christmas Island the officer was referring to - the enhanced screening process interview or the arrival interview. The officer also does not appear to have put specific inconsistencies to the appellant in relation to where he lived before departing Sri Lanka. The appellant, evidently distressed, responded that the reason he did not disclose the information at Christmas Island - although it is not clear what information was being referred to - was because he was considering the risk of harm to his family. It must also be acknowledged that six years had passed between the interviews conducted at Christmas Island and the protection visa interview during which he was questioned about the inconsistencies.
75 The detailed information provided by the appellant in the enhanced screening process interview summarised at [65(7)] above about his movements between different places prior to leaving Sri Lanka may have altered the Authority's perception of the extent of the inconsistencies in the appellant's evidence, as well as the delegate's line of questioning in relation to the perceived inconsistencies and the appellant's responses. Consequently, that information may have led to the Authority reaching a different decision in relation to its acceptance of his general explanation for not disclosing information at Christmas Island and their general findings on his credibility.
76 Secondly, the Authority found it to tell against the appellant that in his arrival interview he had omitted his involvement with the LTTE and that he had problems with the TMVP. Again, this is apparent in A[24]. However, the written record of the arrival interview before the Authority shows that in answer to the question why he left his country of nationality, he included that he was harassed and feared the opposition party, "the Pulliyan Group", and later it is recorded that he said that he is "afraid of Pulliyar Group". In his enhanced screening process interview, the appellant said that the leader of the TMVP is "Pillaiyan" (AB352). He said in the protection visa interview that the TMVP was the Karuna and Pillayan faction that left the LTTE (AB371 and 373). Thus, when he spoke of the TMVP he was speaking of the Pillayan group or the alliance between Karuna and Pillayan. There is therefore no foundation to the criticism that he had not mentioned his problems with the TMVP during the arrival interview. That error is further exposed by the fact that in his enhanced screening process interview the appellant dealt in detail with his involvement with the LTTE and his problems with the TMVP. If the Authority had had the record of that interview it might realistically have reached a different conclusion on the point.
77 The criticism is put in reverse at A[19] where the Authority said that the appellant stated at his arrival interview that he feared harm from the Pillayan group but that he did not mention that during the protection visa interview. However, in the protection visa interview the appellant spoke on many occasions about his problems with the TMVP including that he had been abducted and interrogated by them and that his wife was interrogated by them (AB377-378, 381). What he said in his enhanced screening process interview is consistent with this - that as a "former LTTE" he was being hunted by "TMVP people. Their leader is Pillaiyan". Had the enhanced screening process interview been available to the Authority, it might realistically have made a difference to the Authority's criticism of the appellant in A[19].
78 The primary judge was in error (at J[88]) where her Honour said, as a reason for denying the materiality of the Secretary's failure to provide the record of the enhanced screening process interview to the Authority, that there is nothing in the Authority's reasons to suggest that the Authority made any adverse credibility inference against the appellant as a result of his failure to refer to any involvement with the LTTE at an earlier stage, such as in his arrival interview. The Authority explicitly made such an adverse credibility finding at A[19] and [24].
79 Thirdly, the Authority was not satisfied that the appellant had resided in Trincomalee or was in hiding there (A[24]). However, as discussed at [68] above, in his enhanced screening process interview the appellant gave a detailed account of going into hiding in Trincomalee and moving between there and Batticaloa. This is supported by the evidence he gave in the arrival interview about moving between Batticaloa and his mother-in-law's home, which the appellant says is in Trincomalee, which evidence was omitted from the written record of that interview before the Authority.
80 The primary judge reasoned that the information in the enhanced screening process interview could only realistically have caused the Authority to view the appellant's credibility in a more positive light if the information was consistent with other information provided by the appellant which was before the Authority. Her Honour accepted the Minister's submissions that there were a number of ways in which the information the appellant provided in the enhanced screening process interview was inconsistent with other information he provided to the Authority (J[88]).
81 There is no doubt that some of the information given by the appellant in his enhanced screening process interview conflicts with some of the information given by him, or recorded as having been given by him, at other times. However, there are also respects in which information given by him in his enhanced screening process interview serves to confirm, or is confirmed by, information given by him at other times. As already canvassed, the appellant was interviewed on numerous occasions over a long period of time, including in respect of events that had taken place a long time before he was questioned about them and in traumatic and uncertain circumstances, and sometimes in circumstances where the appellant had little trust in those questioning him. Added to that, there are many occasions on which different people representing him sought to articulate his case in writing. The difficulties in that regard included difficulties of access to the appellant and taking instructions on the telephone through an interpreter, as recorded at [51] of his statutory declaration (see [9] above). Even the most honest and well-intentioned witness will be exposed to inconsistencies in their accounts in those circumstances. Such inconsistencies do not necessarily mean that the whole account, or its major narratives, must to be rejected. See W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 at [15] per Lee, Carr and Finkelstein JJ and ASB17 v Minister for Home Affairs [2019] FCAFC 38; 368 FCR 271 at [45] per Griffiths, Mortimer and Steward JJ.
82 An assessment of credibility is not necessarily linear: VAAD v Minister for Immigration and Multicultural Affairs [2005] FCAFC 117 at [79], citing Gleeson CJ in Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; 204 CLR 82 at [4]; BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189; 281 FCR 594 at [101]. Moreover, adverse findings on credibility may well, expressly or implicitly, be linked with one another so that it is impossible, or unrealistic, for a reviewing Court to be confident that an error in one strand of credibility reasoning does not infect other strands: AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 at [20] per Mortimer J.
83 Undoubtedly, the anatomy of decision-making, particularly with respect to the weighing of different evidence and reaching judgments on credibility, is complex; disbelief of someone at one point might carry over to affect the decision-maker's disbelief at other points, and vice versa. See SZFTQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44]-[45] per Lee J citing Kirby J in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; 221 CLR 1 at [81]. The logic, structure and flow of reasons does not necessarily dictate how in reality credibility findings on one aspect may or may not have consciously or subconsciously informed another aspect: DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525 at [52] per Beach J.
84 The importance of a witness's first account of particular events is often emphasised. There are sometimes circumstances in which that account is regarded to be less reliable, particularly where there is an explanation for why a full or accurate account was not given up-front. But generally what the witness first said on a subject is regarded as particularly important. Indeed, that is reflected in the Authority's approach to the arrival interview which, to the Authority, was the first record of the appellant's account, although, as explained, it overlooked at least some of what was said in that interview but not recorded. For a first record to be left out of account can, and usually will, be expected to have an influence on the ultimate assessment of the witness's story.
85 In those circumstances, as a matter of reasonable conjecture, the ultimate assessment of the appellant's claims, and in particular the rejection of key aspects of his claims, may well have been different had the Authority had available to it the record of the appellant's enhanced screening interview or had it considered the audio recording or transcript of the appellant's arrival interview. The failure by the Secretary to provide the enhanced screening record to the Authority was therefore material in the requisite sense, and that failure was thus a jurisdictional error by the Secretary. The same applies to the Authority's failure to have regard to certain claims of the appellant in the arrival interview as available to it in the audio recording.
86 Appeal grounds 2 and 3 should therefore succeed.