BLO16 v Minister for Immigration and Border Protection

Grounds of appeal 3 The appellant's notice of appeal to this Court, filed on 17 October 2018, contained the following: Grounds of appeal The Federal Circuit court failed to find, in respect of the AAT's reasoning that the AAT declined its jurisdiction to me on the basis of grounds including the main grounds stated in my Federal Circuit Court Application filed at the Federal Circuit Court. Further Grounds with particulars of the grounds will be filed and served in my Amended Notice of Appeal when Court orders it. I need a copy of the Transcript of the AAT's hearing and FCC hearing to file my Amended Notice of Appeal when Court orders it. 4 An amended notice of appeal was ultimately relied upon which in terms relied on each of the grounds of review which had been put forward to the Federal Circuit Court and proposed a new ground described as "new ground 5". It was in these terms: The Tribunal erred when it was not satisfied the Applicant was a witness of truth, such a finding being unreasonable. Particulars The Tribunal made findings that the Applicant had given changing evasive and inconsistent evidence, or evidence which was not credible, many of such instances being either minor or demonstrably wrong: a. Matters raised in Ground 1 above; and b. Matters found elsewhere in the decision: see below. The findings were material to the decision of the Tribunal and were unreasonable. Particulars of Unreasonable findings: a. The Applicant's "changing evasive and inconsistent evidence" (Para 24 [CB276]): • At Paragraph 29, the Tribunal compared the number of people the Applicant stated in his Statement when he said there were 10 people, with the answer he gave before the Tribunal that 'he did not see how many there were exactly, and when the Tribunal asked for an approximate number, he said it could have been five or six people'. Paragraph 29 [CB227]; • At paragraph 29, the Tribunal stated 'The Tribunal noted that, according to his statement, they had also said that they would instead put posters up elsewhere. The applicant did not recall this'. Paragraph 29 [CB277]; • The Applicant said words to the effect that the persons who told him not to put up posters "it could have been the opposition party, no[t] the same party" but had said in his Statement "he suspected that it had occurred because this group of Sinhalese were supporters of the Sinhalese candidate". Paragraph 29 [CB278]; • The timing of the December 2011 incident was stated to the Tribunal at around 4 - 5 pm, whereas his statement said 10 pm. Paragraph 33 [CB279]; • The day he left for Jaffna was at 25 December … whereas his statement said 26 December, 2011. Paragraph 34 [CB279]; ii. Failure to have given at least approximately the how long [sic] he stayed in Jaffna undermined his claims and credibility Paragraph 40 [CB280]; a. The Tribunal said the Appellant 'did not know how long he stayed in Jaffna' … noting the written materials put the time at about 6 months, whereas he told the Tribunal he stayed 6-7 months. Paragraph 38 [CB280]. iii. Matters raised in Ground 1 above leading to the conclusion 'On the basis of all the above, the Tribunal is not satisfied the applicant is a witness of truth'. Paragraph 46 [CB281] a. See Ground 1. 5 The appellant filed written submissions which addressed new ground 5 and what had been ground 1 before the Federal Circuit Court. 6 At the hearing, it was confirmed that the appellant only sought to agitate "ground 1" and "new ground 5" and not grounds 2 to 4 which had been advanced before the Federal Circuit Court.

Ground 1 7 The first ground of appeal before the primary judge was as follows: The Tribunal made a legal error by asking itself the wrong question and/or made an irrelevant consideration. Particulars (a) On page 4 of the decision record the applicant claimed as follows: "The applicant started working on the election campaign for D. Sajith Mohan, the UNP Municipal Council Member of Negombo. He decided to help Mr Mohan because he has been known to help Tamils in the area, in particular with respect to their education. Mr Mohan and the applicant's father had been friends for a few years and his father suggested to him to assist with the campaign. As part of the campaign, the applicant's job was to help put up posters to support Mr Mohan"; (b) On page 11 the applicant's agent's submitted in post-hearing submissions as follows: "… even if he was just putting up posters he could still be imputed with a political opinion, his actual involvement should not matter and that one must be careful in assessing knowledge, noting that the applicant did not claim to be involved in politics at a federal level and so his lack of knowledge is understandable". (c) Nevertheless, on page 11 the Tribunal asked itself the wrong question and/or made an irrelevant consideration and went on to base a credibility finding on a claim that the applicant did not make: "The Tribunal considers that if the applicant had had any political involvement on behalf of the UNP, and if he feared the authorities in his country, he would have been aware for example undermines the applicant's claims of political involvement or interest, and his credibility". 8 Ground 1, as formulated and pressed on appeal, was to the effect that the Tribunal made an error by taking into account something which was factually incorrect, namely that the appellant had claimed that he had an interest in politics. The Tribunal used this finding in its reasoning to reach an adverse credibility finding on the basis that, had the appellant truly had an interest in politics, he would have known more about the political situation in Sri Lanka including that there had then recently been elected a new Prime Minister. Thus, the Tribunal stated at T[43]: … [The applicant's] statement indicated an interest in political matters and assistance in the campaign. The applicant had produced to the Department a photocopy of a letter from Sajith Mohan (Member of Municipal Council, Negombo, Sri Lanka) dated 4 August 2012, which stated that the applicant was a "true and active supporter" of the United National Party, and that he "gave all his effort to Mr Mohan and the party" to win the election. The written evidence did not however accord with the applicant's own evidence both at hearing, as set out above, and to the delegate at interview, as set out in the delegate's decision record, namely that he does not know anything about the UNP and he was only putting up posters for 4-5 days for Mr Mohan's campaign because he was his father's friend, and he doesn't know anything else about the UNP (although the Tribunal notes at interview he was able to say the party's symbol). 9 In his statement, to which the Tribunal referred and to which the Federal Circuit Court referred at J[2] (set out above), the appellant had stated: On about, 1 October 2011, I started working on the election campaign for D. Sajith Mohan (Mr Mohan), the United National Party (UNP) municipal council member of Negombo. Mr Mohan was standing for election in the local Negombo elections. I decided to help Mr Mohan as he has been known to help Tamils in the area - in particular with respect to our education. In 2008, Mr Mohan funded the construction of a water tank at my school, and provided the school with desks and chairs. He has also been known to have provided books to Tamil students of the area where my school was located. In addition to wanting to participate in the election to ensure that the Tamils of the area would continue to receive such assistance, Mr Mohan and my father had been friends for a few years, and my father suggested that I assist with the campaign. As part of the campaign, my job was to help put up posters in support of Mr Mohan. The posters were dark green, the colour of the UNP. They also had Mr Mohan's voting number as well as his picture and name. 10 As noted by the primary judge at J[3], set out above, the appellant had also supplied a letter from D Sajith Mohan dated 4 August 2012, which stated: I hereby certify that the [appellant] … is a true supporter of our party (United National Party). He is an active supporter of our party and he gives all his effort to me and our party to win the election. 11 The Federal Circuit Court reasoned that it was reasonably open to the Tribunal to have understood the applicant to have made a claim that he was politically involved with the UNP beyond simply erecting posters for a particular campaign. The Federal Circuit Court stated at J[13] to [15] (footnotes omitted): [13] It will be seen that the complaint ground 1 makes is that the Tribunal made an adverse credibility finding in relation a claim [sic] the applicant did not make. In particular, ground 1 contends the Tribunal mistakenly understood the applicant to have claimed that he had a political involvement with the UNP that extended beyond assisting the Politician by erecting posters during a local election. [14] It is apparent from the passage quoted in paragraph (c) of the particulars that the Tribunal did consider the applicant claimed he had a political involvement with the UNP beyond simply assisting with the erection of posters. In my opinion, however, it was reasonably open to the Tribunal to have understood the applicant to have made a claim to that effect. First, in the Statement the applicant gave reasons why he decided to help the Politician. Those reasons included the Politician's being known to help Tamils, and in particular in education, and the applicant's wanting "to participate in the election to ensure that the Tamils in the area would continue to receive such assistance". That suggests the applicant had an interest in the UNP that went beyond rendering assistance by erecting posters. [15] Second, the applicant supported his application for a Protection visa by submitting the Purported Politician's Letter which stated that the applicant "is a true supporter of our party (United National Party)", and that the applicant "is an active supporter of our party and he gives all his efforts to me and our party to win the election". It is true that the applicant, through his representative's letter dated 7 May 2015, submitted that the applicant asked his parents to obtain the Purported Politician's Letter from the Politician for the purpose of the Politician confirming that the applicant assisted the Politician "as described in his application", and that to the extent the Purported Politician's Letter overstated the applicant's involvement, the Tribunal should take the letter "only as it was intended - to confirm that the Applicant indeed assisted [the Politician] with his campaign". The Tribunal referred to that submission, but it did not accept it. It was reasonably open to the Tribunal not to accept the submission. The Purported Politician's Letter could not reasonably be read in the manner the applicant's representative submitted it ought to be read; or, at the very least, it could not only have reasonably been read in the manner the applicant's representative submitted it ought to be read. 12 The reasoning of the Federal Circuit Court cannot be faulted. It is plainly correct. There was no jurisdictional error in the Tribunal's findings or reasoning: (1) The Tribunal concluded that the appellant claimed an interest in politics that went beyond putting up posters and that this claimed interest was greater than the disinterest in politics expressed by the appellant at the Tribunal hearing. These conclusions were open given the appellant's statement that he decided to help the politician because he had been known to help Tamils in the area, particularly in respect of education. His statement also included at [3]: In addition to wanting to participate in the election to ensure that the Tamils of the area would continue to receive such assistance, Mr Mohan and my father had been friends for a few years ... It was also open because the appellant had put forward the letter dated 4 August 2012 from the politician he supported which stated that he was a "true supporter", an "active supporter" and that "he gives all his effort to me and our party to win the election". It is in this context that the Tribunal's reference at T[43] must be understood, that the appellant had "an interest in politics". (2) It was open to the Tribunal to conclude that the inconsistency between the level of political interest, on the one hand, expressed in the appellant's statement and in the politician's letter and, on the other, displayed by the appellant's oral evidence in response to questioning, reflected adversely on the appellant's credibility. That is not to say that a different decision maker may not have reasoned differently, but those conclusions were open and therefore no jurisdictional error has been shown. 13 Even though the Tribunal found the politician's letter not to be genuine (at T[45]), it was the appellant's position that it was genuine. It was initially put forward by the appellant to support his claim as to his involvement with the politician. The Tribunal raised a concern at the hearing about the inconsistency between the level of involvement suggested by the letter and that displayed by the appellant. The appellant's representative, in a post-hearing submission, stated: [3] The Tribunal expressed concern during the hearing that the statements in that letter that the Applicant is a true and active supporter of the UNP and gave 'all of his effort' to the party to win the election was inconsistent with the Applicant's evidence as to the nature of his political involvement during his hearing. [4] I am instructed that the Applicant asked his parents to obtain a letter from Mr Mohan for the purposes of confirming simply that he assisted him as described in his application. It is submitted that the content of the letter is not sufficiently inconsistent with the Applicant's evidence so as to give rise to an adverse credibility finding by the Tribunal. [5] To the extent that the letter overstates the Applicant's political involvement, it is submitted that the Tribunal should take the letter only as it was intended - to confirm that the Applicant indeed assisted Mr Mohan with his campaign. 14 The Tribunal referred to these submissions at T[44], stating: The Tribunal put to the applicant its concerns about the inconsistent evidence about his level of involvement/commitment to the party and he said he did not want to say anything. The agent's post hearing letter of 7 May 2015 explains that the applicant asked his parents to obtain a letter from Mr Mohan for the purpose of confirming simply that he assisted him as described in his application. It was submitted that the content of the letter was not sufficiently inconsistent with the applicant's evidence so as to give rise to an adverse credibility finding by the Tribunal, and to the extent that the letter overstates the applicant's political involvement, it should be taken only as intended, namely to confirm that the applicant did assist Mr Mohan in his campaign. Other post hearing submissions suggest that even if he was just putting up posters he could still be imputed with a political opinion, his actual involvement should not matter and that one must be careful in assessing knowledge, noting that the applicant did not claim to be involved in politics at a federal level and so his lack of knowledge was understandable. While the Tribunal accepts he did not claim to have federal level involvement, it is not prepared to accept these explanations as to his claimed involvement and interest in politics. The Tribunal considers that the written evidence provided both in the applicant's statement and in the letter overstate the applicant's own oral evidence. Further, the Tribunal considers that the applicant's true position on politics is (and was) as he said to the Tribunal, namely he is not interested. The Tribunal considers that if the applicant had had any political involvement on behalf of the UNP, and if he feared the authorities in his country, he would have been aware for example that there was now a UNP Prime Minister. The Tribunal considers that the evidence undermines the applicant's claims of political involvement or interest, and his credibility. 15 The Tribunal was not bound to accept the appellant's post-hearing submission. There is no error displayed in the way in which the Tribunal dealt with this issue.

New ground 5 16 This ground asserts that the Tribunal's adverse credibility finding was unreasonable, essentially on the basis that the matters it relied upon as set out in the particulars set out at [4] above were overly trivial to support an adverse credibility finding on any reasonable basis. Because this ground is new, the appellant requires leave to raise it. 17 The relevant principles with respect to leave to argue new grounds were recently summarised by Bromwich J in Han v Minister for Home Affairs [2019] FCA 331 at [8]-[9]. In this particular case, the most efficient way to consider whether leave should be granted is first to assess whether the ground has sufficient merit to warrant leave being granted. 18 The Full Court recently summarised the relevant principles relating to unreasonableness in Singh v Minister for Home Affairs [2019] FCAFC 3 at [61]: The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at [54]-[60] (Gageler J); [78]-[79] (Nettle and Gordon JJ); [135] (Edelman J). Such a conclusion might be drawn, for example, if it: (1) is "illogical", though an inference of unreasonableness will not be supported merely because a decision appears to be irrational: SZVFW at [10] (Kiefel CJ); [82] (Nettle and Gordon JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68] (Hayne, Kiefel and Bell JJ); (2) "lacks an evident and intelligible justification": Li at [76] (Hayne, Kiefel and Bell JJ); SZVFW at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ); (3) is plainly unjust, arbitrary, capricious or lacking in common-sense: Stretton at [11] per (Allsop CJ, with whom Griffiths and Wigney JJ relevantly agreed at [87], [90]); Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 at [35] (Flick, Perry and Charlesworth JJ). 19 There is no doubt that conclusions as to credibility are susceptible to review on unreasonableness grounds. Each case turns on its particular facts - see: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30]. 20 The Tribunal's concerns were extensively documented from T[20] to T[51]. Some of the matters it relied upon were less significant than others. The concerns identified by the Tribunal referred to above in the context of ground 1 were one part of its concerns. 21 At T[23] the Tribunal stated: Having considered the relevant evidence, the Tribunal has serious concerns about the applicant's credibility and the veracity of his claims. The Tribunal does not accept that the applicant is a witness of truth concerning his claims of past harm or threats; nor his reasons for travelling to Australia, and his future fears. The Tribunal has made the adverse credibility finding for the reasons set out below. 22 The Tribunal then identified four principal areas of concern at T[24], T[31], T[32] and T[41] including three bullet points at [31]: [24] Firstly, the Tribunal was concerned about the applicant's changing, evasive and inconsistent evidence relating to the incidents leading to his problems and fear of return, as set out below. … [31] Secondly, the Tribunal was concerned that there were a number of aspects of the applicant's claims relating to past events that were not credible. For example: • The Tribunal was concerned with the applicant's claim that he did not let Mr Mohan, the candidate for whom he was working, know that they were being pressured in October 2011 not to put up his posters. When the Tribunal put to the applicant that, if he was assisting someone by pasting up their posters, it did not seem to make sense that he would not tell that person that they had been prevented from putting up the posters, he did not want to respond. The Tribunal considers that, if this had occurred, the applicant would have been able to explain why he did not let Mr Mohan know that they had been prevented from putting up his posters. • The Tribunal noted that the applicant claimed to have been warned not to put up posters in October 2011, that Mr Mohan won the election on 8 October 2011, however the applicant was not attacked for a further 2.5 months. The Tribunal asked the applicant why they would have waited this amount of time if they were angry with him for his work during the election. In response, the applicant said he doesn't know who beat him, but one person said that the applicant was a big person who was working for the election and they said nothing else. He did not know why they thought this about him. The Tribunal put to the applicant that, if they thought he was an important person working for the election, it did not understand why they waited so long to come after him. In response, he said he does not know why. The Tribunal considers his evidence to be unlikely. • The Tribunal noted the applicant claimed that he and his family were under siege in the house when the Sinhalese people were banging on the gate of the home with wooden sticks and throwing rocks at the home. The applicant said that they could not call the police because that would make things worse. The Tribunal has considered the assertion that they did not wish to approach the police because they are Tamil, however this does not explain why they did not call Mr Mohan. The Tribunal noted that all of this had occurred because of the applicant's work for Mr Mohan, he claimed Mr Mohan had won the election and was now in elected office; in these circumstances, the Tribunal asked why his parents didn't call Mr Mohan to his advice assistance [sic] while they were under siege. He responded that he doesn't know why his parents didn't do that. The Tribunal asked why the applicant didn't know about this, and he said he doesn't know. The Tribunal considers it unlikely that his parents would not have sought help or advice from Mr Mohan in the circumstances. [32] Thirdly, the Tribunal was concerned about the applicant's vague, evasive and changing evidence in relation to Jaffna, to where he escaped after the incident at the house in December 2011. … [41] Fourthly, the Tribunal was concerned about the applicant's claims of political involvement, and future fears on that basis. According to his statement, he had an interest in political matters relevant to the election of the Tamil MP who represented the UNP, and he assisted in the campaign, and put up posters. However, when the Tribunal asked the applicant what had happened in the most recent elections, he said he was not interested, and he didn't find out the details … 23 Detailed findings and reasons were given for each area of concern. It is unnecessary to repeat that detail here. The detail of it was carefully and concisely set out by the primary judge at J[4], extracted above. The appellant has not identified anything in the Tribunal's reasoning which was not open, or which is incorrect or illogical. I note in that regard that the appellant contended that the Tribunal's understanding of the appellant's claim was incorrect (see ground 1) but I have rejected that there was any error made by the Tribunal in that regard. 24 Whilst it is correct that some of the matters referred to by the Tribunal of themselves would easily be viewed as of minor significance, taken as a whole the identified inconsistencies were probative of the appellant's credibility, and in combination with the Tribunal's other findings - including his lack of political knowledge and the implausibility of him or his family not contacting Mr Mohan after he had allegedly been attacked - they provided a sufficient basis to support the Tribunal's findings. 25 The Tribunal took into account the effect of traumatic events and the passage of time on memory. Having specifically considered the appellant's submissions in this respect, it stated at T[47]: During the interview, when the delegate raised with the applicant's concerns about his evidence and why the applicant was not providing the same amount of detail as he had provided earlier, the applicant said that he doesn't have anyone in Australia and he misses his parents and he has to do things on his own. The agent later made further submissions in this regard, repeating that the applicant is young and away from his parents, and noting that he has never been interviewed by government authorities before. The agent referred to research in the area of international refugee law, noting memories are not always stable, even when trauma and distress are not present, memories are not always accurate, and during the interview the applicant appears to have had a loss of memory or a difference in his memories. Reference was also made to the guidance on assessing credibility. The Tribunal has taken into account these submissions in relation to its concerns about his evidence at hearing. While the Tribunal accepts that memory can be affected by the passage of time and different events, the Tribunal is not prepared to accept on the evidence before it, that this can explain the difficulties with his evidence. 26 Viewed as a whole the Tribunal's conclusion that the appellant was not a witness of truth was not unreasonable in the relevant sense. 27 Accordingly, leave to raise new ground 5 is refused.

CONCLUSION 28 The appeal must be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.