BWC16 v Minister for Home Affairs [2018] FCA 1375 | Case summary

Background 2 The appellant is a Tamil male from the Northern District of Sri Lanka. He arrived in Australia on Christmas Island as an unauthorised maritime arrival on 17 August 2012. 3 The appellant lodged an application for a Protection (class XA) visa on 5 August 2013, which was supported by a statutory declaration dated 1 August 2013. This application was deemed to be invalid due to the statutory bar under s 46A(1) of the Migration Act 1958. On 20 August 2015, the Minister lifted the statutory bar and invited the appellant to lodge a valid application for either a Temporary Protection (subclass 785) visa or a SHEV. The appellant lodged a valid SHEV application on 10 September 2015, together with a second statutory declaration dated 8 September 2015. He attended an interview with the delegate in relation to his SHEV application on 20 November 2015. 4 The appellant claimed to fear harm at the hands of the Sri Lankan authorities, including the Criminal Investigation Department (CID) of the Sri Lanka Police, on account of his Tamil ethnicity and his alleged political activities as a member of the Tamil United Liberation Front (TULF). 5 In relation to his political activities, the appellant claimed to have been associated with the TULF since 2001, and to have become an active member in 2005. He stated he started working full time for the TULF in January 2011 and campaigned before the local council (district) election in May 2011. This involved him walking around the local neighbourhood and talking to people about the TULF and what the party would do if it won the election. 6 The delegate referred to the fact that the appellant had provided inconsistent details about his involvement with the TULF across his arrival interview, SHEV interview and in his two statutory declarations. At [68]-[71] of her decision record, the delegate stated: 68. The applicant claims to have supported the Tamil United Liberation Front (TULF) party, working for the party during the Provincial Council elections, however inconsistent details have been provided by the applicant across his Arrival interview, Statutory Declarations and Safe Haven Enterprise visa interview. 69. As part of his Arrival interview, the applicant claimed he joined the 'Thamilar Viduthalai Group' in 2009 following his boss being shot and killed by an opposition group. In his Statutory Declaration dated 1 August 2013, the applicant notes that in 2001, his boss … who was the then president of the "Tamil Viduthalai Kuttani Party" an opposition party to the Tamil National Alliance, was killed. 70. At his Safe Haven Enterprise visa interview, when further questioned in regards to his employment history, he claimed he continued to work in the store following his boss's death (in 2001) until 2006. In 2006, the applicant stated he worked part time for a similar business, as a storekeeper until he left for Australia in 2012. As part of his Safe Haven Enterprise visa application submitted to the department on 11 September 2015, the applicant's Statutory Declaration notes; "In 2001 my boss … was shot as he was part of a political group (Thamilar Viduthalai Kootani or Thamilar Viduthalai Group (TVG), also known as the Tamil People's Liberation Coalition". 71. In his Statutory Declaration submitted with his Protection visa application dated I August 2013, the applicant states "I supported and then worked for the Tamil Viduthalai Kuttani Party, an opposition party 'in' the Tamil National Alliance". When questioned during his Biodata interview on 22 August 2012, why he was seeking protection in Australia, the applicant's response recorded is due to his work for the [Tamil National Alliance]. In the applicant's entry interview on 16/01/2013, the applicant stated he had been working for the 'Thamilar Viduthalai Group'. At the Safe Haven Enterprise visa interview, the applicant presented supporting documents that he was a member and supporter of the 'Tamil United Liberation Front'. 7 After the SHEV interview, the delegate wrote to the appellant on 14 January 2016 requesting additional information regarding his political activities. The appellant responded to the delegate's request by email on 28 January 2016, stating: he had been a supporter of the TULF (also known as the "Thamilar Viduthalai Kootani") from 2001 to 2012; he had never worked for the Tamil National Alliance (TNA); and he had not supported any other political parties during the period 2001 to 2012. 8 He explained that the discrepancies identified by the delegate were attributable to translation difficulties. He stated: As a person with very limited English, I used my native Tamil language in interviews which were translated into English by translators and my situation was further aggravated by signing the translated texts without the capacity to check the correctness of the translations. 9 The delegate accepted that "the discrepancies in earlier interviews were due in part to misinterpretation or transliteration". She found that references made by the appellant to "Thamilar Viduthalai Kootani" and "Thamilar Viduthalai Group" were properly to be understood as references to the TULF. 10 The delegate made a number of adverse findings in relation to the appellant's claimed involvement with the TULF at [75]-[92] of her decision. At [84], the delegate found the appellant was unable to demonstrate a level of knowledge of the TULF that "one would expect of someone who had been involved within a political party, as claimed, from 2001-2012". At [88], she found the appellant was unable to demonstrate past involvement in the TULF (actual or perceived) which would be likely to bring him to the adverse attention of the Sri Lankan authorities. Accordingly, she did not accept that the appellant had ever campaigned on behalf of the TULF, or that he had been a member of the TULF at any time. 11 The delegate's reasons included: 81. At his Safe Haven Enterprise visa interview, the applicant was questioned in regards to the origins of the TULF. The applicant stated that he was unaware of when the party was formed, however believed that it originated in Jaffna. The applicant stated that he joined the party in 2005; when the party's leader was V. Anandasangaree and that the TULF went on to win the 2006 "Valikamam" electorate local council elections. At the Safe Haven Enterprise visa interview, the applicant did not provide information of significant changes within the TULF in January 2006, where the Anandasangaree wing (of the TULF), the anti-LTTE faction of the Eelam People's Revolutionary Liberation Front (EPRLF), and the People's Liberation Organization of Tamil Eelam (PLOTE,) formed a new Tamil electoral alliance, the Tamil Democratic National Alliance, to compete in regional elections. … 83. … At interview the applicant demonstrated a basic knowledge of the party's policies and provided information on broad initiatives of the TULF party's [sic] including the provision of assistance to displaced persons and those affected by internal conflict. 84. I find the applicant was unable to demonstrate a level of knowledge regarding the party that one would expect of someone who had been involved within a political party, as claimed, from 2001-2012. At interview the applicant was not able to describe the party's policies beyond basic statements nor was he able to provide any details of dates, times or significant incidents of note as a result of his participation in political protests against the government. Significant to this, various country information details the TULF party's history in being the first Tamil political party to hold post since Sri Lanka's Independence. In the 1977 parliamentary elections (held under the 1972 Constitution), the Tamil United Liberation Front (TULF) won 18 seats and its leader A. Amirthalingam held the post till 1983. Furthermore this electoral victory sparked anti-Tamil riots leaving more than 100 Tamils dead, and the destruction of sixteen places of worship. Ethnic tensions and violence continued following the election, leading to 13 soliders [sic] being killed in an LTTE ambush, resulting in anti-Tamil riots in 1983 which comes to be known as 'Black July' and is the start of what the Tigers call the 'First Eelam War'. In 2001, the TULF was the prime mover in the formation of the TNA, which ran under the symbol of the TULF's "rising sun" in opposition to President Kumaratunga. Following this election the TNA changed to run under the Sri Lankan Tamil Government Party (Ilankai Tamil Arasu Kachchi - ITAK) an original component of the TULF that had been revived due to an interparty split. Due to a leadership dispute the TULF did not contest the 2004 parliamentary elections. V. Anandasangaree offered a slate of independent candidates however won no seats. … 87. Giving regard to the conflicting statements provided by the applicant during his Arrival interview, Statutory Declarations, and Safe Haven-Enterprise visa interview, particularly in relation to the period of his involvement in the party, I have concerns in regards to the credibility of the applicant's claims in regards to his involvement within the TULF party. 88. The applicant lacked credible knowledge regarding the TULF's party history, policies and stratagem that one would expect from political member of 10 years. The applicant has a broad knowledge of the TULF party, however was unable to demonstrate past involvement in the TULF (actual or perceived) which would likely to bring him to the adverse attention of the Sri Lankan authorities. Based on the above, I do not accept the applicant campaigned on behalf of the TULF, nor was he a member at any time of the TULF. … 90. As I do not accept the applicant's assertion that he was a member of the TULF, I do not accept that the applicant was threatened by the CID on three occasions and then detained on 20 July 2012 on the basis of his work for the TULF political party. 12 The appellant also claimed to fear harm at the hands of the Sri Lankan authorities, including the Eelam People's Democratic Party (EPDP), on the basis of his Tamil ethnicity. Based on the country information before her, the delegate was not satisfied the appellant had a well-founded fear of returning to Sri Lanka on the basis of his Tamil ethnicity. She considered the chance of the appellant facing serious harm from the EPDP if returned was remote. She also considered, and rejected, an "implicit claim" that the appellant feared harm on the basis of his religion as a Catholic. 13 Ultimately, the delegate was not satisfied that the appellant was a person to whom Australia owed protection obligations under ss 36(2)(a) or (aa) of the Act. Accordingly, she notified the appellant of her decision to refuse the appellant's SHEV application on 5 May 2016.

THE APPEAL 31 The notice of appeal advanced a single ground of appeal. It was in substantially the same form as the ground advanced before the Federal Circuit Court: The Federal Circuit Court erred in not finding that the Immigration Assessment Authority's (IAA) decision was vitiated by jurisdictional error where the IAA, in reasoning that because the Appellant did not reflect the 'history and milestones' of the Tamil United Liberation Front (Tamil United Liberation Front) from 1976 to 2001 described in country information, the Appellant's claim to membership of the TULF was not credible, and that a letter purporting to be from the TULF corroborating the Appellant's membership could be given little or no weight, went about its task irrationally or illogically, or denied the Appellant procedural fairness. Particulars 1.1 The axis of the Appellant's claim was that he had been peripherally associated with the TULF from 2001, but an active member of the TULF from 2005. 1.2 The Appellant was asked at interview a range of questions about the TULF, to which the Appellant gave an account of the TULF's contemporaneous purpose, leadership, composition and activities, for the period in which he claimed to have been involved. To the question 'when was [the TULF] formed?', the Appellant answered he did not know. 1.3 The IAA found the claim to be not credible because the Appellant did not demonstrate 'knowledge of the party's history or any of its milestones [from 1976 to 2001], to the extent that would be expected of someone who was involved' in the TULF between 2001 and 2012, where the Appellant had simply been asked, and said he did not know, when the TULF was founded. 1.4 The IAA reasoned that the Appellant's claim to membership of the TULF was not credible, that therefore a letter purporting to be from the TULF corroborating the Appellant's claim could be given little or no weight in light of general country information that document fraud is prevalent in Sri Lanka. 1.5 Where there was an account of the contemporaneous leadership, composition and activities of the TULF satisfactory to the IAA, there was no logical connection between an absence of knowledge about the 'history and milestones' of the TULF almost three decades before the Appellant's claimed involvement with the group and the finding that that the Appellant had therefore fabricated his claim to TULF membership. 1.6 Nor was there any evidentiary foundation for the latent premise that a person involved with the TULF would have the knowledge implicitly attributed to them by the IAA. The Appellant, a shopkeeper with a rudimentary education, did not claim to be a political historian. 32 On the hearing of the appeal, the appellant also accepted it was a part of his case that the last sentence of A[8] of the Authority's reasons contained a finding which was unsupported by the "review material" before the Authority: the appellant had never stated he was "unaware of the party's history". This matter does not appear to have been pointed out to the primary judge. 33 The Authority's adverse credibility findings, and its conclusion that the appellant's demonstrated knowledge of the TULF party's history from 1976 to 2001 was less than it should be, were materially based on its view that the appellant had stated he was unaware of the party's history. The last sentence of A[8] was: He stated he did not know when it [the TULF] was formed and that he was unaware of the party's history. 34 The only evidence capable of supporting the Authority's finding that the appellant stated he was unaware of the party's history was the sound recording of the SHEV interview. The Minister did not identify any other material supporting that finding. The agreed transcript of the sound recording contained: O: So with your statement of claims you've put in reasons here in regards to the events that were leading up to you departing Sri Lanka. And that was in regards to your involvement with the Tamil United Liberation Front. So what I'd like you to do for starters, is to give me a history of the actual Tamil party, what it stands for and your knowledge about that actual political party. A: It's a political party. Ok… This party, the Tamil United Liberation Front (TULF - T-U-L-F) works for the welfare of the Tamils who have been affected by internal conflict in the country for a long time. INT: That's everything or you want any more information on that? O: Ahh, yeh, so, is that … INT: That's the policy of the party. O: Ok so… INT: The welfare of the party… the members who have been affected by internal conflict. O: Ok, so can you tell me a bit about when it was formed? A: I don't know. I don't know. 35 As the above extract demonstrates, the delegate asked the appellant to provide a history of the TULF. The transcript demonstrates that this exchange was the only time the delegate directly raised the history of the TULF with the appellant. In the same sentence, she also asked the appellant for information about the policies of the TULF and other information. Perhaps understandably, the appellant responded to this broad question by offering broad information: It's a political party. Ok… This party, the Tamil United Liberation Front (TULF - T-U-L-F) works for the welfare of the Tamils who have been affected by internal conflict in the country for a long time. 36 The following exchange then occurred: INT: That's everything or you want any more information on that? O: Ahh, yeh, so, is that … INT: That's the policy of the party. O: Ok so… INT: The welfare of the party… the members who have been affected by internal conflict. 37 The delegate proceeded to ask individual questions. The first was: Ok, so can you tell me a bit about when it was formed? 38 The appellant responded that he did not know. The delegate then proceeded to ask the appellant where the party was formed, to which the appellant answered, "Jaffna". The delegate's remaining questions were substantially directed to the appellant's knowledge of the party's policy initiatives, its membership and electoral successes. These questions were answered. The party's past history was not revisited. In particular, the history of the party from 1976 to 2001 was not the subject of a single question. 39 Contrary to the last sentence of A[8], the appellant at no point stated he was unaware of the party's history. There was no evidence before the Authority reasonably capable of supporting such a finding. It is true that the appellant did not outline the party's history but the Authority's conclusion just identified was that he positively stated he was unaware of it. If it had not made that error, the Authority may have found that the lack of detail provided by the appellant as to the party's history was explained by the course of (and lack of) questioning. It did not consider that because it erroneously assumed that the appellant had stated he was unaware of the party's history. 40 Immediately after reaching the erroneous conclusion in the last sentence of A[8], the Authority found at A[9] that the appellant "did not demonstrate knowledge of the party's history or any of its milestones to the extent that would be expected of someone who was involved in a campaigning role and who claims to have been involved from 2001 to 2012". The Authority then listed three events from 1976 to 2001 in the history of the TULF, which it apparently considered a person in the appellant's position should have known and described in the course of the interview with the delegate. 41 The Authority's reasoning in respect of the appellant's claimed involvement with the TULF was, in summary, as follows: (1) First, it noted that the appellant had stated his involvement commenced in 2001 and that, in 2005, he became more active and registered with the party. The Authority stated that he described his role as campaigning and described the party's polices and initiatives, in terms of service to the people, resettlement of displaced persons and helping and assisting senior citizens: at A[8]. (2) Secondly, the Authority recorded that the appellant was asked to outline the history of the TULF and what it stood for and that, in response, the appellant stated that it started in Jaffna and worked for the welfare of Tamils affected by internal conflict: at A[8]. (3) Thirdly, the Authority stated that the appellant had said he did not know when it was formed and that he was unaware of the party's history: at A[8]. (4) Fourthly, the Authority stated that the appellant spoke broadly about the TULF's aims, but "did not demonstrate knowledge of the party's history or any of its milestones, to the extent that would be expected of someone who was involved in a campaigning role and who claims to have been involved from 2001 to 2012": at A[9]. 42 As to the first matter above, although not referred to by the Authority, the two statutory declarations of the appellant contained in the "review material" stated that the appellant only started working full-time for the party in January 2011 and the relevant campaigning occurred in the lead up to elections in May 2011. He did not state otherwise at the SHEV interview. The Authority's conclusion might be read as suggesting a lengthier campaigning role. 43 As to the second and third matters stated above: (1) whilst the appellant did not know when the party was formed, he did not state that he was unaware of the history of the TULF party at the SHEV interview and there was no basis for the Authority's conclusion that the appellant had stated that he was unaware of that history; (2) whilst the appellant was asked about the party's history at the SHEV interview, it was as part of a rolled up question and clarification was sought as to whether more information was required (whether everything in the broad question had been answered) which resulted in the delegate asking individual questions which did not address historical events between 1976 and 2001. 44 As to the fourth matter above, the "history and milestones" referred to by the Authority about which the appellant did not demonstrate a knowledge were the following three: (1) The TULF was initially organized as the Tamil Liberation Front in 1976 by a number of Tamil groups, including the Ceylon Workers' Congress, the All Ceylon Tamil Congress, the Illankai Tamil Arasu Kachchi, the National Liberation Front and the Muslim United Front. (2) The TULF Secretary General was killed and the party President seriously wounded in a July 1989 attack attributed by some reports to a 'rogue cell' of the LTTE. (3) In October 2000 the party won five seats in Parliament and in 2001 it was a prime mover in forming the TNA in opposition to President Kumaratunga. 45 The Authority reasoned that "[i]f the [appellant] had been involved with the TULF from 2001 to 2012 to the extent that he claims, I consider it reasonable to expect that he would articulate some of these key events". It then stated: As he did not, I do not accept as credible the applicant's claimed involvement with the TULF. I find that the applicant was not a member of or involved with the TULF, as claimed and did not campaign on behalf of the TULF in elections. 46 In many cases, a decision-maker's reasoning on a particular issue can be seen to stand independently of its reasoning on another issue, whether the issue is one of credibility or not. Where a finding is made that a person has been dishonest on a particular issue, it is not difficult to see that such a conclusion may affect, consciously or subconsciously, the decision-maker's assessment of credibility in relation to other issues. This was explained by Lee J in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [45]: To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved is, to my mind, to underplay the complexity of the anatomy of decision-making. As Kirby J observed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 23 [81]: …decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker's disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person's credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person's entire evidence in a new light. 47 The same can be true where a decision-maker proceeds on a wrong finding of fact, particularly where that wrong finding of fact informs a credibility finding which in turn informs findings in relation to other facts. The Authority's finding at A[9] that the appellant "did not demonstrate knowledge of the party's history or any of its milestones, to the extent that would be expected of someone who was involved in a campaigning role and who claims to have been involved from 2001 to 2012" followed immediately after the incorrect finding at A[8] that the appellant had stated he was unaware of the party's history. The appellant had never stated he was unaware of the party's history and it was apparent on the material before the Authority that he had never been asked, at least in a fair way, to explain the history of the TULF. The conclusion at A[9], set out above, did not stand independently of its incorrect factual conclusion at A[8]. 48 Even if the Authority did not approach its consideration of the appellant's knowledge of TULF history from 1976 to 2001 with the incorrect understanding that the appellant had stated he was unaware of the party's history, there were deficiencies in its reasoning. 49 In Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362, Kenny J addressed the question of whether jurisdictional error might arise in applying an "arbitrary standard" of knowledge which a person must have in order to be found to be a follower of a religion. If a decision-maker relies on a premise that every follower of a particular religion must have a certain knowledge or provide certain answers concerning an aspect of a religion, it may fail to engage with the question whether the particular applicant before it is in fact a follower of the religion. Her Honour noted at [37] that there is a difference between (emphasis in original): (a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant's lack of knowledge indicates that he is not a genuine adherent of a religion. 50 Her Honour cautioned, again at [37]: Further, it must be remembered that the Tribunal's written reasons typically represent a Tribunal's concluded view after considering all the evidence. If a Tribunal ultimately finds that an applicant's lack of particular knowledge is a reason to reject his claim, this finding does not necessarily mean that the Tribunal approached the matter from the outset on the a priori basis that the applicant was required to demonstrate that knowledge. 51 SZLSP was considered in Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577. The issue in that case was whether the evaluation of answers to questions given by the appellant on the topic of his knowledge of Christianity gave rise to jurisdictional error in the Tribunal's determination. Jacobson J (who dissented in the result) summarised the principles as follows: 5. A number of Full Courts of the Federal Court have considered the question of the standard of knowledge which the Tribunal is entitled to expect from, and explore with, applicants for protection visas. The relevant passages from the judgments are set out and discussed by Buchanan J. 6. There are four essential principles which are relevant to the disposition of the appeal. Without seeking to depart from his Honour's statement of the principles or the full exposition of the principles in the various authorities, I will endeavour to encapsulate them as follows. 7. First, where an applicant applies for a protection visa on the ground of a well-founded fear of persecution by reason of religion, it is permissible for the Tribunal to explore the level of his or her knowledge and understanding of the religion: SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [45]. 8. Second, if the Tribunal questions the applicant about his or her beliefs, it is permissible for it to evaluate the applicant's answers against probative material which evinces the doctrines of the religion. The weight to be given to the evaluation will ordinarily be a matter for the Tribunal: Minister for Immigration and Citizenship v SZLSP (2010) 272 ALR 115 ("SZLSP") at [38]. 9. Third, where the Tribunal rejects an applicant's claim to be a follower of a particular religion, there must be a sufficiently disclosed rational basis for concluding that the elements of which the applicant was ignorant were elements that an adherent to the religion might reasonably be expected to know: SZLSP at [39]. 10. Fourth, where the Tribunal's rejection of the claim is based upon an evaluation of the way in which the applicant has expressed himself, or herself, on matters of emphasis or detail of the particular religion, the issue is a difficult one: SZLSP at [39]. The principle which appears to follow from the Full Court authorities, and from recent High Court authority referred to in [64] of the reasons of Buchanan J, is that the decision may be affected by jurisdictional error if it reveals a sufficient lack of rational or logical connection between the Tribunal's assessment of the applicant's credit and the material upon which it relied to make that assessment. 52 His Honour concluded that the first two principles (at [7] and [8] of his reasons) were satisfied in the case before him. His Honour concluded, however, at [22] to [24] (in passages quoted in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 at [48]): 22 The vice in the Tribunal's reasons for failing to reach the necessary state of satisfaction is that there is, in my opinion, no rational or logical connection between an assessment of the visa applicant's failure to reveal an encyclopaedic knowledge of verses from the Bible and what might be expected from a person who believed in and practiced Christianity in China between 2004 and 2008. 23 Nor, in my opinion, is the Tribunal's finding based on any probative material in the sense referred to in the High Court authorities to which I have referred. This can be tested by asking whether there is any probative material disclosed in the Tribunal's reasons to support its conclusion that it was not satisfied that he had a level of knowledge of the Bible that a person might reasonably be expected to have if they had been a believer in, or practitioner of Christianity in China during the period in question. 24 The approach taken by the Tribunal was not merely to make itself the arbiter of doctrine with respect to Christianity, but the arbiter of the level of knowledge to be expected by one who claimed to have practised Christianity in China from 2004 to 2008. There was no probative material put forward by the Tribunal to suggest any basis for its ability to fulfil that role. 53 Buchanan J, in the passage referred to by the primary judge in the present case, stated at [65]: 65 … However, in the present case the question under examination was whether the respondent's claim to have been a practising Christian in China should be accepted … The way in which the question was examined by the RRT does not appear to me to have been whether the respondent's knowledge of the Bible corresponded to some "particular level of doctrinal knowledge to justify being regarded as a Christian" … but was, rather, the more pragmatic approach of assessing whether the level of knowledge actually displayed by the respondent corresponded with the level of knowledge likely to be possessed by a person who had (as he claimed) studied the Bible two or three times a week in China over a period of four years (and nearly every day in Australia) and whether the level of knowledge disclosed gave support to the respondent's claims or, alternatively, suggested that he should be disbelieved. Despite any criticisms which might be available about the approach taken by the RRT, in my respectful view the matters examined by the RRT were legitimate ones in the circumstances. The RRT did not ask itself the wrong question. It did not constructively fail to exercise its jurisdiction. There was a rational and logical connection between the respondent's answers and the RRT's assessment about the level of his knowledge, and between that assessment and the RRT's conclusion that he was untruthful in his claim to have been a practising Christian in China. 54 Nicholas J agreed in the result with Buchanan J. His agreement was based on his conclusion that there were three other matters relevant to credibility (apart from the appellant's inability to recite passages from the Bible from memory) which supported the Tribunal's adverse credibility finding: SZOCT at [75]-[79]. However, significantly for present purposes, Nicholas J stated: 80 I respectfully agree with Jacobson J that it could not be logically or rationally concluded on the basis of the Tribunal's exploration of the respondent's knowledge of the Bible at the Tribunal hearing that the respondent did not have a level of knowledge which might reasonably be expected of a person who had believed in and practiced Christianity in China between 2004 and 2008. There are two further matters to which I would also refer in support of that conclusion. … 82 The Tribunal stated (at para [74]) that the respondent "knew parts of a few stories from the Bible". The implication seems to be that this was all the respondent knew. But the Tribunal did not explore the respondent's knowledge of the Bible in any general sense. Rather, as the judgment of Buchanan J demonstrates, it tested the respondent on his ability to recite particular passages from memory. The idea that the respondent knew only parts of a few stories from the Bible had no evidentiary foundation in the material before the Tribunal. 83 If the Tribunal's lack of satisfaction that the respondent was a person to whom Australia owed protection obligations was based on its assessment of the extent of the respondent's knowledge of the Bible when compared to what might reasonably be expected of a person who believed in and practiced Christianity in China from 2004 until 2008, I would readily agree with Jacobson J that the Tribunal's decision could not be permitted to stand. However, as its reasons for decision make clear, there were other matters which led the Tribunal to find that the respondent was not a credible witness. It drew upon these "singularly and cumulatively" in support of that finding. 55 SZLSP and SZOCT concerned a Tribunal's testing of religious beliefs. However, the underlying point is not so confined - see: MZZJO at [47]. 56 In both SZLSP and SZOCT the appellant was in fact tested in relation to the relevant matters before being found by the decision-maker to be wanting. Here the appellant was not tested by the delegate on his knowledge of TULF history from 1976 to 2001 in any fair way - the history of the TULF was asked about once, in a rolled up question, and clarification was sought as to whether the rolled up question had been sufficiently answered before the delegate proceeded to ask individual questions which did not test the appellant's knowledge of TULF history from 1976 to 2001. 57 The Authority's decision was affected by jurisdictional error. First, it found as a fact that the appellant had stated he was unaware of the TULF party's history. He did not. The making of a critical finding of fact without probative evidence can give rise to jurisdictional error: SZNKV v Minister for Immigration and Citizenship (2010) 118 ALD 232 at [38] (Kenny J). Here the finding of fact was sufficiently material to result in the Authority's decision being affected by jurisdictional error. 58 This error can be characterised in other ways: (1) a critical or dispositive finding of fact which is unsupported by probative material may be characterised as involving reasoning which is irrational or illogical such as to give rise to jurisdictional error in the way contemplated by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]; (2) a fundamental misunderstanding of the evidence which is sufficiently serious and material to the decision on review may give rise to jurisdictional error: SZSMR v Minister for Immigration and Border Protection [2015] FCA 655 at [56] (Gleeson J); Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309 at [71]-[72] (Griffiths and Moshinsky JJ). 59 Secondly, the Authority's conclusion that the appellant failed to demonstrate sufficient knowledge of the TULF party's history from 1976 to 2001 was arbitrary and formed on the basis of illogical reasoning: (1) in finding incorrectly and on the basis of no probative material that the appellant had stated he was unaware of the TULF party history; (2) without apparently taking into account that part of the "review material" before the Authority which showed that the appellant had not been asked to describe the TULF party history in any real or fair way and had not been questioned about his knowledge of the three events between 1976 and 2001; and (3) without considering why or on what reasoned or evidentiary basis a person in the appellant's claimed position - namely a person who was born in 1976, educated to year 10 level, associated with the TULF from 2001, a member from 2005 and with a campaigning role in 2011 - might reasonably be expected to know the three specific historical events identified as occurring between 1976 and 2001 (as opposed to simply stating that such a person should have known those historical events). There was, for example, no suggestion that the events were notorious or that they were central events analogous to basic doctrine a member of a particular religion might be expected to know; and (4) without turning its mind to why the appellant should have demonstrated a knowledge of the particular events identified as having occurred between 1976 and 2001 in the absence of being asked, in any fair way, about the TULF party's history generally or about the events specifically. 60 Thirdly, the Authority's conclusions in relation to credibility were affected by the errors identified above. The Authority concluded that the appellant could not be believed in various respects because, contrary to his claim, he had no association whatsoever with the TULF. His association with the TULF was found to be non-existent because he stated he was unaware of the TULF party's history and failed to demonstrate sufficient knowledge of its history. The adverse credibility finding also informed the Authority's conclusion that it could not rely on a letter which might have been taken to corroborate his membership of the TULF: A[10]. 61 The relevant principles concerning findings as to credit were recently explained by the Full Court of this Court (Kenny, Kerr and Perry JJ) in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] (citations omitted): (1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review. The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae. In each case it is necessary to analyse in detail what the decision-maker has decided. (2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis. 62 As Lee J further observed in CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260 at [14]: In the light of these principles, references to a litany of cases which each turn on their own facts is not a useful exercise. It suffices to note that unwarranted assumptions or factual errors made by a Tribunal, regarding matters which are then relevant to the formation of a view on credibility, can demonstrate error. Equally, error may be found where a process of reasoning is undertaken by material reference to a false premise, which then causes a person's credibility to be assessed as wanting. See, for example, SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at 126 [37]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at 648-649 [132]-[133]. 63 As noted above, here, the adverse view of the appellant's credibility stems in significant measure from the incorrect finding of fact that the appellant had stated he was unaware of the party's history. It also stems from the conclusion that the appellant should have, but did not, demonstrate knowledge about matters which occurred from 1976 to 2001, about which he was not questioned in any real or fair way, a conclusion itself informed by the incorrect finding that the appellant had stated he was unaware of the TULF's history. 64 The errors identified above were material. The Authority rejected that the appellant had any involvement in the TULF, as a member or otherwise. It rejected that he ever campaigned for the TULF. It therefore rejected that he was of any interest to the Sri Lankan authorities due to claimed TULF activities. The errors identified above (in particular at [39], [47], [57], [59] and [60]) were critical to the reason why the Authority rejected the appellant's claim for protection and sufficiently serious to constitute jurisdictional error.

BWC16 v Minister for Home Affairs

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Cases Cited (17)

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