CAQ16 v Minister for Immigration and Border Protection

1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LEE J: 1 This appeal from the Federal Circuit Court raises a commendably narrow point. The decision of the primary judge (CAQ16 v Minister for Immigration [2018] FCCA 3129) summarises the relevant background to the proceeding, including identifying the appellant's claim for protection at [5]-[10] and summarising the second respondent's (Tribunal) reasons at [11]-[13]. 2 The ground of appeal pressed before me today, is in substance the same as Ground One before the primary judge. This ground alleges that the Tribunal made a jurisdictional error by failing to apply the "what if I am wrong?" approach in considering the real chance test. At [25]-[27], the primary judge referred to 11 observations that the Tribunal made in the course of its reasons which, the appellant submitted, were tentative or otherwise manifested doubt. It was said in those circumstances that the Tribunal ought to have assessed the future risk of harm by having regard to the tentative views expressed. This contention was rejected by the primary judge who pointed out that the difficulty with such a submission is that it ignores that the relevant observations formed part of a chain or chains of reasoning, the ultimate result of which was the unequivocal conclusion that the appellant's claim that he hid weapons for the LTTE was not credible. Given this ultimate finding, the primary judge concluded at [27] that there was no occasion for the Tribunal to assess the future risk of harm to the appellant on the basis that the facts the appellant asserted occurred, might have occurred. In doing so, the primary judge indicated, although not in exact terms, that the Tribunal was not required to ask "what if I am wrong?" for the reasons explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576. 3 Counsel for the appellant, Mr Zipser, noted at the commencement of his able and comprehensive submissions that he faced an "uphill battle". He was right. The Tribunal carefully considered the appellant's evidence in relation to his claim that in 2008, two individuals forced him to hide weapons for the LTTE. As discussed in the Tribunal's Reasons (TR), four specific difficulties led the Tribunal to rejecting that claim, being: (a) the appellant's descriptions of his relationship with the men who were alleged to have asked him to bury the weapons were "inconsistent and vague" and rested upon acceptance of the appellant's claim that these men had "suddenly turned up" 12 years after he had last contacted them (at school): TR at [40]. (b) the lack of any reference to the burial of weapons on his land in the appellant's application or entry interview undermined the appellant's claims. The Tribunal considered the fact that LTTE members buried weapons on his land "could have [been] raised when making his claims before the delegate" and would have been a "particularly memorable event": TR at [41]-[43]. Additionally, the Tribunal considered that the delay in raising the claim regarding the army's recovery of the weapons further undermined the appellant's claims, as it was not persuaded that this information would have been "withheld" by the appellant's mother to protect the appellant's health: TR at [44]-[45]. (c) it was implausible that the appellant's mother complained about the event to the Grama Niladhari (village head) four months after the incident, as the appellant claimed. The Tribunal was concerned about the four-month delay in making the purported complaint in circumstances where the appellant had claimed that the Sri Lankan authorities had continued to visit his parents' property (TR [46]-[49], [54]). At the hearing, the appellant provided the Tribunal with a purported letter from the Grama Niladhari (Grama letter). The Tribunal observed that the Grama letter records that the appellant's mother claimed the Sri Lankan authorities found the weapons on "cultivation (sic) land", which was inconsistent with the appellant's claim that the weapons were buried on land used for the pot-making business: TR at [48]. The Tribunal ultimately found that the Grama letter was "not a genuine document" and was manufactured by the appellant, which "greatly undermines his credibility": TR at [54]. (d) the news report provided by the appellant dated 21 October 2014, in support of his claim, stating that large amounts of arms were recovered from land used to manufacture flower pots in the area near the appellant's home village, was not found to be highly corroborative of the appellant's claim. The Tribunal noted that the news report did not identify who discovered the weapons, nor what arms were recovered: TR at [51]. The Tribunal was not persuaded that the news report related to the appellant's land. Of most concern to the Tribunal was that the news report concerned weapons located on land used to manufacture pots and the appellant's evidence was that the manufacturing business ceased when the appellant departed Sri Lanka in July 2012. The Tribunal doubted that the news report would describe a place which had been abandoned for two years as a place used to manufacture pots: TR at [53]. 4 The insuperable difficulty for the appellant is that after identifying the reasoning process that led it to regard the appellant's claim as implausible, the Tribunal then unequivocally rejected the claim and found that it was "manufactured" (TR at [55]). It seems to me that the ultimate finding of the Tribunal was both pellucid and admitted of no vexation as to any harbouring of doubt. 5 Although Mr Zipser said everything he could in constructing an argument based on the less than definitive terms used by the Tribunal in dealing with various factual matters, the argument runs into the ground in circumstances where, in a properly expressed and logically coherent set of reasons, the ultimate conclusion was expressed in definitive terms. The only other point that needs to be mentioned is the appellant's reliance on the decision of the Full Court in W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 where it was said that where the question of credibility is determinative of a tribunal decision, to simply assert that the Tribunal considers the applicant's account to be "implausible" or "highly unusual" does not constitute a finding that the event did not occur: at 714 [56] (Tamberlin and RD Nicholson JJ); 707 [18] (Lee J). This is not the case here. 6 The appeal must be dismissed with costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.