Grounds 1 and 3: Failure to consider and/or make findings
51 The first ground of appeal in the amended notice of appeal is that the Authority failed to properly determine or give active intellectual consideration to the first appellant's claim for protection. This ground includes the following particulars:
• The IAA failed to consider all of the facts and relevant information of the [first appellant's] claim, including comparing them against known facts from country information;
• The IAA engaged in illogical reasoning with respect to the [first appellant's] PTSD;
• The IAA failed to properly consider the reasons for which the [first appellant] gave inconsistent evidence at the screening interview;
• The IAA failed to consider the scarring of the [eighth appellant], its effect on the likelihood of the existence of a well-founded fear, and whether this was corroborative of his, and the [first appellant's] claim;
• The IAA failed to make an obvious enquiry; being at least a visual assessment of the [eighth appellant's] scarring, which was:
• Unreasonable; or
• Should have been the subject of a request under s 473DC of the Act.
• The IAA failed to make an obvious enquiry, being information about the method by which he was tortured using petrol and a shopping bag.
52 The proposed third ground of appeal states that the "Second Respondent failed to consider a claim and make findings about whether the [first appellant] suffered from a psychological injury and other injuries, their effect on his ability to provide information, their corroborative nature, and failed to consider medical vulnerabilities in determining serious harm".
53 The essential point that counsel for the appellants made was that the first appellant's screening interview was given primacy in the Authority's reasons for rejecting his later evidence about fear of persecution in Sri Lanka. That much can be accepted - clearly, the Authority's reasoning turned on its finding that the first appellant had not raised fear of harm or persecution if returned to Sri Lanka during his screening interview. Counsel then submitted that the Authority did not adequately engage with the reasons for why the screening interview might not be reliable. Those were principally that the first appellant was confused and afraid, the interview having taken place within days of his arrival at Christmas Island, and that he was suffering from PTSD.
54 The appellants' counsel drew attention to authorities that deal with the need for a decision-maker such as the Authority to consider the totality of the evidence and to consider the reasons why inconsistent evidence might have been given other than that the relevant person was not telling the truth. For example, in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 at [115] it was recognised that the decision-maker must approach the statutory task with a mind open to persuasion and able or willing to evaluate all the material fairly.
55 In BEL16 v Minister for Home Affairs [2019] FCA 1678 at [16] it was said that the decision-maker must reason carefully and fairly to avoid any undue propensity to scepticism. It was said that it may be an error in going about its task if the decision-maker viewed inconsistencies, vagueness or omissions in the applicant's version of events without regard to imperfections in memory that naturally occur over time or due to stress or language difficulties particular when an interpreter has been used or due to reticence to be forthcoming with people or bodies perceived to be in authority. Inconsistencies, vagueness or omissions do not necessarily indicate a deliberate lack of truthfulness.
56 Also in BEL16 at [19], it was said that to mention a claim to the decision-maker not having mentioned it to the delegate or vice versa may be relevant to credibility, but may also be reasonably explicable.
57 Further in BEL16 at [21], with reference to AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [28], it was said that the decision-maker must be conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect that an interview or review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given.
58 Reference was also made by counsel to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALD 224 at [73(7)] where Kirby J identified that refugee cases involve special considerations where credibility is an issue. His Honour said that there is no necessary correlation between inconsistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiency; poor experience elsewhere with governmental officials; and belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear. His Honour emphasised that the process of decision-making in such a case is one for arriving at the best possible understanding of the facts in an inherently imperfect environment; it is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so.
59 The short point is that where an asylum seeker has given different accounts and offers an explanation for why that is so, the explanation must be seriously and properly considered. It may be that it is unpersuasive, but in another case it might count decisively against an adverse credibility finding or the rejection of a particular account in favour of another.
60 It is of course also the case that in considering whether error is made out the Authority's decision must be read beneficially, without a keen eye for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272.
61 In the present case, the evidence in support of a conclusion that the first appellant's account in his screening interview may not be the truth or the whole story includes the following.
62 First, the screening interview took place within four days of the first appellant's arrival at Christmas Island after an inevitably harrowing sea passage. Two of his minor sons had been sent to Australia by him several months earlier, also by boat, and their whereabouts was unknown. The capacity for trauma and confusion in those circumstances is manifest.
63 Second, in his statement in support of his protection visa application, which was some 3½ years later, the first appellant sought to explain the discrepancies in information given in his screening interview and given in his application. He said that he was not made aware before or during the interview that the information provided would be used for the purposes of assessing his claims for protection. He said that he had mental health issues for which he is medicated and that the drugs make him disoriented, they make it difficult for him to think clearly and they affect his memory.
64 Also in the statement, the first appellant said that he did not disclose the circumstances of his father's death at the time of his screening interview. He said that the interview was conducted in three parts and that he did not know what he was supposed to be saying in each part of the interview. He said that he was asked to be brief, and he was confused and afraid.
65 Third, in his protection visa interview a little more than a year later (i.e. after the statement) the first appellant said that in the screening interview he was very fearful; he did not have the strength to tell everything; he did not want to expose his country and he did not want to describe the involvement of his father with the LTTE because of fear. He said that at that time he was upset after having travelled by sea and could not remember everything. He said that he was scared at that time.
66 Later in the protection visa interview, the first appellant again explained that he did not mention matters at the screening interview because he feared that he might be deported. He said he was scared to say that he was involved with the LTTE. He also said that he could not remember a lot of things and did not disclose a lot of vital information due to memory loss and "my situation at the time".
67 In the protection visa interview, the first appellant was asked about his ongoing mental health issues. He said that he had seen a counsellor for two or three months and that he had been taking medication for the past five years. He said that he had a letter from the counsellor.
68 Fourth, there were two letters from an accredited mental health social worker who had treated the first appellant. The first letter is dated at the time of the protection visa application and the second is dated a little more than a year later at the time of the protection visa interview. The letters are in substance the same. It was said that the first appellant was suffering from severe symptoms of depression including worsening feelings of hopelessness and worthlessness. The first appellant was also observed to be suffering from symptoms of auditory hallucinations and persecutory beliefs that he and his family members are being followed and persecuted. He was referred to a mental health services provider for further assessment and treatment for his acute psychotic symptoms that impacted his psychosocial functioning. He was then referred to a private psychiatrist who commenced him on medication.
69 All the above factors could have affected the manner in which the first appellant's screening interview was considered by the Authority, and they were thus all required to be seriously considered by the Authority. The Authority considered them in the following way.
70 The Authority stated in its reasons that it listened to the recording of the screening interview and observed that the interview took nearly an hour, and concluded that the first appellant accordingly had sufficient time to present his claims and give evidence. The Authority recorded that the first appellant was informed at the interview that there are significant penalties for providing false or misleading information and that the provision of any false or misleading information could raise doubts about the reliability of what he says. The first appellant stated that he understood, and when asked if he had any questions he stated that he did not.
71 The Authority referred to what the first appellant said in his written statement with regard to why he did not disclose certain things in his screening interview. The Authority however rejected that explanation with reference to him having been informed at the screening interview that there are significant penalties for providing false or misleading information as referred to above.
72 Further, the Authority observed that the first appellant said that he had twice previously fled the harm that he faced in Sri Lanka to Singapore and on one occasion he had travelled from there to Malaysia to try and seek the assistance of the UNHCR. The Authority found it is not credible that an asylum seeker, who claimed that he had tried unsuccessfully to flee persecution or serious harm twice before by travelling outside Sri Lanka and had finally managed to get to Australia, in order to flee persecution or serious harm, when interviewed about why he left Sri Lanka failed to mention any such persecution or harm.
73 The Authority said that it was satisfied that the first appellant would not have said in the screening interview that he had not been harmed in any way in Sri Lanka if that was not true. It was satisfied that the first appellant did not dissemble at the screening interview and did not hesitate in giving answers. It said that it did not accept the explanations that he later provided for not disclosing his significant claims of detention, harassment, threats and mistreatment.
74 On the above basis, the Authority concluded that it was not satisfied that the first appellant has a well-founded fear of persecution for reasons of his political opinion, his imputed political opinion or his race (at para [72] of the decision). The Authority made similar findings with respect to the eighth appellant (at para [93] of the decision), and then made the composite findings that the first and eighth appellants will not be harmed because they are Tamil, because of their race, and also that there is no real chance that the other appellants will suffer harm because they are Tamils from Sri Lanka or Tamils from the north-western province.
75 The Authority then went on to consider, and reject, the appellants' claims that they will suffer harm from the Sri Lankan authorities because they departed illegally from Sri Lanka and applied for asylum in Australia (at paras [96]-[111] of the decision).
76 It is only thereafter that the Authority dealt with the letters from the accredited mental health social worker (at para [113] of the decision). The Authority stated that it had regard to the two letters in making "the above findings". It identified central aspects of what was stated in the letters. It then stated that it had some concerns about the second letter because if the first appellant had been attending sessions with the counsellor for a further 14 or so months after the first letter, the counsellor would have had further information to provide.
77 With reference to the counsellor's statement that the first appellant had received counselling for his "severe symptoms of PTSD including severe flashbacks of threatening persecution", the Authority said that it was not satisfied that the counsellor's reports overcome the significant concerns and adverse findings the Authority made about the first appellant's claims and evidence. The Authority also did not accept that the first appellant's memory at the screening interview was affected by the conditions referred to by the counsellor.
78 In conclusion, the Authority stated that it placed little weight on the letters because it had found that the first appellant had not told the truth about his claims other than at the screening interview.
79 The conclusion stated by the Authority with regard to the letters is illogical and irrational. The purpose of considering the evidence of the accredited mental health social worker was in order to evaluate the reliability of the first appellant's different accounts of the harm and persecution that he suffered, or did not suffer, in Sri Lanka; it was to give proper context to those accounts so that they might be better understood and evaluated. It is therefore illogical and irrational to reject the evidence because it is inconsistent with a conclusion already reached with regard to the very matter that the evidence was relevant to casting light on.
80 In this respect, the Authority went about its task in the wrong way. It reached its conclusion to reject the first appellant's later accounts in favour of what he said in the initial screening interview, and then rejected the letters because they were not consistent with the earlier conclusion when, properly considered, the letters may have had a bearing on the earlier conclusion.
81 This is not an aspect of the Authority's reasoning on which reasonable minds may differ. The only reasonable approach to the letters was to consider whether they cast any light on the veracity of the first appellant's claims to protection - in particular with regard to whether or to what extent what he said in his screening interview is reliable. A reasonable decision-maker would not reject the letters because they were inconsistent with the finding already made that what was said at the screening interview is the truth.
82 It follows that in my view the Authority's approach to the letters amounts to extreme illogicality or irrationality so as to give rise to jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]-[132] per Crennan and Bell JJ; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [148] per Robertson J.
83 Put differently, the Authority simply failed to consider whether, or to what extent, the letters cast any light on the first appellant's screening interview and his failure at that time to raise substantive claims of harm in Sri Lanka. Given the primacy of the screening interview in the Authority's reasons for rejecting the first appellant's protection claims, that failure amounts to a failure to undertake the statutory review mandated by Pt 7AA; it amounts to a failure to give the matter "proper, genuine and realistic consideration" or to "engage in an active intellectual process" in relation to the veracity of the first appellant's account and the role of the medical evidence: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [45]; Singh v Minister for Home Affairs [2019] FCAFC 3 at [30].
84 With reference to the authorities cited above, the Authority's failure amounts to jurisdictional error. It follows that in my view the composite appeal grounds 1 and 3 are made out. It would do considerable injustice to the appellants if I was to refuse them leave to advance these grounds. They also do not depend on any new evidence other than the transcript of the protection visa interview which is not controversial and arguably should in any event have been included in the court book before the FCC prepared on behalf of the Minister.
85 It is significant that one of the reasons for the Authority's rejection of the protection claims of the eighth appellant is because of its inconsistency with the versions given by the first appellant at his screening interview. It follows that if the conclusions with regard to the first appellant's claims are be reconsidered, there must also be a reconsideration in relation to the eighth appellant. Whilst other reasons were also given for rejecting the eighth appellant's claims, there is certainly at least a realistic possibility that those claims would not be rejected in the event that different conclusions are reached on the first appellant's claims.
86 In the circumstances, the decision of the Authority in respect of both the first and eighth appellants, and consequently then also all the other appellants, must be set aside.
87 As an aside, I mention that there appears to be another matter of some significance that the Authority overlooked in its rejection of the first appellant's claims for protection. The Authority recorded that the first appellant's screening interview, from which the first appellant sought to resile and on which the Authority placed so much weight, occurred in April 2013. The Authority stated that the first appellant's evidence changed significantly thereafter, the implication being that what he later said in support of his fear of harm in Sri Lanka was fabricated.
88 However, the Authority also recorded that the two sons who had come to Australia earlier (the fifth and eighth appellants) had given arrival interviews in February 2013; that is, more than two months before the first appellant's screening interview. In their arrival interviews, the fifth and eighth appellants both spoke of how their father had been kidnapped and detained by the army and that even after he came back home the army would often come at night and take him away to do work for the army. Although the Authority stated that it had regard to the eighth appellant's evidence in rejecting the first appellant's protection claims, nowhere did it consider whether the evidence of the two sons which was given two months before the first appellant even arrived in Australia was corroborative of the first appellant's later account and therefore in support of his explanation that he did not give a full or proper account at his screening interview.
89 Any reconsideration by the Authority of its decision to affirm the decision of the delegate would have to take into account the possible corroborative value of the arrival interviews of the fifth and eighth appellants.