CHQ18 v Minister for Immigration, Citizenship and Multicultural Affairs

Consideration 9 This is an appeal by way of rehearing from a decision of the trial judge. But, as Gibbs CJ, Wilson, Brennan and Dawson JJ said in Coulton v Holcombe (1986) 162 CLR 1, that does not mean that the issues and evidence to be considered on the appeal are at large. They said (at 7): It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. 10 Their Honours acknowledged that, had the new ground been raised in the court below and any evidence could have been given which, by any possibility, could have prevented the point from succeeding, it should not be able to be argued in an appeal. 11 In CGA15 v Minister for Home Affairs (2019) 268 FCR 362 at 372-373 [37]-[38], Murphy, Mortimer and O'Callaghan JJ discussed considerations that are relevant to the grant of leave to argue a new ground on appeal that had not been taken in the court below, particularly with respect to the significance that inheres in cases involving protection visa claims and the significance for a failed visa applicant of being able to have fully addressed, so far as conformable with the interests of justice, the validity of an adverse decision that could have extremely serious consequences for him or her if it were wrong. 12 Their Honours said that a consideration weighing against a grant of leave was the absence of an explanation for the failure to raise the proposed new ground below when represented. Their Honours said that, however, a new ground could be allowed even where the proceeding below had been conducted with legal representation and the only explanation was that its significance may not have been apparent to the then lawyer for the applicant. Their Honours said, in that case, all relevant considerations pointed in favour of the grant of leave because, first, the new ground raised a point a law, secondly, there were no facts in controversy, thirdly, the abandonment of one ground and substitution of the new ground would not involve any further sitting time and, fourthly, the Minister had not contended that he would suffer any prejudice were leave granted, whereas were leave refused, there could be significant prejudice suffered by the appellant there. 13 Here, the Minister would suffer some potential prejudice by the introduction of these new grounds on appeal because that would deny him, and likewise the appellant, of an appeal by way of rehearing of right, as both parties had, to this Court. Instead, the losing party will be confronted with a determination by me, as a substantive trial judge, that could only be challenged, if at all, were the High Court to grant special leave to appeal. 14 In all of the circumstances, while one can be sympathetic to the difficulties created for the appellant because his former lawyers no longer practise and are not available to assist in elucidating why the new grounds were not canvassed before the trial judge. The new grounds, if granted, would involve a substantial reshaping of the issues in this litigation that the appellant deliberately, and on advice, had chosen to litigate at the trial. I was not persuaded that it would be in the interests of justice to grant leave to amend the notice of appeal to raise the new grounds. 15 Accordingly, I granted leave to the appellant to file an amended notice of appeal that added only ground 2 with particular (a) as its basis.

The issue 16 Thus, there is now a sole ground of appeal, namely: The Federal Circuit Court at first instance erred in not finding that the Second Respondent's decision was affected by jurisdictional error because it was legally unreasonable with respect to the findings relating to the Appellant's sexual assault claims. … (a) Despite having accepted that, generally, an applicant might be reluctant to reveal incidents of sexual assault at an arrival interview, the Authority did not accept that the general proposition applied to the Appellant's sexual assault claims without providing an explanation why that was so, and rejected those claims because he had not specifically mentioned them at the arrival interview. 17 The issue on the appeal arises in the following way.

Background 18 The appellant was an irregular maritime arrival, having come to Australia in late 2012. Officers of the Minister interviewed him at what the Authority described in its reasons as an arrival interview, but which, in the Departmental vernacular, is correctly described as an entry interview. An arrival interview is one in which a person's biodata and details about how he or she came to be an irregular maritime arrival are taken, but not any details of, relevantly, claims which the person may want to make, whereas at an entry interview, usually held some weeks after the person arrives and participates in an arrival interview, more detailed questioning occurs. I will use the expression 'entry interview' in these reasons to refer, as the parties did in argument, to what the Authority misdescribed as "the arrival interview". 19 At the entry interview, the appellant gave these answers to questions 6 and 18 in Part C: 6. (a) Were you ever arrested or detained by the police or security organisations? Yes If 'Yes' please provide full details (where, when, why, for how long, etc) 2012 - I was arrested under suspicion of being LTTE … STF arrested me … I was beaten up - they tortured me and beat me with their arms ( weapons). They took me to the camp and took my family to the camp and they asked questions and I was beaten… I had internal pain only no injuries … 18. What do you think will happen to you if you return to your country of nationality (residence)? I was already having a case to come to Australia and I was caught - because I was from Vanni they suspect me of being LTTE … and they will take me to the 4 th floor ( known for torture) If I was taken there my parents would not be informed - they would torture us by putting needles inside of your nails , putting petrol on my face and this also happened to my father when he was arrested on suspicion of being involved with LTTE … this could happen to me aswell - either I have to suicide not being able to suffer the torture ...... because I was already been suspected and now I tried to escape I would now have more problems, there would be para military groups looking for me to kidnap me and torture me… because I also live next to a sinhalese town I am being racist against and being part of LTTE. One of my cousins had been kidnapped and his body was found in the jungle … this happened in 2010. (emphasis added) 20 In support of his application for a protection visa, the appellant provided to the delegate a written statement of his claims and a report prepared by a counsellor at Foundation House, dated 10 April 2014. 21 In the written statement, he referred to beginning to face issues from the Sri Lankan authorities in 2010. He asserted that they had been targeting Tamils and taking them away for questioning, then torturing and sexually assaulting them. (He did not say that had happened to him at that time.) He also said that, in 2010, his cousin had been beaten to death by the authorities and his body thrown into the jungle. He claimed that, in 2010, he had been arrested by the Special Task Force (also called STF), taken from his home, questioned about alleged connections with the Liberation Tigers of Tamil Eelam (LTTE), slapped, but not seriously harmed, and then released after that questioning. He claimed that, several months later, the Special Task Force again arrested him and he was taken to an army camp where he was interrogated and tortured, tied up, beaten again, asked about involvement with the LTTE and, despite his denials, continued to be beaten. He said that later he was released and was forced to do manual labour. He then said: I was forced to return many times to the Army Camp and each time I would be interrogated and tortured. On some occasion I was taken to the jungle where I was tortured sexually by the authorities. (emphasis added) 22 He asserted that he did not know what to do to avoid torture so he tried to find work in another place. 23 The counsellor's report said that the appellant had given a history of being subjected to harassment and torture by the Sri Lankan police that involved him being taken into the jungle, where he was sexually assaulted on many occasions, and that he knew who the perpetrators were but did not report the incidents. She wrote that he presented with "a restricted range of affect and appeared generally flat with evident tension as he related his trauma history and on going concerns for his family". She opined that it became apparent that this condition was due to the sensitive nature of what he had suffered, that he had not previously revealed, even to his family. She diagnosed that he had experienced a range of traumatic stress syndromes and felt ashamed by the sexual assaults "as evidenced by the secrecy he has maintained about this". She opined that he currently suffered psychological distress, with difficulty breathing and headaches when reminded of his experiences of torture and abuse, in the context of his fear of being returned to Sri Lanka. 24 Ultimately, the delegate refused to grant the appellant a protection visa and gave written reasons for doing so.

The Authority's Decision 25 The Authority dealt with the claims made by the appellant, summarising them, relevantly, as: • The applicant believes that they would torture him the same way as his father was tortured. The police took the applicant to the jungle area and molested him. They hit him with the back of the gun. • In 2010 he began to face persecution from the Sri Lankan authorities who were targeting Tamils because of their ethnicity and perceived links to the LTTE. The applicant claimed that he was tortured and on some occasions sexually assaulted by Sri Lankan Army (Army) personnel. • In 2010 he was arrested by the Special Task Force (STF) several times and taken from his home to an Army camp where he was interrogated about any connections that he had with the LTTE. • The Army or the CID [Criminal Investigation Department] detained him. They suspected he was with the LTTE and took him often and tortured him. The last time they did this was in 2012 before he left. He was caught on 8 June 2012 when he was coming to Australia and they took him in a van to the fourth floor and tortured him. His name is still there. The fourth floor is the torture area in a CID office. He thinks it is in Colombo. They asked him why he is trying to go to Australia and then they beat him up. They held him for one day and then sent him to gaol for 20 days. He was released after his mother came and signed for his bail. He is not sure if he was formally charged because he never received any documentation. He was accused of attempting to depart the country illegally. 26 It referred to the counsellor's report and the appellant having received counselling and providing information to the counsellor about his experience in Sri Lanka, including being detained, beaten and sexually assaulted. The Authority considered his claims but noted that he claimed that the incidents of harm and beatings by the Sri Lankan authorities were significantly greater in his account to the counsellor than he claimed at the entry interview. 27 The Authority said it had had regard to the evidence, including from the entry interview, the protection visa interview with the delegate, the protection visa application and statements that he had made to the Department. It accepted some parts of his account, including that, in 2010, one of his cousins had been kidnapped and his body later found in the jungle. It also accepted that the appellant's father had been arrested on suspicion of having been a supporter of the LTTE and of being involved in a bomb blast, that he had suffered torture and that the appellant had learned of this when he was about 12 years old during the latter part of the Sri Lankan civil war. The Authority found that the events that the appellant had described involving the LTTE had all occurred during the civil war and that had ended in May 2009. It found that, since the election of then President Sirisena in 2015, the situation for Tamils in Sri Lanka had significantly improved and that the Department of Foreign Affairs and Trade assessed that monitoring and harassment of Tamils in day-to-day life had decreased significantly under that Government. 28 The Authority, however, rejected the appellant's claims to having suffered mistreatment. In particular, it said at par 26: I have significant concerns about the applicant's later claims of many incidents of detention and beatings and torture. Although at the time of the [entry] interview, the applicant only mentioned being beaten during the one incident in 2012 and being arrested and detained because of his attempt to depart Sri Lanka illegally in 2012, he claimed in his written statement (on 20 July 2016) and at the protection visa interview (on 13 October 2017) that he was beaten many times and he claimed in his written statement that on some occasions he was tortured sexually. I have considered the report from Freedom House which states that the applicant was shamed by the sexual assaults which was evidenced by the secrecy he has maintained about this. I accept that an applicant might be reluctant to reveal incidents of sexual assault at an interview. However, I do not accept that this reluctance and shame explain why the applicant did not mention the many incidents of beatings by the Sri Lankan authorities. (emphasis added) 29 Having carefully considered the evidence, it did not accept that the appellant had been beaten many times by the Sri Lankan authorities, taken on suspicion of having been part of the LTTE in 2012 or questioned in that year about that matter. It had regard to his profile and evidence about the claimed event. It relied on the appellant's evidence at the entry interview that he had not been associated or involved with any political group or organisation and none of the members of his family had. It was satisfied that he and his family were not associated or involved with the LTTE. 30 The Authority relied on the appellant's statement at the entry interview that he had been arrested once in 2012, which was the year he departed Sri Lanka. It found that, in that interview, he had not stated that he had been detained many times and, in particular, that he had started to face issues as early as 2010 or that, in that year, he had been arrested by the STF, which was unlike the detailed claims he made later in his written statement attached to the protection visa application. Similarly, it found that he made no mention in the entry interview that he had been arrested by the STF again and taken back to an army camp where he had been interrogated and tortured as he later claimed in his visa application. 31 The Authority noted that, in the entry interview, the appellant's only claim of injury that he had suffered was internal pain after being beaten in 2012 by the STF. The Authority then said at par 33: I do not accept the applicant's evidence in the protection visa interview that he was taken to the fourth floor of the CID building where he was beaten up. He claimed that he was taken to the torture area in June 2012 where his name was taken and he was tortured. I also do not accept that the applicant was sexually assaulted or tortured. Whilst accepting that a person may be reluctant to reveal this information because of shame, it does not explain why, at the [entry] interview, the applicant only mentioned being beaten once. I am satisfied that the applicant has fabricated his claims for the purpose of applying for a protection visa. (emphasis added)

The Trial Judge's Decision 32 The trial judge dealt with a number of much more widely propounded claims. His Honour found that there was no evidence before him of a transcript or recording of the appellant's protection visa interview and, accordingly, was not prepared to draw inferences favourable to the appellant about what may have transpired there. 33 His Honour rejected the appellant's argument that the sole reason for the Authority's dismissal of his claims was that they had not been advanced during the entry interview. His Honour was satisfied that there was no evidence that the appellant had been denied any opportunity of properly putting his claims at the entry interview and that his failure to mention some matters that he later raised was a matter that the Authority was entitled to take into account in assessing his credibility. The trial judge held that the weight to be given to any particular claim was a matter for the Authority. He rejected the appellant's argument that the Authority had unreasonably dismissed his claims about sexual assaults. His Honour found that nothing had been put to establish that the Authority had made a jurisdictional error.

The appellant's submissions 34 The appellant contends that, read in the context of the reasons as a whole, pars 26 and 33 of the Authority's reasons did not address his claims to have been sexually assaulted on multiple occasions and sexually tortured. Rather, the appellant argued that, in effect, by lumping together its rejection of his claims to have been tortured and beaten by the authorities with his claim to have been sexually assaulted by them, the Authority failed to give any intelligible reason for rejecting his distinct sexual assault claims. He contended that the counsellor's report, the Authority's acceptance that, as a general proposition, applicants for protection may be reluctant to raise matters of sexual assault at interviews with strangers and the delegate's findings in relation to his situation supported his case. The appellant submitted that the way in which the Authority reasoned was, in effect, that, because he had not mentioned anything to do with sexual assault at his entry interview, his later raising of it was not to be accepted. He contended that this constituted a process of reasoning that was illogical, irrational and avoided dealing specifically with his claim. 35 Moreover, he argued that that approach ignored the necessity for a decision-maker to be cautious about fact finding. He contended that the Authority erred because it failed to have regard to, first, his sensitivity about raising matters to do with the sexual assaults was a proper and adequate explanation for his not having raised that matter at the entry interview and, secondly, the caution with which statements made by applicants for protection visas at entry interviews should be treated, namely, as North, Bromberg and Mortimer JJ had explained in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 at 449 [56]. The appellant also relied on the application of that reasoning by Moshinsky J in Minister for Home Affairs v AYJ17 (2019) 165 ALD 64. During the course of argument, it became clear that Moshinsky J was concerned with a statement made at an entry interview that had not been made earlier at an arrival interview, which is not on all fours with the present proceeding. 36 The appellant argued that the focus of the Authority in pars 26-32 of its reasons was entirely on his claims of having been beaten and tortured and made no mention, other than to note, in par 26, his claim to have been sexually assaulted. He contended that specific consideration of that claim would have been material to the outcome of his application for a protection visa because of the flow-on effect of the Authority's rejection of it, in the way that the Authority reasoned in par 33, to conclude that all his claims of torture, physical and sexual assault had been fabricated.

Consideration 37 In MZZJO 239 FCR at 449 [56], North, Bromberg and Mortimer JJ said, of an entry interview in an appeal concerning a decision of the Refugee Review Tribunal: On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called "people smuggling". They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile. (emphasis added) 38 In DWA17 v Minister for Immigration and Border Protection (2019) 272 FCR 152 at 160 [32], McKerracher, Banks-Smith and Jackson JJ said that: decision-makers would do well to apply the caution expressed by the Full Court in MZZJO [v Minister for Immigration and Border Protection (2014) 239 FCR 436] at [56]. But it is just that - a caution. It is something which often, but not always, should be borne in mind in order to reach the correct decision. (emphasis added) 39 DWA17 272 FCR 152 dealt with a decision of the Authority for which the Parliament designed a significantly different review scheme than applies to the Administrative Appeals Tribunal, and its predecessor tribunals. Unlike the Authority, Pt 7 of the Migration Act 1958 (Cth) creates a scheme of administrative review that requires the Tribunal to invite an applicant for review of a decision of a delegate refusing to grant a protection visa to a hearing before it. In contrast, the Authority, under Pt 7AA of the Act, is significantly confined in its ability to receive new evidence and information and is not, in the ordinary course, expected to invite the applicant to a hearing to give evidence before it. 40 In DWA17 272 FCR at 161 [37], the Full Court referred to the reasoning of Gageler, Keane and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 226 [17] that described the task of the Authority. McKerracher, Banks-Smith and Jackson JJ went on to say that there was nothing inherent in the Authority's task that limited the extent to which it was able to make use of the materials before it. They observed that the Act limits what those materials necessarily comprise but they include the material before the delegate, such as the entry interview in the present case. Their Honours said (272 FCR at 161 [39]): It was therefore open to the Authority and, in our view, required of it, to give the Interview Record the weight that, in the Authority's view, it deserved in the context of the rest of the necessarily limited information on which it was required to base its decision. We agree with Perry J in Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504 at [105] that: Provided, therefore, that such judgments as to relevance are made by the decision-maker within lawful boundaries, the question as to whether particular evidence can be given any, and, if so what, weight falls within the exclusive province of the administrative decision-maker. Weight may be affected by such matters as provenance … credibility, completeness, context or lack thereof, and the capacity of the interested party to respond to the material particularly if it is adverse. (emphasis added) 41 Their Honours concluded (at 164 [52]) that there was no jurisdictional error in the reasoning of the Authority in that appeal. They said that: As we have said, nothing inherent in the statutory task prohibits the Authority from relying, even relying heavily, on the absence of a claim from the record of an initial interview in order to reject a particular claim. Any formulation to that effect would go further than the dicta in MZZJO allow, and such formulations are to be avoided. The Authority's task was to review the materials provided to it and (with limited exceptions) no more than those materials, and to come to its own decision as to the appellant's protection claims. (emphasis added) 42 In my opinion, the appellant's argument must be rejected. There is nothing illogical in the way in which the Authority reasoned or that suggested that it had ignored or failed to assess the appellant's claims of sexual assault. While other decision-makers may have come to different views and reasoned differently on the material before the Authority, the issue here was whether the Authority acted in a way that was legally unreasonable. In deciding to reject his claims in par 33, it was open to the Authority to do so, because the appellant had not mentioned, in the entry interview, anything more than one occasion on which he claimed to have suffered internal pain, but no physical injury, from a beating in the incident that he described. It was entitled to reason as it did, namely, that, if the multiple instances of physical abuse and torture, including sexual torture, which the appellant described in claims made well after the entry interview, had, in fact, occurred, he would have mentioned, at the entry interview, at least the claims of beatings and physical torture, leaving aside sexual torture, given their alleged severity. 43 In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67], McHugh J said: this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the tribunal's view that it was inherently unlikely that the events had occurred as alleged. (emphasis added) 44 So too in this case. The reasoning of the Authority appears, on its face, to be that, by failing to mention those other incidents of physical beatings and torture, the whole of the appellant's account was not credible and that included, as a consequence, his assertions that he had been sexually tortured. I am unable to see how that was not a finding open to the Authority on the material before it or was not a reasonable and logical assessment of the evidence.

Conclusion 45 Accordingly, I am of opinion that the appeal must be dismissed with costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares.