DPE16 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-02-08|Before: Farrell J

The appeal is dismissed.
The appellant must pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

FARRELL J: 1 This is an appeal of a decision of the Federal Circuit Court of Australia (FCCA). The primary judge dismissed the appellant's application for judicial review of a decision of the Immigration Assessment Authority (IAA) to affirm a decision of a delegate of the Minister of Immigration and Border Protection to refuse the appellant's application for a Safe Haven Enterprise visa (often abbreviated as "SHEV" in the IAA's reasons).

Background 2 The appellant is a citizen of Sri Lanka. He arrived at Christmas Island as an unauthorised maritime arrival on 21 September 2012. On 22 February 2016, the Department of Immigration and Border Protection received the appellant's application for a Safe Haven Enterprise visa, which his migration agent lodged on his behalf. He claimed to be ethnically Tamil and a Hindu who came from a village in the Batticaloa district of the Eastern province. He claimed to fear harm from Sri Lankan authorities due to activities supporting the Tamil National Alliance (TNA) and imputed support for the Liberation Tigers of Tamil Eelam (LTTE). 3 Following an interview conducted with a delegate of the Minister, by letter dated 15 August 2016, the delegate advised the appellant that his application was refused.

Review by IAA 4 On 18 August 2016, the delegate's decision was referred to the IAA for review. On 20 October 2016, the IAA affirmed the delegate's decision to refuse the appellant a Safe Haven Enterprise visa. At [5] of its decision record (DR), the IAA summarised the appellant's claims in the information referred to it as follows: • In the mid-1990s, his applicant elder brother 'C' was arrested and assaulted by members of the Sri Lankan Army (SLA) on suspicion of having LTTE links and lost hearing in one ear. • Sometime in 2009 after the end of the civil conflict, the applicant was in a roundup conducted by the SLA. He was detained and assaulted for three hours and released after his National Identity Card (NIC) was checked. • On 19 August 2012, 'PS', who was a TNA candidate in the upcoming election and an acquaintance of the applicant's brother-in-law asked to use the applicant's three-wheeler vehicle in election campaigning. The applicant agreed and the following day was pasting up posters in the [named] area. Around 10.00 pm, five men in civilian clothes in a white van approached the applicant and demanded to see his NIC. They kept his NIC, kicked the applicant and told him he should not assist the TNA in future. He escaped the men by running down a laneway. He knew the men had his address from his NIC, so he avoided them by going to his Aunt's house. • The men went to his family home and threatened his parents that harm would come to him if he did not stop supporting the TNA. He believes the men were from the SLA, the Criminal Investigation Division (CID) or from a Tamil paramilitary group. • On 24 August 2012 an unknown caller telephoned his mobile and instructed him to meet in [named] village in Batticaloa. He believed the caller was either from the SLA, the CID or a member of a paramilitary group, so he did not go to the [named] village as he was afraid. He received another two telephone calls the same day from the same telephone number but did not answer. He was afraid these men would harm or kill him, so he made plans to depart Sri Lanka at the end of the month. • His brother 'Y' faced problems after the applicant left Sri Lanka. The men who were after the applicant began to target Y, so Y left Sri Lanka and went to France. 5 Relevantly to this appeal, the IAA said at [7] and [8] of its reasons: 7. When asked at the SHEV interview about the TNA's background, the applicant responded that 'The TNA is a party that speaks on behalf of Tamils.' When asked about some of the smaller parties making up the TNA, the applicant stated 'I'm not aware of that. I don't have much political experience.' At the SHEV interview the applicant described the extent of his activities supporting PS as the local TNA candidate in the 2012 election as pasting posters up in his home village on 20 August 2012. In addition to testimonials as to his character, the applicant has provided a copy of a document dated 12 October 2012 from [name] Member of Parliament for Batticaloa, stating the applicant was threatened by unknown persons on the evening of 20 August 2012, as well as a copy of a police report dated 21 August 2012 regarding an encounter with unidentified men. 8. After considering the applicant's rudimentary knowledge of the TNA, I do not accept that he was politically active in Sri Lanka. I do not accept as plausible that a person such as the applicant, who was not politically active, and had no demonstrated interest in politics and who is [sic: in] his own words did not have much political experience, would agree to paste up posters for a political candidate he had become aware of the day before. Country information [from the Department of Foreign Affairs and Trade dated 18 December 2015] is that document fraud is prevalent in Sri Lanka and as I have found that the applicant had no role campaigning for the TNA and no political profile, I place no weight on the documents from [named parliamentarian], the police report or the character references. I do not accept as plausible that the applicant was accosted and assaulted by five unknown men who told him not to assist the TNA, threatened his parents, somehow obtained his mobile telephone number and subsequently contacted him to meet at another village. I do not accept that he played any role campaigning for PS or the TNA, assisted in the campaign for the TNA, or that he had been imputed with any political profile. 6 I note that the "police report" purports to be an extract of a report made by the appellant to the police concerning the events of 20 August 2012.

FCCA 7 On 24 November 2016, the appellant filed an application in the FCCA seeking to quash the IAA's decision and that the decision be remade according to law. The grounds of the application as ultimately considered by the primary judge were (as written): Ground 1 The IAA committed error in making giving reasons that were so unreasonable that no reasonable decision maker could come to that conclusion. Ground 2 The IAA committed error in the manner in which it dealt with the country information about fraudulent documents. PARTICULARS FOR BOTH GROUNDS a. At [CB 3, Q21, the applicant stated in his arrival interview on 27 September 2012 that he left his country of origin "Because I didn't have a job I was helping out at the election and armed group took my ID and after that I received threatening calls and my life was in danger". b. At [CB 60, paragraph 8] the applicant stated that on or around 19 August 2012 a member and election candidate "came to the area I resided as he was canvassing for votes prior to the Sept 2012 provincial……………and he knew my brother in law". c. [CB 60 paragraph 9] "My family and I agreed to support (the candidate) as my family like many other families supported the TNA. Also, (my brother in law taught (the candidate's) nieces in school. d. [CB60, paragraph 10] the applicant alleges that the following night he was pasting posters alone when he was confronted by 5 men in a white van. e. [CB 94] Contains what purports to be an English translation of an extract from the Information Book of the [named] Police Station dated 21 August 2012. The date of issue of the extract is alleged to be 28 September 2012 and the date of translation is apparently 9 September 2013. f. It is noted that the applicant provided generally consistent information in his arrival interview, statutory declaration and SHEV interview. The alleged extract from the Police Information book is also consistent. 8 The primary judge held that the reasons that the IAA gave in support of the adverse credibility findings were based on the evidence the appellant gave, it was open to the IAA to give little weight to the corroborative material before it and the findings could not be said to lack intelligible justification. The primary judge held that ground 1 invites the Court to engage in an impermissible merits review and it did not make out jurisdictional error by the IAA. 9 In relation to ground 2, the primary judge noted that the appellant's legal representative took particular issue with the police report. The primary judge held that: (1) there is no basis to contend that the IAA did not give consideration to the alleged corroborative evidence and the adverse findings by the IAA in that regard were open to it to make; and (2) having found that the appellant played no role in campaigning for the TNA, it was open to the IAA to place no weight on documents purporting to corroborate the applicant's claims. His Honour held that, having identified the prevalence of fraudulent documents in Sri Lanka, a "cursory look" at the Sinhalese police extract and the translation would have identified "obvious reasons why caution would have been exercised by the [IAA] in accepting the document". Those "obvious reasons" were not stated by the primary judge. The primary judge found the IAA's reason for rejecting the corroborative material was the prevalence of fraudulent documents in Sri Lanka and the rejection of the appellant's credit. The primary judge found that jurisdictional error was not made out on this ground. The application was dismissed.

Appeal to this Court 10 The amended notice of appeal filed on 30 October 2017 contains only one ground, which is: the IAA committed jurisdictional error by failing to deal correctly with corroborative evidence in the form of documents. 11 As the Minister correctly pointed out, this ground identifies no appellable error by the primary judge. It is, in effect, an invitation to this Court to place to one side the decision of the FCCA and form its own view as to the adequacy of an administrative decision-maker's reasons for decision. While such a course may be unsurprising in cases involving a self-represented litigant, it should not occur when the appellant is legally represented. In BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 at [8], Flick J explained why this approach is unacceptable: To unquestionably endorse such an approach would be to impermissibly reduce the proceeding before the Federal Circuit Court to a "preliminary skirmish": Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ. Such an approach is to be firmly rejected: SZVBT v Minister for Immigration and Border Protection [2017] FCA 355 at [10] per Flick J. Such an approach also denies to this Court on appeal any real assistance as to why the primary Judge may have erred in her own resolution of the grounds of review advanced below. 12 Nonetheless, counsel for the Minister indicated that he was content for the Court to proceed on the basis that the appellant's ground is that the primary judge erred by failing to find that the IAA committed jurisdictional error by failing to deal correctly with corroborative documents.

Appellant's submissions 13 The appellant relied on written submissions filed in these proceedings. In the course of the hearing, the appellant's legal representative confirmed that he did not challenge the reasonableness of the IAA's finding that it was "not plausible" that the appellant would put up posters for a political candidate a day after he had met him. He also confirmed that the appellant accepted that the decision of the Full Court in Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; FCAFC 50 (MIC v SZNSP) at [35]-[38] (per North and Lander JJ) correctly states the law in relation to the circumstances in which the IAA may refuse to give weight to corroborative documentary evidence. 14 The appellant's representative relied in particular on the statements from MIC v SZNSP underlined below: 35 Moreover, it was open to the RRT to conclude that, in view of all the evidence in the case, no reliance should be placed on the witness statement. The corroborative evidence was not corroborative evidence at all. It did not tend to prove that the first respondent's evidence was true, nor does it act to strengthen that evidence. Corroborative evidence should be evidence independent of the person whose evidence is sought to be corroborated. It was evidence presented to the RRT by a person whom the RRT was of the opinion was fabricating her claims. The provenance of the witness statement was not established. It could easily have been created by the first respondent herself. It did not amount to corroborative evidence in the absence of proof of the provenance of the document and the reliability of the author, if in fact the author was Lu. If the first respondent was fabricating her claims, it would follow that she would fabricate the evidence upon which those claims are brought. That evidence would include the "corroborative" evidence of Lu. 36 When a decision maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant's claims have been fabricated, the decision-maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant's account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision-maker could determine to reject it out of hand. In this case, as we have said, the document which is said to be the corroborative evidence is a document written in the Chinese language which has been interpreted, no doubt faithfully, into the English language and purports to be a statement of Lu. The applicant, whom the RRT believed was not a credible witness, proffered it as Lu's statement, but there was no other evidence other than the applicant's say so that it was. There is nothing irrational about the RRT in those circumstances rejecting the document by giving it no weight. In circumstances where the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it. Consequently, the alternative argument relied upon by the appellants, outlined at [22] above, cannot be sustained. 37 Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 77 ALJR 1165; 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant's credit and then giving attention to the corroborative evidence. 38 The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 77 ALJR 1165; 198 ALR 59 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence. Consequently, the observation concerning the dicta of McHugh and Gummow JJ at [49] in Applicant S20/2002 77 ALJR 1165; 198 ALR 59 made in SZDGC at [23] is probably misdirected. Those observations addressed the situation where the corroborative evidence was disregarded. 15 The appellant's representative submitted that the IAA erred because, having made an adverse credibility finding against the appellant in relation to a single event, it then used that fact and "country information" concerning the availability of fraudulent documents in Sri Lanka as a reason not to give weight to documentary evidence which corroborated his claims. He says that the IAA, like the Administrative Appeals Tribunal and its predecessors, is bound to have regard to the totality of the evidence concerning the existence of a fact in issue, both direct and corroborative material, before attempting to reach a conclusion on an applicant's credibility, relying on WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568; FCAFC 74 (WAIJ v MIMIA) at [27] and Finkelstein J's view expressed in SZDGC v Minister for Immigration and Citizenship (2008) 105 ALD 25; FCA 1638 at [23] that this was just "common sense". He says that to use an adverse credibility finding as a basis for rejecting the authenticity of documentary evidence "risks putting the cart before the horse", relying on WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 at [34] per French J. 16 The appellant's representative conceded that it might be open to a decision-maker to reject corroborative documents in circumstances where an applicant's credibility was "poisoned beyond redemption", citing Re Minister for Immigration and Multicultural Affairs; Ex parte Appellant S20/2002 (2003) 77 ALJR 1165; HCA 30 (S20/2002) at [49] per McHugh and Gummow JJ. He noted that in MIC v SZNSP, the Refugee Review Tribunal made a "tapestry" of findings of inconsistency on the basis of which it made a finding as to the applicant's credit before deciding the weight to be attributed to a witness statement proffered by that applicant. He said that, in contrast, in this case, there was no comprehensive finding that the appellant lied or was untruthful. The claims which the IAA found implausible related to events of a single day and it is impossible to equate the "implausibility" of a person agreeing to put up political posters for a friend of a family member with the "well being poisoned beyond redemption". By analogy with the High Court's decision in Briginshaw v Briginshaw (1938) 60 CLR 336; HCA 34, given the seriousness of the consequences to the appellant of the IAA affirming the delegate's decision, it should be harder to reject or place little weight on corroborative documents in cases such as the appellant, compared to cases where the Tribunal finds many material inconsistencies. 17 He submitted that the IAA fell into error by relying on the "country information" that document fraud was prevalent in Sri Lanka, because the IAA's reasoning would suggest all documents produced in Sri Lanka are fraudulent and it failed to differentiate how the appellant's documents differed from any other documents from Sri Lanka. For instance, the IAA's reasons make no mention of any sign of forgery or any other fault in the documents. It is not clear from the IAA's reasons why it accepted the evidence based on the translation of the appellant's birth certificate and a copy of the front page of his passport while the other documents were given no weight. Further, except for the police report, all of the documents referred to in the DR at [8] post-date the appellant's arrival in Australia and the documents were submitted by the appellant's migration agent, who was a solicitor; those facts are relevant to the provenance of the documents. There is nothing in the IAA's reasons which indicates that it considered the provenance of the documents submitted. 18 The appellant's representative submitted that the IAA rejected the police report, the parliamentarian's statement and the character references as a group and that there is no evidence that the IAA gave any consideration to the "nature, content and quality" of each of the individual documents as required having regard to the Full Court's decision in MIC v SZNSP at [36]. He submitted that the IAA should have adopted the approach taken by the Tribunal as set out in SZVHO v Minister for Immigration and Border Protection [2016] FCA 1499 (SZVHO v MIBP) at [16] in which the Tribunal listed each of the documents and gave a summary of its content. The appellant accepts that the Tribunal's approach in SZVHO v MIBP was consistent with the approach of the Full Court in MIC v SZNSP. In reply to the Minister's submissions, the appellant's representative noted that the in SZVHO v MIBP at [43], Burley J noted that the Tribunal had indicated in two separate paragraphs of its reasons that it had considered the "entirety" of the evidence when reaching its conclusions. 19 The appellant's representative submitted that the primary judge gave no greater consideration to the nature of the rejected documents than did the IAA.

Minister's submissions 20 The Minister filed written submissions on which he relied. Counsel for the Minister made brief oral submissions. As I have generally accepted those submissions, they are reflected under the heading "Consideration".

Consideration 21 The appellant's central claim arises out of a single incident and the police report and parliamentarian's letter went to aspects of that central claim. The character references were more general in nature. Once the IAA found that the central claim was not plausible (a finding not challenged by the appellant on the appeal), it was open to the IAA to take into account that fact and evidence of "country information" that documentary fraud was common in Sri Lanka to find that documents submitted by the appellant (through his representative) which went to the same issues as the central claim should be accorded no weight. Having regard to the authority of MIC v SZSNP at [33], [37]-[38], the appeal should be dismissed with costs. 22 I address specific aspects of the appellant's submissions below. 23 This is not a case like WAIJ v MIMIA. There, at [52], the majority (Lee and Moore JJ) held that the Tribunal erred by considering that it could disregard documents it was otherwise bound to consider if it surmised that it was possible that the documents were fabricated. In MIC v SZNSP at [38], North and Lander JJ noted that Finkelstein J's comments in SZDGC v MIMA at [23] concerning S20/2002 at [49] were "probably misdirected" as his comments dealt with a case where corroborative documents were disregarded. 24 The IAA did not refuse to consider the documents submitted by the appellant, reject them out of hand or fail to have regard to their individual content. The appellant's submissions take no account of paragraph [7] of the DR in which the IAA listed each of the documents on which the appellant relied to corroborate his claims about that day and briefly summarised their material content (see [5] above). The IAA then went on, at paragraph [8] of the DR, to decide that, having found the applicant's evidence concerning the claimed events of 20 August 2012 implausible and in light of country information concerning the availability of fraudulent documents, it gave no weight to the police report, the parliamentarian's letter and character references which addressed the matters found to be implausible. The IAA's reasoning was consistent with the process of reasoning accepted by the Full Court in MIC v SZNSP at [33], which was: Thus, consistently with Applicant S20/2002 (2003) 77 ALJR 1165; 198 ALR 59 it was open to the RRT to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement. This was the process followed by the RRT which it described in the sentence "Given the adverse credibility finding, the Tribunal does not give weight to the document". Although expressed in the most cryptic terms, this statement shows that the RRT made an assessment of the value of the witness statement and then considered its effect in the light of the view it had formed to that point about the credibility of the first respondent. 25 The IAA's method of reasoning was also consistent with the Tribunal's reasons the subject of the appeal in SZVHO v MIBP at [16] which the appellant acknowledges meets the standard set by the Full Court in MIC v SZNSP. In saying that, I note that Tribunal which considered SZVHO's application made findings adopting the words "having considered the totality of the evidence" (see SZVHO v MIBP at [37] and [43]), however, I do not accept that it is necessary to employ that formulation. 26 It is true that in MIC v SZNSP and other cases, the decision-maker was in a position to discern a number of inconsistencies in the applicant's evidence on the basis of which a finding that that evidence was not credible was made. It is also true that the greater the number of inconsistencies exposed, the more certainty the decision-maker may have in making such a finding and in rejecting documentary evidence which repeats the impugned claims. However, the appellant does not challenge the IAA's finding that the claimed events of that day were implausible. That threshold having been crossed, it was open to the IAA, in light of that fact and country information concerning the availability of fraudulent documents, to determine the weight which should be given to the police report, parliamentarian's statement and the character references: see MIC v SZNSP at [33]-[34]. 27 The IAA's reasons are tersely expressed. In circumstances where the decision-maker is making a credibility finding and he or she has not had the opportunity to interview the applicant in person, it would be desirable for the reasoning to be more fully exposed. However, I do not accept that the degree of detail advocated for by the appellant based on his interpretation of MIC v SZNSP at [34]-[38] was necessary. The provenance of the police report, parliamentarian's letter and character references was not established to the satisfaction of the IAA. While findings concerning overt features of the documents which might raise suspicion are appropriate, they are not necessary in light of the country information and the IAA's finding that the core claims were implausible. The fact that the documents (except the police report) post-date the appellant's arrival in Australia and were submitted by his lawyer is not determinative of how they came into existence and the appellant's lawyer is not relevantly a source independent of the appellant. In my view, nothing turns on the fact that the IAA accepted that the translated birth certificate and copy of the page of the appellant's passport supported his claimed identity or, indeed, that other claims made by the appellant were accepted. 28 No appellable error by the primary judge has been established.

Conclusion 29 For these reasons, the appeal should be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

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