Ground 1
9 Ground 1 was in the following terms:
The Tribunal failed to comply with s 424A or 424AA of the Migration Act 1958 ("the Act") in respect of information that it considered would be there [sic] reason or part of the reason for affirming the decision under review.
Particulars
The Tribunal considered information that had been given by the Applicant orally to the Minister's Department at a "maritime arrival interview" in determining whether the Applicant was a truthful witness. That information was not put to the Applicant in accordance with s 424A or 424AA of the Act.
1. In para 36 of the AAT decision the Tribunal noted that in his maritime arrival interview he said that he received training from the LTTE for one day. The Tribunal further noted that in his statement he said that training was one-month long. This is an information covered under S 424 A or 424 AA because the applicant did not provide such information to the Tribunal. The Tribunal in its hearing noted that the applicant's representative did not provide decision record of the delegate of the Minister. As such, any information, the applicant said orally or noted by the delegate of the Minister from his entry interview would be covered under Section 424A or Section 424 AA.
10 Section 424AA provides:
Information and invitation given orally by Tribunal while applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so - the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
11 Section 424A provides:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies - by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
12 The appellant attended a "maritime arrival interview" on 10 July 2012 at which an interpreter was present. The Appeal Book contained a record of an exchange between the appellant and the interviewing officer in which the appellant is recorded as having given the following oral answer to the question: "What type of training did you receive from the LTTE?":
They gave me mostly fitness training and using wooden sticks and to shoot using an AK47. It was just a trial and only one day we were given the training, all the other days it was self defence. It was compulsory for everyone to have that training, all the civilians to have that training.
13 The Minister did not contend that this was information which fell within paras (b) or (ba) of subs 424A(3). If the information did fall within either para (b) or (ba), the obligation created by s 424A(1) would not have applied.
14 In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17] and [18], the High Court of Australia (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) said (footnotes omitted):
17. Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the tribunal", or "the tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
18. Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [(2004) 206 ALR 471 at 476-477] that the word "information":
… does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc …
If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
15 The use which the Tribunal made of the statement contained in the maritime arrival interview (referred to at [12] above) was to contrast the content of it with other statements made by or on behalf of the appellant. To the extent the Tribunal used the statement, it used it in the process of assessing the reliability of the claims and evidence of the appellant.
16 Inconsistencies in evidence do not constitute "information" within the meaning of s 424A(1) because inconsistencies do not, of themselves, constitute a "rejection, denial or undermining" of the appellant's claims to a protection visa: SZBYR at [17]-[18]; Minister for Immigration and Citizenship v SZFLX (2009) 238 CLR 507 at [22]. Thus, whilst there might be an obligation under s 424A(1) in relation to a particular statement which does comprise "information", assuming that information otherwise falls within s 424A, that provision does not oblige the Tribunal to give a visa applicant particulars of inconsistencies, doubts or potential adverse credibility findings.
17 The oral statement in the maritime arrival interview to which the Tribunal referred did not, in terms, contain a rejection, denial or undermining of the appellant's claim to be a person to whom Australia owed protection obligations. Indeed, it supported his claims, or would have if it had been accepted. The oral statement was not the subject of any obligation under s 424A in those circumstances. Nor was the statement the subject of the discretion contemplated in s 424AA. The meaning of "information" in that provision is not relevantly different from the meaning of that word in s 424A.
18 In any event, even if there had been an obligation imposed by s 424A, or some breach of or failure to consider s 424AA, no material consequence is shown to have flowed.
19 The appellant's statement in his maritime arrival interview is set out at [12] above. In his visa application, the appellant stated:
In about mid-2007, I was also forced to complete a one-month LTTE training course. We received fitness training and I was taught how to use wooden sticks and how to handle an AK47. Included self defence training.
20 In a statement declared before a migration agent on 14 September 2012, the appellant stated:
In about mid-2007, I was also forced to complete a one-month LTTE training course. We received fitness training and I was taught how to use wooden sticks and how to handle an AK47. As part of the course, we also completed self-defence training. This self-defence training was compulsory for all civilians of [Town A], including the women.
21 Shortly before the Tribunal hearing, the appellant's legal representatives wrote, in a letter dated 19 November 2014:
The main facts, inter alia, are that: …
• In about mid-2007, the applicant was forced to complete a one-month LTTE training course …
22 In its reasons for decision, The Tribunal stated at T[11] to T[13]:
11. The applicant's documents included the following.
12. First, the applicant's irregular maritime arrival interview dated 10 July 2012. This provides a general overview of his time in refugee and Army camps. He states that he was forced to work for the LTTE as a tailor for about two years. During this time he was taught to handle an AK47, and underwent some weapons training for a day. Because of his employment with the LTTE, he was often questioned by the CID for long periods. He was terrified of being taken away to be tortured.
13. Secondly, a statement of the applicant dated 14 September 2012. Here the applicant states that he was born on 10 October 1979 in [redacted], in the Northern Province of Sri Lanka. He married in 2002. When the civil war resumed in 2004, he was forced to work for the LTTE as a tailor. In about mid-2007 he received a one month LTTE training course. In 2006 his village of [X] was attacked and much of it destroyed. In September 2008 he and his wife, and their children, relocated to another village, [Y], in order to avoid the air strikes. When his wife was injured by shrapnel in [Y], they then relocated to another village, [Z]. They relocated on a number of other occasions before finally settling in the [K] Relief Village, a camp for internally displaced persons, which was controlled by the Sri Lankan Army (SLA).
23 The Tribunal gave detailed consideration to issues of credibility from T[21] to T[37], concluding that the appellant was not credible. Its reasons included that the appellant "was prepared to give untrue evidence to the Tribunal": T[25], T[27]. That conclusion was based, amongst other things, on the concession made by the appellant's legal representatives, in submissions of 10 December 2014, that the appellant "embellished" his evidence on three issues because of his fear of returning to Sri Lanka. The three issues were:
(1) that two of his six colleagues working with him at the factory had been taken away by the authorities shortly before the applicant left Sri Lanka;
(2) that he had been repeatedly visited by the authorities after leaving the camp;
(3) that he had been repeatedly interrogated by the authorities after leaving the camp;
24 A statutory declaration was attached to the submissions and included:
The claims that two people in my unit of six were taken away; the number of visits by the Sri Lankan authorities and the issue of my statement not dealing with the interrogations
I acknowledge that I gave new information during the hearing in relation to the above-mentioned. I do not discuss them in my entry interview, statement or interview with Immigration. I admit that I made-up that two people were taken away and I over-exaggerated the number of visits by the Sri Lankan authorities and the interrogations associated with that. The authorities would threaten me when I reported so. The information that I gave in my entry interview, statement an [sic] interview with immigration was correct. I'm sorry that I told the tribunal those things that are not true. The reason that I did that was because I am scared to return to Sri Lanka for the reasons that I had previously given. That fear increased after the refusal by Immigration.
25 Clearly, the statutory declaration contained admissions to the effect that the appellant's evidence was in some respects false and in some other respects exaggerated.
26 The Tribunal proceeded to itemise a number of other inconsistencies in the appellant's evidence. The Tribunal's consideration of these other inconsistencies included:
30. There were other inconsistencies between what the applicant told me and what appeared in his statement and application. There are almost always differences between the evidence given to peers in an application and supporting documents and the application and the evidence given at the hearing. This is because evidence is given, and statements taken, in a variety of circumstances, at a variety of times. Sometimes these differences are inconsequential, on other occasions the differences, or the inability to explain the differences, are of some significance.
31. I note the following matters.
32. First, [h]e told me that when the SLA attacked his village in 2006, while much of it was destroyed, the factory he was working was not. I put to him that paragraph 6 of his statement states that the factory was destroyed. I asked him to explain this discrepancy and he told me that while other factories were destroyed, his was not, as it was given protection.
33. Secondly, [h]e told me that in about September 2008 his wife was injured by shrapnel from the bomb in [V]. I put to him that paragraph 9 of his statement states that she was injured in [Y]. I asked him to explain this discrepancy and he told me that two villages are very close, and that the hospital she attended was in [Y].
34. Thirdly, [t]he applicant was released from the village in 2010. Upon his release he had to report to the army head office in [W]. In his statement he says that he had to report back to the camp. I put this inconsistency to him and he said that the office was just outside the camp.
35. Fourthly, [h]e told me that for the first one or two months he did not report because there were bombs. However his statement says that he was too afraid to return to the camp. I put this this [sic] discrepancy to him and he denied that he was afraid to return to the camp. He had no explanation for the discrepancy.
36. I find all these explanations to be unconvincing. I also note that in his maritime arrival interview he said that he received training from the LTTE for one day. In his statement he said that training was one month long.
27 The Tribunal's adverse credibility finding was principally based on the matters it discussed from T[21] to T[35], which did not include any consideration of the particular statement in the maritime arrival interview that the appellant had received training from the LTTE. That is made clear by the first sentence of T[36]. The second sentence of T[36] is by way of further observation. The Tribunal's adverse credibility finding was supported by an independent line of reasoning and facts which could not sensibly be regarded as being affected by any error (if there is one) with respect to the conclusion in the second sentence of T[36].
28 Whilst it is debatable whether there was any real or material inconsistency between the statement the appellant is recorded as having made in his maritime arrival interview and his later statements, the existence of any such inconsistency did not play any material role in the Tribunal's adverse credibility finding. At T[37], the Tribunal concluded:
In circumstances where the applicant admits that he intentionally chose to mislead the Tribunal in his evidence and invented untrue evidence to corroborate his application, and further given his unpersuasive explanations of inconsistencies in his evidence, it is difficult, if not impossible, to be satisfied that the account the applicant gives about his personal circumstances and fears returning to Sri Lanka are true. I consider that the applicant has invented much of his account to improve his chances of being granted protection.
29 Accordingly, ground 1 fail. Neither s 424A nor s 424AA operated to require the Tribunal to give particulars of the record of the appellant's statement at the maritime arrival interview to the appellant. Even if either of those sections did so operate, any failure to comply with those provisions, or any resulting jurisdictional error cannot be regarded as material to the Tribunal's decision: Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 at [29]-[31].