AMZ15 v Minister for Immigration

[2016] FCCA 473

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMZ15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 473

Catchwords:
MIGRATION – Review of decision of former Refugee Review Tribunal – refusal of a protection visa – applicant claiming persecution in Sri Lanka on various bases – applicant’s claims of harm not believed – whether the Tribunal breached s.425 of the Migration Act 1958 (Cth), made an irrational or illogical decision, made findings without probative evidence or made an unreasonable decision considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 425

Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510
Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332

Minister for Immigration v SCAR [2003] FCAFC 126
Minister for Immigration v SZMDS [2010] HCA 16, (2010) 240 CLR 611
NABE v Minister for Immigration (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Re Conviction of Chamberlain (1988) 93 FLR 239
SZBEL v Minister for Immigration [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515
SZMWQ v Minister for Immigration [2010] FCAFC 97; (2010) 187 FCR 109
SZTAP v Minister for Immigration [2015] FCAFC 175

Applicant: AMZ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1072 of 2015

Judgment of: Judge Driver

Hearing date: 4 March 2016

Delivered at: Sydney

Delivered on: 4 April 2016

REPRESENTATION

Counsel for the Applicant: Mr S Tully

Solicitors for the Applicant: Legal Aid Commission of NSW

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The name of the second respondent is amended to the “Administrative Appeals Tribunal”.

2. The application as amended on 18 December 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1072 of 2015

AMZ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As corrected)

Introduction and background

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 13 March 2015.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The following statement of background facts concerning the applicant’s claims for protection and the decision of the Tribunal on them are derived from the submissions of the parties.

3. The applicant is a citizen of Sri Lanka, who arrived in Australia on 16 July 2012, at Christmas Island, as an unauthorised maritime arrival. On 4 September 2012, the applicant participated in an interview with an officer of the Minister’s Department[1], following which, on 23 November 2012, the applicant lodged an application for a protection visa[2].  The applicant claimed to fear persecution in Sri Lanka for reason of his Tamil race, an imputed political opinion associated with his brother-in-law whom he claimed was involved in the Liberation Tigers of Tamil Eelam (LTTE), and his membership of two particular social groups, “Tamil men who have either been active or suspected to be active in the LTTE or affiliated with the LTTE” and “Tamil men who have escaped and have claimed asylum in a western country”.

   [1] Court Book (CB) 1-19

   [2] CB 28-83

4. The applicant claimed that his brother-in-law had been a member of the LTTE, who was killed during the conflict in Sri Lanka. Following the cessation of the conflict in 2009, the applicant claimed that his family home was attended by members of the Sri Lankan Army, who witnessed the applicant and his wife paying tribute to the applicant’s brother-in-law, and from that point he was suspected of being an LTTE supporter himself.  The applicant claimed that he went into hiding, and that he sent his son to Saudi Arabia.  The applicant claimed that he had suffered difficulties as a consequence of these matters, including being taken in round-ups, being beaten, and the loss of his business, involving long term intimidation and harassment.  The applicant claimed to have witnessed riots and military conflict during the civil war.

5. On 21 August 2013, a delegate of the Minister decided to refuse to grant the applicant a protection visa[3].

   [3] CB 165-193

6. On 28 August 2013, the applicant applied to the Tribunal for review of the delegate’s decision[4]. On 19 December 2014, the Tribunal invited the applicant to appear at a hearing to give evidence and present arguments[5], which was held on 30 January 2015[6]. The applicant provided extensive documentation to the Tribunal for its consideration, including medical evidence relating to the applicant:

   a)a transfer/discharge summary indicating that the applicant was voluntarily admitted to Cumberland Hospital for 11 days during October 2014 after having previously been admitted to Logan Hospital for seven days in December 2013.  His son had taken the applicant to the hospital given a “declining mental state”.  The applicant reported not sleeping because he was hearing voices telling him that he and his son would be killed.  He was on medication and diagnosed as having a reactive mood, adjustment disorder, PTSD and generalised anxiety disorder;

   b)a letter from Auburn Health Care Centre indicating that the applicant was suffering depression and PTSD and being prescribed daily medication.

   [4] CB 194-199

   [5] CB 211-212

   [6] CB 220

Decision of the Tribunal

1. The Tribunal’s decision record is reproduced at CB 286-301.

2. Having questioned the applicant about his claims, the Tribunal concluded that the applicant was not a witness of truth[7]. The Tribunal found the applicant’s presentation of evidence at the hearing to be vague, and inconsistent with his written claims made to the Department. The Tribunal found that events described in the applicant’s written claims to the Department were not mentioned by the applicant at the Tribunal hearing[8].

   [7] CB 293 at [32], CB 294 at [35]

   [8] CB 291 at [22]

3. The applicant, who was represented by a migration agent at the Tribunal hearing, asserted that his difficulties in giving evidence were associated with his mental health state. The Tribunal permitted the applicant to submit additional documentary evidence relating to the applicant’s mental state, which occurred.  This included:

   a)an accompanying discharge summary from Logan Hospital[9] indicating that the applicant was voluntary admitted for seven days in December 2013.  He was sleeping with a knife under his pillow for self-protection; heard voices saying that they wanted to kill him; was experiencing headaches, tiredness and weakness; was eating separately because he believed his son was attempting to poison him; and his wife was threatened with rape or death.  Notes indicate agitation, auditory hallucinations, paranoia, hypertension and psychosis.  Medication was prescribed;

   b)a Summary of Treatment from NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) dated January 2015[10].  After several sessions, a counsellor indicated that the applicant reported stress and anxiety but responded well to counselling and required ongoing treatment.

   [9] CB 229 - 234

   [10] CB 234-237

4. The Tribunal considered the additional material, which it accepted demonstrated that the applicant suffered from post-traumatic stress disorder (PTSD) and major depressive disorder. However, the Tribunal concluded that the inconsistencies in the applicant’s account related to fundamental matters in his life about which he could be reasonably expected to give consistent evidence[11].

   [11] CB 292 at [29]

5. The Tribunal had regard to country information before it, and concluded that the applicant did not have a well-founded fear of persecution for a Convention reason, including that the applicant lacked a profile that would put him at particular risk[12] and that he would not face harm for leaving Sri Lanka illegally[13]. For similar reasons, the Tribunal was not satisfied that the applicant was entitled to complementary protection pursuant to s.36(2)(aa) of the Migration Act 1958 (Migration Act)[14].

   [12] CB 297 at [44]

   [13] CB 297-298 at [45]-[46]

   [14] CB 300 at [59]

6. The Tribunal affirmed the decision under review.

The judicial review application

1. These proceedings began with a show cause application filed on 17 April 2015.  Pursuant to orders made by a Registrar on 14 May 2015, the matter was listed for a show cause hearing on 4 March 2016 at 9.30am.  Subsequently, the applicant obtained legal representation and the parties sought a variation to those orders.  On 17 December 2015 I vacated three orders made by the Registrar and gave the applicant a further opportunity to file and serve an amended application and affidavit evidence.  The applicant now relies upon an amended application filed on 18 December 2015.  There are four particularised grounds in that application:

   The Refugee Review Tribunal (the tribunal) constructively failed to exercise its jurisdiction under the Migration Act 1958 (Cth) (the Act) and/or its decision the subject of this application is affected by jurisdictional error because:

   1. The tribunal failed to comply with s 425(1) of the Act.

   Particulars

   (a) as indicated by [29] of its decision, the tribunal considered that the applicant was not credible because he could be reasonably expected to give a consistent account about “fundamental matters in his life”, even if allowance was made for someone in his mental state who, as assessed by the medical evidence could have difficulty consistently recalling when certain events occurred.

   (b) as indicated by [36] and [58] of its decision, the tribunal, when assessing the risk of harm to the applicant upon his return to Sri Lanka, considered that:

   (i)      the applicant’s mental state could “possibly” improve when uncertainty about his immigration status was resolved; and

   (ii)     the applicant would have the support of family to help him access any treatment he may need for his mental state.

   (c) (a) and (b) were considered by the tribunal to be issues arising in relation to the decision under review.

   (d) these issues were not obviously open on the known material.

   (e) the applicant had not been invited by the tribunal to give evidence and present arguments in relation to any of these issues.

   2.      The decision was illogical or irrational.

   Particulars

   (a) at [28]-[29] and [58] of its decision, the tribunal accepted that the applicant had been assessed as suffering chronic post-traumatic stress and major depressive disorders.

   (b) at [29] of its decision, the tribunal:

   (i)      accepted that the applicant could have difficulty recalling certain events, including consistently recalling when they occurred;

   (ii)     made allowance for someone with the applicant’s mental state, as assessed by his medical evidence; but

   (iii)   found that inconsistencies in the applicant’s account related to “fundamental matters in his life about which he can be reasonably expected to give a consistent account”.

   (c) it was not open to the tribunal to engage in this process of reasoning and make the finding that it did on the material before it, including because:

   (i)      there was only one conclusion open on the evidence before the tribunal – that the applicant could not be reasonably expected to give a consistent account, including about “fundamental matters in his life” or any other matter – and that conclusion was not reached; or

   (ii)     the decision that the tribunal came to – that the applicant could be reasonably expected to give a consistent account about “fundamental matters in his life” – was not open to it; or

   (iii)   there is no logical connection between the evidence before the tribunal (including the medical evidence about the applicant’s mental condition and oral evidence he provided at hearing) and the inference made by the tribunal that the applicant could be reasonably expected to give a consistent account of “fundamental matters in his life”.

   3. The tribunal made findings which were critical steps but lacked probative evidence.

   Particulars

   (a) at [29] of its decision, the tribunal found that inconsistencies in the applicant’s account related to “fundamental matters in his life about which he can be reasonably expected to give a consistent account”.

   (b) at [36] of its decision, the tribunal found that:

   (i)      “[p]ossibly, with the uncertainty about his immigration status resolved, his mental state could well improve”; and

   (ii)     “on return to Sri Lanka, he will have the support of family to help him access any treatment he may need for his mental state”.

   (c)     at [58] of its decision, the tribunal found that:

   (i)      “quite possibly, with the applicant’s immigration status resolved, his mental state may improve on return to Sri Lanka where he will be able to reunite with and have the support of his family members”; and

   (ii)     “they can help him to access any help he may need for his mental state”.

   (d) there was no probative evidence or other basis in the material before the tribunal to logically support any of those findings; and

   (e) each and any of these findings were critical steps in the tribunal’s ultimate conclusion.

   4.      The decision was legally unreasonable.

   Particulars

   (a) at [29] of its decision, the tribunal decided that inconsistencies in the applicant’s account related to “fundamental matters in his life about which he can be reasonably expected to give a consistent account”, “even making allowances for” someone in his mental state, as assessed by the medical evidence, having difficulty recalling certain events, including consistently recalling when they occurred.

   (b) at [36] of its decision, the tribunal decided that:

   (i)      “[p]ossibly, with the uncertainty about his immigration status resolved, his mental state could well improve”; and

   (ii)     “on return to Sri Lanka, he will have the support of family to help him access any treatment he may need for his mental state”.

   (c) at [58] of its decision, the tribunal decided that:

   (i)      “quite possibly, with the applicant’s immigration status resolved, his mental state may improve on return to Sri Lanka here he will be able to reunite with and have the support of his family members”; and

   (ii)     “they can help him to access any help he may need for his mental state”.

   (d) being part of its reasoning process, there was no evident and intelligible justification for the tribunal’s exercise of power.

2. By agreement of the parties, the matter was heard on a final basis on 4 March 2016. 

3. I have before me as evidence the court book filed on 12 June 2015. 

4. I also received the affidavit of Elizabeth Biok made on 17 December 2015, to which is annexed a transcript of the hearing conducted by the Tribunal on 30 January 2015. 

5. The applicant and the Minister filed helpful written submissions and also made oral submissions at the trial of the matter. 

Consideration

Ground 1 – did the Tribunal breach s.425 of the Migration Act?

1. The applicant takes issue with [29] of the Tribunal’s decision record[15]:

   The Tribunal has carefully considered this medical evidence and the applicant’s own claims about his mental state. The Tribunal can appreciate how someone in the applicant’s mental state, as assessed in his medical evidence, could have difficulty recalling certain events including consistently recalling when they occurred. However, even making allowance for this, the inconsistencies in his account relate to fundamental matters in his life about which he can be reasonably expected to give a consistent account. The Tribunal does not accept that these inconsistencies can be explained or excused due to his mental state.

   [15] CB 292

2. The applicant also takes issue with the Tribunal’s decision at [36][16] and [58][17]:

   The fact the applicant has been assessed as having post traumatic stress and major depressive disorders does not demonstrate that there is a real chance he will suffer serious harm (including for the essential and significant reason of a convention ground). Possibly, with the uncertainty about his immigration status resolved, his mental state could well improve.  While recommendations were made in the medical evidence that he continue to receive treatment, on return to Sri Lanka he will have the support of family to help him access any treatment he may need for his mental state. No specific claim was made (and there is no evidence) that this would be denied him (including for the essential and significant reason of a convention ground). The Tribunal now turns to an assessment of the risk of the applicant suffering serious harm in Sri Lanka based on the only grounds of his protection claims which the Tribunal accepts, namely, that he is a Hindu Tamil man from Batticaloa who left Sri Lanka illegally and will return there as a failed asylum seeker from Australia.

   Finally, the Tribunal notes that the applicant has been assessed as suffering chronic posttraumatic stress and major depressive disorders. However, there is no credible evidence before the Tribunal as to the cause of those conditions. Quite possibly, with the applicant’s immigration status resolved, his mental state may improve on return to Sri Lanka where he will be able to reunite with and have the support of his family members. They can help him to access any help he may need for his mental state and there is no evidence (nor was any claim made) that such help would be intentionally denied this applicant.

   [16] CB 294

   [17] CB 300

3. The applicant contends that the issues raised by the Tribunal were not obviously open on the known material and the applicant had not been invited to give evidence and present arguments in relation to those issues. This is said to involve a breach of s.425 of the Migration Act by reference to the decision of the High Court of Australia in SZBEL v Minister for Immigration[18].  I prefer the submissions of the Minister on this issue.

   [18] [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515 at [33]-[40]

4. The premise of the first ground is that the Tribunal’s findings at [29], [36] and [58] of its decision record made reference to issues arising in relation to the decision under review that were not put to the applicant during the Tribunal hearing, and therefore the applicant was denied a real and meaningful hearing to which s.425 required he be invited.

5. Turning first to [29] of the decision record, the applicant asserts that by reference to this paragraph, it was an issue that the Tribunal was bound to raise with the applicant at hearing the fact that it would be reasonably expected that the applicant would be able to recall fundamental matters in his life. However, this was not an issue arising on the review. It was a reason given by the Tribunal for rejecting the applicant’s submission that the inconsistencies in his evidence could be explained by his affected mental state. The authorities are clear that it is not necessary for the Tribunal, under s.425, to give an applicant advance warning of an adverse finding, unless not obviously open on the known materials, or to give an applicant a running commentary on his or her evidence[19].

   [19] SZBEL v Minister for Immigration [2006] HCA 63; (2006) 231 ALR 592

6. Further, the absence of any findings by the delegate about the applicant’s mental state (which is unsurprising, considering that the applicant did not appear to advance the point before the delegate) means that the applicant cannot have expected that his evidence and submissions about his mental state would be uncritically accepted by the Tribunal. In raising the issue for the first time before the Tribunal, the applicant’s mental state was an issue arising on the review. The Tribunal did not need to give advance warning to the applicant that it might not accept his claims in relation to the mental state issue.

1. Turning to [36] and [58] of the Tribunal’s decision record, the applicant asserts that it was an issue arising on the review that the applicant’s mental health could improve if he returned to Sri Lanka, and that his family would be able to assist him with mental health treatment. The Full Federal Court said of s.425 last year that “what is, and what is not, an issue for the purposes of s.425(1) of the Act may be affected by what matters the Tribunal considers may be important to its decision: SZBEL at [47]”[20].  In the present case, the matters identified by the applicant as arising from [36] and [58] of the Tribunal’s decision record were not, in my opinion, issues necessitating ventilation at the hearing.

   [20] SZTAP v Minister for Immigration [2015] FCAFC 175 at [79] (Robertson and Kerr JJ)

2. I am unwilling to infer that the Tribunal considered the question of the applicant’s improved health upon return to Sri Lanka, or his family’s capacity or willingness to assist his treatment, were relevant to the review.  These were merely observations about hypothetical possibilities.  This is evident in the manner of the Tribunal’s expression: “Possibly … his mental state could well improve.”  The observations are not to be bound together with a relevant finding in [36] that no claim was made, or arose, that the applicant would be denied mental health treatment for a Convention or other reason entitling the applicant to protection. The applicant did not make any claim that his mental health state was relevant to his substantive claims for protection, and it is an improper reading of the Tribunal’s reasons at [36] that the Tribunal was addressing a claim expressly raised or arising squarely on the materials. On the contrary, the Tribunal explicitly stated that no such claim that the applicant would be denied treatment in Sri Lanka for a Convention reason was made.

Ground 2 – was the Tribunal decision illogical or irrational?

1. In addition to [29] and [58] of the Tribunal decision, by this ground the applicant also takes issue with the Tribunal’s decision at [28][21]:

   According to this evidence, symptoms reported to a psychologist by the applicant reflected, in the opinion of that psychologist, chronic post-traumatic stress disorder and major depressive disorder. This was said to be due to claims the applicant made about his past difficulties with the Army in Sri Lanka and ongoing worry about returning there. This caused the applicant to have difficulty recalling certain things and in overall functioning. The applicant was admitted to hospital in December 2013 and in November 2014 due to his mental health for which he was taking medication and for which the psychologist recommended he continue to receive treatment.

   [21] CB 292

2. In Minister for Immigration v SZMDS[22] Crennan and Bell JJ stated at [131] that:

   the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.

   [22] [2010] HCA 16, (2010) 240 CLR 611

3. At [135]:

   Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

4. The applicant proceeds to develop a complex argument of logical analysis of these aspects of the Tribunal’s reasoning.  Again, however, I prefer the submissions of the Minister on this ground.

5. There was no illogicality or irrationality in the Tribunal’s reasoning or conclusion in respect of its findings at [29]. In developing the argument in his written submissions, the applicant makes numerous assumptions about the applicant, his capacity to have given evidence, the content of the evidence before the Tribunal, and the options open to the Tribunal in assessing the evidence. The Tribunal’s findings at [29] are clear, and are not on any reading illogical or irrational.

6. The acceptance of the applicant’s argument would produce a conclusion that, upon presentation of the medical evidence, the Tribunal was in effect bound to either avoid making a finding that the inconsistencies in the applicant’s evidence supported a conclusion that the claims were false, or to adjourn the review and the hearing pending confirmation that the applicant would be of sufficient capacity to participate in the hearing.

7. The applicant’s approach, at least in this case, unjustifiably confines the Tribunal’s area of decisional freedom.  Unlike the circumstances that arose for instance in Minister for Immigration v SCAR[23], the Tribunal was alive to the applicant’s mental health problems, and in particular detail, having had the benefit of reading various medical reports about the applicant’s symptomology and treatment recommendations. The Tribunal’s statutory function was to determine, in full knowledge of the relevant material submitted to it by the applicant, whether the applicant’s evidence was given consistently and truthfully, and consequently, whether it should be believed. This process of determination is at the heart of the Tribunal’s review function.

   [23] [2003] FCAFC 126

8. Adopting, as the applicant does in his written submissions, a strict logic approach to interpreting the Tribunal’s reasons is prone to lead to erroneous consideration of the actual reasons given by the Tribunal, understood in context. The Tribunal did not find, as the applicant appears to assert, that the applicant had PTSD, that people with PTSD cannot consistently recall any events, and the applicant was expected to be able to recall fundamental matters in his life. A fair reading of the Tribunal’s reasons reveals rather that the Tribunal accepted the applicant had mental health issues, which could affect a person’s ability to recall certain events consistently, but that the applicant was reasonably expected to have been able to recall momentous events in his life notwithstanding his PTSD.  There was nothing illogical about this reasoning.

9. It was open for the Tribunal, having regard to the evidence before it as to the applicant’s mental state, to assess whether the evident inconsistencies and vagueness in the applicant’s evidence was explicable by virtue of his mental health condition, or whether it was indicative of a person who was not giving a truthful account of his claims. The Tribunal reached the latter conclusion. It formed this view upon the basis of its evaluation of the applicant’s evidence, and the manner of its presentation[24]. Unless it could be said that the former option was the only option open on the evidence, and the Tribunal failed to take that option, then the Tribunal’s decision is not properly characterised as irrational or illogical in accordance with Crennan and Bell JJ’s judgment in SZMDS.

   [24] CB 293 at [31]

Ground 3 – did the Tribunal make findings unsupported by any probative evidence?

1. Pursuant to this ground, the applicant once again takes issue with [29], [36] and [58] of the Tribunal decision. 

2. The making of a finding of fact, which is a critical step in the ultimate conclusion reached, and for which there is no evidence, can constitute jurisdictional error[25].

   [25] SZMWQ v Minister for Immigration[2010] FCAFC 97; (2010) 187 FCR 109 at 144 [125]

3. In Re Conviction of Chamberlain[26], Nader J said:

   It is necessary to understand that, in referring to the findings of the Commission, I am referring to its conclusions respecting the nature and existence of facts.  By a finding of fact, I mean a conclusion of fact together with the more primary facts from which it may have been inferred.  A conclusion of fact includes a conclusion that a doubt exists with respect to the existence of a fact.

   [26] (1988) 93 FLR 239 at 242

4. The applicant notes that, in its reasons at [29] the Tribunal stated that “the inconsistencies in [the applicant’s] account relate to fundamental matters in his life about which he can be reasonably expected to give a consistent account.”  This is said to have been a finding of fact because the Tribunal concluded that the applicant can be reasonably expected to provide a consistent account about “fundamental matters in his life”.  It is said to have been a critical step in the Tribunal’s ultimate conclusion because it was a basis for rejecting the applicant’s explanation for the evidentiary inconsistencies the Tribunal identified in his oral and written evidence.  This led the Tribunal to find that the applicant lacked credibility and was the basis for rejecting his protection claims (particularly imputed political opinion).  The medical evidence about the applicant’s mental state is said to have been crucial because, as observed by the Tribunal at [50], his representative had sought to provide only medical evidence.  The applicant contends that there was not probative evidence or any other basis in the material before the Tribunal to logically support a finding that either a person diagnosed with PTSD generally or the applicant specifically could reasonably be expected to give a consistent account of “fundamental matters” in their lives.  Having regard to the medical evidence before the Tribunal, including the STARTTS report, which the Tribunal indicated it “carefully considered”, such a conclusion was not open to it, in the applicant’s submission.

5. At [36] the Tribunal stated that “[p]ossibly, with the uncertainty about his immigration status resolved his mental state could well improve”.  At [58] it again said that “quite possibly, with the applicant’s immigration status resolved, his mental state may improve on return to Sri Lanka where he will be able to reunite with and have the support of family members”.  These are said to have been findings of fact because the Tribunal is making a conclusion after having purportedly reviewed the absence of evidence connecting the applicant’s mental condition with his immigration status.  These “findings” are said to have been critical steps in the Tribunal’s ultimate conclusion because they were a basis on which the Tribunal rejected any risk of harm to the applicant upon his return to Sri Lanka.  The applicant submits once again that there was no probative evidence or other basis in the material before it to logically support these “findings”. 

6. At [36] the Tribunal stated that, “[w]hile recommendations were made in the medical evidence that he continue to receive treatment, on return to Sri Lanka he will have the support of family to help him access any treatment he may need for his mental state”.  Then again at [58] the Tribunal indicated that on return to Sri Lanka the applicant “will be able to reunite with and have the support of his family members.  They can help him to access any help he may need for his mental state…”  These are also said to have been findings of fact because the Tribunal “positively concluded” that the applicant “would” have family support to help him access mental health treatment.  They are said have been critical steps in the Tribunal’s ultimate conclusion because:

   a)they are the basis upon which the Tribunal “overcomes medical recommendations” that the applicant continue to receive treatment; and

   b)they are a foundation upon which the Tribunal “rejects a plausible basis for harm” on his return to Sri Lanka (namely, by reason of his PTSD and depressive disorder assessment).  Again, the applicant submits that there was no probative evidence or other basis in the material before the Tribunal to logically support these “findings”. 

7. On this ground also, I prefer the submissions of the Minister.

8. The finding of fact the subject of the third ground is the Tribunal’s conclusion at [29] that the applicant could reasonably have been expected to give consistent evidence about fundamental matters in his life. This “finding”, and the finding that followed it, that the “Tribunal does not accept that these inconsistencies can be explained or excused due to his mental state” were not findings of fact requiring probative evidence. Rather each was a conclusion, drawn on the basis of available evidence, rejecting the applicant’s explanation for the inconsistencies in the presentation of his evidence. 

9. If an applicant gives evidence to the Tribunal that is inconsistent with earlier evidence given, it is generally open to the Tribunal to find the applicant’s evidence to be untruthful by virtue of the inconsistency. It is a matter of assessment for the Tribunal. Similarly here, the Tribunal was not bound to accept the applicant’s submission that the inconsistencies in his evidence were solely attributable to his mental state. It was a matter for the Tribunal to be satisfied of the applicant’s submission, and the Tribunal came to a conclusion that it was entitled to draw. The weighing and evaluation of evidence is a matter for the Tribunal and not susceptible to review in judicial review proceedings for jurisdictional error[27]. 

   [27] Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510, [197] (Gummow and Hayne JJ)

10. As noted above, the Tribunal’s findings at [36] and [58] regarding the applicant’s improved mental state if he returned to Sri Lanka were not critical findings in the Tribunal’s reasoning that the applicant was not owed protection obligations, as explained above. The possibility of the improvement of the applicant’s mental state upon return to Sri Lanka did not bear on the question of whether the applicant had a well-founded fear of persecution. Once again, the Tribunal's findings regarding the applicant’s family support in Sri Lanka were not critical findings that bore on the question of the applicant’s protection claims. The “findings” identified in [36] and [58] were not made in respect of any claim for protection advanced by the applicant or arising squarely on the materials[28].

    [28] NABE v Minister for Immigration (No 2) [2004] FCAFC 263; (2004) 144 FCR 1

11. The only findings in [36] that pertain to the applicant’s protection claims are that the applicant’s assessment of suffering PTSD and major depressive disorders did not demonstrate a real chance of him suffering serious harm for a Convention reason, and secondly, that there was no claim made (which was correct) that the applicant would be deprived of mental health treatment in Sri Lanka for a Convention reason. Paragraph [56] simply records the Tribunal’s finding that there was no credible evidence as to the cause of the applicant’s mental health problems, constituting a finding that the applicant was not entitled to complementary protection because of his mental health state.

Ground 4 – was the Tribunal decision legally unreasonable?

1. This ground can be dealt with shortly and for essentially the same reasons as I rejected Ground 2.

2. Leaving aside the question of the extent to which the High Court’s judgment in Minister for Immigration v Li[29] (made up, as it was, of three distinct sets of reasons) applies to the formation of a decision-maker’s satisfaction under s.65 of the Migration Act, and not just to the exercise of statutory discretion, in any event, and for the reasons set out above addressing the second ground, the Tribunal’s decision was not legally unreasonable as asserted by the applicant.

   [29] [2013] HCA 18; (2013) 249 CLR 332

Conclusion

1. The applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.

2. I will hear the parties as to costs.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Diver

Date: 7 April 2016

CORRECTIONS

1.  Page 8, line 13   delete “evidence”, insert “evident”