CJC16 v Minister for Immigration
[2020] FCCA 325
•27 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CJC16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 325 |
| Catchwords: MIGRATION – Protection visa – whether Tribunal applied UNHRC guidelines and displaced the criterion to be applied under s 36(2)(a) of the Act in the consideration whether it was satisfied that the applicant met criteria for protection visa – no error demonstrated. MIGRATION – Protection visa – whether applicant was denied procedural fairness in the manner in which the Tribunal employed transcript of a second hearing when making findings following a third hearing, upon the issues arising in relation the decision under review – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.30, 65, 422B, 425, 430, 474, 476 |
| Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 ASB17 v Minister for Home Affairs [2019] FCAFC 38 BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 Benrabah v Minister for Home Affairs [2019] FCA 521 BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310 BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 CGA15 v Minister for Home Affairs [2019] FCAFC 46 Craig v South Australia (1995) 184 CLR 163 CVB16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1392 DAO16 v Minister for Immigration and Border Protection [2018) 258 FCR 175 DQM18 v Minister for Home Affairs [2019] FCA 852 DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33 FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1369 Minister for Immigration and Border Protection v Gill [2019] FCAFC 9 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 Minister for Immigration and Border Protection v SZUXN [2016] 69 AAR 210 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 SZRMQ v Minister for Immigration (2013) 219 FCR 212 Tanji v Minister for Immigration and Multicultural Affairs [2001] FCA 1100 |
| Applicant: | CJC16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1814 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 5 February 2020 |
| Date of Last Submission: | 5 February 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 27 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Dr A McBeth |
| Solicitors for the Applicant: | Wimal & Associates |
| Counsel for the Respondents: | Mr M Hosking |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The amended application dated 18 December 2019 be dismissed.
The applicant pay the costs of the first respondent fixed at $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1814 of 2016
| CJC16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application dated 18 December 2019, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 4 August 2016 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Protection visa (visa) pursuant to s 65 of the Migration Act 1958 (Act).
For the reasons which follow I have concluded that the application should be dismissed. In summary, I have concluded that although a finding made by the Tribunal along the way to its conclusion that the applicant did not face a ‘real chance’ of being detained or persecuted once he had been released into the community was irrational, the finding was not tainted by extreme irrationality. Properly understood, the reasoning demonstrates that the Tribunal found, as the applicant did not have a relevant profile with Sri Lankan authorities, he would be of no real interest once released into the community. I have also concluded that the Tribunal did not apply certain guidelines and so displace the criterion to be applied under s 36(2)(a) of the Act in the consideration whether it was satisfied that the applicant met that criteria. Further, I do not accept that the applicant was denied procedural fairness in the manner in which the Tribunal employed the transcript of a second hearing when making findings following a third hearing upon the issues arising in relation the decision under review.
Background
On 7 July 2012, the applicant, a male Sri Lankan citizen of Tamil ethnicity and Hindu religion, now aged 41 years, first arrived in Australia at Christmas Island as an irregular maritime arrival. After his initial application, he advised the Department of a new name and date of birth.
On 22 November 2012, the applicant applied for the visa, providing a statement of claims dated 5 November 2012, stating that:
a)he was born in the village of Kinniadi, Batticaloa District (where his wife, child, mother and siblings were still living);
b)his village had been under the control of the Liberation Tigers of Tamil Eelam (LTTE), but after the civil war, Tamils, including himself, had been rounded up by the Sri Lankan Army and taken to the Criminal Investigation Unit (CID);
c)he was arrested and then taken to an army camp on four or five occasions, where he was beaten;
d)he was also stopped by CID officers in Vaheneri (whilst transporting a load of sand on his tractor), who then detained and interrogated him for two hours;
e)in the year before he left Sri Lanka, he was called and questioned about LTTE activities in his village by the CID four or five times;
f)about four or five months before he left Sri Lanka, he was interrogated and physically beaten by the CID;
g)he could not relocate within Sri Lanka because the army and CID were present throughout the country, and as a Tamil he would suffer harm in any area inhabited by Tamils.
The visa application and statement of claims were completed with the assistance of an interpreter.
On 19 July 2013, the applicant’s representative added further claims to the visa application, including that: (1) following his arrival at Christmas Island, a photograph of him had been posted on the internet; (2) he had been working concurrently as both a bus and tractor driver and had been stopped by authorities in the course of doing so; (3) he satisfied a UNHRC category for protection (being that he was perceived to be a former LTTE supporter).
Delegate’s decision
On 14 April 2014, the delegate made a decision to refuse to grant the visa. In making findings of fact and when assessing the applicant’s credibility, the delegate:
a)accepted the applicant was of Tamil ethnicity and was from the eastern Batticaloa region of Sri Lanka where he had resided with his wife and daughter;
b)found that the applicant had given contradictory information relating to his relocation between different villages and further found that he had relocated following his marriage (and not because he had been displaced by the army);
c)while having some concerns, including that he had changed some of his testimony, accepted the applicant had travelled to Saudi Arabia in 2006, returning to Sri Lanka in 2007, and that he was no longer in possession of his passport;
d)concerning his claim to have been arbitrarily detained after the LTTE defeat, found that the applicant had given conflicting information but accepted that, after the end of the war, it was possible he had been detained for a short time by the Sri Lankan army. However, the delegate did not accept that the applicant had a profile that caused him to be of serious interest to the authorities or that he had been subject to ongoing harassment at their hands;
e)accepted the applicant’s claims that he worked as a bus driver, including between Batticaloa and Colombo (a nine-hour one way trip which required that he sleep overnight in Colombo);
f)based on country information respecting the progressive removal of many checkpoints and the relaxation in security checks, did not consider it plausible the applicant was under suspicion as either an LTTE member or supporter (as he had travelled regularly on the Batticaloa and Colombo bus route between 2007 and 2012);
g)was not satisfied the applicant had been stopped and detained while carrying a tractor load of sand in 2011 (being within 12 months of his departure from Sri Lanka);
h)examined the applicant’s claims to having been stopped in the period 1994-2007 (a period that was considered by the UNHCR to have involved the risk of human rights abuses by Sri Lankan authorities of Tamils suspected of having LTTE affiliations);
i)observed that the applicant had been able to lawfully depart Sri Lanka to Saudi Arabia, returning in 2007, and then obtain the re-issue of a driving license and remain in employment as a bus driver from 2007 until his departure in 2012;
j)identified these matters, coupled with the applicant’s ability to obtain a passport (and the ability of his wife to obtain a birth certificate on his behalf), as contributing to the assessment that the applicant was not of interest to the authorities.
Concerning the question of perceived links to the LTTE, the applicant stated that he had not been of interest to the authorities until after his return from Saudi Arabia (i.e. 2007). He also stated that he worked as a bus driver from 2007-2012, when he had departed Sri Lanka. The delegate did not accept the applicant would have been able to work as a bus driver until his departure from Sri Lanka in 2012 if the authorities suspected he had links to the LTTE. Nor did the delegate accept he had been questioned by the CID four or five times in the 12 months before his departure or, as he did not have a profile of interest, that his wife had been questioned as to his whereabouts.
In summary, the delegate did not consider that the applicant was of interest to the Sri Lankan authorities, including the CID, by reason of his having previously lived in an LTTE controlled village or due to a perception that he was involved in activities supporting the LTTE after the war. The delegate did not regard as plausible the applicant’s claim to be of interest to the Sri Lankan authorities due to perceived LTTE links, and identified a variety of factors which supported that conclusion. Of particular relevance to the delegate was that the applicant had been able to work continuously as a bus driver in the period from 2007 to 2012 and, had he been of interest as having LTTE links, it was not plausible he would have been able to undertake this work, including the delivery of sand over such a prolonged period.
The delegate concluded that the applicant was not a person in respect of whom Australia owed protection obligations, either as a refugee or by way of complementary protection.
Tribunal’s hearings
On 19 May 2015, the applicant sought a review of the delegate’s decision by the Tribunal. On 14 January 2016, the applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments on the issues arising in relation to the decision under review. Somewhat curiously, when responding to that invitation, the applicant’s lawyer indicated that no interpreter was required.
On 7 March 2016, the applicant furnished a medical certificate that he would be unable to work for the period 7-8 March 2018 due to a ‘medical condition’ (otherwise undescribed). On 8 March 2016, the applicant attended a hearing before the Tribunal. However, it appears that this hearing was adjourned because of the death of a close relative of his former representative. On the same date, the Tribunal wrote to the applicant adjourning the hearing to 21 March 2016.
The Tribunal then conducted hearings which occurred over three days.
On 18 March 2016, the applicant instructed lawyers to represent him in his application for review and on that date his lawyers wrote to the Tribunal requesting a three week adjournment. The Tribunal replied, advising that the request had been declined. The hearing on 21 March 2016 proceeded for a brief period. The hearing record contains an entry that the interpreter was not NAATI accredited, it also records that the hearing was of ~ one hours duration. The matter was adjourned and ultimately refixed for hearing on 21 April 2016.
On 21 April 2016, the applicant and his lawyer attended a further hearing. After two and a half hours, this hearing was also adjourned following the expression of concern by the applicant’s lawyer about difficulties in the process of interpretation. On 28 April 2016, the applicant’s lawyer wrote to the Tribunal objecting to the quality of the interpreting services and contended there should be a new hearing using a different interpreter and that the existing evidence should be ‘struck out.’ Following a further request made by the applicant’s representative on 9 May 2016, a new interpreter was arranged for a third hearing.
On 11 May 2016, the applicant attended a further hearing before the Tribunal and was assisted by his representative and a different interpreter.
No complaint was raised in relation to the conduct of the third hearing and, in particular, as to the quality of the interpretation services that were provided to the applicant at that hearing.
On 4 August 2016, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a Protection visa. The Tribunal provided a statement of its reasons for doing so (Reasons).
By way of overview, a four year delay was encountered in the period between lodgement of the visa application and the making of a decision by the Tribunal affirming the delegate’s decision to refuse a visa. Correspondingly, a four year delay has occurred between the date of that decision and the determination of this application for judicial review.
Tribunal’s decision
The Tribunal provided a background of the proceeding, including the reasons for various adjournments: [1]-[8], [41], [43]. It set out the applicable law regarding the refugee criterion and the complementary protection criterion: [9]-[21]. The Tribunal undertook a detailed summary of the applicant’s claims to protection: [22]-[39].
For the purposes of its decision, the Tribunal took into account documents submitted by the applicant, together with the matters addressed in his interview with the delegate which it had listened to: [40]. The Tribunal then described the oral and written evidence given by the applicant over the course of three hearings and how it proposed to deal with the transcript of evidence of the second hearing: [41]-[65]. The applicant’s complaint in relation to the Tribunal’s decision in using the transcript of the second hearing is addressed in relation to Ground 3.
In undertaking its assessment of the applicant’s claims, relevantly, the Tribunal found that:
a)the applicant had provided consistent testimony throughout his interview with the delegate and his Tribunal hearings: [71];
b)the applicant was a Tamil of Hindu religion who was married with a daughter, he drove buses and tractors, and was also a manual labourer who travelled to Saudi Arabia for work in 2006 until re-entering Sri Lanka in 2007. The Tribunal found that the applicant had encountered no difficulties with the authorities in so returning to Sri Lanka in 2007: [72]-[74];
c)the applicant’s house had been destroyed by fire during fighting between the army and LTTE, that his wife and daughter had moved from different residences within Eastern Province following his departure to Australia, and that the Sri Lankan authorities were aware he had departed the country: [75]-[76];
d)it did not accept the applicant’s claims to having become a person of interest to the Sri Lankan authorities in 2012: [77].
The Tribunal proceeded to address each of the applicant’s claims to fear harm and reasoned as follows:
a)Claim to fear harm from Muslims: the Tribunal accepted that a fellow Sri Lankan employee who was Muslim had insulted and ridiculed him which led to both his resignation as a bus driver (and being asked to leave on the baseless ground that he was thought to be associated with the LTTE by reason of his ethnicity). The Tribunal acknowledged that the applicant had experienced workplace difficulties from at least one Muslim because of his ethnicity and that he had some subjective fears of harm from Sri Lankan Muslims due to his Tamil ethnicity. It also noted country information indicating that it was common for Tamils and Muslims to live within close proximity and that because ethnic tensions were rare, there was no objective basis for a well-founded fear of persecution by Sri Lankan Muslims towards him: [79]-[81];
b)Suspected LTTE affiliation: the Tribunal’s treatment of these matters underlies Grounds 1-2 and they are addressed below;
c)Risk of harm arising from illegal departure: the Tribunal found that the applicant would not face mistreatment from the Sri Lankan authorities if he were to return as a failed asylum seeker: [97]-[110]. This too forms part of the basis of Ground 1 and is addressed below;
d)Data breach: the basis of this claim was that the applicant said his photograph had been posted on the internet following his arrival at Christmas Island. The claim was rejected in circumstances where the applicant had not produced the photo and the Department had also been unable to locate it: [111]-[113].
As the applicant was found not to have a profile that would be of any concern or interest to the authorities, having rejected his other claims, the Tribunal found that Australia did not owe the applicant protection obligations whether as a refugee or under the complementary protection criterion: [114]-[126]. The Tribunal affirmed the decision to refuse to grant the visa: [127]-[130].
Procedural history
On 24 August 2016, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the applicant to which he exhibited a copy of the Reasons. By this affidavit, the applicant deposed at [4]-[8] as follows:
I say that the Tribunal has accepted that in the past I have been arrested, detained, physically assaulted by the Sri Lankan army, deliberately identified by the Sri Lankan army as a member of the LTTE, that my name and picture was on a wall in the camp and I was required to attend upon the same authorities every week and I stopped these weekly attendances.
The tribunal also accepted that past incidents of harm, intimidation and threats by the authorities were directed to me to intimidate me, because of my ethnicity.
The Tribunal then goes on to say that it is only Tamils who are identified as having connections with the LTTE or another ways opposed to the current Sri Lankan government who face a risk of serious harm in Sri Lanka and not Tamils generally.
The Tribunal then goes on to conclude that whilst I was falsely accused as an LTTE operative, the Tribunal does not accept that I fall within any of the profiles identified by the UNHCR, as being at risk of serious harm.
This is where the Tribunal has erred, because given what has happened in the past I will be identified as a person who had some connection or links to the LTTE and that is why I was detained and when I was released, I was released on a condition that I report weekly and I breached that condition by failing to report on numerous occasions in the authorities followed that breach up by visiting my wife on numerous occasions seeking my whereabouts and that is why I am at risk of serious harm. This is further supported by the Tribunal which concludes that it places some weight on the fact that authorities in rural districts of the East Province have noted my invasion of weekly sign ins and threatened to seriously harm or kill me.
The applicant’s affidavit was made without the use of an interpreter.
By a Response filed on 29 August 2016, the Minister opposed the application on the stated basis that the decision under review was not affected by jurisdictional error.
On 15 February 2017, orders were made, by consent, listing the matter for final hearing.
On 18 December 2019, the applicant filed an amended application for judicial review by which he inserted three new grounds of review, abandoning the original grounds that had been relied upon.
The applicant also filed an affidavit affirmed by his solicitor which exhibited a transcript of the Tribunal hearing dated 21 April 2016 and a report of the UNHCR entitled “Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka” dated December 2012. This affidavit is considered in relation to Ground 3.
Judicial review
If the Tribunal’s decision was a privative clause decision[1], it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[3] Whether it should do so is a separate issue.
[1] Act, s 474(2).
[2]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[3] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[4] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[4]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Consideration
The amended application for review contained 3 grounds of review.
Ground 1 – illogicality/irrationality
Ground 1 of the amended application reads:
The decision of the Tribunal was based on a finding that was irrational and/or a misunderstanding of the claims and evidence before the Tribunal.
Particulars
a) The Tribunal at (108] referred to the applicant as “someone who has not been of interest to the authorities over the last nine years for any reason”.
b) That characterisation was expressly part of the reason for finding that the applicant did not face a real chance of being detained on return to Sri Lanka.
c) The Tribunal's characterisation of the applicant's profile and its finding in reliance on that characterisation were irrational, in that they contradicted and cannot be reconciled with the Tribunal's findings that accepted, inter alia,
i.that the applicant was arrested, detained multiple times and physically assaulted by the Sri Lankan Army;
ii.that members of the Sri Lankan Army deliberately identified the applicant as a member of the LTTE;
iii.that the Sri Lankan Army had the applicant's name and picture on a wall;
iv.that the applicant was required to present himself to an army facility every Sunday to report to the same authorities who had accused him of LTTE sympathies; and
v.the applicant attended every Sunday until the months preceding his departure, when he moved to a relative’s house to evade the authorities.
In substance, Ground 1 sought to impugn the decision on the basis that the Tribunal’s reference to the applicant as “someone who has not been of interest to the authorities over the last nine years for any reason” was an illogical or irrational finding. It made this finding at [108].
Illogicality & irrationality
A conclusion that an administrative decision is tainted by illogicality or irrationality such as to constitute jurisdictional error amounts to a finding that the decision-maker had “failed to observe an implied and inviolable constraint” that its powers be exercised reasonably.[5] The applicant bears the onus of demonstrating that the decision was affected by jurisdictional error.[6]
[5] Minister for Immigration and Border Protection v Gill [2019] FCAFC 9, [7] (The Court).
[6] Ibid, [2019] FCAFC 9, [4].
An applicant who seeks to challenge a finding of fact on the ground that it is irrational or illogical must meet a high standard. Specifically, “if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality . . . could not arise simply because one conclusion has been preferred to another possible conclusion”.[7] Further, even emphatic disagreement with a Tribunal’s reasoning will not be sufficient to show that its reasoning was illogical or irrational in the degree necessary to constitute jurisdictional error.[8] The description of reasoning as irrational or unreasonable may reflect no more than emphatic disagreement with it and that does not suffice.[9] It is the decision which must be affected by jurisdictional error.
[7]CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, 517 [59], citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 648 [131] (Crennan and Bell JJ).
[8]CQG15 (2016) 253 FCR 496, 518 [61]. See also ASB17 v Minister for Home Affairs [2019] FCAFC 38, [62]; Benrabah v Minister for Home Affairs [2019] FCA 521, [39]-[40].
[9]FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1369, [58] (Griffiths J), citing Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, [34].
A decision may also be affected by jurisdictional error if it was based on an illogical or irrational finding of fact made ‘along the way’ to making the decision, including where there is no logical connection between the evidence before the Tribunal and the inferences or conclusions drawn.[10] Counsel for the applicant relied upon Minister for Immigration and Border Protection v SZUXN, where Wigney J had observed that “A decision based on, or flowing from, irrational and illogical reasoning or factual findings is likely to be legally unreasonable and beyond power.”[11] It will be observed that his Honour’s statement of principle was not expressed in absolute terms.
[10]Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [45]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [130] (Crennan and Bell JJ).
[11] [2016] 69 AAR 210, [49]; see also at [54].
In SZUXN, when addressing the need to demonstrate extreme illogicality, Wigney J noted that:[12]
. . . not every lapse in logic in the decision-making process will result in jurisdictional error. If particular findings or reasoning on the way to the decision-maker’s ultimate conclusion and decision are challenged on the basis of illogicality or irrationality, jurisdictional error will not be made out unless it is shown that the findings could not have been made, or the reasoning could not have been employed, by a reasonable or rational decision-maker.
After referring to an oft quoted passage in Minister for Immigration and Citizenship v SZMDS,[13] his Honour continued:[14]
Crennan and Bell JJ found that the impugned finding or reasoning by the Tribunal was not illogical or irrational because on the probative evidence before the Tribunal a logical or rational decision-maker could have come to the same conclusion. Heydon J, who was the other member of the majority in SZMDS, also found that the Tribunal’s reasoning was not illogical because it was a matter about which reasonable minds might differ: the “difference was one of degree, impression and empirical judgment” (at 632[78]). Gummow ACJ and Kiefel J dissented. They found that the Tribunal’s reasoning was illogical. Their Honours nevertheless emphasised that the “critical question” whether a determination of the Tribunal is irrational, illogical and not based on findings or inferences of facts supported by logical grounds “should not receive an affirmative answer that is lightly given” (at 625 [40]).
As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137[148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (at 22-23[84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion
[12] [2016] 69 AAR 210, [50].
[13] (2010) 240 CLR 611, [131] (Crennan and Bell JJ).
[14] [2016] 69 AAR 210, [51].
Upon those principles, Wigney J rejected a submission for the Minister that a decision of the Tribunal could only be overturned on the basis of illogicality or irrationality if it was shown that the end result was one which no logical or rational decision-maker could arrive at, doing so on the basis that “jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings ‘on the way’ to the final conclusion.” His Honour concluded that:[15]
Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result.
There, the illogicality challenge related to adverse credibility findings. Wigney J concluded that, when the Tribunal’s reasoning concerning the subject interview was read fairly and in the context of its overall reasoning, it had not been illogical, irrational or unreasonable for the Tribunal to have paid regard to the absence in the applicant’s statement during an interview addressing a particular topic when assessing his credibility overall.[16]
[15] [2016] 69 AAR 210, [55].
[16] [2016] 69 AAR 210, [59]-[60].
I note that special leave to appeal from SZUXN was refused,[17] and that the statements of principle made in that decision have been endorsed by Full Courts on several occasions. In CQG15 v Minister for Immigration and Border Protection,[18] McKerracher, Griffiths and Rangiah JJ affirmed that even emphatic disagreement with a Tribunal’s reasoning would not be sufficient to make out illogicality.[19] As has been repeatedly stated, extreme illogicality is to be measured within the framework of whether there has been jurisdictional error on the part of the Tribunal and for that reason it is not sufficient that the impugned finding of fact is one on which reasonable minds may differ.[20]
[17] [2017] HCASL 8 (Gageler and Keane JJ).
[18] (2016) 253 FCR 496, [60] (The Court).
[19] (2016) 253 FCR 496, [61].
[20]See, eg, Minister for Immigration and Border Protection v Gill [2019] FCAFC 9, [8] (The Court); ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109, [47] (The Court).
For those reasons, it is equally clear that considerable caution is required in applying concepts of illogicality or irrationality in the context of judicial review of administrative decision-making: see eg, BEH15 v Minister for Immigration and Border Protection;[21] DAO16 v Minister for Immigration and Border Protection;[22] FND17 v Minister for Immigration and Border Protection.[23]
[21] [2019] FCAFC 184, [34] (The Court).
[22] [2018) 258 FCR 175, [30] (The Court).
[23][2019] FCA 1369, [58] (Griffiths J).
In CVB16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Middleton J described the requirement to demonstrate extreme illogicality in findings of fact or reasoning before a decision was to be vitiated for jurisdictional error as “well-established.”[24] Relatedly, in DYS16 v Minister for Immigration and Border Protection, Tracey, Murphy and Kerr JJ, having endorsed the statements of principle in SZUXN, observed that:[25]
Where the present ground is relied on and the decision-maker has given reasons for his or her decision, the reviewing court will concentrate on those reasons with a view to deciding whether the reasons demonstrate a justification for the impugned decision.
I apply these statements of principle in the present case.
[24][2019] FCA 1392, [13]; see also DQM18 v Minister for Home Affairs [2019] FCA 852, [36] (O’Callaghan J).
[25] [2018] FCAFC 33, [21].
Consideration
The applicant submitted that the finding at [108] was expressed as the direct reason for a finding there was not a real chance the applicant would be detained after returning to his home village. It was further submitted that this finding was dispositive of that part of the applicant’s claim and that if the finding was irrational or the result of illogical reasoning, this would, without more, constitute jurisdictional error.
Counsel for the Minister submitted that: there was no inconsistency between the Tribunal’s findings; it was open to it to make the findings that it did, and; the Tribunal had clearly explained in its Reasons how it reconciled its different findings.
Having regard to the competing submissions, it is useful to identify the finding at [108] of the Reasons and then to consider the context in which the reasoning at [108] occurred.
The Tribunal addressed the applicant’s claim to Risk of Harm arising from Illegal Departure and Imprisonment at [97]-[110].As appears below, the findings made in relation to this claim incorporated many findings made in relation to the related and principal claim – whether the applicant faced a real risk of harm on the basis that he had a profile as a person of Tamil ethnicity imputed to be a supporter of the LTTE.
The Tribunal reasoned at [108] as follows:
Based on the information before it, the Tribunal accepts as possible that after the applicant is released on bail and has returned to his village, there may be a follow-up visit by the police or the CID to his home for a subsequent interview, however the Tribunal does not find such questioning or monitoring constitutes serious harm within the meaning of s.97R(1). Taking into consideration the applicant’s profile as someone who has not been of interest to the authorities over the last nine years for any reason including for having suspected links with the LTTE, the Tribunal does not accept that the applicant faces a real chance of being detained once he is released in the community.
It is the concluding statement in [108] that is the subject of complaint.
As also appears below, the Tribunal had accepted that the applicant had been arrested, detained, assaulted and required by the army to attend its facility at weekly intervals in the period to 2012. It also accepted that a photo of the applicant had been placed on the wall of a room in the army facility: [84]. Given those earlier findings, read literally, the statement made at [108]was in conflict with the findings at [84].
The impugned finding must, however, be considered in context.
As [108] makes clear, the Tribunal’s finding was concerned with its description of the applicant’s profile and in particular whether he had been of interest to the authorities for having suspected LTTE links in the period 2007 – 2016. The assessment of the applicant’s profile was necessary in light of the basis on which he claimed protection. Relevantly, the Tribunal identified the applicant’s claims based upon:
a)having resided in an LTTE controlled village where there was a strong presence of the Sri Lankan army in that village following the defeat of the LTTE: [29];
b)his arbitrary arrest with other Tamils and being transported to an army camp: [29];
c)his being stopped by the CID while transporting a load of sand and then being detained and questioned for a period of two hours in relation to LTTE activities. Later, he had clarified that he had been part of a convoy of tractors delivering sand: [30], [36]. He claimed that the CID had visited his wife several times and that he feared harm from the CID: [33], [34];
d)his being questioned in the 12-month period before leaving Sri Lanka on four or five occasions in relation to LTTE activities: [31]. He also claimed to fear harm from the army: [34];
e)his illegal departure from Sri Lanka and the claim to fear harm for having done so, including that he would be treated as a criminal or suspect if he was to return: [28], [35].
It is necessary then to consider the manner in which the Tribunal examined the evidence and determined the veracity of those claims.
Evidence before the Tribunal
In addressing his claims, the Tribunal considered the applicant’s oral evidence: [41]-[65]. After identifying that his sisters, children and father continued to reside in Sri Lanka, the applicant confirmed he had departed to work in Saudi Arabia from 2006-2007: [46]-[47]. The applicant gave evidence that, although he feared harm in Sri Lanka, he had returned as he had not earned enough money in Saudi Arabia and needed to come back to look after his family: [48].
When questioned whether he had departed Sri Lanka on a valid passport (and thus, that the authorities would have known he had so departed), the applicant’s response was, in part, that he was unsure whether he had departed illegally: [48]. Concerning his return to Sri Lanka from Saudi Arabia, the applicant confirmed he had not been detained or harmed on arrival in 2007, adding that the authorities had “released him quickly.” The Tribunal observed that this was evidence the applicant was not of any interest to the authorities: [49].
The applicant then gave evidence that from the age of 18 years, the army had held him and others (“all young Tamils”) and beaten them with sticks and poles, levelling accusations including that they were “Tigers”. He estimated he had been beaten on about 10 occasions: [50]. When the applicant claimed that these beatings had continued up to the time he had departed to Saudi Arabia, the Tribunal noted certain inconsistencies in his evidence: [51]. This evidence was inconsistent with the applicant’s evidence given to the delegate that he had not been of interest to the authorities until after he returned from Saudi Arabia.
The applicant provided details of his employment history as a bus driver and tractor driver performing agricultural work and transporting construction materials. He gave an account of difficulties with his employment, including that his employer had paid bribes to the authorities so as to avoid disruption to their work and that they suspected him of LTTE involvement. The Tribunal questioned him as to his dismissal from employment in circumstances where he had suggested that his employer was influential. The applicant said he had faced difficulties as a result of the denigration and ill-treatment he received from a Muslim co-employee, resulting in him resigning his employment some four or five months before leaving Sri Lanka: [52]-[54].
The applicant also gave evidence of the destruction of his passport which was lost after his home had burnt down after a bombing: [55]. He provided photographs relating to this bombing: [63].
The applicant then recounted what was described as a serious incident which occurred some four or five months before he left Sri Lanka. He stated that when driving in a tractor convoy, army officials had stopped the drivers and labourers from continuing their duties and detained them on-site asking whether the sand they were transporting was to be used for LTTE operations. The applicant further stated that, shortly afterwards, some men who identified themselves as CID officers had arrived, taken the names of the Tamil tractor drivers, including himself, and abused and hit them, and that they were questioned as to whether they were assisting the LTTE or harbouring LTTE fighters or were themselves LTTE members. He also claimed that during this incident, a balaclava clad Sinhalese speaking man had been asked to identify whether any of the detained Tamils were in the LTTE. The applicant claimed to have been singled out by this person, as a result of which he had suffered “more beatings and was denied water before being released around 3 o’clock in the afternoon.” It appears this incident occurred at an army controlled factory site: [56]-[57].
In giving this evidence, the applicant denied that he or any of his family members had ever been involved in the LTTE or assisted it in any way, adding that “he had not been detained for an extensive period of time since the incident at the army’s factory site or charged with any offence, consistent with or including under the Prevention of Terror Act”: [60].
In addition, the applicant claimed that a photograph of him had been placed in a room at the army facility where he was required to report each Sunday and to provide information on any developments of note in his community. He claimed to have reported to the army up until some months before departing Sri Lanka, where after he had hidden in a variety of places after ceasing these weekly attendances: [58].
The applicant recounted that, in June 2013, his wife had been visited by a CID official and a village elder and been asked to sign a letter stating that he had no LTTE connections: [62].
The applicant also claimed that after leaving Sri Lanka the CID continued to visit his house and, upon being told by his wife that he had gone to Australia, they had made threats if he returned: [59]. Addressing his claim that a photograph of him had been placed on the Internet following his departure from Sri Lanka, the applicant was unable to locate that photograph: [61].
The Tribunal also considered a range of country information that was put to the applicant, each of which was identified, and he was given an opportunity to address elements considered relevant to his claims: [64].
Tribunal’s findings
In making its findings, the Tribunal found the applicant to have provided generally consistent testimony and found no substantial discrepancies in his evidence notwithstanding that his evidence had not always been given in a coherent, detailed or chronological manner. It appeared to accept in his favour that such discrepancies or vagueness in his evidence were “attributable to the applicant’s low levels of education and not because his claims were inherently inconsistent or systematically or even haphazardly embellished or fabricated”: [71].
The Tribunal accepted much of the applicant’s history, including that: he was a Tamil born in Batticaloa, Eastern Province, Sri Lanka: [72]; he had earned a living as a bus and tractor driver and as a manual labourer: [72]; he was married and had a daughter: [73]; he and his wife’s families continued to reside in Eastern Province: [73], [76]; he had travelled, without difficulty, from Sri Lanka to Saudi Arabia in 2006-2007, doing so while holding a legitimately issued passport: [74]; he had travelled to Australia without a travel document in 2012: [75]; his house, which was located near a Sri Lankan army base, had been destroyed by fire during fighting between the army and LTTE: [75]; in 2013, someone in authority and in the company of a Tamil elder had asked his wife to sign a document stating that the applicant was overseas and not in the LTTE: [76]; the authorities were aware the applicant had departed illegally: [76].
However, the Tribunal did not accept that the applicant had become a person of interest to Sri Lankan authorities in 2012 or that he faced a real chance of persecution in Sri Lanka: [77]. It provided reasons for that finding, addressing each of the applicant’s claims in turn.
In addressing the claims to fear harm from Sri Lankan Muslims, the Tribunal accepted that:
a)the applicant’s former employer was a Muslim and that he found him to be a good employer; a co-employee had insulted and ridiculed the applicant and that this had contributed to his decision to resign as a bus driver; the applicant had also been asked to leave this employment “on the baseless ground he was thought to be associated with the LTTE based on his ethnicity”: [79];
b)the former employer had been subjected to extortion and bribes which had been paid because the applicant was a Tamil driving between Columbo and Eastern Province where checkpoints were known to be in place in the years following the end of the Civil War: [80];
c)the applicant did not claim an ongoing fear of Muslims persecuting him or subjecting him to significant harm, confirming this position generally by reference to country information: [81].
When assessing whether the applicant faced a real chance of persecution if returned to Sri Lanka by reason of his Tamil ethnicity or for being suspected of LTTE affiliation, the Tribunal reasoned as follows.
The Tribunal first identified the applicant’s claim that he would suffer persecution because he had a profile among Sri Lankan authorities (being the police and army). His claim was that this profile arose from his experience of harm prior to departing Sri Lanka and because he was imputed as being an LTTE supporter. The Tribunal identified this claim as arising from the incident where the Tamils in the tractor convoy had been detained, including that he had been singled out as an LTTE member or supporter and that he had been beaten, humiliated, required to report at weekly intervals and had his photograph posted in a room at the army facility: [83]. The Tribunal recognised that these claims had been made on three occasions and considered that they had not been sufficiently explored in the delegate’s decisional record. The Tribunal accepted that this incident had occurred and found: the applicant had been arrested, detained at the roadside, further detained and physically assaulted by the Sri Lankan army; members of the army had deliberately identified him as a member of the LTTE despite there being no evidence of an association; the army had placed the applicant’s name and picture on the wall in a room at the army facility; the applicant had been required to present himself at that facility each Sunday; those authorities had accused him of LTTE sympathies; although the applicant had attended the army facilities at weekly intervals, he had ceased doing so in the months preceding his departure; the applicant had moved to a relative’s house to evade the authorities; the applicant had ceased attending the army facility as he feared arbitrary detention and being degraded and beaten arising from false accusations that he supported or was affiliated with the LTTE; he had departed Sri Lanka as he had a genuinely held fear of being harmed by the Sri Lankan army for having ceased attending the army facility each week: [84]-[85].
It was in light of those findings that the Tribunal assessed whether the applicant had a well-founded fear of persecution.
The Tribunal put to the applicant that if had he been a person of ongoing adverse interest to the authorities, he would have been arbitrarily arrested, detained, interrogated and held in custody under broad powers of the Prevention of Terrorism Act. This had not occurred.
It also raised with the applicant that, although he may have been singled out and falsely accused (of LTTE affiliation), the authorities had not employed those powers and that this strongly indicated he was not a person of adverse interest nor did he have a profile of a person of adverse interest having regard to independent country information.
It noted that, in light of the UNHCR guidelines, he would need more elaborate links with the LTTE to establish such a profile. The applicant responded that he feared being at risk as he lived in a remote village. He reiterated that army personnel had his photograph and accused him of being an LTTE affiliate. In this context, the applicant was asked to comment on country information indicating a lowered risk of harm since the reduction in the level of conflict in 2007, the end of the civil war in 2009, the ongoing demilitarisation of the Eastern Province and the de-escalation of tensions between Sri Lankan Tamils and the authorities. The applicant adhered to the position that he was at risk so long as his name and photo was retained by the Sri Lankan army.
By reference to country information and UNHRC guidelines, the Tribunal observed that not all Tamils from northern and eastern Sri Lanka were vulnerable to harm due to imputed links to the LTTE, but that people with more elaborate links may require protection.
Based on DFAT information, the Tribunal observed that “Tamil civilians who were not members of the LTTE, including those that may have provided a low level of support to the LTTE are now at low risk of being detained or prosecuted in Sri Lanka”: [86]-[88]. It concluded that while the applicant had been falsely accused as an LTTE operative, he did not fall within any of the profiles identified by the UNHCR as being at risk of serious harm. Contextually, it observed the applicant made no claim to face outstanding charges or that he had been detained for any extended periods of time or interrogated: [89]. Further, based on its consideration of other country information and the UNHRC guidelines, the Tribunal found that the applicant did not have any elaborate links to the LTTE or otherwise fit the profile of a Tamil man who posed a threat to the integrity of the Sri Lankan state.
The Tribunal did not accept as credible or plausible that the applicant’s town had been an LTTE stronghold in 2009 and noted that he had not claimed the authorities were interested in him after he had been accused of being an LTTE operative and asked to leave his employment. While the Tribunal found that those past incidents of harm, intimidation and threats by the authorities (which it had accepted) had been directed to intimidate the applicant for a Convention reason (ethnicity), it did not accept the authorities had behaved as though the applicant had any ongoing, genuine or elaborate links to the LTTE or was a threat to the integrity of the Sri Lankan state or would be subjected to the forceful provisions of the Prevention of Terrorism Act. It considered that, collectively, these matters also supported a conclusion that the applicant was not a person of adverse interest to the authorities: [89].
While the Tribunal was prepared to place some weight on the claim that authorities in rural districts of Eastern Province had noted the applicant’s failure to attend at weekly intervals and threatened to seriously harm or kill him, it placed greater weight on the rapidly evolving situation in post-conflict Sri Lanka. After considering further country information, it found that the categories of persons who were at risk of persecution or serious harm on return to Sri Lanka were individuals who were, or perceived to be, a threat to the integrity of the state because they were perceived to have a significant role in post-conflict separatism within the diaspora and/or a renewal of hostilities, and that not every Tamil returning to Sri Lanka was considered to be at risk. The Tribunal did not accept that the applicant would be perceived as a threat to the Sri Lankan state or that, despite living in a rural village, he fell within a category of person who was at risk of serious harm.
The Tribunal noted the applicant had not suggested that he or any of his family had been involved in or accused of LTTE activities and, relatedly, observed that following the allegations of LTTE affiliation shortly before his resignation from employment, he had not been subjected to any further difficulty. It considered those matters as indicating the applicant had no actual or imputed profile with authorities as an LTTE supporter: [90]-[92]. It further considered that he had no elaborate links to the LTTE and did not accept he had any elaborate or low level LTTE association: [92]-[93]. Nor did it accept that all Tamils would be assumed to have an LTTE connection. The Tribunal found the applicant would not face a real chance of serious harm if he returned to Sri Lanka because of his Tamil ethnicity, including being imputed with a political opinion of support for the LTTE or opposition to the Sri Lankan government: [96].
Having addressed the question of whether the applicant had a profile as a Tamil such as to face a real chance of serious harm and upon making the findings detailed above, the Tribunal then considered whether the applicant faced a risk of harm arising from his illegal departure from Sri Lanka, including a risk as a result of imprisonment and as a consequence of residing in a remote location: [97]-[110].
The Tribunal considered that the applicant would not face an extended period of administrative detention on his return to Sri Lanka on the basis of his ethnicity or political opinion: [97].
The Tribunal identified the applicant’s evidence that local authorities were aware of his illegal departure to Australia and that, as he said, officials were adversely motivated towards him because he had ceased reporting to the army at weekly intervals. It also noted his evidence that, following his departure in 2012, officials had visited his wife and stated they would kill him on his return. The Tribunal accepted the applicant held a subjective fear of harm, but did not accept he was of adverse interest to the authorities for having failed to attend the army at weekly intervals. In reaching this conclusion, the Tribunal expressly relied upon its earlier findings that the applicant did not have a real chance of harm as a result of being of adverse interest, whether as an LTTE operative or supporter, either actual or imputed or otherwise: [98].
After considering DFAT country information that “no person who was just a passenger on a people smuggling boat had been jailed for departing Sri Lanka illegally” and that most persons were immediately bailed and fined, the Tribunal did not accept that the applicant would face mistreatment if held in remand by reason that it did not accept he was of adverse interest and did not have an adverse profile by reason of his Tamil ethnicity or any imputed LTTE association. The Tribunal relied upon its earlier findings in doing so: [99]-[100]. The Tribunal also found that because terms of imprisonment were not imposed on persons who had departed Sri Lanka illegally, the risk of this occurring was remote and further that the imposition of a fine did not amount to persecution: [101]-[102]. As concerned the risk of persecution by reason of the applicant’s membership of a particular social group (failed asylum seekers), the Tribunal identified DFAT, UNHCR and other country information which indicated such persons may be subject to a process of questioning.
However, the Tribunal found that the applicant would not face a real chance of persecution as a failed asylum seeker having regard to the following: (1) he did not have a particular profile as someone of adverse interest to the authorities; (2) he had no criminal record; (3) he had neither been involved with, or assisted, the LTTE; (4) there had been a passage of time since his departure from Sri Lanka; (5) tensions in Sri Lanka had de-escalated; (6) Sri Lankan authorities knew that many Tamils travelled abroad as economic migrants and, absent an anti-government profile, were unlikely to be regarded as a security risk; (7) the available reports of serious harm upon forced returnees appeared to be isolated to persons having particular adverse profiles; (8) human rights activists had given evidence to the United Kingdom’s Upper Tribunal that they did not consider every Tamil returning to Sri Lanka to be at risk of harm, and; (9) it did not accept the applicant had a profile which would be of any concern or interest to Sri Lankan authorities, including that he was not genuinely suspected of having LTTE links: [103]-[106].
Equally, the Tribunal considered, and did not accept, that the applicant faced a real chance or risk of harm after being released into the community. Again, in light of the limited country information respecting the profile of persons who had been targeted and detained, the Tribunal did not accept that the applicant’s profile was such that he would suffer harm; [107].
In assessing whether the applicant faced a real chance of harm once released into the community, the Tribunal accepted that when he returned to his village, he might receive a follow-up visit and interview, whether by the police or the CID; however, it did not accept that either such questioning or monitoring constituted serious harm: [108].
It was in light of the matters addressed above that the Tribunal made the findings at [108] of its Reasons that are the subject of challenge under Ground 1 of the amended application and which is set out at [46] above.
In addressing the claim to face a risk of harm arising from his illegal departure from Sri Lanka including as a result of imprisonment, the Tribunal also considered, and discounted as inapplicable to the applicant’s circumstances, that he may be detained as an illegal departee with outstanding court orders or as a person who had departed Sri Lanka illegally on repeated occasions. In doing so, it noted that there had been no suggestion there were any outstanding court orders in relation to the applicant (and rejected a faint suggestion that the applicant had departed Sri Lanka to Saudi Arabia illegally): [110], [47]-[48].
Concerning the final claim to fear harm as a result of a “data breach”, this claim was rejected and was not the subject of any submissions on this application: [111]-[113].
Upon those bases, the Tribunal concluded that the applicant’s fear of persecution was not well-founded, and further, that he did not face a real risk of significant harm. It therefore affirmed the delegate’s decision not to grant the applicant a visa: [114]-[130].
Resolution
The impugned reasoning at [108] of the Reasons was made in rejecting the claim that the applicant faced a risk or chance of being detained once he was released in the community. I accept that this was a decision made along the way to the decision that the applicant’s fear of harm was not well-founded and accordingly, to the ultimate decision that he was not a refugee or entitled to complementary protection. In terms, this finding was based upon the Tribunal’s consideration of the anterior and principal claim whether the applicant had an adverse profile with the authorities as a person suspected of having links with the LTTE. The basis on which the finding was expressed was that, in the preceding nine years, the applicant had not been of any interest to those authorities.
At first sight, the reasoning at [108] was irrational. As the applicant submitted, in contrast with the impugned finding, earlier in its Reasons the Tribunal had accepted that:
a)the applicant had been arrested, detained and then physically assaulted by the Sri Lankan army;
b)members of the Sri Lankan army had identified the applicant as an LTTE member despite there being no evidence of an association;
c)the Sri Lankan army had the applicant’s name and picture on the wall in the army facility;
d)the applicant had been required to physically present himself to the army facility each Sunday in order to report to the authorities who had accused him of LTTE sympathies;
e)the applicant continued to report to authorities every Sunday until a few months before his departure from Sri Lanka in 2012;
f)the applicant ceased reporting because he had a genuine fear of being harmed by the authorities; and
g)authorities in rural districts in Eastern Province had noted the applicant’s evasion of weekly sign-ins and threatened to harm or kill him.
Each of those events occurred in 2011 or 2012 and thus occurred within the nine-year period 2007 to 2016.
I also accept that in the terms in which the Tribunal reasoned at [108], the direct reason for the finding there was not a real chance the applicant would be detained after returning to his home village was that the applicant had not been of any interest to the authorities in the preceding nine years. While a finding that a Tribunal’s reasoning is illogical or irrational may support a conclusion that the decision is affected by error, the characterisation of such error as jurisdictional error requires a conclusion that the decision is affected by extreme illogicality. Adopting the caution that is required upon judicial review grounded upon irrationality or illogicality, in my view the question is whether the decision was thereby affected by extreme irrationality. In turn, the determination whether the decision was affected by extreme irrationality or illogicality requires consideration of the Tribunal’s path of reasoning. For that reason, I have examined that reasoning in some detail above.
Importantly to Ground 3, the Tribunal did not make its decision on the review until after the third hearing, by which time it had complied with the requirements of s 425(1) of the Act. The applicant was thereby afforded an opportunity, at a hearing that complied with the requirements of the Act, to give evidence and present arguments relating to the issues arising in relation to the decision under review. There is no suggestion that the applicant was not given the opportunity at the third hearing to give evidence or present arguments about any issue in the review, or that such opportunity was not taken or was denied to him.
As observed above, in concluding the second hearing, the Tribunal left open what weight might be placed on the testimony given at that hearing. Counsel for the Minister submitted that while the applicant took issue with the fact that the Tribunal had referred to evidence that was given at the second hearing, he had not explained how that amounted to jurisdictional error. In the event, the Tribunal found that there were not substantial discrepancies, stating at [71]:
Overall the Tribunal found the applicant to have provided consistent testimony between the departmental interview which the Tribunal reviewed, the second hearing and the third hearing. The Tribunal finds that there were no substantial discrepancies in the oral testimony between the second and third hearings; however because of the less than perfect communication in the second hearing, the Tribunal places more weight on the oral evidence in its findings on the third hearing.
In my view, it is of some importance to an evaluation of the question of procedural fairness that at no point in the Reasons did the Tribunal rely on a discrepancy between the evidence given at the second or third hearings as the basis for making any finding adverse to the applicant. Indeed, to the contrary, it expressly relied on the consistency between the applicant’s various accounts as a reason to accept his claims: [84]. Paragraph [84] of the Reasons is replete with matters that the Tribunal identified when finding that the incident on which he had placed much importance had been accepted in the applicant’s favour.
I accept the submission on behalf of the Minister that the court should infer from the absence of any other reference in the Reasons to the evidence given at the second hearing that such evidence played no other part in the Tribunal’s decision.[48]
[48] Act, s 430. See also MZYTS (2013) 230 FCR 431, 447 [49].
In all of those circumstances, I do not accept that the Tribunal failed to comply with its obligations under Div 4 of Pt 7, or that the way that it dealt with the matter gave rise to any unfairness to the applicant.
Ground 3 is rejected.
Conclusion
For the reasons above, the amended application is dismissed.
I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 27 February 2020
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