MZZLO v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZLO v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 608

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – apprehended bias – Briginshaw test – standard of interpretation – unreasonableness – post traumatic stress disorder.

Cases cited:
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100; [1938] HCA 34
FTZK v Minister of Immigration and Border Protection (2014) 310 ALR 1; (2014) 88 ALJR 754; (2014) 64 AAR 15; [2014] HCA 26
Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50; (2014) 308 ALR 280; [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 139 ALD 181; (2013) 297 ALR 225; (2013) 87 ALJR 618; [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; (2001) 75 ALJR 982; (2001) 9 Leg Rep 20; [2001] HCA 28
SCAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 129
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
SZSEI v Minister for Immigration and Border Protection [2014] FCA 465

Other materials:

Migration and Refugee Review Tribunal, Guidance on Vulnerable Persons, June 2012
UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, United Nations High Commissioner for Refugees, HCR/EG/LKA/12/04, 21 December 2012

Applicant:

MZZLO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 755 of 2013

Judgment of:

Judge Riley

Hearing date:

28 January 2015

Date of last submission:

28 January 2015

Delivered at:

Melbourne

Delivered on:

19 March 2015

REPRESENTATION

Solicitor Advocate for the applicant:

Ian Cunliffe

Solicitors for the applicant:

Ian Cunliffe, Solicitor

Counsel for the first respondent:

Krystyna Grinberg

Solicitors for the first respondent:

Sparke Helmore

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Sparke Helmore

ORDERS

The application filed on 28 May 2013 and amended on 3 February 2015 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 755 of 2013

MZZLO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Refugee Review Tribunal. In that decision, the Tribunal affirmed a decision of the delegate not to grant the applicant a protection visa.

The applicant’s claims

The applicant claimed that:
a)he is a young, male, Sri Lankan Tamil from the North-West of Sri Lanka, namely, Udappu;
b)there was a Sri Lankan army camp near his home;
c)he was often assaulted by the army and forced to work for them at their camp;
d)the army also rounded up Tamils and forced them to demonstrate against the government to create trouble between Tamils and Sinhalese;
e)during the demonstrations, members of the local Sinhalese community would abuse the applicant and his fellow Tamils and throw stones at them and otherwise harm them;
f)a Grease Man had climbed onto the roof of his family home in August 2011;
g)he feared for the safety of his mother and sisters, and for his own safety in trying to defend them;
h)after the applicant departed for Australia, members of the Sri Lankan army attended the applicant’s family home and asked about his whereabouts;
i)his father lied, saying that the applicant was studying in Colombo;
j)the soldiers beat the applicant’s father;
k)if he returned to Sri Lanka, he feared that he would be harmed because of:
i)his Tamil ethnicity;
ii)his identity as a young Tamil male from the North-West of Sri Lanka;
iii)his membership of particular social groups consisting of young Tamil males, young Tamil males from the North-West of Sri Lanka, young Tamil males from Udappu and unaccompanied minor Tamil asylum seekers/returnees who have left Sri Lanka unlawfully; and
iv)his imputed political opinion of support for the LTTE, based on his Tamil ethnicity and illegal departure from Sri Lanka and asylum claims in Australia.

The Tribunal’s reasons

The Tribunal found that the applicant’s evidence was vague and lacked detail. The Tribunal cited country information to the effect that there were no reports of young Tamil males being forced to work on military bases. The Tribunal found the applicant’s claims in that regard to be untrue.
The Tribunal accepted that there had been forced round ups of Tamils in the Udappu area during the conflict in Sri Lanka but found that they were no longer continuing.
The Tribunal accepted that the applicant participated in an anti-government protest with his father in 2008. However, the Tribunal did not accept that the applicant suffered serious harm as a result or was targeted or has any political interests of his own.
The Tribunal did not accept that the discrimination, abuse and stone throwing from the Sinhalese community amounted to serious harm. The Tribunal found, based on country information, that the attacks by Grease Men had stopped. The Tribunal did not accept that, based on past events, the applicant was in the past or will in the future be imputed with a political opinion of supporting the LTTE.
The Tribunal accepted that the Sri Lankan army had visited the applicant’s house since he left for Australia and enquired about his whereabouts. The Tribunal considered that the army did that in the context of the Tamil diaspora from Udappu. The Tribunal accepted that the applicant’s father had lied about the applicant’s whereabouts, saying that he was studying in Colombo, and army personnel had beaten the applicant’s father as a result. The Tribunal did not consider that these events led to the applicant having a well-founded fear of persecution.
The Tribunal did not accept that the applicant would face serious or significant harm as a result of having departed Sri Lanka illegally and claiming asylum in Australia.

Ground 1

The first ground of review in the application filed on 28 May 2013 and amended on 3 February 2015 is:
That the decision of the Second Respondent is affected by jurisdictional error in that it did not afford the Applicant procedural fairness; or in the alternative is affected by errors of law amounting to jurisdictional error.
Particulars
The Second Respondent approached its task not by asking itself the neutral question: “Does the Applicant have a well-founded fear of persecution on a relevant ground?” Rather its approach was to look for bases to discredit the Applicant’s evidence.
Further, the Second Respondent failed to take proper account of the Applicant’s evidence given by statutory declaration which constituted error of law amounting to a failure to give procedural fairness, amounting to jurisdictional error.
The applicant made it clear in oral submissions that this ground concerned apprehended bias rather than actual bias. In support of this ground, the applicant relied firstly on the following passage from paragraph 13 of the Tribunal’s reasons for decision, which concerned a statutory declaration made by the applicant on 3 April 2013 in response to the delegate’s decision:
… The representative also submitted that my manner of questioning the applicant about the contents of the document was unfair, because I did not specifically ask about the particular evidence in it. I reject the submission that my questioning about the contents of the document was unfair. What this submission suggests is, in essence, that the Tribunal should not ask open questions but rather is under a duty to keep asking the applicant questions, or continuously prompt the applicant, until he remembers his own evidence. There is no claim or evidence that the applicant is labouring under any medical disability that affects his ability to recollect his own evidence. I afford less weight to the evidence in the document than evidence given by him in his own voice.
The applicant in support of this ground relied secondly upon extracts of the transcript of the Tribunal hearing at SCB3 to SCB5 as follows, concerning the statutory declaration made by the applicant on 3 April 2013 in response to the delegate’s decision:
Member:When I read it, when it arrived in my office, the way it’s expressed in English is not the sort of voice I would expect from a man such as yourself. It’s clear to me it’s been written by a lawyer on your behalf. It’s designed to respond to the initial decision refusing the visa. And when I read it I really had concerns that it was actually a document which spoke in your voice.
Member:Now I’ve had the opportunity to speak with you for nearly three hours, and I asked you at the start what you said in that document, and your evidence really covered about 2 paragraphs out of 24 paragraphs, really my suspicions about that document being a lawyer’s document, not your document, are confirmed. Now, I stress that it’s not something I criticize you for. But that’s not your fault.
…
Member:So for example paragraph 7, your client said to you, I don’t intend to repeat the claims that I’ve made in my PV application, and rely on all evidence previously given, is that instructions you’ve received from your client through an interpreter?
Representative:       No, I said to my client –
Member:So why’s it in the statutory declaration expressed in the voice of the applicant?
Representative:       Ah, I’ve said to my client that it’s not necessary to repeat the claims that he’s

made –
Member:So that’s you?
Representative:       – in the first statement. That’s my advice to him.
Member:You’ve put your own words in a statutory declaration made by the applicant.
Representative:       Um I’ve read that back to him and he’s agreed that those are his sentiments, that he wishes to provide more information –
Member:You’re on very dangerous ground. You’re on very dangerous ground. This is a statutory declaration. I’ve raised it with the applicant because I’m required to, but when I see what in effect, what are in effect are submissions, put in an applicant’s voice, that gives rise to two concerns. One is that you have sought to mislead the Tribunal and might be grounds for a report to OMARA. It might also be grounds for a report to the Legal Services Board for professional misconduct. So I would urge you – I will not do either of those things, but I would urge you in the future to be very careful in how you present an applicant’s evidence. It’s not something I hold against [the applicant] because it’s quite clear to me that large portions of that Statutory Declaration are confections of your own.
…
Member:But I really give any material in that document that [the applicant hasn’t] confirmed with me today, little weight. …
In support of this ground, the applicant relied thirdly on passages of a letter dated 3 May 2013 from the applicant’s migration agent to the Tribunal. It appears that the Tribunal did not receive that letter before handing down its decision. The passages relied upon are at SCB4 and SCB5 and are as follows:
It is significant that, having identified one paragraph of the statutory declaration as being, allegedly, a statement of the legal representative, the Member then moves to a sweeping assertion that “large portions of the Statutory Declaration are confections” of the legal representative. The extrapolation, without any basis, from one paragraph to “large portions” of the statutory declaration is enough to cause a reasonable bystander to believe that the Member would not bring an impartial mind to the assessment of the Applicant’s claims, especially those in, or supported by, this particular Statutory Declaration.
Although at some pains to state to the Applicant that it was not his fault, and that the Member was not holding this against the Applicant, the Member has also stated:
“But I really give any material in that document that you haven’t confirmed with me today, little weight”
It is clear that, examining the Member’s statements objectively, the Member’s opinion of the legal representative’s conduct has coloured his opinion of the Applicant’s truthfulness and reliability. Any reasonable bystander examining what the Member has said would reach that conclusion.
Paragraph 7 of the statutory declaration is at CB233 and is as follows:
I do not intend to repeat the claims that I have made in my PV application and rely on all evidence previously given. I do wish to provide additional information and respond to the decision of the DIAC case officer in respect of my PV application.
The applicant submitted that it was perfectly proper for a lawyer to express the applicant’s claims in ways that are pertinent to the issues before the court and consistent with the rules of evidence.
The applicant submitted that the point made in the letter of 3 May 2013 was well made, and an independent observer would have been concerned about the Tribunal’s conduct.
The applicant also submitted that it was a serious error, and a denial of procedural fairness, to discount the material in the statutory declaration made on 3 April 2013.
Finally, the applicant submitted that he was very likely to have been cowed by the Tribunal’s attack on his migration agent.
The first respondent submitted that the Tribunal was not bound to accept the applicant’s claims uncritically but was bound to explain to the applicant what was in issue.
The first respondent noted that the test of apprehended bias in Tribunal proceedings is whether a fair-minded, fully informed lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the matter: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; (2001) 75 ALJR 982; (2001) 9 Leg Rep 20; [2001] HCA 28; The first respondent also noted that Flick J, in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, said at [22]:
Where the denial of procedural fairness relied upon is an alleged reasonable apprehension of bias on the part of the decision-maker, such an apprehension must be “firmly established”: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J. Although his Honour was there addressing the position of judicial officers when stating that “it is important that justice must be seen to be done”, that observation is equally applicable to decisions such as those made by the Tribunal. Similarly, it is equally important to recognise that such an allegation must not be too readily acceded to lest it encourages parties to seek to have their applications heard and resolved “by someone thought to be more likely to decide the case in their favour”: Id. Such an allegation must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [69], 205 CLR 507 at 531 per Gleeson CJ and Gummow J. It is not sufficient if a reasonable bystander “has a vague sense of unease or disquiet”: Jones v Australian Competition and Consumer Commission [2002] FCA 1054 at [100], [2002] FCA 1054; 76 ALD 424 at 441 per Weinberg J. An appeal from this decision was allowed, but no reservation was expressed by the Full Court as to his Honour’s observations in respect to the allegation as to bias: Jones v Australian Competition and Consumer Commission [2003] FCAFC 164, 131 FCR 216.
The first respondent also noted that the Tribunal dealt with the issue of round ups at some length, even though that was a matter that had been put in the applicant’s statutory declaration but not referred to by him in his oral evidence.
I am not persuaded that the Tribunal’s words and conduct in this case could have led a fair-minded, fully informed lay observer to apprehend that the Tribunal might not bring an impartial mind to the matter. It is well established that the Tribunal is under no obligation to make out an applicant’s case for him. The Tribunal does not have to ask the applicant questions to fill out or bolster his case.
The extract from the transcript relied upon by the applicant came at the end of the hearing. That is clear from the Tribunal member saying:
Now I’ve had the opportunity to speak with you for nearly three hours … .
Consequently, even if the applicant had been cowed by the criticism of his migration agent, which is unlikely, it would not have affected the applicant’s testimony given during the preceding three hours.
In relation to the Tribunal’s weighting of the applicant’s oral evidence, as opposed to his statutory declarations, it is for the Tribunal to give such weight to the evidence as it thinks fit. Moreover, it was entirely reasonable for the Tribunal to give greater weight to the applicant’s oral evidence, which was entirely his own, than to a statutory declaration, which had obviously been made with the assistance of his advisers.
Paragraph 7 of the statutory declaration made by the applicant on 3 April 2013 does have a formality and choice of words that indicate that it was written by a lawyer. That statutory declaration overall has a different style and tone to the applicant’s first statutory declaration, made on 30 August 2012. The Tribunal did put to the applicant’s representative during the hearing that the statutory declaration of 3 April 2013 was a confection of the representative’s own making. However, that view was not expressed in the Tribunal’s reasons for decision. Rather, the Tribunal merely said in paragraph 13 of its reasons for decision that it gave more weight to the applicant’s oral evidence than to the evidence in the statutory declaration. As stated previously, the Tribunal was entitled to give such weight as it saw fit to different parts of the evidence.
The Tribunal’s statement that the statutory declaration of 3 April 2013 was a confection might have been excessive. However, because that statement came towards the end of the hearing, it is unlikely to have had any impact on the applicant’s evidence. The Tribunal is, of course, permitted to express strong views during the course of the hearing, provided that the Tribunal remains willing to change those views in the light of other evidence and submissions.
The applicant has provided only an extract of the hearing before the Tribunal. As the authorities show, the impression given by intemperate language or conduct at one point in the hearing can be overcome by later statements and conduct. In the absence of a full transcript, and, indeed, the audio recordings, it cannot be said that the allegation of apprehended bias in this case has been “firmly established”.
It should also be noted that, although the Tribunal said that it gave less weight to the statutory declaration than to the applicant’s oral evidence, the Tribunal did deal with the claim of the round ups, which was made in the statutory declarations but not in oral evidence. The applicant has advanced no sound reason to believe that the Tribunal looked for reasons to discredit the applicant’s account, rather than taking a neutral approach. This ground is not made out.

Ground 2

The second ground of review in the application filed on 28 May 2013 and amended on 3 February 2015 is:
That the decision of the Second Respondent is affected by jurisdictional error in that it did not afford the Applicant procedural fairness; or in the alternative is affected by errors of law amounting to jurisdictional error in that the person engaged by the Second Respondent to translate the Tribunal’s questions to the Applicant and his responses was an Indian Tamil rather than a Sri Lankan Tamil with the result that the Applicant had great difficulty in understanding the interpreter and communicating with him.
Particulars
Further, the Second Respondent committed an error of law amounting to jurisdictional error in that it failed to take into account the effects on apparent credibility of the Applicant caused by the consequent difficulties of interpretation.

In support of this ground, the applicant relied upon an affidavit affirmed by him on 29 January 2015, the day of the hearing before this court. That affidavit was filed without objection and was not challenged. I accept the evidence contained in it. It said:
The person who interpreted when I appeared before the Refugee Review Tribunal appeared to be an Indian Tamil speaker. I had great difficulty in understanding him and communicating with him. I believe he may have interpreted incorrectly some of the answers I gave to the tribunal for this reason.
The applicant did not advance any submissions in relation to this ground, other than to say that the Tribunal should have considered whether difficulties in interpretation led to his evidence appearing unconvincing.
The first respondent submitted that the applicant bore a heavy onus to make out this ground. The first respondent referred to SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 at 71 to 81 which are as follows:
71The principles concerning mistranslations were recently discussed and analysed at some length in SZRMQ and, in particular, in the judgments of the Chief Justice at [13]-[24], Flick J at [42]-[44] and Robertson J at [65]-[75] (noting that his Honour also expressed his agreement at [74] with the Chief Justice’s general comments and his analysis of the authorities). As noted above, that case arose in a context other than s 425 of the Act. It was primarily concerned with the application of common law procedural fairness requirements to mistranslations or non-translations. It is evident, however, that there is some overlap in the relevant principles in a statutory and non-statutory context, even though, as Robertson J observed in SZRMQ at [74], s 425 of the Act may pose a “blunter question” of whether the Tribunal has given an applicant an opportunity to appear before it to give evidence and present arguments relating to the relevant issues. I consider that it is unnecessary in this appeal to define with precision the extent of that overlap.
72In my view, subject to some important observations which I will make shortly, the approach to be taken in a case such as this which raises the application of s 425 of the Act is essentially that which was applied in cases such as Perera, SZOYU, Appellant P119 and WALN. In WALN, Ryan J (with whom Tamberlin and Middleton JJ agreed) set out the relevant approach relating to alleged errors in translation in a s 425 context in the following terms at [29]:
To succeed on this ground the appellant must establish that he was effectively prevented from giving his evidence; see Perera (supra) at [38]-[41]. Alternatively, he must establish that errors had occurred in translation which were so material as to cause the decision-making process to miscarry…
73In SZRMQ at [22] and [23], the Chief Justice highlighted the need for passages such as the one set out immediately above from WALN to be read with care. That is for two reasons. First, it is clear that there is no requirement to demonstrate that there was a complete incapacity to interpret such that the applicant is prevented from giving any evidence. As the Chief Justice stated in [22], Kenny J in Perera at [45]-[46], “was referring to matters of significance involving important issues, not to a complete incapacity to interpret”. The Chief Justice also highlighted the undesirability of overly defining the relevant tests in circumstances where what is involved “is a more easily expressed and broader requirement: a fair hearing”. In my view, there is considerable force and attraction in expressing the matter that way, while giving effect in a relevant case such as here to the statutory text not only of s 425 of the Act but also other relevant provisions, such as ss 414 and 422B (noting the exhortatory command in s 422B(3) that, in applying Div 4, the Tribunal must act a way that is fair and just and see also the observations of the Full Court on that provision in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 at [15] and [18]).
74Secondly, I respectfully agree with the Chief Justice’s observations in SZRMQ concerning the need to focus on the process which is afforded to an applicant to enable him or her to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required by s 425(1) of the Act. This means that there need not necessarily be a proved causal connection between a mistranslation and the Tribunal’s reasons for decision because “the misinterpretation may be of such a character or frequency as to deny any conclusion that the hearing was fair or was a proper opportunity to be heard” (see SZRMQ at [25] per Allsop CJ). To similar effect, in SZRMQ at [68] Robertson J emphasised that “the process is central”. His Honour reinforced the point at [85] when he posed the relevant question as whether a mistranslation “affected or could have affected the quality of the hearing or the findings and reasons”. The Minister did not contest the correctness of those observations, nor their application to a s 425 case.
75Nor did the Minister contest the following observations of Allsop CJ in SZRMQ at [17]-[18]:
In Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168, the Full Court (Spender, Lee and Tamberlin JJ) at [18] referred to the need to place evidence before the Court “that material errors occurred in the interpreting of the appellant's statements and, therefore, that miscarriage in the decision-making process had occurred”. That expression of principle, correctly, with respect, places emphasis on the importance of the process. The decision-making process is not limited to the articulation of reasons by the Tribunal. It extends to the process granted to the person to place such material before the Tribunal as she or he desires.
In W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788, French J referred to Perera and found various errors going to matters of significance. His Honour then said at [35] in relation to the reasons for decision:
It is plain that there was a variety of factors operating upon the Tribunal's determination that the second applicant was not to be believed. It may be that without the interpreter errors the Tribunal would have come to the same conclusion. However, I cannot exclude the possibility that had the accepted defects in translation to which [the applicant] deposes not existed, the Tribunal might have come to a different decision. That goes to the utility of the grant of relief.
76In SZRMQ, Robertson J agreed with the Chief Justice’s view that there is no requirement, at least for the purposes of procedural unfairness, to establish a causal connection between a mistranslation and the decision-maker’s ultimate conclusion. At [67]-[69], Robertson J said:
Attention must be given to the course the hearing took as well as to the ultimate reasoning of the decision-maker. A causative impact on the decision-maker’s ultimate conclusion would usually be sufficient to establish a lack of procedural fairness, but may not be necessary. Even where a causative impact is being examined, the court on judicial review should consider whether the mistranslation or non-translation had or could have had significance if the applicant’s words had not been mistranslated or, in the case of a non-translation, had been translated.
The significance of the error or errors is not to be assessed by reference only to the reasoning in fact used by the decision-maker because the decision-maker was, by definition, unaware of the mistranslation or non-translation, singular or plural and because the process is central.
If a mistranslation or non-translation could have affected the outcome then, depending on the circumstances, that may be sufficient to establish denial of procedural fairness.
77I respectfully agree with those observations, which were not challenged by the Minister here. I consider that they apply equally to a complaint that there has been non-compliance with the requirements of s 425.
78In my opinion, Robertson J provided further useful guidance in SZRMQ. For example, his Honour emphasised the importance of distinguishing between a case where the mistranslation or non-translation is frequent or continuous, as opposed to a case where the errors are intermittent (see SZRMQ at [70]). His Honour also drew attention, correctly in my view, to:
(a)the importance of keeping separate questions of mistranslation and non-translation, as opposed to mere errors of fact (see SZRMQ at [73]); and
(b)the distinction to be drawn between a mistranslation and a lack of detail in the relevant question the subject of translation (SZRMQ at [114]).
79A further relevant principle is that in assessing whether or not one or more mistranslations or non-translations give rise to jurisdictional error, it is necessary to bear firmly in mind that interpretation or translation is not a perfect science and, having regard to the difficulties which are inherent in the process, perfection cannot reasonably be expected (see generally the observations of Kenny J in Perera at [29]-[31]). It may well be enough that the translation is sufficiently accurate so as to convey the idea or concept being communicated (WACO at [66]).
80Furthermore, it is necessary to consider not only alleged mistranslations or non-translations individually with a view to assessing their relevance to the fairness of the overall process, but also to have regard to their cumulative effect. As Robertson J said in SZRMQ at [116]:
I turn finally to consider whether, in the aggregate, the mistranslations constituted a denial of procedural fairness. In my view, in the circumstances of this case, they did not. While care must be taken to examine whether errors in translation may have contributed to adverse findings or otherwise have been of significance to the process and thereby to a lack of procedural fairness, in the present appeal the sum of the mistranslations did not rise to that level. The errors of translation were intermittent rather than continuous and did not have a cumulative effect.
81Finally, as noted above I did not understand the Minister to contest the proposition as stated by Jagot J in SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [52] that the question whether inadequate interpretation has deprived an applicant of the opportunity given by s 425 of the Act “involves a qualitative assessment of the conduct of the hearing before the Tribunal as a whole”.
The first respondent submitted that there was insufficient evidence before the court to permit a conclusion that the standard of interpreting was so poor that the Tribunal hearing miscarried. I accept that submission. In the absence of a complete transcript, and in the absence of expert evidence about what the interpreter said, and what he should have said, it is not possible to conclude that the Tribunal hearing miscarried.
The applicant’s claim that he believes the interpreter “may have” incorrectly interpreted some answers is not sufficient to make out this ground. Similarly, having “great difficulty” communicating with the interpreter does not mean there was any error in interpretation, much less an error that caused the Tribunal hearing to miscarry.
It should also be noted that there was no suggestion by the applicant’s migration agent of any issue about the standard of interpretation during the Tribunal hearing or in the migration agent’s letter dated 3 May 2013. The first suggestion of difficulties with interpreting were contained in the application filed in this court. This ground is not made out.

Ground 3

The third ground of review in the application filed on 28 May 2013 and amended on 3 February 2015 is:
That the decision of the Second Respondent is affected by errors of law amounting to jurisdictional error in that it failed to have regard to a real possibility which was squarely before it, namely that the Applicant was suffering from post-traumatic stress syndrome and that this was affecting the apparent credibility of the Applicant.
Particulars
The Applicant gave answers to the Tribunal which strongly suggested that he was suffering from post-traumatic stress syndrome.
The applicant argued that the Tribunal should have assessed the applicant’s evidence on the basis that he suffered from post traumatic stress syndrome. The applicant acknowledged that he had not put to the Tribunal, or indeed, the court, any medical or psychological evidence to the effect that the applicant suffered from post traumatic stress syndrome and he acknowledged that he had not submitted to the Tribunal that he suffered from post traumatic stress syndrome. Nevertheless, the applicant submitted to this court that the Tribunal should have known that the applicant suffered from post traumatic stress syndrome and it should have assessed his evidence accordingly. The applicant did not point to any authority in support of that proposition.
The applicant noted that he was 17 years old when he arrived in Australia and 18 years and one month old when he gave evidence before the Tribunal. In a submission to the delegate by the Refugee and Immigration Legal Centre Inc., the applicant’s young age was emphasised and reference was made to the Tribunal’s Guidance on Vulnerable Persons, June 2012 (“the Guide”). Before this court, the applicant noted paragraph 6 of the Guide, which is at CB91, and states as follows:
Some factors which can affect a person’s ability to participate in the review process may include:
o Age: children and young people may not be able to fully comprehend the context of the review and may not have developed the capacity or the knowledge to understand the wider implications for them of the review.
o Physical or psychological abuse and trauma: victims of abuse, torture or extended periods of stress and trauma who continue to experience significant anxiety and depression.
Impact of age
47. When considering the type of procedural adjustments, representation or support needed by a child applicant, or an elderly applicant, tribunal members and staff should take the child’s or elderly person’s wishes and best interests into consideration.
Children
48. Children process information different from adults and may not be able to be as precise as an adult would be in giving evidence. Young children may not be able to put events into a wider context or put together events in a sequence. Children may attribute different importance to events and reactions. Children, depending on age, will pay more attention to some details rather than others. Feelings and reactions to events may also be different compared to adults who experienced similar events. (footnote omitted)
The applicant noted the following passages from the Tribunal’s reasons for decision:
12.… . His evidence was largely vague and lacked detail. He did not describe to me claimed experienced events in a fashion which was direct, detailed and cohesive. His evidence did not strike me as recollection from first-hand experience. I find that the repeated statements, when I asked for detail, that when he thinks of things he claims to have experienced that he feels afraid, or feels that he is back in Sri Lanka are an attempt on the applicant’s part to mislead, obfuscate and paper over the lack of detail.
…
15.… His evidence was vague and lacked detail. … He talked about these events in general terms. He was also somewhat evasive. … He claimed that he could not remember because he feels afraid and like he is back there if he tries to recall. I asked how many times he was beaten. He said many times and when he thinks about it he feels afraid.…
…
17.… I said his account was not particularly convincing and did not sound like a first-hand account of things he had himself experienced, rather something that somebody had told him was something good to say. The applicant said he narrated what happened and there is nobody to teach him. He said when he thinks about it he gets upset and gets the feeling as if he is in Sri Lanka. I observed that he had said that a number of times. He said whatever happened he feels quite miserable and tried to describe. I asked if there was anything that happened in the camp that he had not told me. He said this is what he mentioned.
18.At the end of the hearing I asked the applicant’s representative if there were any questions she wished me to ask him. She said she had spoken to the applicant during the hearing adjournment about the lack of detail in his evidence when I asked to describe an incident when he was beaten in the army camp and asked me to ask him again about this, because he had told her he was feeling upset so did not give sufficient detail. I did ask him again about beatings he had experienced. The applicant said if he did not work, they beat him in the back, in the back of the neck, they kicked him, they will talk in Sinhalese which he does not understand, he tells them he wants to go to school and then they threaten him with gun. He said they beat me and they also beat him in the protest and his father was injured in the knee and back pain. I asked if this was the 2008 protest. He said yes.
The applicant’s lawyer submitted that the comment in paragraph 12 of the Tribunal’s reasons, that the evidence did not strike the Tribunal as recollection from first-hand experience, was symptomatic of a dissociative state. The lawyer did not provide any expert evidence in support of that proposition.
On the other hand, the first respondent noted the following passages from the Tribunal’s reasons for decision:
12.The courts have made it clear that it is important the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility. I take into account the applicant’s youth, however I also note that he has had eleven years of schooling in Sri Lanka. As a general impression, the applicant did not impress me as a convincing witness. …
13. … There is no claim or evidence that the applicant is labouring under any medical disability that affects his ability to recollect his own evidence. …
19.I take into account that the applicant is a young man and the forced labour at the army camp incidents he claims to have occurred happened, if they did happen, when he was a minor. I take into account that he may lack sophistication yet I note that he is resourceful enough to obtain his own country information. I am not required to accept an applicant’s claims uncritically; as I have said above, the applicant did not impress me as a convincing witness. My assessment is that the claims about being required to perform labour at the SLA camp in his village in the past are not true. His evidence was vague and lacked detail. Even when given a second opportunity to describe to me what happened to him, he talked in general terms.
The first respondent also noted that the applicant had been represented before the Tribunal by a migration agent, who did not suggest that the applicant had a mental illness or post traumatic stress syndrome. The first respondent also noted that the Tribunal expressly stated that it had taken into account the applicant’s youth.
The first respondent submitted that there was no jurisdictional error in the Tribunal not expressly taking into account the Guide. That is undoubtedly correct.[1] They are not a relevant consideration, in the sense that it is mandatory to take them into account.
[1] M100 of 2004 v Minister for Immigration and Citizenship (2007) 213 FLR 63; [2007] FMCA 829 at [102] and [103].
The first respondent also submitted that the possibility that the applicant suffered from post traumatic stress syndrome did not arise clearly from the material before the Tribunal. I accept that submission. The applicant did not take the court to particular aspects of the documents before the Tribunal or the transcript of the hearing before the Tribunal that, in the applicant’s submission, should have alerted the Tribunal to the possibility that the applicant was suffering from post traumatic stress syndrome. The applicant only pointed to the Tribunal’s own descriptions of the inadequacies in the applicant’s evidence. That is not sufficient to establish that the issue clearly arose from the materials before the Tribunal. In addition, if it had been so obvious that the Tribunal should have seen the issue, it would have been obvious enough for the migration agent to see it as well, and make the appropriate submission.

Fundamentally, in circumstances in which:
a)there was no medical or psychological evidence that the applicant suffered from post traumatic stress syndrome;
b)the possibility that the applicant suffered from post traumatic stress syndrome did not arise clearly from the materials; and
c)there was no submission by the applicant’s migration agent that the applicant suffered from post traumatic stress syndrome,
it was not incumbent upon the Tribunal to consider that possibility. This ground is not made out.
In connection with this ground, the applicant also submitted that the Tribunal had misconstrued the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka (“the UNHCR Guidelines”) dated 21 December 2012. The applicant noted that at paragraph 64 of the Tribunal’s reasons for decision it said:
I said to the applicant at the hearing that a problem with the submission, that he would be suspected of being LTTE just for reason of seeking asylum is that the UNHCR Guidelines do not support it. I said that of all the sources of information I had about Sri Lanka, I gave these Guidelines significant weight.
The applicant said, correctly, that the UNHCR Guidelines did not purport to give an exhaustive list of the categories of people who might be suspected of LTTE links. The applicant also said that he was not submitting that he faced a real chance of being suspected of being LTTE simply because he had applied for asylum. Rather, the applicant submitted that the Tribunal had failed to take into account, when it considered whether the applicant faced a real chance of being suspected of being LTTE, that the Sri Lankan Army had been to his family home a number of times and beaten his father.
I do not accept that the Tribunal misconstrued the UNHCR Guidelines. The Tribunal noted, correctly, that the UNHCR Guidelines do not support the contention that a person would be suspected of being LTTE just because that person had sought asylum. There appears to be no reason to conclude that the Tribunal understood the UNHCR Guidelines to give an exhaustive list of the categories of people who might be suspected of LTTE links. The Tribunal certainly did not say anything to the effect that it did not consider that the facts of the Sri Lankan Army visiting the applicant’s home a number of times and beating his father did not mean that the applicant was not at risk of persecution because the UNHCR Guidelines did not include those facts as risk factors.

Ground 4

The fourth ground of review in the application filed on 28 May 2013 and amended on 3 February 2015 is:
That the decision of the Second Respondent is affected by errors of law amounting to jurisdictional error in that it was illogical, irrational and unreasonable to fail to act consistently with its findings that Sri Lankan Government personnel searched the Applicant’s home on multiple occasions since the Applicant left Sri Lanka; and that on one such occasion, the SLA personnel had assaulted his father.
Particulars
Consistently with that finding, the Tribunal should find that there is specific interest by the SLA in the Applicant; and that there is a real risk to his safety if he returns to Sri Lanka.
This ground concerned the following passages from the Tribunal’s reasons for decision:
50.One of the claims made in the second statutory declaration that the applicant was able to tell me about himself was that he had spoken to his father who had told him that SLA personnel visited the family home to enquire about the applicant’s whereabouts. His father tried to lie, saying the applicant had gone to Colombo to study, and the army personnel assaulted him. The army personnel searched the house. They asked questions about the applicant’s sister who was in the house at the time.
51.There were some discrepancies between the applicant’s oral evidence to me and what he states in the statutory declaration. For example he did not say to me that his father was assaulted or that the army visits have occurred on multiple occasions. I will give the applicant the benefit of the doubt and accept these claims.
52.Given the diaspora of Tamil men from Udappu, I think it is plausible that Sri Lankan authorities would conduct enquiries about the applicant’s whereabouts. I accept that it is plausible that the Sri Lankan authorities would know, or strongly suspect, that the applicant has departed unlawfully like so many of his fellow villagers. His father being assaulted because he attempted to lie about the applicant’s whereabouts supports such a view.
53.I am not of the view that the visits necessarily connote an intent on the part of Sri Lankan authorities to do the applicant harm. I find the chance of the applicant experiencing any harm now or in the reasonably foreseeable future at the hands of the Government of Sri Lanka or its agents because enquiries have been made at his home about him and his father beaten when he attempted to lie to be remote and fanciful. I find that that he does not have a well-founded fear of serious harm on this ground, now or in the reasonably foreseeable future. Accordingly, I find that the applicant does not have a well-founded fear of persecution on this basis.
54.I find further that there are not substantial grounds for believing that there is a real risk that the applicant will experience significant harm for reason of this claim basis, as a necessary and foreseeable consequence of his return to Sri Lanka.
55.However, I will have regard to this likely state of knowledge of the local authorities about his absence in considering the chance of harm to him on his return.
The applicant argued that the Tribunal’s findings that Sri Lankan Army personnel had visited the applicant’s family home on multiple occasions, searched the house and beaten the applicant’s father should have led to clear inferences that the applicant was of specific interest to the Sri Lankan Army and should have led to findings that the applicant faced a real risk of persecution if he returned to Sri Lanka.
The first respondent submitted that the Tribunal’s conclusions were not irrational, illogical or unreasonable and were open to the Tribunal on the evidence before it.
A well-known statement of the circumstances in which illogicality or irrationality will amount to jurisdictional error is at [130] to [131] of Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16, where Crennan and Bell JJ said:
In the context of the Tribunal's decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, 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. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
However, in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 139 ALD 181; (2013) 297 ALR 225; (2013) 87 ALJR 618; [2013] HCA 18, the High Court modified the SZMDS test somewhat, at [27], [28], [66], [72], [75] and [76]. Those paragraphs are as follows:
27.In Wednesbury Corporation, Lord Greene MR observed that the word “unreasonable” in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory relevant matters and exclusion from consideration of irrelevant matters: “If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’.” That kind of unreasonableness may be taken to encompass unreasonableness from which an undisclosed underlying error may be inferred. (footnotes omitted)
28. Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider “they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it”. In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense. (footnote omitted)
…
66.This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested. (footnotes omitted)
…
72.The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that “all these things run into one another”. Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is “manifestly unreasonable”. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense. (footnotes omitted)
75.In Peko-Wallsend, Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that “guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion”. House v The King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent. (footnotes omitted)
76.As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. (footnote omitted)
In Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50; (2014) 308 ALR 280; [2014] FCAFC 1, at [44], the Full Court of the Federal Court said:
In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; compare Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; 266 ALR 367; 115 ALD 248; [2010] HCA 16 at [39] per Gummow ACJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li at [105]):
It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383–384; [1969] ALR 369 at 380; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at [47].
Paragraph [47] of Singh, although obiter, is also noteworthy:
This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v R (1936) 55 CLR 499; 10 ALJR 202, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.
The Tribunal was of the view that the visits by the Sri Lankan Army to the applicant’s home were not for reasons of the applicant’s political opinion, or imputed political opinion, but because he was suspected of having departed Sri Lanka illegally, like many others from his town. The Tribunal was also of the view that the applicant’s father was beaten because he lied that the applicant was studying in Colombo rather than admitting that he had left Sri Lanka illegally. On that basis, the Tribunal considered that the applicant did not have a well-founded fear of persecution if he returned to Sri Lanka.
It seems to me that it was open to the Tribunal to form those views. It is not irrational, illogical or unreasonable, in the necessary sense, for the Tribunal to form views of the facts with which the court might not agree, or views of the facts that differ from other views of the facts that could reasonably, rationally and logically have been formed. Something more must be shown.
I was concerned by the use of the word “necessarily” in paragraph 53 of the Tribunal’s reasons for decision. It could have suggested that the Tribunal thought the test required a certainty that the Sri Lankan Army would harm the applicant, rather than a real chance. However, the use of the words “remote and fanciful” later in paragraph 53 indicate that the Tribunal was conscious of the correct test when considering this issue. This ground is not made out.

Ground 5

The fifth ground of review in the application filed on 28 May 2013 and amended on 3 February 2015 is:
That the decision of the Second Respondent is affected by errors of law amounting to jurisdictional error in that the Tribunal failed to have regard to the seriousness of its findings that, in giving sworn evidence, the Applicant was attempting to mislead the Tribunal and obfuscate to it, and gave evidence which was not true; and failed to have regard to the need for the high degree of satisfaction which is informed by the seriousness of those findings.

In oral submissions, the applicant expressed this ground as a failure to apply the rule in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100; [1938] HCA 34. That rule was expressed by Latham CJ at page 347 as follows:
… the ordinary standard of proof in civil matters must be applied to the proof of adultery in divorce proceedings, subject only to the rule of prudence that any tribunal should act with much care and caution before finding that a serious allegation such as that of adultery is established.
The applicant argued that the Tribunal had made serious findings, in effect, that the applicant had lied to the Tribunal, without acting with the required care and caution.
The first respondent submitted that the rule in Briginshaw had no application in refugee matters, where the Tribunal is required to apply the real chance test. The first respondent referred to the High Court’s decision in FTZK v Minister of Immigration and Border Protection (2014) 310 ALR 1; (2014) 88 ALJR 754; (2014) 64 AAR 15; [2014] HCA 26, concerning Article 1F of the Refugees Convention. Paragraphs at [12] to [16] of that decision are as follows:
12The appellant invoked Briginshaw v Briginshaw, a case which concerned the degree of satisfaction necessary to discharge the civil standard of proof in relation to an allegation, in civil proceedings, of criminal conduct by a party. The requisite degree of satisfaction is informed by the seriousness of the allegation. The Briginshaw approach underpinned the appellant's analogous proposition that the characterisation of evidence as providing “serious reasons for considering” that an applicant for refuge had committed a “serious non-political crime” should be informed by the possible consequences of that characterisation. One such consequence was that a person otherwise qualifying as a refugee might be refouled to a country in which he or she would face persecution for a Convention reason. The proposition that the consequences of refoulement for an individual applicant for refuge should inform the application of the criterion of “serious reasons for considering” that the applicant has committed a serious non-political crime does not fit readily with the logical structure of Art 1F(b). That argument, however, is not reached in the present case, in which the ultimate question is not about the strength of the evidence necessary to attract the application of Art 1F, but about the logical connection of the facts found by the AAT to the allegation that the appellant had committed a serious non-political crime. Nevertheless, the correct construction of Art 1F(b) does set the framework within which the AAT must undertake its task. (footnote omitted)
13The construction of Art 1F(b) in its application to s 36(2)(a) of the Migration Act begins with the ordinary meaning to be given to its terms, read in context and in the light of its purpose. That ordinary meaning does not require a finding that the applicant for refuge has committed a serious non-political crime. The requirement that there be “reasons for considering” that an applicant for refuge has committed such a crime indicates that there must be material before the receiving State which provides a rational foundation for that inference. The question for the decision-maker, and in this case the AAT, was whether the material before it met that requirement. To answer that question in the affirmative the AAT had to demonstrate a logical pathway from the material to the requisite inference. (footnote omitted)
14The qualifying term “serious” indicates that the reasons must be sufficient to support a strong inference. There are a variety of mechanisms, administrative and judicial, by which a receiving State may determine whether that threshold is reached. Weinberg J, in a careful consideration of the construction of Art 1F(b) in Arquita v Minister for Immigration and Multicultural Affairs, stated the position accurately when he said (at [54]): (footnotes omitted)
[54] It is sufficient ... if the material before the decision-maker demonstrates that there is evidence available upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged. To meet that requirement the evidence must be capable of being regarded as “strong”. It need not, however, be of such weight as to persuade the decision-maker beyond reasonable doubt of the guilt of the applicant. Nor need it be of such weight as to do so on the balance of probabilities. Evidence may properly be characterised as “strong” without meeting either of these requirements.
Baroness Hale of Richmond JSC and Lord Dyson MR observed in Al-Sirri v Secretary of State for the Home Department (at [75]): (footnote omitted)
[75] … It is unnecessary to import our domestic standards of proof into the question. The circumstances of refugee claims, and the nature of the evidence available, are so variable.
Underpinning the requirement for strong evidence is a consciousness of the potentially profound adverse consequences of exclusion from the protection of the Refugees Convention for a person otherwise entitled to that protection.
15The criterion for exclusion from the application of the convention, defined by Art 1F(b), is not to be equated to a standard of proof. Standards of proof are applied in judicial proceedings for the purpose of making findings of fact which attract legal consequences, including civil liabilities and criminal sanctions. They are not substitutes for the application of the ordinary words of Art 1F(b). There is a degree of risk in the use which has been made of them as parameters defining necessary or sufficient conditions for the application of the article. It has been held that satisfaction on the balance of probabilities that an applicant for refuge committed a serious non-political crime may be necessary to engage Art 1F(b). It has also been held that satisfaction that it is more likely than not that an applicant for refuge has not committed the alleged crime is sufficient to support a conclusion that Art 1F(b) is not engaged. The proposition that a state of satisfaction beyond reasonable doubt that an applicant for refuge has committed the alleged crime is sufficient to enliven Art 1F(b) may be uncontroversial. However, if there is material strong enough to support such a conclusion it is probably unnecessary to go further than a finding that the material constitutes serious reasons for considering that the alleged crime has been committed. The risk with the use of domestic standards of proof as analytical tools is that they can evolve into substitutes for the words of the article and may result in the bar being placed too high or too low, according to the circumstances. (emphasis added) (footnotes omitted)
16It should be said, however, that the absence of a requirement under Art 1F(b) for a positive finding that the applicant has committed a serious non-political crime does not mean that the criterion requires anything less than “meticulous investigation and solid grounds”. In particular, and relevant to the present case, the decision-maker must pay close attention to the probative relevance of the material said to engage the application of Art 1F(b) in order to answer the question which the article poses. (footnotes omitted)
The first respondent also referred to the decision of this court in SCAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 129 at [10], where Raphael FM said:
The applicant contends that the finding of fabrication is a most serious one to which the standard of proof suggested in Briginshaw v Briginshaw (1938) 60 CLR 336 would apply. The fallacy in that argument is that Briginshaw relates to adversarial proceedings and requires the person asserting the fact to prove it to the higher standard. These proceedings are inquisitorial.
While FTZK concerned a different type of refugee matter to the present matter, the reasoning in the passage set out above in bold applies equally. There is no reason to suppose that the Tribunal in this case did not apply the correct test, namely, whether the applicant faced a real chance of persecution.

Ground 6

The sixth ground of review in the application filed on 28 May 2013 and amended on 3 February 2015 is:
Further, the decision of the Second Respondent is affected by errors of law amounting to jurisdictional error in that the Tribunal failed to have regard to the seriousness of the consequences of its decision for the Applicant and the consequent need for the high degree of satisfaction which is informed by the seriousness of that decision.
This ground essentially repeats the Briginshaw point. It must fail for the same reasons.

Other matters

The applicant also submitted that the Tribunal had made a jurisdictional error by failing to give proper consideration to the fact that the applicant was only 15 or 16 years old when most of the events he described had occurred. However, the Tribunal patently did take into account the applicant’s youth. The Tribunal said at paragraph 19 of its reasons for decision:
I take into account that the applicant is a young man and the forced labour at the army camp incidents he claims to have occurred happened, if they did happen, when he was a minor.
This ground is not made out.

Conclusion

As none of the applicant’s grounds has been made out, the application must be dismissed with costs.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date: 19 March 2015

[2015] FCCA 608

19 March 2015

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction