SZSNW v Minister for Immigration & Anor - [2014] FCCA 134

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSNW v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 134

Catchwords:
MIGRATION – Review of report and recommendation of an Independent Merits Reviewer – applicant claiming persecution in Sri Lanka on account of his Tamil ethnicity, an imputed political opinion and particular social group membership – applicant disbelieved in critical respects – whether the Reviewer failed to consider an integer of the applicants claims, or denied the applicant procedural fairness considered – consideration of legal unreasonableness in relation to fact finding.

Htun v Minister for Immigration [2001] FCA 1802
Minister for Immigration v Li [2013] HCA 18; (2013) 297 ALR 225; 87 ALJR 618
Minister for Immigration v Singh [2014] FCAFC 1
Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
SZRHL v Minister for Immigration [2013] FCA 1093
VAAD v Minister for Immigration [2005] FCAFC 117

Applicant:

SZSNW

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

PETER McDERMOTT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 146 of 2013

Judgment of:

Judge Driver

Hearing date:

30 January 2014

Delivered at:

Sydney

Delivered on:

15 May 2014

REPRESENTATION

Counsel for the Applicant:

Ms B Tronson

Solicitors for the Applicant:

SBA Lawyers

Counsel for the Respondents:

Mr J Smith

Solicitors for the Respondents:

DLA Piper

ORDERS

The Court declares that the report and recommendation of the Independent Merits Reviewer made on 2 March 2012 was not made in accordance with law.
The first respondent is restrained, by himself, his departmental officers, delegates or agents, from relying upon the report and recommendation of the Independent Merits Reviewer.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 146 of 2013

SZSNW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

PETER McDERMOTT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a report and recommendation made by an Independent Merits Reviewer (Reviewer) that Australia did not owe protection obligations to the applicant under the Convention Relating to the Status of Refugees 1951 (Refugees Convention)[1]. The applicant is from Sri Lanka and had made claims of persecution, based broadly upon his Tamil ethnicity, an imputed political opinion of association with the Liberation Tigers of Tamil Eelam (LTTE), and his claims of being a journalist and having written a book of poems where he was critical of the Sri Lankan authorities. The following statement of background facts is derived from the submissions of the parties.
[1] Separate proceedings relating to a complementary protection assessment have been settled:
The applicant arrived in Australia on 18 June 2010[2] and participated in an entry interview at Christmas Island on 20 July 2010[3].
[2] Court Book (CB) 55
[3] CB 6-49
On 20 August 2010[4] the applicant made a request for a refugee status assessment (RSA) and was interviewed for that assessment on 23 August 2010. Relevantly, the applicant provided a statutory declaration detailing his claims[5]. On 3 March 2011[6] the applicant received a letter from the Minister’s Department informing him that he had received an adverse assessment of his refugee claims.
[4] CB 52-94
[5] CB 63-67
[6] CB 95-102
On 13 April 2011 the applicant applied for an Independent Merits Review (IMR) of that assessment[7]. The applicant was represented by solicitors who sent an unsigned statement by the applicant on 9 July 2011[8]. This was accompanied by medical reports, country information and other documents[9].
[7] CB 103-108
[8] CB 143-151
[9] CB 158-200
On 9 July 2011[10] an interview was conducted with the Reviewer. On 13 July 2011[11] the Reviewer invited comments from the applicant on certain matters relating to his claims. This was answered by the applicant’s solicitor on 26 July 2011[12], and there were also other documents sent by the solicitor to support the applicant’s claim.
[10] CB 252
[11] CB 201
[12] CB 219-221
On 2 March 2012 the Reviewer recommended that the applicant not be recognised as a refugee.

Applicant’s claims

The applicant made the following claims in his statutory declaration[13]:
[13] CB 63-67
a)he was a citizen of Sri Lanka and a Tamil from the north of Sri Lanka;
b)he feared returning to Sri Lanka due to persecution from the Sri Lankan authorities such as the Sri Lankan Army (SLA) as a Tamil and an assumed supporter of the LTTE, and also as a writer who had written in a local newspaper about the atrocities he witnessed and suffered;
c)his father, who had made inquiries with the local Tamil member of Parliament as to whether the family could return to their property in another part of northern Sri Lanka that had been confiscated by the SLA, was shot by the SLA in December 2004. During this incident the applicant was hit on the head and became unconscious;
d)as a result of being an eyewitness to his father’s death and because he was a reporter of the newspaper he was taken to Boosa prison camp for five months where he was tortured and humiliated;
e)his mother paid for him to be released from the camp and, as he feared for his safety, he left Sri Lanka and went to Qatar where he resided for five years;
f)while living in Qatar he wrote a book of poems which was published in Sri Lanka. The book was published under a fictional name, Satan’s Brothers, and the applicant’s photo was published in the book;
g)in 2009 he returned to Sri Lanka and was immediately arrested on suspicion of being an LTTE supporter. He had a copy of his book in his bag;
h)he was taken to Negombo Prison where he was pressured to sign a statement that he was a supporter of the LTTE but did not agree to do so. He obtained legal representation and was granted bail on 25 August 2009;
i)while in prison he was told by a prison officer that he would be killed after he was released. In September 2009, he left Sri Lanka.
In a further statement[14], the applicant clarified the events he had recounted to the RSA officer, and submitted to the Reviewer that:
a)he could not be sure how long he remained unconscious when he was taken to the camp as he was traumatised from witnessing his father’s death. He estimated he was unconscious for two or three hours;
b)he was sexually tortured in Boosa prison camp (he had revealed this at the RSA interview) and provided medical reports through his solicitors, detailing the injuries he still suffered from this experience;
c)in Negombo prison he denied any involvement with the LTTE and declined to sign a document confessing to be an LTTE member;
d)since leaving Sri Lanka, the Criminal Investigation Division (CID) has continued to visit his mother’s house and enquire where he is.
[14] CB 143-151
In written submissions sent shortly prior to the IMR interview, the applicant’s solicitors expanded further on his claims.
Post hearing submissions[15] and documents (such as a part of the book the applicant claimed he had written[16]) were also sent to the Reviewer to corroborate and clarify the applicant’s claims.
[15] CB 219-221
[16] CB 222-234

The Reviewer’s report

The Reviewer rejected the bulk of the applicant’s claims and did not find the applicant to be a witness of credit[17]. The Reviewer outlined what he deemed to be significant inconsistencies and implausibilities in the applicant’s claims, particularly relating to whether:
a)the applicant signed an incriminating document linking him to the LTTE when he was in prison in 2009[18];
b)the applicant had been sexually tortured in Boosa prison in 2004 to 2005[19]. Of particular concern to the Reviewer was that the applicant did not disclose this in his entry interview at Christmas Island;
c)the CID attempted to kill the applicant in the home of his lawyer in 2009[20];
d)the applicant published a book of poetry[21].
[17] CB 273
[18] CB 264
[19] CB 267-268
[20] CB 262
[21] CB 267
The Reviewer accepted that the applicant’s father had been shot and that his father had written a book[22]. The Reviewer also accepted that the applicant had been a journalist but found that his links to the newspaper had ceased in 2004[23]. In short, the Reviewer did not accept that the applicant had been detained in 2004 or in 2009[24] or that the applicant had any imputed support for the LTTE, either as a Tamil, nor on account of his authorship of a book or because he was a part time journalist[25]. On this subject the Reviewer concluded[26]:
…The statements that have been made by the claimant as to his LTTE membership are contradictory. Before the RSA officer he stated that he had signed a confession in which he admitted to LTTE membership. Before me he denied ever having made such an admission. In the DIAC interview the claimant stated that he was not involved with paramilitary groups. I do not consider that it is plausible that the claimant can be regarded as being suspected of having any links with the LTTE. This is because in his activities as a journalist he was critical of the LTTE. At the IMR interview it was submitted that the publication of the book has overshadowed any previous criticism of the LTTE. However, I do not consider the claimant has written any book.
[22] CB 266
[23] CB 272
[24] CB 267
[25] CB 269
[26] CB 272 at [163]
As the Reviewer found that the applicant had not authored a book, he in turn concluded that the applicant could have no well-founded fear of persecution from writing this book[27]. The Reviewer concluded that the applicant would not be subject to a real chance of serious harm if he were returned to Sri Lanka[28].
[27] CB 272
[28] CB 268-269

The judicial review application

These proceedings began with an application filed on 25 January 2013. The applicant relied on an amended application filed on 26 August 2013. This amended application raised the following grounds:
1.The Independent Merits Reviewer (the Reviewer) failed to make a recommendation according to law in that he failed to consider an integer of the applicant’s claim.
Particulars
a.It was an integer of the applicant’s claim that he had a well-founded fear of persecution for a Convention reason by virtue of the fact he is:
i.      a Tamil; and/or
ii.     a young male Tamil; and/or
iii.     from the north-east of Sri Lanka.
b.The Reviewer was required to consider each of the characteristics stated in the sub-particulars of particular (a), both independently and cumulatively.
c.The Reviewer entirely failed to consider independently whether the applicant had a well-founded fear of persecution for a Convention by reason of either or both of the characteristics stated in sub-particulars (ii) and (iii) of particular (a) above.
d.The Reviewer failed to consider the cumulative effect of any combination of two or more of the characteristics stated in the sub-particulars of particular (a) above.
2.The Reviewer failed to make a recommendation according to law in that he denied the applicant natural justice.
Particulars
a.The Reviewer relied on the use of specific English words to make findings, adverse to the applicant, that he had given inconsistent evidence, in particular:
i.      that a person had recorded in a medical report that the applicant was a civil engineer by trade;
ii.     that the applicant had given evidence that he was forced to sign a statement, in circumstances where he gave evidence that he did not sign it;
iii.     in the Reviewer’s finding that the applicant’s evidence before the Reviewer was that he raised claims of sexual torture in the entry interview in circumstances where the Reviewer asked the applicant if he raised those claims at Christmas Island and where the interview before the Refugee Status Assessor (during which the applicant did raise those claims) also took place at Christmas Island.
b.Such reliance was arbitrary and/or unreasonable and/or unfair in a manner which amounted to a denial of natural justice.
c.Those findings formed part of the basis for the Reviewer’s determination that the applicant was not a credible witness in circumstances where the Reviewer’s determination as to the applicant’s credibility was critical to the Reviewer’s findings of fact generally.
3.The Reviewer failed to make a recommendation according to law in that he denied the applicant natural justice.
Particulars
a.The Reviewer found that the applicant had not given evidence that he was too embarrassed to mention sexual torture at the entry interview.
b.Further, the Reviewer found that the applicant gave evidence to the Reviewer that the applicant had raised claims of sexual torture during the entry interview.
c.From the time of the interview before the Refugee Status Assessor, the applicant consistently claimed to have experienced sexual torture during a period of detention in 2004.
d.The applicant submitted to the Reviewer, through his advisor, that he felt shame in relation to the sexual torture.
e.Those submissions were consistent with:
i.      medical and other reports provided to the Reviewer, which the Reviewer failed to consider; and
ii.     submissions made by the applicant’s advisor during the interview before the Refugee Status Assessor to the effect that the applicant had asked if they could avoid talking about details of those particular aspects of the applicant’s claims.
f.The applicant in fact accepted in his evidence on a number of occasions that he did not make claims of sexual torture at the entry interview.
g.At the hearing before the Reviewer, the Reviewer asked the applicant whether he had raised the claims of sexual torture at the interview at Christmas Island. The applicant stated that he had. However, the interview of the Refugee Status Assessor, during which the applicant did raise claims of sexual torture, took place on Christmas Island.
h.In the premises, the Reviewer’s reliance on the applicant’s evidence that he had raised the claims of sexual torture at the interview at Christmas Island as the basis for findings that:
i.      the applicant gave evidence that he had raised the claims of sexual torture at the entry interview; and
ii.     that he did not give evidence that he did not raise the claims of sexual torture at the entry interview because of shame,
was unreasonable and/or arbitrary and/or unfair in a manner which amounted to a denial of natural justice.
i.Those findings formed part of the basis for the Reviewer’s determination that the applicant was not a credible witness in circumstances where the Reviewer’s determination as to the applicant’s credibility was critical to the Reviewer’s findings of fact generally.
4.In the alternative to grounds 2 and 3, the Reviewer failed to make a recommendation according to law in that he denied the applicant natural justice.
Particulars
The applicant repeats the particulars to grounds 2 and 3 and relies upon them cumulatively.
The parties made both oral and written submissions. I have before me as evidence the book of relevant documents (court book) filed on 15 March 2013 and the affidavit of Sue Archer made on 25 July 2013 to which is annexed a transcript of the interview before the RSA officer[29] and the interview before the Reviewer[30].

Consideration

[29] Exhibit Note SA-1

[30] Exhibit Note SA-2

Ground 1- failure to consider integer of the applicant’s claim

This ground asserts that the Reviewer failed to consider whether the applicant was at risk in Sri Lanka because he was a young Tamil male, as opposed to simply a Tamil. The applicant states that his risk as a young Tamil was brought to the attention of both the RSA officer[31] and the Reviewer[32], with reference to the UNHCR Guidelines[33] and in accordance with country information from TamilNet[34] and Amnesty International[35]. The applicant claims that the failure to consider this integer of his claim amounted to jurisdictional error (or for present purposes reviewable legal error) in accordance with Htun v Minister for Immigration[36].
[31] Exhibit SA-1 to the affidavit of Sue Archer affirmed 25 July 2013 (Exhibit SA-1), page 18, lines 5-7, 16-17, 29-30
[32] CB 124-125
[33] CB 124
[34] CB 125
[35] CB 172-173
[36] [2001] FCA 1802
The Minister contends that this claim must be read in context of the applicant’s solicitor’s ultimate submissions by letter[37] and at the IMR interview[38], where the submission made on behalf of the applicant was not that the applicant faced persecution as a young Tamil male as such, but rather one imputed with a political opinion.
[37] CB 115
[38] SA-2, pages 22-25
I prefer the submissions of the Minister. There is minimal evidence illustrating the applicant’s claims as a young Tamil male. The Reviewer considered the applicant’s claims in the way they were framed by the applicant’s solicitors, and this focused on the applicant being a Tamil with an imputed political opinion of support for the LTTE through the book he claimed to have written, and also his claim of being a journalist. The Reviewer considered the applicant’s claims in light of his Tamil ethnicity[39] using UNHCR guidelines but spent the bulk of his reasons focused on the applicant’s claims to be an imputed LTTE supporter and his claims as a journalist. This was consistent with the way the applicant made his case and there was no error in the Reviewer’s failure to expressly refer to the applicant’s youth.
[39] CB 269
Ground 1 fails.

Grounds based on unreasonableness

Grounds 2 and 3 relate to the concepts of unreasonableness, arbitrariness or unfairness that amounted to a denial of procedural fairness, in the context of the decision of the High Court in Minister for Immigration v Li[40]. The applicant asserts that the way the Reviewer dealt with the evidence before him was unreasonable and led the Reviewer to assess the applicant’s credibility adversely. The applicant relies on the decision of Logan J in SZRHL v Minister for Immigration[41] as authority for the proposition that considering evidence in an unreasonable manner can amount to jurisdictional error.
[40] [2013] HCA 18; (2013) 297 ALR 225; 87 ALJR 618
[41] [2013] FCA 1093
The Minister has argued that essentially these grounds concerning evidence are based on the premise that there could have been other conclusions available to the Reviewer on the evidence, which is a question concerned with merits review and thus not permitted by this Court.
The applicant identifies three occasions where the Reviewer relied on the use of specific words to make adverse findings on the applicant’s credibility.
The first occasion relates to a medical record dated 24 August 2010 where it was recorded that the applicant was a “civil engineer by trade”[42]. This was contentious because the applicant stated that he had commenced but not finished a civil engineering course in 2004[43]. The applicant asserts that this was used as evidence by the Reviewer to discredit him, and particularly to discredit his claim of sexual torture. The applicant claims that it was unreasonable for the Reviewer to have:
a)not put his concerns to the applicant about this discrepancy, and/or
b)not have taken into consideration that it was possible this discrepancy arose from an independent source such as a problem with the interpretation of what the applicant recounted.
[42] CB 268 and see also the record itself at CB 164
[43] CB 63-64
The test for unreasonableness is strict as it must be established that the approach adopted by the decision maker was lacking in “evident and intelligible justification” or was “arbitrary, capricious or clearly unjust”[44]. In this case it was open to the Reviewer to apply a negative assessment of the applicant’s credit in regard to the words “civil engineer by trade”. The question is whether it was unreasonable for the Reviewer not to have addressed the issues as outlined in [23a)] and [23b)] above.
[44] see Minister for Immigration v Li at [76] per Hayne, Kiefel and Bell JJ and Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [128]-[130] per Crennan and Bell JJ

The Minister contends that as these documents were first seen by the Reviewer towards the end of the hearing that was sufficient reason for the Reviewer not to raise the matter at the hearing, and also that the documents were provided by the applicant and therefore nothing in them could have taken him by surprise. I agree with the Minister on this point. I am not persuaded that the test of unreasonableness has been satisfied by the applicant in relation to the words “civil engineer by trade” recorded on the medical record. There was a discrepancy in what the applicant told the Reviewer about his education and training as an engineer, and what had been written on the medical report. I am inclined to the view that this aspect of the Reviewer’s report formed a minor but still persuasive part of the Reviewer forming a negative assessment of the applicant’s credit and it was not unreasonable to fail to address the concerns put by the applicant in [23a)] and [23b)] above.
The second occasion the applicant claims the Reviewer acted unreasonably was in relation to whether or not the applicant was forced to sign a self-incriminating document to be an LTTE supporter. The Reviewer stated at [169][45] :
The claimant is not a credible person. I do not accept his account of events as reliable. At different times he has modified his account of events to what he considers to be most advantageous to his claim for protection. In the post-interview submission of 26 July 2011 the agent has confirmed that the claimant did tell the RSA officer that he signed a self-incriminating document admitting involvement with the LTTE. However during the IMR interview I twice asked the claimant whether he did sign a self-incriminating document and he denied having done so. He has changed his account of events to remove any reason why he would not be granted bail if he was charged with a terrorist offence…
[45] CB 273
In his statutory declaration before the RSA officer the applicant stated[46]:
I was taken to Negombo Prison, where I was forced to sign a statement that I was a supporter of the LTTE. I did not agree to do so.
[46] CB 65 [13]
It is the ambiguity of this statement that has caused much controversy in this matter and given rise to questions involving the applicant’s credit. It led the RSA officer to assume that the applicant did sign the document and to have the following exchange with the applicant[47]:
[47] Exhibit SA-1, page 12
Q. You say that you were forced to sign a statement. What sort of statement?
A. INTERPRETER: A statement saying that he is an LTTE member and he’s opposed to the LTTE.
Q. Did you have to sign anything about the book?
A. INTERPRETER: No.
Q. So to call you an LTTE member was just a way of holding you was it?
A. INTERPRETER: Yes, cause they didn’t have any other reason so that’s the reason.
As outlined by the Reviewer above at [26], the applicant was insistent before the Reviewer in his denial of being forced to sign an incriminating statement to be an LTTE supporter. However, the applicant admitted in post hearing submissions before the Reviewer that in the RSA interview he said he had agreed to sign the statement. These post hearing submissions from the applicant’s solicitor stated[48]:
From our records, [the applicant] did tell the RSA Delegate at his interview that he had signed the statement, however this was an error by our client. He was extremely anxious and upset (a fact acknowledged by the RSA delegate), having disclosed, for the first time, to the Delegate the sexual abuse he had suffered, and he now believes he did not express himself accurately. He has no personal recollection of saying anything about the incriminating document at the time. He believes that what he may have intended to say was something along the lines that his captors tried to force him to sign a statement, but he refused to do so. In support of this, we point out that in his recent Statement, [the applicant] notes that he had been warned by his supporters not to sign any forced confessions, as by doing so the situation would have been made worse for him.
[48] CB 220
The applicant claims that overall he was consistent in his evidence and it was not open to the Reviewer to find either that the applicant admitted having signed a document, or that the applicant was inconsistent in his account of events. It was the Reviewer’s use of this evidence to impugn the applicant’s credibility, that the applicant claims was unreasonable, arbitrary or unfair.
Guidance on how to interpret Li and the concept of legal unreasonableness was recently provided by the Full Federal Court in Minister for Immigration v Singh[49] where their Honours Allsop CJ, Robertson and Mortimer JJ stated at [42]:
Unlike some grounds of review, legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the court, including any inferences which may be drawn from that evidence. Ultimately, however, the outcome will depend on the application of the principles which emerge from Li, and the earlier authorities discussed in it, rather than on mere factual similarities or differences. (emphasis added)
[49] [2014] FCAFC 1
Their Honours went on to consider the principles underlying legal unreasonableness from [44]-[48]:
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: 297 ALR 225; [2013] HCA 18 at [27]- [28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ 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 297 ALR 225; [2013] HCA 18 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 297 ALR 225; [2013] HCA 18 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] HCA 5; (1969) 119 CLR 365 at 383–384; [1969] HCA 5. Review by a court of the unreasonableness 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 220–221 [47].
In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law. This was the position in, for example, Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353: see at 359-360. Where there are reasons, and especially where a discretion is being reviewed, the court is able to follow the reasoning process of the decision-maker through and identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable.
There is then the question whether in assessing a contention of legal reasonableness, the court on review is confined to the reasons given by the decision-maker, where there are reasons. Certainly in Li the approach taken by the High Court was to examine the reasons, and justification, given by the Tribunal. In the present appeal, some of the justifications put forward by the Minister for the Tribunal’s refusal of the adjournment were not matters mentioned by the Tribunal in its reasons, such as the submission that the first respondent could have sat the IELTS tests up to two years before his visa application, the use by the first respondent of the word “hope” in his letter asking for an adjournment, the absence of reasons advanced by the first respondent as to why the first mark for his 1 December 2012 test was incorrect, the inferences that might be drawn from the first respondent’s failure to obtain the requisite marks in several previous tests and the absence of factors outside the first respondent’s control (by comparison with the facts in Li). None of these matters was relied on by the Tribunal in its reasons.
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 The King [1936] HCA 40; (1936) 55 CLR 499, 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 standard of legal reasonableness will apply across a range of statutory powers, but the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case. As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be fact dependent. That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as “intelligible justification” must involve scrutiny of the factual circumstances in which the power comes to be exercised. (emphasis added)
In context of the present case the question is whether an intelligible justification was given in the Reviewer’s reasoning process for concluding that the applicant had given inconsistent evidence in relation to having signed the self-incriminating document. The applicant’s words in his statutory declaration are ambiguous. The RSA officer inferred from them that the applicant had signed the document but did not accept that the applicant would be granted bail or his passport returned to him without any charge being laid against him[50].
[50] CB 101
There are two possible conclusions that could be drawn from the applicant’s evidence in his statutory declaration at face value. These are first, that he signed the statement under duress (which was assumed by the RSA officer), or secondly (as the applicant claimed before the Reviewer and in appeal to this Court) that he refused to sign the document, despite being pressured to do so.
The applicant argues that his exchange with the RSA officer should be understood in light of his statutory declaration which was written just a few days before the interview where he had specifically said he did not agree to sign the statement. According to the applicant, he was extremely anxious and upset in just having revealed at the RSA interview that he had been sexually tortured. Counsel for the applicant has argued that the most that can be taken from the applicant’s exchange with the RSA officer was that the applicant may have accepted an oblique inference that he signed the statement but he certainly did not say that he did sign the statement, as the Reviewer found[51].
[51] CB 264 at [113]
The Reviewer raised the issue with the applicant and discussed his reservations about the applicant’s evidence between [109]-[119] of his report. In my view, when looking at this issue in isolation, it was open to the Reviewer to conclude that the applicant had given inconsistent evidence about whether he had signed the statement or not. In fact, the applicant admitted giving inconsistent evidence. The question in my mind is whether the Reviewer dealt reasonably and intelligibly with the justification for why the applicant had given this inconsistent evidence, in other words, did the Reviewer adequately consider the applicant’s claim of sexual torture.
In my opinion and, as explained below, the way in which the Reviewer dealt with the issue of the applicant’s claim of sexual torture was unreasonable. This is a delicate and sensitive issue, which the Reviewer was dismissive of and gave no weight. This claim, and the way it was dismissed coloured the Reviewer’s opinion of the applicant’s credibility and led the Reviewer to form an adverse opinion of the applicant’s credit.
The claim of sexual torture is the third incident of the applicant’s claim that the Reviewer acted unreasonably. This element is closely linked to Ground 3 of the amended application and so I will deal with the issues together. The applicant claims that the Reviewer was unreasonable in considering when the applicant had made the disclosure of sexual torture. The Reviewer questioned the applicant as follows[52]:
[52] Exhibit SA-2, page 27, line 44 to page 28, line 4
Q. At Christmas Island did you tell them about your sexual torture?
A. INTERPRETER: Yes I disclosed.
Q. I haven’t seen any reference to sexual torture in your Christmas Island statement. You mentioned an injury when you were beaten and you had a scar on your forehead and you were unconscious and you had stitches and that seems to be the only reference to any injury.
A. INTERPRETER: I have spoken about this at the case manager’s interview.
Counsel for the applicant has conceded that it is clear the applicant did not mention the sexual torture claim at the entry interview. However, counsel has sought to explain that the RSA officer interview also took place on Christmas Island where the applicant did mention his experience of being sexually tortured[53]. Counsel has argued that the Reviewer did not take into account whether the interview before the RSA officer could meet the description given by the applicant as a “case manager’s interview”. Further, counsel states that from the date of the interview with the RSA officer the applicant consistently made claims of sexual torture.
[53] see Exhibit SA-1, page 7 lines 33-45
The relevant passage from the Reviewer’s findings is found at [143] of his report[54]:
The claimant did not make any claim of sexual torture at the DIAC entry interview at Christmas Island. This interview lasted for more than four hours and the DIAC officer asked the claimant questions about his claims. If he was the victim of sexual torture then he would have had adequate opportunity to mention this claim. The DIAC officer also read out the warning to the claimant which I have earlier quoted in this report (at [33]). The terms of that warning are, in my opinion, particularly appropriate to this claim of sexual torture. I certainly have doubts about his claims of sexual torture. This also causes me to have serious reservations about the credibility of the claimant.
[54] CB 268
The warning given by the Departmental officer at the entry interview formed a crucial part of the Reviewer’s assessment of the applicant’s credit and his claims of sexual torture. This warning was reiterated in the Reviewer’s report at [33][55]:
I then informed the claimant that at the Christmas Island interview he was informed in the following terms: ‘You are expected to give true and correct answers to the questions I ask. You should understand that if the information you give at any future interview is different from what you tell me now, this could raise doubts about the reliability of what you have said’. I informed the claimant that this passage is ticked in the record of the interview. The claimant was asked whether he remembered being given that warning. He stated that he was upset at the beginning. He also remarked: ‘I could not present in order. I could not tell in order regularly. I have offered the important, the essential things. I have disclosed the essential things’.
[55] CB 255
The applicant also submits in relation to Ground 3 that the Reviewer placed significant weight on what he saw as a failure of the applicant to give evidence of his embarrassment at making a claim of sexual torture. The applicant states that the Reviewer overlooked the evidence that the applicant did in fact feel shame and embarrassment in relation to his claims of sexual torture. The applicant refers to the interview with the RSA officer where the applicant’s advisor specifically stated that the applicant did not want to talk about details relating to his sexual torture[56]. At the IMR interview the applicant’s advisor also referred the Reviewer to guidelines on victims of sexual violence. Before the interview, in her 6 July 2011 submissions, the applicant’s solicitor had referred to the Refugee Review Tribunal’s (Tribunal) Guidelines on Vulnerable Persons and also to the Refugee Review Tribunal’s Guidance on the Assessment of Credibility[57]. In post hearing submissions the applicant’s solicitor stated[58]:
[56] Exhibit SA-1, page 7, lines 38-45
[57] CB 141
[58] CB 220-221
We … submit that sexual torture is considered to be an act of persecution, and has been identified as such by the UNHCR. Several authoritative sources provide that sufferers of sexual torture are acknowledged as sometimes reluctant to disclose what has happened to them. For example, the UNHCR Guidelines note:
…
35. Persons raising gender-related refugee claims, and survivors of torture or trauma in particular, require a supportive environment where they can be reassured of the confidentiality of their claim. Some claimants, because of the shame they feel over what has happened to them, or due to trauma, may be reluctant to identify the true extent of the persecution suffered or feared. (emphasis added)

The applicant also refers to the medical reports[59] provided to the Reviewer and the references in those reports to the applicant feeling embarrassed about his experiences of sexual torture. The Reviewer’s consideration of the applicant’s embarrassment of discussing his claim of sexual torture is found at [144] of his report[60]:
This is not a case where the claimant has stated to be too embarrassed at mentioning sexual torture at the entry interview. Instead the claimant has said that he did make a claim of sexual torture at Christmas Island. There is no mention of sexual torture in the records of the entry interview. There is also no mention of sexual torture in the statutory declaration dated 12 September 2010[61] that he made at Christmas Island with the assistance of his agent with expertise in refugee law. I do not believe that the claimant made a claim of sexual torture at Christmas Island.
[59] CB 158-164
[60] CB 268
[61] This appears to be an error. The statutory declaration was dated 20 August 2010
The Reviewer then considered and dismissed whether there was any evidence in the medical report that favoured the applicant’s claims of sexual torture[62]. He did so on the basis that the applicant was not a civil engineer by trade and that there was inconclusive medical evidence on whether the applicant had been sexually tortured or not.
[62] CB 268
The applicant seeks to draw an analogy between the issues in this case and the case of SZRHL. In that case the Tribunal found that the factual basis upon which the applicant advanced his protection visa was not credible. The fact that the applicant in that case had failed to mention a false case in his protection visa application was counted against his credit by the Tribunal. Logan J considered whether this was a peripheral issue for the Tribunal when considering the applicant’s claims, or if it was a central issue determining the case. His Honour stated at [34]:
As I opined by reference to earlier authority in SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37], “the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise”. That is this case. The process of reasoning that led to the damning of the first appellant’s credibility by the Tribunal was premised upon the basis that a reference to a “false case” laid against him in the courts of Bangladesh had only emerged belatedly, as opposed to when the visa application was made. That premise was not peripheral.
Similarly, in this case the issue of sexual torture can be seen as a central issue determinative of the case. Further, in both cases there was a false factual premise. In the present case the false factual premise was that the applicant did not mention sexual torture at the interview on Christmas Island. He did. On one view that is sufficient to dispose of this case. The Minister contends, however, that the real issue for the Reviewer was the applicant’s failure to mention sexual torture at the entry interview.
Even on that interpretation, however, I am of the view that the Reviewer acted unreasonably. Both the RSA officer and the Reviewer were asked to take into account the applicant’s unique circumstances as a vulnerable person and guidelines on victims of sexual abuse were given to the Reviewer. The Reviewer’s own guidelines can be found from CB 274, and in particular, the following passage at CB 290:
9 Interviewing victims of torture or trauma
Cases where the claimant has been the victim of torture or trauma need to be handled with particular sensitivity. A key factor in handling torture/trauma cases is the degree of confidence Reviewers can engender in obtaining the relevant facts or circumstances of psychological or emotional stress from the claimant.
…
9.1 Survivors of torture/trauma may exhibit various symptoms ranging from anger to fear and shame, to showing no emotion at all, which may affect their ability to discuss the situation. Reviewers should be patient and understanding when discussing traumatic incidents with claimants… (emphasis added)
Credibility is usually an issue par excellence for the decision maker. However, in certain cases, assessment of credibility can amount to jurisdictional error[63]. As explained in VAAD at [79] there is a non-linear nature to the way credibility is assessed, and therefore such errors can result in the applicant being “deprived of a fair opportunity of presenting his case, and of correcting an erroneous and unfavourable factual assumption relevant to credibility”[64].
[63] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, at 88-89 [4] (Gleeson CJ); VAAD v Minister for Immigration [2005] FCAFC 117 at [79]
[64]Gleeson CJ in Aala at [4]
In SZRHL Justice Logan stated at [36]:
… it was procedurally unfair to the first appellant for the Tribunal, when questioning him in the course of the hearing, to have put to him that he had failed to mention a “false case” in the statement in the statutory declaration which accompanied the protection visa application but to have failed to mention to him that he had mentioned that matter in the application itself. The answers which the first appellant came to make at the hearing to questions proceeding from this false premise in turn formed part of the reasoning that led to a conclusion that the first appellant was not credible.
In the present case the applicant did make reference to being tortured in his statutory declaration but did not specifically mention sexual torture. The Reviewer in his report stated that as the entry interview was of four hours duration the applicant had “adequate opportunity” to mention that he had been sexually tortured. In my view, if the Reviewer had seriously taken into consideration the various guidelines mentioned above he would have reached a different conclusion on this subject and would have had to consider that perhaps the applicant in this case was very reluctant to mention his experience of sexual torture at the entry interview due to feelings of shame or embarrassment and that recounting the incident could be extremely distressing. Certainly, in the medical reports, which the Reviewer did not find persuasive, there is evidence that the applicant felt embarrassment when having to describe information relating to the sexual abuse.
In my opinion the Reviewer acted unreasonably when considering the applicant’s claim of sexual torture, and made a cursory assessment as to the validity of the claim based on the fact that the applicant had not mentioned the claim upon arrival in Australia. He found (incorrectly) that the applicant did not mention sexual torture at interview on Christmas Island and paid no regard to the applicant’s reluctance to discuss the issue in detail at the RSA interview.
There is no bright line between a finding of legal unreasonableness and impermissible merits review. There is a line but it can be indistinct. Nevertheless the Court must stay on the correct side of the line. The Court must of course be disinterested in whether the applicant should be recognised as a refugee. The Court should generally concern itself with issues of process rather than outcome, although, as explained by the Full Federal Court in Singh at [44], legal unreasonableness can be outcome focused within the area of decisional freedom when a decision maker makes a choice that is arbitrary, capricious or without common sense.
The difficulties inherent in this field of jurisdictional error were addressed by the High Court in Minister for Immigration v SZMDS, in particular at [113]–[131] per Crennan and Bell JJ. At [124] their Honours said:
More recently it has been suggested that statutory tribunals must not only act reasonably as intended by the legislature, they must also act rationally. If rationality is a separate freestanding common law standard for good administrative decision-making it seems at least related to the implied standard of reasonableness following the articulation by Lord Greene MR of what has come to be known as “Wednesbury unreasonableness” It appears closely allied also to the requirement in Avon Downs that extraneous reasons should not be taken into consideration but relevant considerations must be. It appears to be allied as well to the principle that fact finding must be based on probative material, one correlative of which is that a decision based on no evidence displays jurisdictional error. Accepting rationality, as a freestanding common law requirement in decision-making, with the consequence that irrationality may attract judicial review, is complicated by three considerations. First, describing reasoning as “illogical or unreasonable, or irrational” may merely be an emphatic way of expressing disagreement with it, and to describe a conclusion that a decision maker is not satisfied as “irrational” might mean no more than that, on the material before the decision maker, the court would have reached the required state of satisfaction. (footnotes omitted)
Their Honours continued at [129]–[130]:
It can be acknowledged that the contemporary invocation of “illogicality” or “irrationality” as a basis for judicial review may well have first emerged in Australia, as intimated by Gleeson CJ in S20, as a reaction to the ouster of the review ground of “Wednesbury unreasonableness” in immigration law. Equally it may be that the development of “irrationality” as a basis for judicial review in England grew out of dissatisfaction with the inherent circularity of the Wednesbury test and the implicit suggestion in Wednesbury that there were degrees or grades of unreasonableness. Be that as it may, accepting that an allegation of “illogicality” or “irrationality” must mean something other than emphatic disagreement as explained above by reference to Eshetu and S20, and also accepting that a demonstration of bona fides will not save an illogical or irrational decision or finding on a jurisdictional fact as stated in SGLB, how do “illogicality” and “irrationality” fit with the clearly related body of law concerned with error, particularly jurisdictional error, in respect of reasoning which is “clearly unjust” “arbitrary” “capricious” or “Wednesbury unreasonable”? (footnotes omitted)
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.
In the present case three factors satisfy me that legal unreasonableness has been established. First, the Reviewer’s adverse credibility finding against the applicant was based on a false factual premise that the applicant had made no disclosure of sexual torture whilst detained on Christmas Island. Secondly, the Reviewer paid no regard to the obvious reluctance on the part of the applicant to discuss the details of the torture at the RSA interview. Thirdly, the Reviewer failed to inform himself of the correct approach to dealing with claims of sexual torture as set out in the guidelines produced by the Minister’s Department and the Tribunal. Instead, the Reviewer relied upon the fact that a box had been ticked on the report of the initial entry interview indicating that the applicant had revealed everything material to his claims at that time. This combination of circumstances satisfies me that the report and recommendation of the Reviewer insofar as it dealt with the issue of sexual torture was unreasonable in the required legal sense. Because of the importance of the Reviewer’s finding to the outcome, his report and recommendation was thus fatally flawed.
Ground 4 relates to cumulative unreasonableness and is based on an alternative proposition. As I have already identified reviewable legal error in relation to Ground 2 and 3, I do not need to consider Ground 4.
The applicant is entitled to the relief sought in the application.
I will hear the parties as to costs.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 15 May 2014

SYG 2842/2013