Wzaty v Minister for Immigration

[2017] FCCA 597

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZATY v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 597

Catchwords:
MIGRATION – Judicial review – Sri Lankan citizen – Sinhalese ethnicity – whether failure to consider an integer of claim – whether failure to consider probative evidence of applicant’s wife – whether inadequate standard of interpreting – whether Tribunal made inconsistent, illogical and contradictory findings – whether jurisdictional error – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.36(2) and (2A), 65, 425(1), 476

Cases cited:
Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244
Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15
Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16, (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224
MZZQE v Minister for Immigration & Border Protection [2014] FCCA 1642
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263; (2004) 144 FCR 1
Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6; (1999) 56 ALD 231
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59; (2003) 73 ALD 1
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57; (2001) 75 ALJR 889: (2001) 179 ALR 238
SZDGC vMinister for Immigration & Citizenship [2008] FCA 1638; (2008) 105 ALD 25
SZJZE v Minister for Immigration & Citizenship [2007] FCA 1653
SZOOR v Minister for Immigration & Citizenship & Anor [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1
SZSEI v Minister for Immigration & Border Protection [2014] FCA 465
SZSGA v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCA 774
SZTIF v Minister for Immigration & Border Protection [2014] FCCA 945; (2014) 285 FLR 251
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511
WALN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 131
WZANF v Minister for Immigration & Anor [2010] FMCA 110
WZAPM v Minister for Immigration & Anor [2013] FCCA 266

Applicant: WZATY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 75 of 2014

Judgment of: Judge Antoni Lucev

Hearing date: 15 September 2014 and 17 July 2015

Date of Last Submission: 17 July 2015

Delivered at: Perth

Delivered on: 31 March 2017

REPRESENTATION

Counsel for the Applicant: Mr D Blades (on 15 September 2014) and Mr G Arujunan (on 17 July 2015)

Solicitors for the Applicant: AUM Legal

Counsel for the First Respondent:	Mr P Macliver (on 15 September 2014) and Mr A Gerrard (on 17 July 2015)
For the Second Respondent:	Submitting appearance save as to costs

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.

2. That a writ of certiorari issue quashing the decision of the former Refugee Review Tribunal made on 18 February 2014.

3. That a writ of mandamus issue requiring the Administrative Appeals Tribunal to re-hear the application for review made by the applicant on 28 August 2013 according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 75 OF 2014

WZATY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the second respondent, the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision is at Court Book (“CB”) 230-251. The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the Minister for Immigration & Border Protection (“Minister”), to refuse to grant a Protection (Class XA) visa (“Protection Visa”) to the applicant. The Delegate’s Decision is at CB 112-129.

Background

1. The background to the Judicial Review Application is:

   a)the applicant is an ethnic Tamil Sri Lankan citizen who arrived in Australia on 16 July 2012 as an undocumented irregular maritime arrival: CB 113;

   b)on 1 September 2012 an officer of the Department of Immigration and Citizenship (“Department”) interviewed the applicant (“Entry Interview”) and the applicant provided his reasons for leaving Sri Lanka: CB 18;

   c)on 23 July 2013, the applicant applied for a Protection Visa: CB 29-64, annexing a statutory declaration regarding the applicant’s reasons for leaving Sri Lanka: CB 61-64 (“Applicant’s July 2013 Statutory Declaration”);

   d)the Delegate conducted an interview with the applicant in respect of his Protection Visa claims on 24 July 2013: CB 133;

   e)on 21 August 2013, the Delegate’s Decision was to refuse the Protection Visa application: CB 129, and the applicant was notified of the Delegate’s Decision: CB 131-133;

   f)on 28 August 2013, the applicant’s migration agent lodged an application with the Tribunal for review of the Delegate’s Decision: CB 139-143;

   g)on 15 October 2013 the applicant was invited to appear before the Tribunal at a Tribunal hearing on 29 October 2013: CB 161-167;

   h)on 23 October 2013 the applicant’s migration agent lodged a submission with the Tribunal: CB 170-199;

   i)the applicant’s migration agent provided the following additional documents to the Tribunal on 29 October 2013:

   i)an affidavit sworn by the applicant’s wife on 23 July 2013: CB 203 (“Wife’s Affidavit”); and

   ii)a letter from a Sri Lankan Member of Parliament, dated 10 March 2013: CB 204 (“First MP’s Letter”);

   j)the applicant attended a hearing before the Tribunal on 29 October 2013 (“Tribunal Hearing”), with the assistance of his migration agent (who attended by telephone): CB 205;

   k)the applicant’s migration agent provided a further submission to the Tribunal on 11 November 2013 addressing issues arising out of the Tribunal Hearing: CB 211-216;

   l)the day after the Tribunal Hearing, on 30 October 2013, the applicant told a case manager at his detention centre of numerous concerns about the interpretation given at the Tribunal Hearing, and the case manager set out these concerns in an email dated 8 November 2013 to the Acting Team Leader, Support Services of the Tribunal, who forwarded that email to the Tribunal Member on 15 November 2013: CB 215-216 (“November 2013 Interpretation Email”); and

   m)on 18 February 2014, the Tribunal Decision affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 230-251. The Tribunal Decision was notified to the applicant and his migration agent by letter dated 21 February 2014: CB 253-256.

Tribunal Decision

Applicant’s claims

1. By reference to the Applicant’s July 2013 Statutory Declaration the Tribunal set out (at CB 233-234 at [21]) the applicant’s claims for protection as follows:

   ·He is a 28 year old born in …[town name and district deleted], North Western Province, Sri Lanka. He declares he is ethnic Singhalese and [h]is religion is Catholicism. He claims that he is married and has two children and that they remain in Sri Lanka;

   ·He declares he left Sri Lanka because of threats to his life because of his political activities in support of the UNP. He claims that in 2006 or 2007 his uncle … [name deleted] contested the local elections for his village of … [village name deleted] and won as candidate for the UNP. He claims that he was at sea fishing during the elections and found out when he came back and he joined his uncle to work for him and the UNP. He claims that he did whatever his uncle asked him to do as a supporter, such as canvassing and door knocking, putting up posters and banners and participating in meetings.

   ·He claims that one day he was at a meeting and members of the ruling part arrived and fought with his party and the applicant and that after this incident the members of the party he claims he opposed went to his home and destroyed his fence and windows of his home because he was blamed for tearing down the posters put up by his political opponents.;

   ·He claims that his uncle lost the election in 2007 or 2008 and three or four days later some strangers went to his house looking for him, however he was not home at the time. He said they told his mother he should go to town to meet them. He declares that he went to a friend’s house to borrow clothes and then went to … [town name deleted] where he stayed with a friend for 2-3 days. He claims that he had to stay away from his village because … [name deleted (“Opposition Member”)], who he claims is one of the opposition members believed that the applicant had insulted his sister in front of others; the applicant denies he said anything to … [the Opposition Member’s] sister.;

   ·The applicant declares that 3-4 months later he returned to his village but not to his home as he was still in hiding. He claims that his uncle has also been receiving threats from the opposition party so his uncle left his village and went fishing in … [town name deleted]. The applicant claims he also went there and fished with his uncle for around 2 years. He claims he would return to his village only for a religious festival and for Christmas. He claims that … [the Opposition Member] is still after him. He claims that in mid-2010 his elder brother was cycling and … [the Opposition Member’s] brother and his associates stopped him and asked him where the applicant was.;

   ·The applicant claims that in 2011 he had to return to his village as there were not enough fish in … [town name deleted]. He declares that he was there for around 2 months when a friend informed him of the trip to Australia. He declares his brother organised the trip to Australia;

   ·The applicant claims that he will be harmed and killed because of his political activities and he has lived in hiding for the last few years because of the threats. He claims that he will be harmed by … [the Opposition Member] and his powerful brother and other members of the ruling party because of his activities in support of the UNP.;

   ·The applicant also claims that he fears the Sri Lankan authorities because he left that country unlawfully and he believes the authorities will put him in jail for a long time.

   ·The applicant claims he cannot relocate to another part of Sri Lanka because members of the opposition party have power and connection and they will find him.

   ·He declares that the authorities in Sri Lanka cannot protect him because the ruling party has threatened that if he reports the threats then he will be harmed. He claims that he also fears the authorities because they are the ones who will persecute and harm him.

2. The Tribunal described other claims made by the applicant as follows:

   a)a submission from the applicant’s representatives on 23 October 2013 stating that the applicant faced:

   i)persecution arising from the applicant’s political opinion;

   ii)persecution arising from membership of a particular social group, including as a returnee asylum seeker and a returnee from a Western country;

   iii)a real risk of significant harm arising from arbitrary deprivation of life; and

   iv)significant harm arising from torture and from cruel and inhuman treatment or punishment: CB 235 at [23];

   b)a claim at hearing that the applicant feared the Sri Lankan Navy by reason of his having taken a fishing pass issued to him and used it in departing Sri Lanka: CB 237 at [37];

   c)a post-hearing submission on 11 November 2013 in which the applicant made further submissions in relation to his various claims: CB 237-238 at [40]; and

   d)a further submission on 18 November 2013 in relation to the applicant’s mental health: CB 238 at [41].

Findings

1. In the Tribunal Decision the Tribunal:

   a)accepted that the applicant was a national of Sri Lanka: CB 246 at [57];

   b)found the applicant to be an unreliable witness, and that:

   i)his evidence was inconsistent;

   ii)significant parts of his claims were not supported by country information;

   iii)important parts of his evidence were implausible; and

   iv)other parts of his evidence were a fabrication for the purposes of bolstering his application for protection: CB 247 at [62];

   c)in relation to the applicant’s claim that he suffers mental health problems, carefully considered the medical reports provided by the applicant and was satisfied that he was able to meaningfully participate in the Tribunal hearing, and formed the view that the applicant’s:

   i)responses to the Tribunal’s questions; and

   ii)inconsistencies, vagueness and apparent lack of reasonably detailed knowledge of relevant matters,

   were not due to the applicant’s state of mental health: CB 247 at [63]; and

   d)found that:

   i)the applicant’s claim that he worked for his uncle in the UNP lacked credibility; and

   ii)the applicant was not politically active and had no significant political profile: CB 248 at [65] and [67].

2. In finding that the applicant did not face a real chance of being targeted for serious harm for reasons of his political activities or for his actual or imputed political opinion, the Tribunal found that:

   a)“the applicant was unable to recall his uncle’s name or clearly explain such things as how long he had assisted his uncle and could not recall when the election was held”: CB 248 at [65];

   b)the applicant’s evidence on whether he became a member of the UNP and his explanation of his motives for doing so were “vague and unconvincing”: CB 248 at [65]; and

   c)the applicant’s “shallow knowledge of even the basic ideology of the UNP”, was quite inconsistent with his claim to be an active supporter of that party: CB 248 at [65].

3. Having regard to the applicant’s lack of credibility, and also his political inactivity and lack of a significant political profile, the Tribunal did not accept that the applicant was involved in a fight with members of the ruling party who went to his home and destroyed fences and windows, or that after the election strangers went to his house looking for him, or that as a consequence he left his home and went to stay elsewhere with a friend as claimed: CB 248 at [66]-[67].

4. In relation to the claim of a fear of harm by reason of having been targeted because of a perception that he had insulted the Opposition Member’s sister, and having regard to the lack of credibility of the applicant and the fact that he was unable to name the Opposition Member’s sister, the Tribunal found that the applicant did not actually insult her and was not perceived to have insulted her: CB 249 at [69].

5. The Tribunal also rejected the claim that the applicant’s brother was stopped whilst cycling and asked about the applicant’s whereabouts by the applicant’s claimed persecutors, and the Tribunal did so on the basis that the applicant was an unreliable witness of truth and did not have a profile as a political activist, and for the same reasons did not accept that certain persons asked about the applicant’s whereabouts whilst at church: CB 249 at [70].

6. The Tribunal concluded that the applicant was not a person who was politically active such that he was ever targeted for harm by reason of his actual or perceived political opinion, and that there was not a real chance that he would be targeted for serious harm by anyone by reason of his past political activities: CB 249 at [71].

7. In relation to the applicant’s claims based on his illegal departure from, and return to Sri Lanka as a failed asylum seeker, the Tribunal, based on country information, accepted that Sri Lankan nationals who depart without authority are subject to charges and possibly penalties under relevant legislation. The Tribunal, however, considered that the law was of general application and not selectively enforced or discriminatorily applied for a Convention reason. The Tribunal was also not satisfied that there was a real chance or risk that the applicant would suffer serious or significant harm as a result of the process: CB 249-250 at [72];

8. The Tribunal, having regard to its assessment of the applicant’s lack of credibility, did not accept the applicant’s claim that he breached the conditions of a fishing permit or that he would be targeted for serious or significant harm by the Sri Lankan Navy (“SLN”), or anyone else, if he had breached such a permit: CB 250 at [73]. The Tribunal was also not satisfied that a fishing permit obtained by the applicant was used by a people smuggler to leave Sri Lanka, or that the authorities would be likely to identify or target the applicant for harm by reason of the people smuggler’s activities: CB 250 at [73].

9. The Tribunal considered, but placed no evidential weight on, the Wife’s Affidavit because it:

   a)found the applicant to be an unreliable witness; and

   b)considered that there was a very real prospect that the Wife’s Affidavit was fabricated for the purposes of bolstering the applicant’s claims: CB 250 at [74].

10. The Tribunal:

    a)considered the applicant’s claims individually and cumulatively, but was not satisfied that there was a real chance that the applicant would be seriously harmed for one or more of the Convention grounds should he return to Sri Lanka in the reasonably foreseeable future: CB 251 at [77]; and

    b)in its assessment of the complementary protection provisions set out in s.36(2)(aa) of the Migration Act, having regard to its finding that the applicant was an unreliable witness, found no substantial grounds for concluding that the applicant would suffer significant harm as defined in s.36(2A) of the Migration Act: CB 251 at [78]-[79].

The Judicial Review Application

1. On 25 March 2014 the applicant made the Judicial Review Application.

2. On 30 April 2014 a Registrar of the Court made directions to prepare the Judicial Review Application for final hearing on 26 August 2014, including orders requiring the applicant to file an amended Judicial Review Application (“Amended Judicial Review Application”) giving particulars of the grounds of review and any further affidavits by 25 June 2014.

3. On 24 July 2014 the applicant filed an affidavit sworn 4 May 2014 (“Applicant’s May 2014 Affidavit”) annexed to which were copies of letters from:

   a)a “Member of Local Body” dated 20 October 2013; and

   b)a letter from a different Sri Lankan Member of Parliament (see [2(i)(ii)] above), dated 10 March 2013 (“MP’s Letter”).

1. On 18 August 2014 the Court made consent orders extending the time for the applicant to file and serve an Amended Judicial Review Application and any further affidavits to 25 August 2014.

2. On 25 August 2014 an Amended Judicial Review Application was filed on behalf of the applicant, together with an affidavit of Rensen Liu affirmed on 22 August 2014 which annexed a transcript of the Tribunal Hearing (“Tribunal Transcript”). The five grounds of the Amended Judicial Review Application are set out and considered below: see [20]-[86] below.

Consideration

Ground 1

1. Ground 1 is as follows:

   1. The Tribunal made a jurisdictional error by failing to consider an integer of the applicant’s Claim, namely his Claim that he feared harm in the form of cruel and inhuman treatment or punishment because of the poor prison conditions in Sri Lanka as a person involved in facilitating the illegal departure of other persons from Sri Lanka.

2. The factual context for ground 1 is as follows:

   a)at the entry interview on 1 September 2012, the applicant stated that he had helped drive the people smuggler’s boat to Australia: CB 20-21;

   b)in his statutory declaration, the applicant stated that he helped steer the smuggler’s boat: CB 63;

   c)the Delegate found that the applicant may have been a member of the boat Crew who travelled to Australia from Sri Lanka: CB 118-119;

   d)the applicant’s submission to the Tribunal, restated that the applicant assisted in navigating the boat: CB 180;

   e)the applicant’s submission to the Tribunal: CB 196-198:

   i)submitted that the applicant would be arrested upon his return to Sri Lanka given that he had departed illegally,

   ii)provided information on the poor prison conditions, bail and reporting obligations in Sri Lanka; and

   iii)submitted that the applicant was at risk of significant harm arising from cruel and inhuman treatment or punishment;

   f)the Tribunal agreed with the applicant that he would be jailed because he broke the law by leaving Sri Lanka without permission: Tribunal Transcript at page 8;

   g)the Tribunal referred to country information stating that .the ·Sri Lankan Government was intending to amend laws to gaol people smugglers for up to 20 years, as opposed to the current two-year penalties: CB 244 at [54]; and

   h)the Tribunal made no finding on whether the applicant would face cruel and inhuman treatment or punishment because of the poor prison conditions in Sri Lanka as a person involved in facilitating the illegal departure of other persons from Sri Lanka.

Applicant’s submissions

1. The applicant submits that:

   a)the claim that the applicant had helped drive the people smuggler’s boat to Australia and was at risk of significant harm arising from cruel and inhuman treatment or punishment for this reason was apparent on the face of the material before the Tribunal or was squarely or sufficiently raised by it: SZSGA v Minister v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCA 774 at [44]-[45] per Robertson J; and

   b)the failure of the Tribunal to make a finding on this claim constituted a jurisdictional error. The same or similar jurisdictional error was found by the Court in SZTIF v Minister for Immigration & Border Protection [2014] FCCA 945; (2014) 285 FLR 251 at [45]-[46] per Judge Manousaridis (“SZTIF”); MZZQE v Minister for Immigration & Border Protection [2014] FCCA 1642 at [26]-[28] per Judge Burchardt (“MZZQE”).

Minister’s submissions

1. The Minister submits that:

   a)the applicant contends that the Tribunal failed to consider his claim that he feared harm in the form of cruel and inhuman treatment or punishment because of the poor prison conditions in Sri Lanka as a person involved in facilitating the illegal departure of other persons from Sri Lanka;

   b)this ground is not made out as the Tribunal was not obliged to consider whether the applicant faced significant harm as a person involved in facilitating the illegal departure of other persons from Sri Lanka;

   c)in the first place, the applicant did not expressly make any such claim. Although the applicant did state, in his statutory declaration of 23 July 2013 that he “helped by steering the boat for a couple of hours”, he also said that he was not involved in bringing people illegally to Australia: CB 63. The Delegate, however, believed that the applicant travelled to Australia for profit and not for a Refugee Convention reason and that the applicant “may have been a member of the boat crew who travelled to Australia from Sri Lanka”: CB 118-119;

   d)in response to the Delegate’s Decision, the submission dated 21 October 2013 from the applicant’s representatives, BMA Lawyers, to the Tribunal stated:

   The Applicant also wishes to reiterate to the Tribunal that he came to Australia in fear of his life. He instructs that [he] simply assisted in navigating the boat by holding the steering wheel for a short period of time as he was a fisherman and was familiar with boats. He instructs that he had no further involvement and the captain was involved in navigating the boat the entire way.

   CB 180;

   e)although the applicant’s representatives submitted that the applicant feared harm because of his illegal departure, there was no suggestion that the applicant either feared or was at greater risk of harm by reason of any involvement in facilitating the illegal departure of other persons from Sri Lanka. It was also not suggested that, although the applicant was not involved in facilitating illegal departures from Sri Lanka, he may be perceived by the authorities to have been involved and therefore at risk of facing more serious charges and penalties;

   f)the Tribunal is not obliged to deal with claims which are not articulated and which do not clearly arise from the material before it: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [60] per Black CJ, French and Selway JJ (“NABE (No. 2)”). The claim that the applicant faced significant harm “as a person involved in facilitating the illegal departure of other persons from Sri Lanka” is one which does not arise on the material before the Tribunal. As noted by the Full Court in NABE (No. 2) at [68] per Black CJ, French and Selway JJ:

   A judgment that the Tribunal has failed to consider a claim not expressly advanced is … not lightly to be made. The claim must emerge clearly from the materials before the Tribunal.

   g)not only does the claim in ground 1 not arise clearly from the material, but the applicant also disavowed reliance on any such claim that he faced significant harm “as a person involved in facilitating the illegal departure of other persons from Sri Lanka”. When in the Delegate’s Decision of 21 August 2013 it was suggested that the applicant may have been a member of the boat crew, the applicant’s response, as noted above, was to the effect that he had no such involvement and only held the steering wheel for a short period of time. The applicant, in effect, rejected any claim based on a real or perceived involvement in facilitating illegal departures. In the circumstances, the Tribunal did not err as contended in ground 1 of the amended application.

Consideration – ground 1

1. In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [45] per French, Sackville and Hely JJ (“Applicant WAEE”) the Full Court of the Federal Court observed that:

   If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision.  This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.

2. Another Full Court of the Federal Court in Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [34] per Kenny, Griffiths and Mortimer JJ (“MZYTS”) said that:

   [L]awful formation of that state of satisfaction [under s 65 of the Act] (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality …

   And further at [62] per Kenny, Griffiths and Mortimer JJ said that:

   A failure to consider the claim advanced by a visa applicant is plainly and uncontroversially a failure to perform the statutory task imposed on the Tribunal.

3. The immediately preceding quote from MZYTS is reflective of the fact that the Tribunal must consider all of the claims made by an applicant and all of the integers of those claims as articulated by the applicant or, and this is critical in this case, which arise clearly from the material provided: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244.

4. In Applicant WAEE the Full Federal Court further observed as [47] per French, Sackville and Hely JJ that:

   Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

5. The applicant referred to SZTIF and MZZQE, but in the Court’s view they are distinguishable on the facts, dealing with a failure to deal with a contention that an applicant may suffer harm by being imprisoned upon return to Sri Lanka as a failed asylum seeker per se, whereas here the contention is, or appears to be, that the applicant would be imprisoned for facilitating people smuggling, and in those circumstances there would be a long prison term, rather than the usual charge, remand and bail procedure adopted for returning failed asylum seekers to Sri Lanka.

6. The real issue in this case is whether or not the claim arises clearly from the material before the Tribunal. The claim in this sense is that the applicant, returning to Sri Lanka, would be identified and found to be someone who has facilitated people smuggling and the illegal departure of persons from Sri Lanka, for which he may be imprisoned for a lengthy period and would therefore be liable to harm in the form of cruel and inhuman treatment or punishment because of the poor prison conditions in Sri Lanka.

7. In the Court’s view there is no doubt that the issue arose: in the Delegate’s Decision the following passage appears at CB 118-119:

   I asked the applicant who arranged his journey to Australia. He replied, “It was my brother who arranged it for me”. I note his Entry Interview, however, states “One of my friends whose name is Indika, and he told me that a boat was leaving … and he arranged for me to come here by boat”. I further note his PV application states “I paid the people smuggler to come here and although I help by steering the boat for a couple of hours I had no idea of the strict regulations for Australia and I was not involved in bringing people illegally to Australia.”

   At his Entry Interview the applicant claimed he was able to pay the people smuggler a lesser amount of money by agreeing to “help them and help them drive it.” Furthermore, I note at his Entry Interview the applicant gave a detailed account of how the boat navigated from Sri Lanka to the Cocos Islands with the use of satellite equipment. I do not find it plausible that the applicant negotiated a reduced fee for his journey to Australia in return for helping to drive the boat from Sri Lanka. I believe the applicant travelled to Australia for a profit and not for a Refugee Convention reason. I believe the applicant may have been a member of the boat crew who travelled to Australia from Sri Lanka and he has contrived a PV claim once his boat “had a problem with the engine”.

8. The issue of the applicant being a person who assisted people smugglers and thereby facilitated people smuggling is plainly an issue which arises from the Delegate’s Decision, which was part of the materials before the Tribunal.

9. The Minister says that in the submissions made by the applicant to the Tribunal prior to the Tribunal Hearing the applicant “disavowed reliance on any such claim, and ‘in effect’ rejected any claim based on a real or perceived involvement in facilitating illegal departures.” In that regard the Minister relies upon the submission made on behalf of the applicant by the lawyers then acting as his representatives, and set out at [23(d)] above.

10. The submission referred to by the Minister is not however a disavowal of reliance on a claim that the applicant, if he is returned to Sri Lanka, may be perceived by the Sri Lankan authorities to have facilitated people smuggling by assisting to drive the people smuggler’s boat. All that the submission at CB 180 says is that the applicant’s involvement was not as serious as the Delegate found it to be. The Delegate, in fact, appears to have found that the applicant was a direct participant for profit in people smuggling activities. Thus, the applicant’s submission to the Tribunal was one which says that his participation was not as serious as that found by the Delegate, but it does not disavow the fact that there was some assistance rendered in driving the people smuggler’s boat, and it was still manifestly an issue which the applicant felt it necessary to address in the submissions to the Tribunal.

11. At the Tribunal Hearing the issue of the applicant paying a people smuggler to leave Sri Lanka arose: Tribunal Transcript at page 15. The Tribunal member did not however ask any question about, or refer to in any way, the still live issue of what assistance the applicant may have given the people smugglers in driving the boat, and as a consequence, did not address whether or not that level of assistance (the existence of which and level of which was a manner for the Tribunal to determine as a matter of fact) might result in his being perceived to have assisted or facilitated people smuggling if he was returned to Sri Lanka. Likewise, the Tribunal Decision does not address this issue.

12. In the circumstances, the Court is persuaded that the Tribunal failed to consider an integer of the applicant’s claim, namely whether he facilitated the illegal departure of other persons from Sri Lanka by assisting a people smuggler in driving the boat, and whether that might give rise to a fear of harm in the form of cruel and inhuman treatment or punishment because of poor prison conditions in Sri Lanka if the applicant was imprisoned upon his return as a consequence of being found to have facilitated people smuggling.

Ground 2

1. Ground 2 is as follows:

   2. The Second Respondent failed properly to consider the reliability and potential probative value of an affidavit sworn by the applicant’s wife dated 23 July 2013 (‘Wife’s Affidavit”) (CB 202-203) in support of the applicant’s claims for protection of political grounds, and in so doing failed properly to undertake a review of the decision of the First Respondent’s delegate as required by s.414 of the Migration Act 1958, thus making a jurisdictional error.

2. The factual context for ground 2 is as follows:

   a)the applicant’s migration agent provided the Wife’s Affidavit to the Tribunal under cover of an email dated 29 October 2013: CB 201-204;

   b)the applicant’s migration agent’s covering email stated that the applicant’s wife had advised the applicant that two nights in a row, someone was loitering around her home in a vehicle, which instilled great fear in her: CB 200-201;

   c)the Tribunal stated that it “decided to place no evidential weight on this affidavit because it found the applicant to be an unreliable witness and it considered that there is a very real prospect that this was fabricated for the purposes of bolstering the applicant’s claims”: CB 250 at [74];

   d)the Tribunal made no findings on whether the applicant’s wife was a reliable or unreliable witness, and it rejected the Wife’s Affidavit solely on its assessment of the applicant’s credibility; and

   e)the Tribunal did not put to the applicant at the hearing that it had concerns about the authenticity of the Wife’s Affidavit or that it considered it to have been fabricated.

Applicant’s submissions

1. The applicant submits that:

   a)the Wife’s Affidavit: CB 203, provided to the Tribunal on the morning of the Tribunal hearing, together with the information in the covering email: CB 200, was potentially corroborative of the applicant’s claims; and

   b)there are three problems with the Tribunal’s treatment of the Wife’s Affidavit: CB 250 at [74], which it referred to briefly at the Tribunal Hearing: Tribunal Transcript at page 12, line 30, namely:

   i)the Tribunal stated it placed no evidential weight on this affidavit because it found the applicant to be an unreliable witness, but made no finding on whether the applicant’s wife was a reliable witness;

   ii)the Tribunal did not consider the additional relevant content of the covering email to the Wife’s Affidavit which stated that the applicant’s wife had advised the applicant that two nights in a row, someone was loitering around her home in a vehicle, which instilled great fear in her; and

   iii)the Tribunal did not put to the applicant during the Tribunal hearing, or subsequently, that it considered the content of the Wife’s Affidavit to be fabricated and invite comment from the applicant on that proposed finding,

   and the Tribunal therefore made a jurisdictional error by failing to invite the applicant to give evidence and present arguments relating to the genuineness, reliability and potential probative value of the Wife’s Affidavit: WZANF v Minister for Immigration & Anor [2010] FMCA 110 at [15]-[18] and [84] per Lucev FM.

Minister’s submissions

1. The Minister submits that:

   a)the Tribunal clearly did consider the Wife’s Affidavit dated 23 July 2013 but decided to place no evidential weight on it because the Tribunal found the applicant to be an unreliable witness and considered that there was a very real prospect that the Wife’s Affidavit was fabricated for the purposes of bolstering the applicant’s claims: CB 250 at [74];

   b)in light of its findings that the applicant was an unreliable witness and that his claims lacked credibility, it was open to the Tribunal to reject potentially corroborative evidence such as the Wife’s Affidavit: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59; (2003) 73 ALD 1 at [12] per Gleeson CJ. This is particularly so where, as here, the Wife’s Affidavit was not from an independent person and lacked detail; and

   c)the Tribunal was under no obligation to:

   i)make any findings on whether the applicant’s wife was a reliable or unreliable witness; or

   ii)put to the applicant that it had concerns about the authenticity of his Wife’s Affidavit or considered that it may have been fabricated.

Consideration – ground 2

1. At CB 250 at [74] the Tribunal said as follows:

   74.    The Tribunal considered the evidence in the form of the affidavit dated 23 July 2013 which the applicant submitted to the Tribunal and which he claims is sworn by his wife. Apart from declaring such things that the author is the applicant’s spouse, and declaring the applicant is a fisherman and that they have two children, the affidavit declares that while the applicant was working as a fisherman he was actively engaged in politics, received death threats, and had to go into hiding. The Tribunal decided to place no evidential weight on this affidavit because it found the applicant to be an unreliable witness and it considers that there is a very real prospect that this was fabricated for the purposes of bolstering the applicant’s claims.

1. Effectively, the Tribunal has said that there is “a very real prospect”: CB 250 at [74] that the Wife’s Affidavit is a forgery.

2. In WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511 at [53]-[54] per Lee, Hill and Carr JJ the Full Court of the Federal Court observed as follows:

   53     In the present case and in Meadows the question whether the letters were genuine did not directly depend upon the evidence of the appellant.  However, it can be said that a finding that the letters were forgeries could turn upon the credit of the appellant in so far as the finding is that the letters have been concocted by the appellant to advance his case.  But if this is the case fairness would require that before a finding of forgery is made the person so accused be given the opportunity of answering it.  A finding of forgery, just like a finding of fraud is not one that should lightly be made.  Both involve serious allegations.  Forgery, indeed, is a criminal offence.

   54     Where the finding of fact made does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries it is likewise inherently unfair that the decision maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it.

3. In Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16 (“Applicant M164/2002”) one member of the majority in the Full Court of the Federal Court said that:

   … There was no material before the Tribunal on which it could make the finding that the documents presented by the appellant had been fabricated for the purpose of the claims. The statement by the Tribunal that the documents were not genuine was a bare assertion. The Tribunal did not identify in any respect how the documents could be characterised. This is not a case where the Tribunal, on proper grounds, had already determined that the substantive claims of the appellant were dishonestly made and, therefore, any documentary material that purported to corroborate those claims necessarily bore the same stamp. If an applicant’s claims are palpably fanciful, or important elements thereof are shown to be false, those circumstances will permit the Tribunal to disregard other material presented by the applicant in support of those claims.

   …Serious findings of forgery, fraud or perjury cannot be based on a superficial examination of relevant events and materials, particularly where the conclusion reflects no more than a suspicion held by the Tribunal, and where that suspicion remains untested by reasonable use of powers available to the Tribunal …

   …The Tribunal’s treatment of the documentary material relied upon by the appellant to support her claims tainted the review process with fundamental unfairness…the decision of the Tribunal was not a determination made in accordance with the Act.

   Applicant M164/2002 at [89]-[92] per Lee J.

4. In SZDGC vMinister for Immigration & Citizenship [2008] FCA 1638; (2008) 105 ALD 25 at [23], [24] and [27] per Finkelstein J (“SZDGC”). the Federal Court said that:

   23   It is only necessary to deal briefly with the second ground.  The complaint is that the tribunal failed to “consider the corroborative evidence in the form of the Summons against the husband of the applicant and the Administrative Penalty Order, before making the adverse credibility finding”.  I take it to be a trite proposition that a decision-maker required to find facts, whether the decision-maker be a judge or an administrative official, must consider the totality of the evidence that bears upon the facts to be found.  That requires the decision-maker to consider any direct evidence of the existence of the fact in issue together with any corroborative evidence that bears on that issue. This is nothing more than common sense.  There may be circumstances where it is not necessary to pay due regard to corroborative evidence.  In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; 73 ALD 1; [2003] HCA 30 at [49] McHugh and Gummow JJ said “it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption”.  That proposition is no doubt true.  But the circumstances for its application will be rare indeed.  Even experienced advocates can only point to a handful of cases where a witness’ credit has been so badly destroyed in cross-examination that it is possible to make findings of fact based on that evidence alone and simply disregard any corroborative evidence. 

   24   For example in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74 the appellant complained that the tribunal failed to have regard to certain documents because the tribunal was not convinced that the documents could overcome the difficulties that it had with the appellant’s evidence.  Lee and Moore JJ said (at [27]):

   Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material: see S20/2002 at [49] per McHugh and Gummow JJ. Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied … it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 180 ALR 1 ; 62 ALD 225; [2003] HCA 30 at [82]-[85] per McHugh, Gummow and Hayne JJ.

   …

   27   … Putting to one side the fact that the tribunal misunderstood the appellant’s claim, it is false reasoning to find that the corroborative evidence was not authentic because the tribunal without regard to that evidence found the appellant to be dishonest.  The tribunal should have had regard to the documents when assessing the appellant’s credibility.  In that process it might have found the documents not to be authentic.  But that would need to have been for independent reasons, unless the appellant’s evidence fell into the S20/2002 category.  It plainly did not fall into that category.

5. In Applicant M164/2002 at [117] per Tamberlin J one member of the majority in the Full Court of the Federal Court said:

   A view that part of a claim cannot be accepted does not mean that any documents relating to that claim must be contrived or false and should be disregarded. Each of the documents should be examined and considered on its face and in context. If one or more supportive documents, when properly considered, are found to be genuine, this consideration may strongly support a finding that a claim is credible and has been made out. It may override an impression gained by the Tribunal that the claim lacks substance. A document accepted as genuine after proper consideration can be strongly corroborative of an applicant’s case. This is particularly so in cases concerning refugees, where documentary evidence may be of greater assistance than oral assertions in establishing facts which cannot, in any meaningful sense, be properly investigated by way of probative independent evidence.

6. The Tribunal’s findings concerning the applicant’s unreliability as a witness are at CB 247 at [62] and are as follows:

   62.The Tribunal found the applicant to be an unreliable witness. It found that his evidence to be inconsistent and found that significant parts of his claims are not supported by country information. It also found, as discussed in the following findings that important parts of the applicant’s evidence is implausible while other parts are in the Tribunal’s assessment a fabrication for the purpose of bolstering his application for ptoection.

7. The relevant content of the Wife’s Affidavit which is at CB 203 is as follows:

   1.I am the affirmant above-named. My NID No. is … [number deleted].

   2.[The applicant] is my lawful husband. He is a fisherman by profession.

   3.While he was working as a fisherman he was actively engaged in Politics. Therefore he received death threats for from the members of the ruling party. He had to hide a long time away from home town. Then he secretly left for Australia and now is under the custody of the authorities there due to an authorised entrance.

   4.We have minor aged children of 10 years and 6 years of age. I further swear that he earned the living for my mother and me as well.

8. Relevantly, it is probably only the Wife’s Affidavit at [3] which contains any potentially relevant or corroborative evidence concerning the applicant’s claims.

9. In relation to those claims the Tribunal made findings at CB 248-249 at [65]-[68], based on the applicant’s own evidence, that the applicant did not have a political profile which would result in him being targeted for harm by the ruling party, and that he did not go into hiding. On the basis of the Tribunal’s findings, which were open to it, in relation to whether the applicant was targeted for harm for reasons of his actual or perceived political opinion, it would have been open to the Tribunal to give little or no weight to the Wife’s Affidavit: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. In short, it was wholly unnecessary for the Tribunal to make any finding as to whether or not the Wife’s Affidavit was “fabricated”.

10. The Tribunal did however find that there was a very real prospect that the Wife’s Affidavit was fabricated for the purposes of bolstering the applicant’s claims. The Tribunal made that finding in the same sentence as it indicated that it placed no evidential weight on the Wife’s Affidavit because the applicant was an unreliable witness. In the circumstances, it is difficult to see how it is that the Tribunal did not inter-mingle the applicant’s unreliability and the fabrication of the Wife’s Affidavit for the purposes of bolstering the applicant’s claims. In those circumstances, the Tribunal committed jurisdictional error because it concluded that the Wife’s Affidavit was a fabrication without:

    a)there being anything on the face of the Wife’s Affidavit to indicate that it was not authentic; and

    b)giving the applicant an opportunity to comment to the Tribunal on whether or not the Wife’s Affidavit was authentic.

11. As to the evidence in the covering email to the Wife’s Affidavit containing information apparently relayed by the applicant’s wife to the applicant and then from the applicant to the applicant’s lawyers, it is apparent that the Tribunal did not have regard to this additional material. It is not, however, a jurisdictional error to fail to have regard to every particular piece of evidence: Applicant WAEE at [46] per French, Sackville and Hely JJ, especially where, as here, the Tribunal has found that the applicant did not have a political profile which would result in him being targeted for harm for reasons of his actual or perceived political opinion: CB 249 at [71].

Ground 3

1. Ground 3 is as follows:

   3. The Tribunal made a jurisdictional error by failing to consider an integer of the applicant’s claim, namely his claim that he feared harm on political, alternatively, complementary protection grounds, by reason of misusing a fishing pass given to him by the Sri Lankan Navy (‘Fishing Pass Claim’).

2. The factual context for ground 3 is as follows:

   a)The applicant raised the Fishing Pass Claim at his entry interview: in leaving Sri Lanka, persons were loaded onto a fishing trawler and that he got a fishing pass from the Sri Lankan Navy to avoid suspicion: CB 21, Q 13;

   b)the applicant mentioned the Fishing Pass Claim again at the Tribunal Hearing: Tribunal Transcript at pages 14-15;

   c)the interpreter at the Tribunal hearing did not know the expression used by the applicant for the fishing pass, and could not translate it: CB 215;

   d)the applicant’s migration agent provided further information about the Fishing Pass Claim, including country information, in a submission to the Tribunal dated 11 November 2013: CB·212-213;

   e)the Tribunal erroneously considered that the applicant had not raised the Fishing Pass Claim before and that it was a recent fabrication to bolster his application: CB 237 at [37];

   f)having regard to its assessment of the applicant’s lack of credibility the Tribunal did not accept that he is the subject of a breached fishing permit, or that he would be targeted for serious or significant harm by the Sri Lankan Navy: CB 250 at [73]; and

   g)the Tribunal did not specifically refer in the Tribunal Decision to any of the country information concerning fishing passes provided by the applicant’s migration agent.

Applicant’s submissions

1. The applicant submits that:

   a)the Tribunal made a jurisdictional error by failing to consider the claim that the applicant feared serious harm, or significant harm, through misusing a fishing pass allocated to him by the Sri Lankan Navy;

   b)while the Tribunal did mention the claim in the Tribunal Decision, its consideration of it was inadequate because the Tribunal erroneously believed that the applicant had not raised the fishing pass issue with the Department prior to the Tribunal Hearing and this mistaken belief (CB 237 at [37] and CB 250 at [73]) contributed to the Tribunal’s overall adverse credibility finding against the applicant;

   c)in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [79] per Hill, Sundberg and Stone JJ the Full Court of the Federal Court stated:

   79 However, an assessment of credibility is not necessarily linear.   It is possible that had the Tribunal considered the UNP Letter as part of the file received from the Secretary, it may have accepted it as genuine.  If so, it is possible that the Tribunal would have been more likely to accept other aspects of the appellants’ account of their experiences in Sri Lanka.  As Gleeson CJ commented in Aala at [4]:

   ‘…Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive…’

   Kirby J expressed a similar view in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 (‘NAFF v MIMIA’) at [81]:

   ‘…[D]ecision-making is a complex mental process.  Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points.  Contrary-wise establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.’

   While it is impossible to know whether the Tribunal’s assessment of the appellants’ credibility would have been different if the error about the UNP Letter had not been made, or had been corrected, it is not possible to say that the error could not have affected the outcome.

   d)the Tribunal also failed to refer to and give consideration to the country information submitted by the applicant’s agent in a post-hearing submission: CB 212-213, concerning the use of fishing passes. It was critical for the Tribunal Member to read and apply this factual information to the matter before him because the Member stated at the Tribunal Hearing (Tribunal Transcript at page 20) that he did not understand what the applicant was telling him about the fishing pass, and because he said:

   Mr Fernando, you are not the first Sri Lankan that I have dealt with. I have heard many applications from people who come from Sri Lanka. Many applications from fishermen in Sri Lanka. I have not heard of a claim made before that the navy would be following up on someone who attempted an asylum claim.

   e)the failure of the Tribunal, in making an adverse credibility finding, to appreciate that the applicant raised the Fishing Pass Claim at his entry interview, and to engage with the country information submitted on that point post-hearing, is a jurisdictional error.

Minister’s submissions

1. The Minister submits that:

   a)the applicant contends that he feared harm by reason of misusing a fishing pass given to him by the Sri Lankan Navy and that he first raised this claim at his entry interview on 1 September 2012: CB 21, Q13;

   b)the Tribunal had concerns as to the credibility of this claim given its late introduction at the Tribunal hearing: CB 237 at [37] and CB 250 at [73]. Having regard to its assessment of all the evidence and the applicant’s lack of credibility, the Tribunal did not accept that the applicant was the subject of a breached fishing permit as claimed or that he would be targeted for serious or significant harm by the Sri Lankan Navy or anyone else for having breached such a permit, if indeed he was the subject of it. The Tribunal was also not satisfied that the applicant would be seriously harmed for breaching a condition of a fishing permit, even if he might be prosecuted for such an offence: CB 250 at [73];

   c)the Tribunal clearly did consider but rejected the applicant’s fishing pass claim. The Tribunal was also correct in stating that it was a new claim introduced by the applicant at the Tribunal hearing. Although the applicant referred to his fishing pass at the entry interview: CB 21, Q13, the applicant made no claim until the Tribunal hearing that he feared harm for breaching a condition of the fishing pass. It was open to the Tribunal to reject the applicant’s fishing pass claim for the reasons that it gave: CB 250 at [73];

   d)although the Tribunal Member may have initially stated at the hearing that he did not understand what the applicant was telling him about the fishing pass: Tribunal Transcript at page 14, the Tribunal clearly understood the claim after receiving further explanation at the Tribunal hearing: Tribunal Transcript at pages 14-15, and in a post-Tribunal hearing submission from the applicant’s agent: CB 211-213. The applicant’s fishing pass claim was properly understood and addressed by the Tribunal: CB 250 at [73]; and

   e)it was not necessary for the Tribunal to refer to the country information submitted by the applicant’s agent in the post-hearing submission concerning the use of fishing passes. The Tribunal is not required to make specific reference to every piece of evidence before the Tribunal in its written reasons: Applicant WAEE at [46] per French, Sackville and Hely JJ.

Consideration – ground 3

1. At the outset of the consideration of this ground it is fair to observe that the Tribunal Decision ought not be read, or combed through, and analysed minutely with a focus upon perceiving error: Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16, (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [35] per Gummow ACJ and Kiefel J and [85] (footnote 73) per Heydon J (“SZMDS”); Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57; (2001) 75 ALJR 889: (2001) 179 ALR 238 at [23] per Gleeson CJ and Hayne J.

1. Read in the appropriate context it is plain that the Tribunal understood that the applicant was making a claim to fear harm at the hands of the Sri Lankan Navy for breaching a condition of a fishing pass: CB 250 at [73]. Insofar as the harm was feared at the hands of the Sri Lankan Navy the Tribunal, correctly in the Court’s view, considered that that was a recent claim, in addition to the applicant’s original claims with respect to his use of the fishing pass to depart Sri Lanka: CB 237 at [37]-[38]. Both the claim with respect to fear at the hands of the Sri Lankan Navy for breaching a condition of the fishing pass, and the claim with respect to the failure to return a temporary fishing permit and its use to enable the applicant to depart Sri Lanka, were considered by the Tribunal: CB 250 at [73].

2. It should not be too readily inferred that the Tribunal failed to give consideration to the country information in the applicant’s post-hearing submission (which appears at CB 212-213). The Tribunal expressly referred to the further written submission dated 11 November 2013 and to the fishing pass claim in its summary of that written submission: CB 237-238 at [40]. Further, contrary to what appears to be the import of the applicant’s submissions, it is plain that by the time that the Tribunal came to consider the matter, it understood the applicant’s claims with respect to the fishing pass, no doubt as a result of having the benefit of having heard and discussed with the applicant the fishing pass claim (in both of its variations) at the Tribunal Hearing: Tribunal Transcript at pages 13-16, and having read the applicant’s 11 November 2013 written submissions: CB 211-213.

3. In all of the above circumstances, the Court is not persuaded that this ground has been made out, and therefore concludes that no jurisdictional error is established by this ground.

Ground 4

1. Ground 4 is as follows:

   The Tribunal made a jurisdictional error by failing to consider the application which is the subject of review in light of the information, evidence and arguments which were relevant to the application and which were provided to it through providing inadequate interpreting assistance to the applicant.

2. The factual context for ground 4 is as follows:

   a)the interpreting assistance to the Tribunal at the hearing was provided by a Sinhalese interpreter without interpreting accreditation: CB 205;

   b)following the hearing, the applicant notified a case manager at Yongah Hill IDC (“Case Manager”) of his concerns about the quality of the interpreting: CB 215;

   c)the Case Manager reported those concerns by email to the Acting Team Leader of Support Services at the Tribunal, who then forwarded the concerns to the Tribunal Member (CB 215) and requested a response from the Member;

   d)the Tribunal Member failed to respond to the November 2013 Interpretation Email about how the applicant’s concerns should be addressed; and

   e)the Tribunal Member failed to make any mention about the applicant’s concerns over the quality of interpreting, as reported to him by the Case Manager, in the Tribunal Decision.

Applicant’s submissions

1. The applicant submits that:

   a)the applicant raised concerns about the quality of the interpreting immediately following the hearing with his detention case manager, and gave specific details of the issues that concerned him, which were conveyed to the Tribunal Member. In those circumstances, it was incumbent on the Member to consider whether there was any substance to the applicant’s concerns. It does not appear that the Member took any action to address applicant’s concerns while deliberating over the interval of approximately three months from the receipt of the applicant’s concerns (15 November 2013) to the delivery of decision (21 February 2014);

   b)the Transcript demonstrates that the applicant’s agent intervened to address the Tribunal on the Fishing Pass Claim at Tribunal Transcript at page 14, line 30. Following that, the Tribunal asked the interpreter to stop having a conversation with the applicant (Tribunal Transcript at page 15). This again was during the discussion on the Fishing Pass Claim; and

   c)the inadequacy of the interpreting prevented the applicant from properly giving evidence and presenting arguments relating to the issues arising in relation to the Delegate’s Decision, as required by s.425(1) of the Migration Act: SZSEI v Minister for Immigration & Border Protection [2014] FCA 465.

Minister’s submissions

1. The Minister submits that:

   a)although the applicant did raise concerns about the quality of the interpreting which were relayed by his case manager to the Tribunal after the hearing: CB 215-216, no such concerns were expressed by the applicant’s representatives in written submissions filed after the Tribunal hearing: CB 211-214; and

   b)the applicant has not presented any evidence, either by himself or a Sinhalese interpreter identifying any errors made by the interpreter at the Tribunal hearing. In the absence of any such evidence, this ground cannot be made out.

Consideration – ground 4

1. In Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6; (1999) 56 ALD 231 (“Perera”), the Federal Court made the following findings in relation to a decision of the Refugee Review Tribunal:

   a)a failure by the Tribunal to provide a competent interpreter to assist a non-English speaking applicant for refugee status may constitute a ground of review within s.476 of the Migration Act;

   b)a failure by the Tribunal to provide an interpreter to a non-English speaking applicant means that the Tribunal does not have the jurisdiction to conduct the hearing: Perera at [21] per Kenny J;

   c)the role of an interpreter is to “place the non-English speaker as nearly as possible in the same position as an English speaker…to remove any barriers which prevent or impede understanding or communication”: Perera at [24] per Kenny J;

   d)“[i]nterpreting reliably involves technical skill and expert judgment”: Perera at [25] per Kenny J;

   e)the standard of interpreting required is subject to criteria of “continuity, precision, impartiality, competency and contemporaneousness” and a summary of what is said or omitting passages of what is said is not acceptable: Perera at [28] per Kenny J;

   f)the interpreter must “express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language”: Perera at [29] per Kenny J;

   g)the relevant question is whether the interpretation was so incompetent as to have effectively prevented an applicant from giving evidence: Perera at [38] per Kenny J;

   h)the departure from the standard of interpretation “must relate to a matter of significance for the applicant’s claim or the Tribunal’s decision”, and it must relate to the proceedings and not be merely administrative or collateral in nature: Perera at [45] per Kenny J; and

   i)a relevant departure from the required standard of interpretation is sufficient to establish prejudice caused to the applicant, however further prejudice can also be shown where findings concerning an applicant’s lack of credit are also material to the Tribunal’s decision. The incompetent interpretation can thus form the context for negative credibility findings upon which a Tribunal decides to reject an applicant’s claims: Perera at [45], [47] and [49] per Kenny J. “A witness whose answers appear to be unresponsive, incoherent or inconsistent may well appear to lack candour, even though the unresponsiveness, incoherence or inconsistencies are due to incompetent interpretation. In the present case, the incompetence of interpretation cannot have assisted the Tribunal in making a reliable finding about Mr Perera’s credit. It may well be that, by resting its findings as to credit on answers that were poorly interpreted, the Tribunal failed to take advantage of its opportunity to see and hear the witness”: Perera at [49] per Kenny J.

2. The Full Court of the Federal Court in WALN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 131 (“WALN”) found that the appellant must establish that “errors had in occurred in translation which were so material as to cause the decision making process to miscarry”: WALN at [29] per Ryan J. Evidence having probative value needs to be led in relation to the errors in translation, and as the Federal Court observed, and concluded, in SZJZE v Minister for Immigration & Citizenship [2007] FCA 1653 at [24] per Middleton J:

   24. To be accepted as having any probative value, evidence would need to be led by a person competent in … [both relevant languages] to indicate the matters that had been mistranslated or not translated at all.  This has not been done.  I can find no merit in the first ground of appeal.

3. In WZAPM v Minister for Immigration & Anor [2013] FCCA 266 (“WZAPM”) evidence of the appropriate type was led, leading to a declaration of a denial of procedural fairness by reason, amongst other things, of errors by the interpreter in the interpretation of the applicant’s evidence, and an injunction issuing restraining the Minister from acting on the recommendation of an independent merits reviewer (“IMR”): WZAPM at [53] per Judge Lucev. In WZAPM the “litany of errors” set out in an interpreter’s affidavit indicated that “almost every matter interpreted at the IMR interview, large and small, relevant and irrelevant” was affected: WZAPM at [25] per Judge Lucev.

4. The issue is whether the evidence as to the alleged failure to properly interpret the applicant’s evidence effectively prevented the applicant from giving evidence in relation to a matter of material significance to the applicant’s claim thereby causing the decision-making process to miscarry.

5. No transcript of the Tribunal hearing, or transcript of what is purported to be the “correct” translation of the Tribunal hearing, has been filed by the applicant. The matters adverted to by the applicant in the November 2013 Interpretation Email, and the various contentions put by Counsel in the course of submissions, do not prove that there were errors in the interpretation of what was being said by the applicant to the Tribunal. As the Court observed during the course of argument some of the alleged errors may come down to issues of timing with an answer being given to a previous question whilst the Member had moved on to a further question, or because the interpreter had sought clarification of an answer from the applicant. In any event, without an affidavit from an accredited interpreter establishing that there were errors in the interpretation at the Tribunal hearing this ground cannot succeed because it cannot demonstrate that there were errors in the interpretation which affected the Tribunal’s decision-making processes. The applicant has simply failed to make out the necessary factual basis for this ground to succeed upon judicial review.

6. There is, in the circumstances, no evidence before the Court which can sustain an allegation that there was misinterpretation at the Tribunal hearing, let alone misinterpretation which materially affected the Tribunal’s decision-making processes.

Ground 5

1. Ground 5 is as follows:

   5. The Tribunal made a jurisdictional error in rejecting the applicant’s claim for protection under the Refugees’ Convention on political grounds by making inconsistent, illogical and contradictory findings on whether the applicant had a well-founded fear of persecution for reason of political opinion, and failing to address whether the applicant had a well-founded fear of persecution by reason of supporting the United National Party (‘UNP’).

2. The factual context for ground 5 is as follows:

   a)the applicant claimed that he will be harmed and mistreated by members of the ruling party in Sri Lanka because of his activities “in support of the UNP”: CB 63;

   b)the applicant provided the MP’s Letter dated 10 March 2013 to the Tribunal, stating that the applicant and his family members are supporters of the UNP: CB 204;

   c)the Tribunal acknowledged that the MP’s Letter was on the Tribunal’s file: Transcript p12-13;

   d)the Tribunal mentioned the MP’s Letter in the Tribunal Decision: CB 250 at [75], and accepted that the applicant is a UNP supporter;

   e)the Tribunal made a concurrent finding that it was not satisfied on all the evidence before it that the applicant has been an ‘active member of the UNP’;

   f)the Tribunal failed to state what it considered to be the difference between a ‘supporter’ and an ‘active member’ of the UNP for the purposes of assessing whether the applicant had a well founded fear of persecution on the ground of political opinion;

   g)the Tribunal cited DFAT country information stating that, ‘‘... the space for dissent in Sri Lanka is shrinking ...”, and, “ ... attacks against specific individuals are frequently reported by credible sources.;”: CB 239 at [44];

   h)the Tribunal failed to consider any specific country information on whether supporters of the UNP might be targeted for persecution; and

   i)the Tribunal failed to consider and make findings on whether the applicant had a well-founded fear of persecution for a reason of political opinion through being a supporter of the UNP who, along with his family members, was known to the Member of Parliament who wrote the MP’s Letter.

Applicant’s submissions

1. The applicant submits that:

   a)the Tribunal rejected the applicant’s claim of having been actively involved in political campaigning for the UNP: [34] and [65]-[71];

   b)despite that finding, and having had regard to the content of the MP’s Letter: CB 204 , the Tribunal was prepared to accept that the applicant is a ‘UNP supporter’, as distinct from ‘an active member of the UNP’: CB 250 at [75];

   c)the Tribunal’s drawing of a distinction between a ‘supporter’ of the UNP and an ‘active member’ of it, and the making of a positive finding that the applicant was a UNP supporter, raises the question of whether the applicant might fall within the Protection Visa criteria on the lesser level of adherence to party politics contemplated by the designation of party ‘supporter’;

   d)in light of the Tribunal’s positive finding at [75] that the applicant was a supporter of the UNP, it was incumbent on the Tribunal to consider the above question. In so doing, it was incumbent on the Tribunal in performing its inquisitorial role to do some or all of the following:

   i)elicit evidence from the applicant’s wife, ·who had supplied an affidavit, by telephone, on her knowledge of the applicant’s political activities;

   ii)consider country information on the role of political party supporters in Sri Lanka, in particular supporters of the UNP; and

   iii)ask the applicant about the provenance of the MP’s Letter, and consider what might have prompted a Sri Lankan Member of Parliament to issue the letter in question to someone who, in the Tribunal’s view, had had no active political involvement.

Minister’s submissions

1. The Minister submits that:

   a)the Tribunal properly considered whether the applicant had a well-founded fear of persecution as a supporter of the UNP;

   b)it was open to the Tribunal, for the reasons that it gave, to find that the applicant was not politically active and had no significant political profile and that there was no real chance that he would be targeted for serious harm by anyone for reasons of his past political activities: CB 248-249 at [65]-[71]. Although the Tribunal was prepared to give the applicant the benefit of the doubt and accept that he was a UNP supporter, it was not satisfied that there was a real chance that the applicant would be targeted for serious harm for reasons of his political opinion or for any other Convention reason: CB 250 at [75]. There is nothing inconsistent, illogical or contradictory in the Tribunal’s findings which were open to it on the evidence before the Tribunal; and

   c)it was not incumbent on the Tribunal to carry out the further enquiries suggested. The Tribunal is under no general duty to enquire and the circumstances in which a failure to make an obvious enquiry could give rise to jurisdictional error are limited: Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ (“SZIAI”).

Consideration – ground 5

1. The Tribunal made a finding that the applicant did not have a political profile which would result in him suffering harm as a result of his actual or perceived political opinion and that there was no real chance that he would be targeted for serious harm by anyone for reasons of his past political activities: CB 249 at [71]. The Tribunal also considered the MP’s Letter, noting that it indicated that the applicant and his family members were supporters of the UNP, and was prepared to accept that that was the case, but went on to indicate that for the reasons already discussed the Tribunal was not satisfied that the applicant had been an active member of the UNP, and that on the evidence that there was no chance of harm to the applicant for any reason arising from his political opinion: CB 250 at [75].

2. The finding made by the Tribunal that the applicant was not at risk of harm by reason of his actual or perceived political opinion was one which was open on the evidence before the Tribunal, and was a general finding which subsumed the particular distinction now sought to be made by the applicant in respect of that finding by distinguishing between an active member and a supporter of the UNP. Whether the applicant be an active member or a supporter, the Tribunal found that his political profile was such as not to expose him to a risk of harm. That general finding was open, and subsumes the particular matter now advanced: Applicant WAEE at [47] per French, Sackville and Hely JJ.

3. It cannot be said that the finding made with respect to the applicant’s political profile was one which was inconsistent, illogical or contradictory.

4. In Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [38] per Gummow and Hayne JJ it was said that:

   … the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.

5. In the High Court in SZMDS the plurality majority Justices at [119] per Crennan and Bell JJ accepted a submission that:

   …not every instance of illogicality or irrationality in reasoning could give rise to jurisdictional error, … if illogicality or irrationality occurs at the point of satisfaction (for the purposes of s 65 of the [Migration] Act) then this is a jurisdictional fact and a jurisdictional error is established.

6. Those plurality Justices went on in SZMDS at [130] per Crennan and Bell JJ to say that:

   …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.

7. Importantly, the above observations were caveated by the following observation of the same plurality Justices:

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

   SZMDS at [135] per Crennan and Bell JJ.

1. The High Court’s decision in SZMDS establishes that illogicality or irrationality in the reasoning of an administrative decision-maker may constitute a basis for judicial review, however, this ground may only succeed in a limited range of cases.

2. In SZOOR v Minister for Immigration & Citizenship & Anor [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 at [15] per Rares J (“SZOOR”) it was observed that:

   The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error.

   and further in SZOOR at [85] per McKerracher J that:

   … Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision….

3. In this case the finding as to the applicant’s actual or perceived political opinion, and the harm, if any, likely to arise as a consequence of them, was open on the factual material before the Tribunal. The finding has a logic and rationale discernible from and on the factual material available to and referred to by the Tribunal, and was within the reasonable range of factual conclusions open to the Tribunal as an administrative decision-maker. It is not to the point that another administrative decision-maker, or a Tribunal differently constituted, might have made findings on any or all of the materials which differed from those of the Tribunal where those differences would only be the result of reasonable minds differing in their interpretation of the factual material, or the weight to be attributed to various aspects of the factual material before the Tribunal. In the circumstances, there was no illogicality or irrationality or inconsistency discernible in the Tribunal Decision with respect to its findings concerning the applicant’s claim for protection under the Refugees Convention on political grounds.

4. There was no obligation on the Tribunal to make further enquiries of the type suggested by the applicant: SZIAI at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. There was nothing in the very brief relevant evidence in the Wife’s Affidavit which required further elucidation given the Tribunal’s findings on the applicant’s political opinions which were based upon the more detailed evidence before the Tribunal given by the applicant himself. By reason of the conclusions reached on the nature of the applicant’s political activities it was also unnecessary for the Tribunal to make further enquiries concerning the role played by particular supporters of the UNP. In any event, the MP’s Letter provides no obvious scope for an enquiry about a critical fact, it not being in dispute for the purposes of the Tribunal Decision that the applicant was a supporter of the UNP. As the High Court observed in SZIAI at [26] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ any enquiry concerning the MP’s Letter would be likely to “have added nothing to the statements effectively conveyed by the certificates themselves”.

5. In the circumstances there was no duty or obligation on the Tribunal to carry out the further enquiries suggested by the applicant.

6. In all of the above circumstances, no jurisdictional error arises by reason of ground 5.

Conclusions and orders

1. The Court has concluded that grounds 1 and 2 establish that the Tribunal Decision was affected by jurisdictional error, and it follows that prerogative relief ought to be granted to the applicant. There will therefore be orders that a writ of certiorari issue quashing the decision of the former Refugee Review Tribunal (now the Tribunal) made on 18 February 2014, and that a writ of mandamus issue requiring the Tribunal to re-hear the application for review made by the applicant on 28 August 2013.

2. The Court will also order that the name of the second respondent be changed to “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch 2.

3. The Court will hear the parties as to costs.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Date: 31 March 2017