FEDERAL COURT OF AUSTRALIA

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit Court of Australia on 4 May 2017 be set aside and in place of those orders, order that:

(a)    the decision of the Administrative Appeals Tribunal made on 22 April 2015 be set aside;

(b)    the matter be remitted to the Administrative Appeals Tribunal, differently constituted, to be heard and determined according to law; and

(c)    the first respondent pay the applicant’s costs of the proceeding, as agreed or taxed.

3.    The first respondent pay the appellant’s costs of the appeal, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The appellant appeals from a decision of the Federal Circuit Court of Australia (FCCA). The decision is reported as AVQ15 v Minister for Immigration and Border Protection [2017] FCCA 893 and is dated 4 May 2017.

2    The appellant obtained leave to rely upon a notice of appeal after the Minister consented to time being extended for this to occur.

3    The FCCA rejected the appellant’s judicial review application in respect of a decision dated 22 April 2015 by the then Refugee Review Tribunal (the Tribunal). The Tribunal affirmed a decision of the Minister’s delegate rejecting the appellant’s application for a protection visa.

Summary of background facts

4    The appellant is from Sri Lanka. He arrived in Australia by boat on 25 July 2012. He travelled with his brother and his brother-in-law. He claimed protection on the basis of a fear of harm because of his Tamil ethnicity, his imputed political opinion as a person who supported the LTTE, his Hindu religion and his status as a person who had breached Sri Lanka’s departure laws and sought asylum in Australia.

5    The appellant was represented by a registered migration agent in the Tribunal proceeding. The Tribunal accepted some of his claims, including that he and his mother were detained at a Sri Lankan Army (SLA) camp in April 2009 and were held for about six months. It also accepted that, on being released from the camp, the appellant was told by members of the SLA and the Criminal Investigation Department (CID), who had a file on him, that he would be monitored. It also accepted that in April 2010 the appellant was summoned for questioning at another SLA camp and that he was told that if he did anything against the SLA he would be punished.

6    The Tribunal accepted that the appellant was the secretary of a young Hindu group who were attempting to build a temple in 2011-2012 and that, despite seeking and obtaining planning permission, the SLA intervened to prevent the building of the temple at the end of March 2012. It also accepted that after the building’s foundations were laid, the SLA called a public meeting and complained that their stop order had been ignored.

7    The Tribunal did not accept the appellant’s evidence in relation to matters which took place after the building of the temple was halted because of a range of what it found to be inconsistencies in his written and oral claims. These inconsistencies are at the heart of the appeal. It is desirable, therefore, to set out [16] to [21] of the Tribunal’s reasons for decision in which the Tribunal identified the alleged inconsistencies:

16.    The Tribunal further accepts that the applicant was the secretary of a young Hindu group who were attempting to build a Hindu temple in his home village at the end of 2011 and early in 2012. The Tribunal accepts that as secretary of that group, the applicant sought and obtained planning permission from the Secretariat in [the appellant’s hometown], accepting the letter dated 3 January 2012 confirming that permission was granted to be genuine. The Tribunal accepts that despite seeking and obtaining the permission of the Secretariat in [the appellant’s hometown] in January 2012, the army intervened to prevent the building of the temple at the end of March 2012, two days before the foundation was due to be laid. At hearing the applicant gave evidence that the foundation of the temple was laid in March 2012 despite the army's objections and that the army then called a public meeting. The Tribunal accepts the applicant's evidence at hearing to the effect that at this meeting the army complained that their direction to stop building the temple had been ignored and the applicant, as secretary of the group, stated that the group had done everything properly and received permission to build and had proceeded with the foundation because it was a religiously suitable date that would not come around again for a period of about 45 days. The Tribunal accepts his evidence that people present at the meeting spoke in support of the applicant but that as a consequence of the army's objection, the building of the temple did not proceed past the point of the laying of the foundation. ·

17.    The applicant's evidence is that after that meeting, he was required to attend the army camp for questioning about the temple during which he was mistreated, accused of having links with the LTTE and of being interested in the liberation of Tamil people and acting against the army. The applicant gave evidence that he told his mother that he was facing a lot of problems and would try to live somewhere else until the problems died down, moving to Jaffna where he studied a private computer course.

18.    At hearing the Tribunal raised with the applicant the issue of his credibility, noting that the delegate had not accepted these claims to be true. The Tribunal does not accept the applicant's evidence in regard to the events he claims took place after the building of the temple was halted, considering there to be a range of inconsistencies in his written and oral claims. The applicant initially told the Tribunal at hearing that he was called in for questioning at the army camp 4-5 days after the public meeting, later stating that he was called in for questioning 2 days after the meeting and moved to Jaffna two days after that. In his written claims the applicant states that the CID harassed him and others involved in the temple building society once or twice a week, calling him in to the camp and sometimes holding him the whole day or taking him at night from his house or in the street. The Tribunal considers the applicant's written claims about his harassment after the public meeting to be inconsistent with his evidence at hearing that he was questioned once by the army after the public meeting and that he left for Jaffna two days later.

19.    There are further inconsistencies in the applicant's evidence as to what occurred during the time he was living in Jaffna. In his written claims he states that he tried to go to Jaffna to get away from the harassment but that his time in Jaffna would have run out as well since the army is everywhere, that it keeps track of who moves where through their registration process and he could not hide from them. He states that he had to flee the country to get away from them and that since he has left Sri Lanka they have gone to his mother and asked where he is. The applicant does not suggest in his written claims that the army located him or made any other contact with him or his family while he was residing in Jaffna.

20.    However in his oral evidence at hearing the applicant stated that his mother disclosed to the army that he had gone to Jaffna to study and that one day when he returned to his room after class two people in civilian dress who identified themselves as being from the CID told him that the army had told them that he was in hiding in Jaffna and required him to return to [the appellant’s hometown] for questioning. The applicant stated that as a result the owner of the property at which he lived in Jaffna refused to let him continue to live there and a month later he returned to [the appellant’s hometown]. The applicant makes no mention of such matters in his written claims, rather as noted above he states that he could not remain in Jaffna because the army would eventually catch up with him through their registration process.

21.    The inconsistencies in the applicant's evidence cause the Tribunal not to accept that the applicant was questioned, harassed or otherwise harmed or mistreated by the army following the public meeting in March 2012, nor that any such harm or harassment caused the applicant to relocate to Jaffna, rather the Tribunal considers that he did so in order to undertake his studies. The Tribunal does not accept that the applicant was approached by CID officers while studying in Jaffna who ordered him to return to [the appellant’s hometown] for questioning, nor that the army have made enquiries of his mother in [the appellant’s hometown] as to his whereabouts, either before or since he left Sri Lanka in July 2012.

The FCCA’s judgment summarised

8    In an amended application for judicial review, the appellant (who was represented in the FCCA) claimed that the Tribunal’s decision was affected by jurisdictional error because the Tribunal:

(a)    found that the appellant had given evidence at the Tribunal hearing that was inconsistent with his earlier statutory declaration; and

(b)    failed to take into account relevant information given by the appellant in support of his claim that he would be imprisoned in Sri Lanka and suffer significant harm as a consequence of the prison conditions that he would face.

9    As will shortly emerge, these grounds are substantially replicated in the two grounds of appeal.

10    The primary judge rejected the appellant’s claim that the Tribunal fell into jurisdictional error in concluding that there were inconsistencies in the appellant’s evidence. The primary judge noted that the appellant’s statutory declaration (dated 16 November 2012) expressly stated that it was a summary of the appellant’s claims for protection and was not exhaustive. The primary judge also noted that the statutory declaration included information that the appellant had tried to go to Jaffna to get away from the questioning by Sri Lankan authorities and that his “time would have run out in Jaffna too, since the army is everywhere and I could not hide from them”. The appellant said that he had to flee to get away from the army.

11    The primary judge’s reasons for rejecting the appellant’s challenge to the Tribunal’s findings of inconsistency are set out in [20] to [23] of his Honour’s reasons for judgment:

20.    An analysis of the reasons the Tribunal in this proceeding indicates that the Tribunal gave logical reasons for the finding that the Applicant had given inconsistent evidence about his experience in Jaffna.

21.    The Tribunal summarised the evidence given in the Applicant’s statutory declaration at [16] and [17] and it is not apparent that this was not an accurate summary of that evidence (in contrast to the position in SZMUK). The inconsistency found in this matter is that in the written claims, the Applicant did not say that the army had located him in Jaffna or made contact with his family while he was residing there. The Tribunal found that in his oral evidence before the Tribunal the Applicant had said that his mother had told the army that he had gone to Jaffna to study and that:

…one day when he returned to his room after class two people in civilian dress who identified themselves as being from the CID told him that the army had told them that he was in hiding in Jaffna and required him to return to [the appellant’s hometown] for questioning

22.    The Tribunal stated at [21]:

The Applicant makes no mention of such matters his written claims, rather as noted above he states that he could not remain in Jaffna because the army would eventually catch up with him through registration process.

23.    This is an inconsistency and the finding of such is not based on a logical fallacy. The applicant seeks to confine the meaning of “inconsistent” to “incompatible or contradictory”. It also means “lacking agreement, as one thing with another, or two or more things in relation to each other; at variance”. The account of the Applicant before the Tribunal was at variance with the previous account given. The Tribunal regarded this as significant. Given the importance of the Applicant’s claims about his treatment in Sri Lanka by the army was central to his application, the inconsistency is a matter that might properly lead to an adverse credibility finding and a rejection of the relevant evidence.

(Footnotes omitted.)

12    The primary judge rejected the second ground of judicial review on the basis that it was reasonably open to the Tribunal to reject the appellant’s claim that he was at a real risk of significant harm because he would be imprisoned for having left Sri Lanka illegally and prison conditions were generally poor and overcrowded. This was essentially because the primary judge accepted the Tribunal’s finding that the appellant’s detention would be of short duration.

The appeal

13    The notice of appeal dated 26 July 2018 contained the following two grounds of appeal (noting that the appellant was represented by pro bono counsel in the appeal):

1.    The primary judge erred by failing to find that the Second Respondent (the Tribunal) engaged in irrational or illogical reasoning, or constructively failed to exercise its jurisdiction or failed to carry out its statutory task by failing to consider relevant information.

Particulars

a.    The Tribunal concluded that the appellant had given “inconsistent” evidence in circumstances where: (i) the appellant’s statutory declaration in support of his application for a protection visa did not “suggest” that the Sri Lankan Army had contacted him while he was in Jaffna between March and July 2012; and (ii) the appellant gave oral evidence at the hearing before the Tribunal to the effect that the Army had contacted him while he was in Jaffna in that period. In part, on the basis of this conclusion, the Tribunal formed an adverse assessment of the appellant’s credibility.

b.    The appellant’s evidence in this respect was not inconsistent in the sense described by the Tribunal, it was not open to the Tribunal to so conclude, and the Court erred by concluding (at [23]) otherwise.

c.    The appellant’s statutory declaration stated that it was only a “summary” and was “not an exhaustive statement” of his claims, and that he intended to provide “further information” during his interview with the delegate.

d.    The Tribunal’s conclusion that the appellant had given “inconsistent” evidence involved the logical fallacy of confusing absence of specific evidence in the statutory declaration about the appellant’s experience in Jaffna, with evidence of absence of any such experience in Jaffna. Further or alternatively, the Tribunal’s conclusion involved a failure to have regard to a significant qualification to the appellant’s statutory declaration (i.e., that it was not an exhaustive statement of his claims), the existence of which negated the Tribunal’s conclusion that the appellant had given “inconsistent” evidence.

e.    The appellant subsequently did provide information in his information with the delegate (over 18 months before his Tribunal hearing) to the effect that he had had “trouble” with the “Army” in Jaffna.

f.    Furthermore, the appellant had always and consistently claimed to have been harassed by the Sri Lankan authorities until he left for Australia in July 2012 (which included the period that he spent in Jaffna between March and July 2012).

g.    The Tribunal erred by not considering this information, in concluding that the appellant had given “inconsistent” information, or alternatively in evaluating the significance of any such “inconsistency”. The Court did not determine this contention by the appellant.

2.    The primary judge erred by failing to find that the Tribunal had constructively failed to exercise its jurisdiction or failed to carry out its statutory task by failing to consider relevant information.

Particulars

a.    The appellant made claims and gave evidence to the effect that he had departed Sri Lanka illegally, that he would be prosecuted for this offence if he returned, that he would remanded in a Sri Lankan prison for a period awaiting a bail hearing, and that he would suffer “significant harm” as a consequence of the poor conditions there.

b.    In particular, the appellant gave detailed information identifying and evaluating conditions in Sri Lankan prisons, including: overcrowding and congestion, absence or poor quality of toilets and sanitary facilities, absence or poor quality of food and water, the failure to separate persons remanded on bail and persons convicted of serious crimes, antiquated infrastructure, absence or poor quality of medical care, absence of bedding, absence of natural light, absence of ventilation, absence or poor quality of assistance mechanisms, and absence of complaint mechanisms.

c.    The Tribunal found that the appellant would, if returned to Sri Lanka, spend up to several days in remand in a Sri Lankan prison pending a bail hearing in connection with a charge of having left Sri Lanka illegally.

d.    With respect to the complementary protection criterion in section 36(2)(aa) of the Act, the Tribunal purported to accept that “prison conditions in Sri Lanka are generally poor and overcrowded”; “[h]owever, the Tribunal does not accept on the evidence before it that there is a real risk that the appellant would be subjected to treatment constituting significant harm as that term is exhaustively defined in section 36(2A) … during the short period that he would spend in remand awaiting a bail hearing”.

e.    The Tribunal was required to consider whether it was satisfied that the appellant would suffer the conditions identified by the appellant in a Sri Lankan prison and, having regard to those conditions the appellant would suffer, whether the Tribunal accept that those conditions would involve “significant harm” when experienced for several days (and if not why not).

f.    No such analysis is apparent from the Tribunal’s statement of reasons. In particular, the Tribunal gave no explanation for why it did not consider the conditions that it described as “generally poor and overcrowded” would not be such as to involve “significant harm”.

g.    In the absence of such stated reasons, the primary judge erred by failing to conclude that the Tribunal made a jurisdictional error. The error may be explained in various ways, such as that the Tribunal failure to consider relevant information to the standard required, or more generally that the Tribunal failed to perform its statutory task with respect to that information.

The appellant’s submissions summarised

14    In support of ground 1, the appellant contended that the Tribunal had made a jurisdictional error in concluding that there were inconsistencies in his evidence. He submitted that the error may have involved a form of irrational reasoning, failure to consider the qualifying statement in his statutory declaration or a failure to consider the transcript of his interview with a Departmental officer, which transcript was before both the delegate and the Tribunal. He submitted that the Tribunal’s error, however characterised, was material and involved a jurisdictional error, emphasising that the findings of inconsistency formed part of the basis upon which the Tribunal rejected the appellant’s credibility and dismissed his application for review.

15    In support of ground 2, the appellant drew attention to the submissions made by his agent on 26 August 2013 and 24 February 2015 which emphasised the conditions of overcrowding and congestion, absence or poor quality of toilets and sanitary facilities, absence or poor quality of food and water, the failure to separate prisoners and other aspects of the poor conditions in Sri Lankan prisons. He submitted that these poor conditions put him at risk of significant harm because he was likely to be imprisoned if he returned to Sri Lanka as a person who had left there illegally. The appellant’s submissions provided the Tribunal with lengthy and detailed country information in support of these claims.

16    The appellant acknowledged that the Tribunal stated that it had “considered” the material relied upon by the appellant and that it also found that prison conditions in Sri Lanka were generally poor. The appellant submitted, however, that the Tribunal needed to consider whether the conditions involved “significant harm” if he were to be remanded for up to several days and that this required the Tribunal to engage in an “active intellectual process”, which it failed to do. Mr Wood, who appeared pro bono for the appellant, drew attention to the Minister’s submission to the Full Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; 243 FCR 556 (SZTAL) at [32] and [34] in support of his contention that, as a matter of principle, the issue whether exposure to poor prison conditions in Sri Lanka constituted significant harm within the meaning of s 36(2A) of the Act, required an analysis of the specific circumstances in a particular case.

The Minister’s submissions summarised

17    In response to ground 1, the Minister defended the primary judge’s conclusion that it was open to the Tribunal to find inconsistency between the appellant’s initial claims and his later oral claims. The Minister denied that this is a case where the appellant identified a high level claim and later provided additional detail. Instead, the Minister contended that the appellant gave a statement of events which did not include incidents involving the SLA while he was in Jaffna and suggested that there were no such incidents. He later claimed that there had been an incident in Jaffna. The Minister acknowledged that in his interview with the delegate, the appellant gave further details about being questioned in Jaffna but added that, at the Tribunal hearing, he gave significantly more information about that alleged incident.

18    The Minister contended that, whichever way the appellant’s statutory declaration is understood, it was open to the Tribunal to take the view that the written claim was inconsistent with the later oral claims because:

(a)    if the statutory declaration is understood as suggesting that there was no trouble with the CID or the SLA, that is inconsistent with a later claim that there was; and

(b)    if the statutory declaration is understood only as omitting any claims of incidents in Jaffna, it remained open to the Tribunal to find that a statement without details of incidents in Jaffna was inconsistent with later claims relating to the same period.

19    In response to ground 2, the Minister submitted that submissions to the Tribunal made by the appellant’s representatives concerning the risk of harm in Sri Lankan prisons was predicated on the appellant spending a long time in prison. Mr Yuile, who appeared for the Minister, submitted that the “thrust” of the appellant’s case before the Tribunal focused on the risk of significant harm by reference to prison conditions in Sri Lanka if the appellant was imprisoned for an extended period of time, rather than on the basis of the appellant being held on remand for a few days. The Minister defended the Tribunal’s rejection of this aspect of the appellant’s case on the basis of its finding that the appellant would spend at most only a few days on remand.

Consideration and disposition of the appeal

20    It is convenient to deal separately with grounds 1 and 2.

(a)    Ground 1

21    This ground is directed to the Tribunal’s findings that there were inconsistencies in the appellant’s written claims and the evidence he gave before the Tribunal. Before addressing that ground in detail, it is appropriate to say something generally about the use of inconsistencies in an asylum seeker’s evidence in assessing the person’s credibility.

22    The UNHCR, in its report entitled “Beyond Proof: Credibility Assessment in EU Asylum Systems”, 2013 at p 27, has described “credibility”, in the context of asylum applications, in the following terms, which we consider to be an appropriate description:

In the English language, the ordinary meaning of ‘credibility’ is whether something or someone is capable of being believed, or alternatively, whether something or someone is trustworthy or reliable. ‘Credible’ is defined as “able to be believed or convincing.”

…

The term ‘credibility assessment’ in this context is used to refer to the process of gathering relevant information from the applicant, examining it in the light of all the information available to the decision-maker, and determining whether the statements of the applicant relating to material elements of the claim can be accepted, for the purpose of the determination of qualification for refugee and/or subsidiary protection status.

(Footnotes omitted.)

23    A decision-maker is entitled to rely upon inconsistencies in assessing a visa applicant’s credibility but it is important that the process be conducted fairly and reasonably, taking into account that the assessment of the reliability, and credibility, of accounts given by asylum seekers is well recognised as involving a number of particular features and considerations, and calls for a careful and thoughtful approach.

24    In their text, The Law of Refugee Status (2nd edition, 2014) at p 139, James Hathaway and Michelle Foster describe the assessment of credibility as often being based on one or more of four matters: plausibility, relevant knowledge of an asylum seeker, demeanour and consistency of testimony. The learned authors discuss in detail (at pp 139-149) the comparative jurisprudence on these four features of credibility assessments, including references to many decisions of this Court dating back 20 years. The necessity for care, fairness and a reasonable approach, in order to avoid what the learned authors describe at one point as “a quest to disbelieve” (at p 138), or to avoid irrationality or legal unreasonableness in an approach to credibility assessment, is evident from the comparative authorities there discussed, including as we have noted, many authorities from this Court. The learned authors conclude (at pp 148-149):

As can be seen, the tools available to assess the credibility of an applicant’s testimony are each highly flawed. Reliance on plausibility is prone to inferences based on assumptions of rationality often at odds with conditions in the country of origin. The use of knowledge tests is problematic given difficulties to identify both true core knowledge and knowledge that is appropriate to a person in the applicant’s particular circumstances. Demeanor assessment is of necessity benchmarked against some assumption of universal normalcy (which does not actually exist), and can prove especially ill-suited to assessing the claims of women, children, and victims of trauma. And a focus on the consistency of testimony is based on a false psychological assumption about the nature of truth-telling over time, and can be heavily skewed by an applicant’s understandable reluctance to be forthcoming at early stages of the determination process and where evidence is provided (as is normally the case) through an interpreter. Real caution is thus appropriate before any adverse inference regarding credibility is drawn on one of these bases.

(Footnotes omitted.)

25    One authority to which Hathaway and Foster refer is the decision of a Full Court of this Court in W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379 (W375/01A) where the Court (Lee, Carr and Finkelstein JJ) said at [15]:

As anyone with even a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness. All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter. It is inevitable that each version will be slightly different, and may even be very different once the impact of the interpreter is taken into account.

26    Consistently with its task on review, and bearing the reality to which the Full Court in W375/01A referred steadily in mind, appropriate attention has to be given by a decision-maker (here, the Tribunal) to all relevant material in making a finding of inconsistency which then underpins an adverse credibility assessment. As will shortly emerge, this did not occur here because the Tribunal overlooked what the appellant had earlier told a Departmental officer at the appellant’s interview and this material was highly relevant to the question whether the appellant had given inconsistent evidence in support of his case.

27    Secondly, the term “inconsistency” should be used with appropriate caution and an appreciation of the danger of using labels or formulae which mask the need for deeper analysis. As we have noted above, adverse credibility findings might be based on a variety of matters, including inconsistencies between, for example, evidence or claims made at different stages of the decision-making process or differences between oral evidence and contemporaneous documents. In some circumstances a visa applicant may raise a claim for the first time at an advanced stage of the decision-making process and the failure to raise the claim previously may well be relevant to credibility, but that is not to say that this is correctly described as an inconsistency.

28    Thirdly, even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.

29    With those general observations in mind, we will now explain why we consider ground 1 should be upheld. As the following analysis reveals, the Tribunal’s finding of inconsistencies in the appellant’s evidence, which findings underpinned its adverse assessment of the appellant’s credibility, overlooked significant information which was before it and which potentially put a different light on those findings. This information is recorded in the first paragraph of the appellant’s statutory declaration and in the written transcript of the appellant’s earlier interview with the Departmental officer, a copy of which was before the Tribunal. Inexplicably, in its reasons for decision the Tribunal made no express reference to the transcript of interview. This was notwithstanding that the appellant declared in his statutory declaration that he would provide further information to the Department in support of his case.

30    The appellant’s statutory declaration contained the following introductory paragraph (emphasis added):

1.    The following is only a summary of my claims for protection. It is not an exhaustive statement of the reason or reasons why I cannot return to my country of origin. I will provide further information in relation to my protection claims during my interview with the DIAC officer.

31    The transcript of the appellant’s interview with the Departmental officer records the appellant as saying that:

(a)    he was “having problems so I went to Jaffna and did a computer course…The Army went and questioned my mother and sent all details to Jaffna, CID. This is when I realised I could not live anywhere and I came here”; and

(b)    he ran away to Jaffna in March 2012, stayed there for three months, was doing a computer course and that he had gone there because he “had problems here”.

32    In response to a question from the officer as to whether he had “any trouble with the army or anyone else in Jaffna”, the appellant responded:

They knew I was staying there. Once they called me to ask me questions. They had my file there in front of them. They said people in [the appellant’s hometown] sent it to them.

33    A fundamental difficulty with the Tribunal’s findings of inconsistencies in the appellant’s written and oral evidence is that the Tribunal has entirely overlooked what the appellant told the Departmental officer, notwithstanding that a copy of the transcript of his interview formed part of the record before the Tribunal. The interview was important, including because the appellant had stated in his statutory declaration that he would provide further information in relation to his claims during that interview. Any finding of inconsistency of the kind made by the Tribunal here had to take into account what the appellant said in that interview. We shall elaborate on these matters below.

34    First, at [18] of the Tribunal’s reasons for decision, the Tribunal contrasted the appellant’s oral evidence before the Tribunal with his written claims relating to the public meeting. The Tribunal noted at [18] that the appellant initially told the Tribunal that he was called in for questioning at the army camp 4-5 days after the public meeting, later stating that he was called in for questioning two days after the meeting and that he moved to Jaffna two days after that. The Tribunal contrasted this evidence with his written claims (presumably in his statutory declaration), that the CID harassed him and others involved in the temple building society once or twice a week, called him in to the camp and sometimes held him there for the whole day or took him at night from his house or in the street. These findings take no account of what the appellant is recorded as saying at his interview with the Departmental officer. The transcript of that interview shows that, without reference to any particular time period, the appellant told the officer that the army sometimes took him away at night and sometimes questioned him and would release him in the morning. With specific reference to the building of the temple, he told the officer that the army said that it was not able to be built and “they threatened me and questioned me and then released me”. He said that the foundation was laid on 17 January 2012 and that “the problems” started the next month and that he ran away to Jaffna. He said that the CID had taken him and the president of the society away to question them. He also said that he went to Jaffna and lived there for three months from March until July 2012. When he was asked whether he had any trouble with the army or anyone else in Jaffna, he responded:

They knew I was staying there. Once they called me to ask me questions. They had my file there in front of them. They said people in [the appellant’s hometown] sent it to them.

35    Secondly, at [19] the Tribunal explained why it found that there were other inconsistencies in the appellant’s evidence in relation to what occurred while he was living in Jaffna. It summarised his evidence on this subject in his statutory declaration and then noted that the appellant did not suggest in his written claims that the army located him or made any other contact with him or his family while he was residing in Jaffna. The Tribunal contrasted this with the appellant’s oral evidence at the Tribunal hearing that his mother had told the army that he had gone to Jaffna to study and that one day when he returned to his room after class two people who said they were CID officers told him that the army had informed them that the appellant was hiding in Jaffna and that he had to return to his hometown for questioning.

36    Again, the Tribunal has overlooked the appellant’s evidence at his interview. As stated above, he told the officer that after he went to Jaffna the SLA questioned his mother and then sent all his details to the CID in Jaffna. Later, he said that the army knew that he was staying in Jaffna and that they called him once to ask him questions and that they had his file in front of them. Further he said that the people who visited him told him that they had got the file from his hometown. Later in his interview, he is recorded as saying that the SLA and CID “work together”. The Tribunal’s finding of inconsistency fails to take into account this information.

37    Thirdly, the Tribunal noted that the appellant said at the Tribunal hearing that as a result of this incident at Jaffna, his landlord refused to let him stay on in his rented room in Jaffna and that he returned to his hometown one month later. The Tribunal found at [20] that these matters were not mentioned in the appellant’s written claims and that, instead, he stated that he could not remain in Jaffna because the army would eventually catch up with him through their registration process.

38    In his interview with the Departmental officer, the appellant said that he was renting a room in Jaffna. He was not asked any questions by the Departmental officer regarding his room rental. Instead, he was asked whether he had finished his computing course, to which he responded by saying that he had not because half way through the course he came to Australia. Accordingly, it is perhaps unsurprising that he did not mention in his interview that, after he was visited by officials in Jaffna, his landlord asked him to leave. If the Tribunal had turned its mind to this part of the interview and to the fact that the Departmental officer shifted the questioning away from the appellant’s accommodation in Jaffna to his study there, the Tribunal may have taken a different view of the significance of the fact that it was only at the Tribunal hearing that the appellant mentioned that he had been asked by his landlord to leave that accommodation after he was visited by the authorities.

39    As the Tribunal made clear in [21] of its reasons for decision, these so-called inconsistencies caused the Tribunal not to accept that the appellant was questioned, harassed or otherwise harmed or mistreated by the SLA following the public meeting in March 2012, nor that any such harm or harassment caused him to relocate to Jaffna. Instead, the Tribunal found that he went to Jaffna in order to study. The Tribunal also relied upon these inconsistencies in not accepting the appellant’s evidence that:

(a)    he was approached by CID officers while studying in Jaffna;

(b)    they ordered him to return to his hometown; and

(c)    the SLA had inquired of his mother as to his whereabouts either before or after he left Sri Lanka in July 2012.

40    Relevant legal principles guiding judicial review of adverse credibility findings and whether or not the failure to take into account relevant material in making such findings give rise to jurisdictional error have been discussed in several cases, including WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437; 194 ALR 676 (WAGO) at [51]-[54] per Lee and R D Nicholson JJ, whose reasoning in these paragraphs was agreed to by Carr J at [57]; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [77]-[115] per Robertson J; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [37]-[38]; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [62]-[66]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30]; DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33 at [19]; BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [32]-[38]; Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [28] and CWR16 v Minister for Immigration and Border Protection [2018] FCA 859 at [60]-[65] per Allsop CJ.

41    For convenience, the principles which have relevance to the particular facts and circumstances here may be summarised as follows.

(a)    The issue whether or not an administrative decision is affected by jurisdictional error requires a careful examination of the relevant statutory framework, with a particular emphasis on provisions which determine the decision-maker’s powers, procedures, functions and obligations.

(b)    While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.

(c)    Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored “relevant material” does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.

(d)    Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).

(e)    Merely because there is no reference in the decision-maker’s reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [10] per Gleeson CJ).

(f)    Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.

42    With those general legal principles in mind, we make the following observations. First, the Tribunal’s powers and functions are set out in Pt 7 of the Act. The Tribunal was obliged under s 414 to conduct a review of an RRT-reviewable decision where a valid application for review is made under s 412. By s 415, the Tribunal may, for the purposes of such a review, exercise all the powers and discretions conferred by the Act on the person who made the decision. Division 4 of Pt 7 is, by s 422B, taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with and, in applying that Division, the Tribunal must act in a way that is fair and just. As already stated, s 430 describes the Tribunal’s obligation to provide a written statement of reasons concerning its decision.

43    Secondly, ss 5AAA and 423A, which were introduced by the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) (the 2015 Amendment Act), are potentially relevant to the Tribunal’s task of assessing and determining credibility, particularly the latter provision which requires the Tribunal to draw an unfavourable inference on credibility in the specified circumstances. The former provision makes clear that it is the protection visa applicant who has the responsibility of specifying all particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The latter provision, which applies to Pt 7 proceedings, provides as follows:

423A    How Tribunal is to deal with new claims or evidence

(1)    This section applies if, in relation to an application for review of an RRT reviewable decision (the primary decision) in relation to a protection visa, the applicant:

(a)    raises a claim that was not raised in the application before the primary decision was made; or

(b)    presents evidence in the application that was not presented in the application before the primary decision was made.

(2)    In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

Having regard to the transitional provisions in item 15 of Pt 3 of Sch 1 to the 2015 Amendment Act, s 5AAA was relevant to the Tribunal’s decision here, but s 423A was not, because the appellant’s protection visa application was made before the relevant date.

44    Thirdly, it is notable that there is no reference in the Tribunal’s reasons for decision to the important express qualifications set out in paragraph 1 of the appellant’s statutory declaration, nor to the transcript of his interview. Having regard to the seriousness of the Tribunal’s adverse credibility findings and to how they were arrived at, we conclude that the Tribunal simply overlooked this material. This is not a case where an inference could reasonably be drawn to the effect that the Tribunal did turn its mind to this material but concluded that it was not relevant and therefore made no reference to it in its reasons for decision. No such inference could reasonably be drawn here given the significance of the material to the critical issue being addressed by the Tribunal, namely whether or not there were inconsistencies in the appellant’s written and oral evidence.

45    Fourthly, the overlooked material is potentially significant in the particular facts and circumstances here. The appellant made plain in his statutory declaration that he would provide further information to the Department in support of his application for a protection visa, which he did. That information elaborated upon some important aspects of what was set out in his statutory declaration. In determining that there were inconsistencies in the appellant’s evidence, the Tribunal focused exclusively on the contents of the statutory declaration (while ignoring the introductory paragraph) and what the appellant told the Tribunal at the hearing. Most importantly, the Tribunal paid no regard to what the appellant is recorded as having told the Departmental officer. That material had to be considered before the Tribunal could determine whether or not there were inconsistencies in the appellant’s evidence in support of his claims.

46    Fifthly, if the material had been taken into account, the Tribunal may well have not made the serious adverse credibility finding which it did. That adverse credibility finding was critical to the Tribunal’s rejection of the appellant’s case.

47    Sixthly, these errors are not avoided on the basis that the Tribunal’s analysis of inconsistencies in the appellant’s evidence was directed only to the appellant’s written claims and his oral evidence before the Tribunal. In conducting the review, the Tribunal was obliged to consider all relevant material before it. An assessment of the appellant’s credibility had also to take into account what he had said at his Departmental interview on the topics in relation to which the Tribunal made findings of inconsistency.

48    We are satisfied that the Tribunal’s decision is affected by jurisdictional error and the primary judge erred in not upholding ground 1 of the amended application for judicial review. The Tribunal’s apparent overlooking of material in the form of the transcript of the appellant’s interview with the Departmental officer could also be characterised as a constructive failure to exercise jurisdiction (see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [80] ff per Gaudron J; VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [68]-[77] per Hill, Sundberg and Stone JJ and COZ16 v Minister for Immigration and Border Protection [2018] FCA 46 at [38]-[46] per Griffiths J). That is because, in assessing whether or not there were inconsistencies between the appellant’s written and oral claims, it was incumbent upon the Tribunal to consider relevant parts of that transcript, which it failed to do. The appellant had, after all, made clear in his original statutory declaration that he would expand upon his claims in that interview. Further, in any situation where an applicant is given an opportunity to attend an interview or engage in a review process, it is reasonable for that applicant to expect that she or he will be able to expand on, or explain, aspects of the narrative she or he has given prior to that point. This expectation and the other matters to which we previously referred (see [24]-[26] above) must be properly considered by a decision-maker in making any assessment of the applicant’s claims and evidence.

49    As Lee and R D Nicholson JJ said in WAGO at [54]:

54.    The unwarranted assumptions of the Tribunal as to matters relevant to formation of a view on the credibility of the corroborative witness caused the Tribunal to disbelieve and disregard that evidence and constituted a failure by the Tribunal to duly consider the question raised by the material put before it: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at [4]. Although the remarks of the Chief Justice in Aala were directed to entitlement to review by constitutional writ on the ground of absence of authority for the Tribunal to make a decision that exercised the decision-making power in a manner that was not procedurally fair, his Honour’s comments are equally pertinent to an unauthorised exercise of decision-making power that results from the Tribunal failing to take into account relevant material. In misunderstanding the material before it, the Tribunal thereby failed to have regard to relevant material, resulting in a decision for which the Tribunal had neither authority nor jurisdiction under the Act: Yusuf per McHugh, Gummow and Hayne JJ at [82]-[85]. It follows that grounds for review of the Tribunal’s decision arise under s 476(1)(b) and (c) of the Act.

(b)    Ground 2

50    Ground 2 is expressed in the Notice of Appeal in the following way:

The primary judge erred by failing to find that the Tribunal had constructively failed to exercise its jurisdiction or failed to carry out its statutory task by failing to consider relevant information.

51    Seven Particulars to the ground are given. In substance, they set out the appellant’s contentions before the Tribunal concerning what would happen to him if he returned to Sri Lanka, and were to be remanded in a Sri Lankan prison. He contended he would suffer “significant harm”, as defined, if he were to be sent to prison. Relevantly, he made that contention based on both the risk of torture, and the conditions he contended existed in Sri Lankan prisons. In the second Particular to Ground 2, the appellant contended:

In particular, the appellant gave detailed information identifying and evaluating conditions in Sri Lankan prisons, including: overcrowding and congestion, absence or poor quality of toilets and sanitary facilities, absence or poor quality of food and water, the failure to separate persons remanded on bail and persons convicted of serious crimes, antiquated infrastructure, absence or poor quality of medical care, absence of bedding, absence of natural light, absence of ventilation, absence or poor quality of assistance mechanisms, and absence of complaint mechanisms.

52    The source of the information summarised in this Particular was set out in the submissions of the appellant’s agent to the Tribunal, relying, amongst other sources, on the UK Home Office’s April 2012 Operational Guidance Note: Sri Lanka stating that:

Conditions in prisons and police custody are very poor and taking into account the levels of overcrowding, unsanitary conditions, lack of food and the incidence of torture, are likely to reach the Article 3 threshold and a grant of Humanitarian Protection may be appropriate.

53    Based on the Tribunal’s finding that it accepted the appellant would, if returned to Sri Lanka, spend up to several days in remand in a Sri Lankan prison pending a bail hearing in connection with a charge of having left Sri Lanka illegally, the Particulars to Ground 2 go on to contend that the Tribunal was required to, but did not, consider whether it was satisfied the appellant would suffer the conditions he had identified and whether, having regard to those conditions, the Tribunal accepted what the applicant would experience constituted “significant harm” within the meaning of s 36(2A) of the Act. The appellant contends that the Tribunal’s finding (at [71] of its reasons) that prison conditions were “generally poor and overcrowded” but there was no real risk of “significant harm” was insufficient.

54    The final Particular to Ground 2 - (g) - concludes with the following contention:

The error may be explained in various ways, such as that the Tribunal fail[ed] to consider relevant information to the standard required, or more generally that the Tribunal failed to perform its statutory task with respect to that information.

55    Had we not upheld Ground 1 of the Notice of Appeal, we may well have been inclined to uphold Ground 2, on the basis that as contended the Tribunal failed to perform its statutory task. However, it is not necessary to decide this ground, given the view we have taken on Ground 1.

56    Nevertheless, we make the following observations, to explain our concerns about the Tribunal’s approach to the question of whether the appellant faced a real risk of significant harm if he were, as the Tribunal accepted he might well be, held on remand in a Sri Lankan prison for up to “several” days while awaiting release on bail.

57    In making these observations, we accept, as the Minister submitted, that the Tribunal had considered and rejected the appellant’s evidence that he was likely to be held for up to a year in prison. The appellant did however also contend that he would, at least, be held for a period of several days, which the Tribunal apparently accepted. For example, in his submissions to the Tribunal, his adviser stated (referring to an article in the Sydney Morning Herald in December 2012, discussing the remand of returned asylum seekers from Australia):

The available information makes it clear that our client will inevitably be questioned on return and the SMH article suggests that, in addition to interrogation on return, he will be imprisoned for several days, if not longer.

58    In considering whether the appellant met the Convention-related criterion in s 36(2)(a), the Tribunal relevantly found (at [64]):

On the evidence before it, the Tribunal finds that the applicant will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he may be held on remand for a period as long as several days while awaiting a bail hearing.

59    It then found at [65]:

The Tribunal has considered the independent sources cited in the applicant's representative's submissions and accepts that prison conditions in Sri Lanka are generally poor.

60    That is the extent of its fact finding in this part of its reasons about the nature of the prison conditions the appellant had contended he would face. The Tribunal then found (at [66]):

As such the Tribunal is satisfied that any brief period the applicant may be required to spend in jail or any fine he may incur any such prosecution or penalty on conviction for an offence will be the result of non-discriminatory enforcement of a law of general application and does not give rise to persecution under the Refugees Convention because it does not involve systematic and persecutory conduct pursuant to s.91R(l)(c).

61    The Tribunal’s consideration of whether the appellant met the criterion in s 36(2)(aa) for complementary protection is even more confined.

62    At [71], the Tribunal repeated its finding about the real risk the appellant might be held on remand:

For the reasons set out above, the Tribunal has accepted that the applicant will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he could be held on remand for a brief period usually being less than 24 hours but possibly as long as several days while awaiting a bail hearing.

63    It then rejected the appellant’s evidence that he faced a real risk of torture either during questioning or on remand, and made the following finding:

The Tribunal has considered the independent sources cited in the applicant's representative's submissions and accepts that prison conditions in Sri Lanka are generally poor and overcrowded. However the Tribunal does not accept on the evidence before it that there is a real risk the applicant would be subjected to treatment constituting significant harm as that term is exhaustively defined in section 36(2A), either during his questioning at the airport or during the short period that he would spend on remand awaiting a bail hearing.

64    From this, the Tribunal concluded (at [72]):

On the evidence before it the Tribunal does not accept that there is a real risk the applicant would be subjected to treatment constituting significant harm as that term is exhaustively defined in section 36(2A) as a result of being questioned or monitored upon his return to [his hometown]. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

65    Section 36(2A) provides that:

(2A) A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

66    The language chosen by Parliament in s 36(2A)(c)-(e) reflects the fact that the “protection obligations” assumed through the complementary protection criterion in s 36(2)(aa) reflect the terms of Art 7 of the International Covenant on Civil and Political Rights, in respect of cruel or inhuman treatment or punishment and degrading treatment or punishment and which are also found in Art 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in respect of torture: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 at [33], [43]-[44] and [52] per Gageler J.

67    Since the matters in s 36(2A) are listed in the alternative, it is clear Parliament intended that “cruel or inhuman treatment or punishment” is treatment of a kind different in nature and quality to “degrading treatment or punishment”. The terms have been given statutory meaning in s 5(1) of the Act:

cruel or inhuman treatment or punishment means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)    pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant; or

(d)    arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)    that is not inconsistent with Article 7 of the Covenant; or

(b)    that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

68    The need for, and meaning of, the mental aspect of these definitions is what was in issue in the High Court in SZTAL. A majority of the Court held that what was required was an actual, subjective intention: see [26], [68]; cf Gageler J at [54], [58].

69    The appellant relied upon, and the Minister did not dispute, the following statement made on behalf of the Minister in submissions to the Full Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; 243 FCR 556 at [32], as an accurate summary of the appropriate approach by a decision maker (whether delegate or Tribunal) to considering whether a person might suffer “significant harm” in accordance with s 36(2A), in relation to short periods of detention:

In the Minister’s supplementary submissions, the Minister clarified his position with respect to the disposition of these appeals, as follows:

In light of the conflict in the authorities concerning Art 7, the Minster does not submit that the risk that the appellant will be exposed to poor prison conditions during a short period on remand in Sri Lanka is necessarily incapable of constituting a breach of Art 7, and thus necessarily falls outside the definition of [cruel or inhuman treatment or punishment] in s 5 of the [Migration] Act irrespective of the meaning of the phrase “intentionally inflicted”. That follows because it is possible as a matter of law that, had the Tribunal made findings about exactly where the appellant would be detained and the conditions he would have experienced then, depending on the content of those findings, Art 7 might have been engaged.

It follows that the Minister does not submit that, even if the appellant’s arguments are accepted, the appeal should nevertheless be dismissed on the basis that it would be futile to remit the matter to the Tribunal by reason of paragraph (c) of the definition of [cruel or inhuman treatment or punishment] (or paragraph (a) of the definition of “degrading treatment or punishment”).

(Underlining in original.)

70    And then at [34] in SZTAL, the Full Court recorded the following submission made on behalf of the Minister:

Citing cases such as MSS v Belgium (2011) 53 EHRR 2 at [219] and Kalashnikov v Russia (2003) 36 EHRR 34 at [95], the Minister made a further submission that, as matter of principle, exposure to poor prison conditions should be found to constitute a violation of Art 7 only after an analysis of the specific circumstances in a particular case, because it is only following such a specific and individualised analysis that it is possible to assess whether poor prison conditions cause individualised harm of sufficient severity to engage Art 7.

71    These approaches, read with the High Court’s decision in SZTAL, frame the statutory task to be undertaken by the Tribunal, in order to determine on review whether a person satisfies the criteria for complementary protection, and specifically, whether the person faces a risk of “significant harm”, as that phrase is to be understood in the light of s 36(2A).

72    The task is unlikely to be performed according to law by a summary and formulaic finding such as that made by the Tribunal in its reasons and which we have extracted at [63]-[64] above. The Tribunal was not only required to determine the appellant’s contentions about a risk of torture. The Tribunal was required to decide whether it was satisfied there was a real risk the appellant would suffer “degrading treatment”, and to undertake that task it needed to understand what degrading treatment was in the statutory context, and then by reference to the evidence and material before it, explain why it did or did not consider that that was the kind of treatment the appellant had a real risk of facing if he were to be remanded for a period of several days, including determining whether there was an “actual subjective intention” to inflict degrading treatment, or cruel and inhuman treatment.

73    The Tribunal faced a similar task to determine whether it was satisfied that there was a real risk the appellant would suffer “cruel or inhuman treatment”.

74    The appellant had presented ample evidence and argument on these matters. The Tribunal did not grapple with them sufficiently as required by law, and had we not upheld Ground 1, we may well have been persuaded that its failure to do so revealed a jurisdictional error of the kind articulated by the applicant under Ground 2.

Conclusion

75    For these reasons, the appeal should be allowed and the first respondent ordered to pay the appellant’s costs, as agreed or assessed. The matter shall be remitted to the Administrative Appeal Tribunal for reconsideration according to law. The Court expresses its gratitude to Mr Wood and Clothier Anderson Immigration Lawyers, who agreed to accept a referral to represent the appellant on a pro bono basis.

Associate:

Dated:    13 September 2018