FEDERAL COURT OF AUSTRALIA

SZSSC v Minister for Immigration and Border Protection [2014] FCA 863

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the primary judge on 1 April 2014 be set aside.

3.    The decision dated 26 February 2013 of the Refugee Review Tribunal be set aside.

4.    There be an order in the nature of mandamus requiring the Refugee Review Tribunal to determine according to law the appellant’s application for review filed on 6 December 2012.

5.    The first respondent is to pay the appellant’s costs of the appeal, as agreed or assessed.

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

REASONS FOR JUDGMENT

1    The appellant appeals from a decision of the Federal Circuit Court given on 1 April 2014, at which time ex tempore reasons for judgment were delivered. The primary judge dismissed the appellant’s application for judicial review of a decision dated 26 February 2013 of the Refugee Review Tribunal (the Tribunal). In that decision, the Tribunal affirmed the decision of the Minister’s delegate to refuse to grant the appellant a Protection (Class XA) visa (the protection visa). The judicial review carried out by the Federal Circuit Court involved an exercise of its statutory jurisdiction under s 476 of the Migration Act 1958 (Cth) (the Act), which jurisdiction is the same as the original jurisdiction of the High Court under s 75(v) of the Constitution. The grant of any judicial review relief depended on the Court being satisfied that the Tribunal’s exercise of its statutory review function involved one or more jurisdictional errors. The primary judge was not satisfied that there was any such jurisdictional error. The issue in the appeal is whether there is appellable error in his Honour’s judgment.

Summary of background facts

2    The appellant is a citizen of Sri Lanka and is of Tamil ethnicity. He arrived in Australia by an unauthorised boat and without a visa. His application for a protection visa, which was made on 17 September 2012, was initially refused by the Minister’s delegate on 9 November 2012. The appellant subsequently attended and gave evidence at a hearing of the Tribunal on 6 February 2013. His migration agent (who also practised as a solicitor) had lodged a lengthy written submission dated 1 February 2013 in support of the requested review. As will be further discussed below, following the Tribunal’s hearing, the migration agent/solicitor provided a further written submission dated 20 February 2013.

3    The appellant’s application for the visa was made under both s 36(2)(a) and (aa) of the Act. He claimed to fear persecution by reason of his Tamil ethnicity and also on the basis that he belonged to particular social groups, namely “young, single, Tamil men”, “Tamils who are perceived to be wealthy land owners”, “failed Tamil asylum seekers” and “failed asylum seekers who are perceived to be wealthy”. In support of his claims, the appellant also claimed that he had been the subject of extortion by a police officer from the Criminal Investigation Division (CID) (the extortion claims).

4    The extortion claims were at the core of the appellant’s application for a protection visa. The extortion claims were recorded in the Department’s file (which was not included in the appeal book). They were also set out in a statutory declaration sworn by the appellant on 17 September 2012. That statutory declaration was before both the Minister’s delegate and the Tribunal. Its contents may be summarised as follows:

    in September 2006 there was a bomb blast outside the appellant’s house. The appellant rushed outside and saw two of his neighbours lying injured on the ground. The appellant sought to help them by taking them to a hospital in a rickshaw but they died along the way;

    the next day police and officers from the CID came to investigate the incident. One of the CID officers spoke to the appellant. The appellant recognised the CID officer as someone he had met before while the appellant was working on a painting job at a temple in Chillaw. The appellant said that he did not know the CID officer’s full name but was aware that he was Singhalese and that people called him “Mathaya” (a term of respect in Sri Lanka meaning “sir”);

    the appellant said that the CID officer questioned him about the bombing. He said that the CID officer told him that if he stayed in the village “there would be big problems” and that he should leave. The appellant took his advice and left the village to stay with a relative nearby;

    upon his return a few days later he said that the CID officer came to his house and demanded that the appellant pay him a bribe. He told the appellant that if he did not pay him he would be arrested in connection with the bombing and that the CID officer also had the power to kidnap and kill him. The appellant said that at that time the police and the CID were kidnapping, assaulting and killing many Tamils so he was frightened that the same thing would happen to him;

    the appellant said that he paid the CID officer a bribe of 50,000 rupees;

    he said that thereafter the CID officer came to his house every month or two to collect money and that each time he threatened the appellant that if he did not pay he would have him arrested, charged, detained and/or killed. He said that he paid the CID officer bribes, although not always in the amounts demanded of him;

    he said that in 2010 the CID officer came to his house with another police officer and when the appellant told him that he did not have any money he was taken outside and forced into the back of a white van by the CID officer while the other officer drove the van. He said that the CID officer started yelling at him and threatening him that if he did not pay he would have the appellant killed. The appellant said that he was slapped in the face repeatedly and was very scared. He said that he was let go about 15 minutes later and walked home;

    he said that the CID officer visited him a few days later and that the appellant paid him some money which he had been able to raise;

    the appellant said that it became increasingly difficult for him to pay the bribes and that in about April 2012 the CID officer came to his house and the appellant told him that it was difficult for him to keep paying as the family was running out of money, at which point the CID officer asked him whether he realised how many people were missing and told the appellant that if he did not pay he would be the next;

    the appellant said that he ran to a friend’s home and borrowed 100,000 rupees which he gave to the CID officer; and

    he said that at this point he was very frightened because there was no money left to pay the CID officer and that he was concerned that the CID officer would harm him so he arranged to leave Sri Lanka and he travelled by boat to Australia.

5    By a decision dated 9 November 2012, the Minister’s delegate rejected the appellant’s claims for a protection visa. In his statement of reasons for that decision, the delegate stated that “the applicant’s claims are centred on an incident he had witnessed where a bomb had gone off in 2006 and he had helped the injured victims of the bomb blast to hospital”. The delegate then summarised the extortion claims. The delegate found that the appellant’s claim that Mathaya was from the CID and a senior policeman “was embellishment”, but the delegate accepted that the bomb blast in 2006 did occur and also that “the applicant may have been a victim of extortion from the policeman, Mathaya”. He did not accept, however, that Mathaya was a CID member or involved in any Sri Lankan intelligence authority. The delegate also found that extortion was a criminal activity even if conducted by the police and that the appellant could have reported his activities to a senior police officer.

6    As noted above, the appellant sought a review by the Tribunal of the delegate’s decision. His migration agent/solicitor provided a detailed written submission dated 1 February 2013 to the Tribunal, which included submissions regarding the extortion claims (those submissions were substantially based on the appellant’s statutory declaration referred to above but they also provided some additional information).

7    The key points made in these initial written submissions made on behalf of the appellant concerning the extortion claims may be summarised as follows:

    around 23 September 2006, there was a bomb blast near the appellant’s family home. The appellant claimed that he went outside to see two men, who were wearing raincoats which the appellant recognised as belonging to law enforcement officers, running away from the scene. The appellant provided assistance to two of his Tamil neighbours who were severely injured by the blast. Both victims subsequently died;

    early the following day, the police and plain-clothed officers from the CID came to the appellant’s village to investigate the bombing, which was suspected of being connected to a shooting the day before in the appellant’s village of another Tamil. The appellant said that he was aware from other villagers that Sri Lankan authorities were believed to be responsible for the attack;

    one of the plain-clothed CID officers asked to speak with the appellant outside his house. The appellant recognised the CID officer by his face because he had seen him before when the appellant was working on a painting job at a temple in Chillaw;

    he described the CID officer as a Singhalese man, dark-skinned and referred to him as “Mathaya”;

    the appellant said that he was questioned by the CID officer about the bombing and that he told the CID officer that he had observed two uniformed men running away from the scene;

    upon hearing the appellant’s account of what happened, the CID officer advised him to leave the village because he would be in “big problems” if he remained in his family home and that he should stay away until the authorities had completed their inquiries in relation to the bombing;

    the appellant said that he acted on that advice because he was fearful of the consequences of failing to comply;

    while he was staying with his aunt, the appellant was told by his family that the police and the CID had made inquiries throughout the village and that several young Tamil men had been arrested (and later released);

    after four days, the appellant was told by his family that the investigation was completed and he returned to his family home the next day;

    shortly thereafter, he said that he was visited by the CID officer who demanded that he pay him 50,000 rupees and that if he did not do so he would be arrested in connection with the bombing. He said that the CID officer also warned him that he had the power to kidnap and kill the appellant, which the appellant took to be a direct threat to his life. He said he was aware of other people being abducted by the CID and felt that he had no choice but to pay the bribe;

    the appellant said that he paid the sum demanded and that between October 2006 and mid-2010 he was subjected to continuing extortion by the CID officer, who would visit his family home about once every month or two to collect the bribes;

    the appellant added that the CID officer sometimes came alone but occasionally was also accompanied by other armed and plain-clothed police officers who travelled in a police jeep;

    the appellant said that the CID officer told him that if he failed to pay him money he would be arrested, charged, detained or killed;

    the appellant said that he could not make a complaint against the CID officer for fear that he would be killed or seriously harmed;

    the appellant said that in mid-2010, the CID officer visited the appellant’s home and demanded money, which the appellant was unable to pay. He said that the CID officer forced him inside a white van and that he was driven away. He said that the CID officer threatened him that if he did not pay the demanded sum he would be killed and that he was slapped repeatedly on the face. The appellant said that he was very frightened and feared for his life. He agreed to pay the money if he was released. After he was released from the van, he had to walk about one kilometre back to his village;

    two days later the CID officer came to his home and the appellant paid him money which he had borrowed from a friend. The appellant said that following the white van incident, he was terrified and realised that if he refused to comply with the extortion demands he would be killed;

    the appellant also claimed that in late April 2012 he was again visited by the CID officer who demanded money. When the appellant said that it was increasingly difficult for him to continue paying the bribes, the CID officer became “furious” and asked the appellant if he realised how many people in his village had gone missing and warned that the appellant would be next if he failed to pay; and

    the appellant borrowed money from his friend and paid the CID officer again but then finalised arrangements to flee Sri Lanka.

8    Although the appeal books did not contain a copy of the transcript of the Tribunal hearing held on 6 February 2013, it is evident from the Tribunal’s statement of reasons that the extortion claims were discussed and the Tribunal questioned the appellant as to the identity of the CID officer whom he claimed made the extortion demands and threatened him. The Tribunal apparently put to the appellant that his credibility would likely be adversely impacted if he failed to provide the Tribunal with the full name of the CID officer.

9    The appellant took advantage of the opportunity provided by the Tribunal to make further written submissions after the hearing with respect to his claims for protection including, in particular, the extortion claims. This was done by way of submissions dated 20 February 2013 which were prepared by his migration agent/solicitor. The key points made in those submissions regarding the extortion claims may be summarised as follows:

(a)    the appellant’s maternal uncle had provided him with a name by which the CID officer was known but the appellant was not personally aware whether that was the CID officer’s legal name or otherwise;

(b)    although the appellant maintained that the CID officer worked as a CID officer in Chillaw, he was unaware of any further details and he said that because the extortion to which he was subjected put him in a constant state of fear, he was reluctant to take any steps which would place him at risk of serious harm;

(c)    it was also submitted that it was futile for the appellant to make inquiries of other villagers because:

(i)    the CID operated undercover and anonymously and country information was cited in support of that submission; and

(ii)    the CID officer was known to villagers simply as ‘Mathaya’ (or ‘sir’),

(d)    an additional submission was made that if the appellant were to initiate inquiries about the CID officer’s identity outside the appellant’s immediate family, this might draw adverse attention to the appellant;

(e)    the only way in which the appellant would have been able to find out further details about the CID officer was to make a direct inquiry with the Sri Lankan authorities and that he did not do so as any such inquiry was likely to become known to the relevant CID officer and subject the appellant to more serious mistreatment; and

(f)    in [23] of the written submissions, a general submission was made as to why the Tribunal should not make any adverse credibility findings regarding the extortion or his inability to state the full name and personal particulars of the CID officer:

It is submitted that the Tribunal should not make any adverse credibility findings regarding the extortion that the Applicant was subjected to or regarding the general credibility of the Applicant due to his inability to state the full name and personal particulars of the CID officer. Given that the CID operate in an anonymous manner, it is evident that CID officers – including Mathaya – would take all steps possible to ensure that their identity is not revealed (or easily accessible) to the general Sri Lankan public. The Tribunal should give credence to the Applicant’s reasons for failing to make inquiries into Mathaya’s identity.

10    It is convenient to now deal with how the Tribunal described the extortion claims and the appellant’s submissions on that important topic. First, the extortion claims were summarised by the Tribunal in [44]-[45] of its statement of decision and reasons as follows:

The applicant attended the hearing with his migration agent. He repeated the claims he provided to the Department. He stated that (sic) 2004/05 he was working as a painter at a temple and he met a police officer who was providing security at the complex. He stated that the same officer came to investigate the 2006 bomb blast near his home. The applicant claimed that the policeman advised him to go into hiding after the blast so he could avoid being implicated in the investigation. He claimed that when he returned home the police officer started extorting money from him on a regular basis and the extortion continued until 2012 when the applicant had exhausted all his resources and he had to flee the country. He stated that he recently learnt from his mother that she had borrowed 350,000 rupees to pay the extortion demands. The applicant stated that after he left the country the police officer went to his family seeking to find him. He stated that the police officer reportedly stated that he would kill the applicant when he finds him.

The Tribunal asked the applicant if he knew the name of the police officer. He stated that he did not know his name. The Tribunal asked the applicant how it was possible to have known that person for approximately seven years, and under the circumstances he described, without knowing his name. The applicant stated that he could not make inquiries regarding the policeman because he would have been harmed. The Tribunal commented that if he was a prominent police officer then his identity would be known by persons in the community. It commented that if he was involved in investigating crimes, his name may have appeared in media reports relating to the crimes he was investigating. The applicant stated that he called him “mathaya” which meant “sir”.

11    Later, in [56] of its statement of decision and reasons, the Tribunal summarised further exchanges between it and the appellant during the course of the hearing concerning his extortion claims and his inability to identify the CID officer:

The Tribunal commented that it had doubts as to whether his claim that he was subjected to long-term extortion by the policeman was credible. The Tribunal commented that it found it difficult to believe that he had known that person for more than seven years, and he suffered the harm which he was claiming to have suffered, and yet he did not know the policeman’s name or have details about him. He was asked if his family could tell him. He stated that if they made inquiries about him they would be in danger. The Tribunal commented that if indeed this person was as prominent in the community as the applicant was claiming, then his identity would not have been a difficult matter to establish. The applicant stated that there was no way of determining the man’s name, or finding out anything about him, without endangering his family. The Tribunal commented that without a name, or further details about him, it was difficult to determine whether the person existed. The Tribunal commented that it may find that he did not have details regarding the policeman because he did not exist. It commented that it may find that the matter was fabricated to enhance the application. The applicant stated that the policeman existed and the description he provided was accurate.

12    In [59]-[62] of its statement of decision and reasons, and under the heading “Submissions after the hearing”, the Tribunal purported to summarise the written submissions provided by the appellant’s migration agent/solicitor after the hearing. Because of the significance of this matter in the appeal, it is convenient to set out those paragraphs in their entirety:

Submissions after the hearing

59.    The Tribunal received a submission from the applicant’s agent on 21 February 2013. The agent provided a translation for the newspaper article the applicant submitted at the hearing which indicated that there was a bombing incident at the applicant’s village on 23 September 2006. The agent provided a copy of a United Nations report relating to Sri Lanka which stated that there was a bombing in Udappu on 23 September 2006.

60.    The applicant’s migration agent provided documents relating to the sale of land belonging to the applicant’s family. The agent stated that the land was sold to satisfy the extortion demands of the CID officer.

61.    The agent stated that following the hearing the applicant had asked his uncle in Sri Lanka if the (sic) he knew the officer’s name and his uncle told him that he was known as Kappukottuva Mathaya, but he did not know whether “Kappukottuva” referred to the officer’s “legal name or otherwise”. The applicant stated that he thought the officer was based in Chillaw (sic). The agent argued that country information supported the applicant’s claim that CID officers engaged in “undercover and anonymous” activities. The agent indicated that during the hearing the Tribunal had made a reference to the “criminal investigation detective”. She stated that she assumed that the Tribunal was referring to the CID and provided information which indicated that it was the “secret intelligence arm of the Sri Lankan police”.

62.    The applicant’s agent referred to a comment by the Tribunal at the hearing when it was indicated to the applicant that if the police officer existed, and he was seeking money from the applicant’s family, he would have targeted other members of his family, such as his mother, after he departed the country. The agent stated that there was a wealth of information to support the view that it was “young Tamil men” and “not elderly women” who are perceived to be wealthy and are the victims of “extortion, abductions, and disappearances in Sri Lanka”. The adviser argued that the applicant (sic) claims should be accepted by the Tribunal.

Summary of the Tribunal’s reasons for rejecting the appellant’s case

13    The Tribunal rejected the appellant’s claims that he was entitled to a protection visa under either the Refugees Convention or by way of complementary protection. The Tribunal also explicitly rejected the extortion claims and this formed a core part of the Tribunal’s reasons for dismissing the appellant’s review application. The Tribunal’s reasons for rejecting the extortion claims are to be found in [66]-[69] of its statement of decision and reasons, in the section headed “Findings and Reasons”:

66.    The Tribunal accepts that the applicant is a Tamil from Udappu in Sri Lanka. It accepts that during the civil war he was held by the authorities for one hour. It accepts that in September 2006 there was a bomb blast near his home and he assisted persons who were injured in the blast. It accepts that the applicant anticipates harm in Sri Lanka for being a Tamil and a failed asylum seeker. The Tribunal does not accept as credible the applicant’s claim that he was subjected to extortion by an officer of the CID in Sri Lanka.

67.    The Tribunal does not consider it appropriate to take an overly stringent approach to questions of credibility but neither does it consider it appropriate to accept all claims uncritically. The Handbook on Procedures and Criteria for Determining Refugee Status, suggests that it is “frequently necessary to give the applicant the benefit of the doubt… [but only after]… all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts”.

68.    In the present matter, the Tribunal has formed the view that the applicant fabricated claims relating to the difficulties he had with a particular CID policeman in Sri Lanka to enhance his protection visa application.

69.    The Tribunal does not accept as credible the applicant’s claim that he was subjected to extortion, threats, abductions, physical violence, and psychological abuse, by a CID police officer in Sri Lanka. The Tribunal finds that the applicant’s evidence regarding the CID officer was vague and superficial. He claims that the CID officer’s privileged and powerful position prevented the applicant from finding out more information about him. The applicant has indicated since the hearing that an uncle in Sri Lanka gave him a name for the police officer, Kappukottuva Mathaya, but again the applicant was uncertain. The Tribunal has formed the view that if the applicant was indeed targeted by a CID officer in Sri Lanka for almost six years, and he had known that person previously since 2005, he would have had more information about him. The Tribunal has formed the view that the applicant has limited information to provide regarding the person he claims to fear in Sri Lanka because that person does not exist. It finds that the claims relating to extortion by the CID officer in Sri Lanka, including the claim that he was abducted by the officer and an associated (sic) and beaten in 2010, and the related claim that the applicant’s family had to sell all their assets and borrow money to satisfy the demands of the CID officer, were fabricated by the applicant to enhance his protection visa application. The Tribunal does not accept as credible the applicant’s claim that he was targeted for extortion by a CID officer in Sri Lanka or that he was at risk of harm by a CID officer at the time he departed the country. The Tribunal does not accept as credible the applicant’s claim that he is a person of interest to a CID officer in Sri Lanka or that he is at risk of harm by a CID officer in Sri Lanka in the reasonably foreseeable future. (Emphasis added).

14    As will be developed further below (see [75(ff)]), there is a live issue whether these paragraphs reveal that the Tribunal failed to consider and deal with all submissions of substance advanced on behalf of the appellant on the core issue of the extortion claims and, if so, whether that constitutes a jurisdictional error.

15    It is convenient to summarise the Tribunal’s other reasons for rejecting the appellant’s Refugees Convention claims. First, the Tribunal found that the appellant did not have the profile of a Tamil person who was at risk of being targeted by authorities or paramilitary groups in circumstances where it found that he had had no involvement in any political activities and was not an anti-government activist or a person who was viewed as an LTTE sympathiser. The Tribunal accepted that the appellant might be detained for questioning by Sri Lankan authorities upon his return to that country and might be charged with committing an offence for leaving the country illegally. However, the Tribunal was not satisfied that these measures would place the appellant at risk of harm which amounted to serious harm for a Convention reason.

16    Secondly, the Tribunal found that, on the evidence before it, the appellant was neither wealthy nor considered to be wealthy and therefore did not fit within any relevant social group appertaining to those matters.

17    Thirdly, as to the claim based on his alleged membership of a social group comprising young, single Tamil men, the Tribunal found that, on the information before it, this social group was not commonly at risk of harm in Sri Lanka.

18    For all these reasons, and after stating that it had considered the appellant’s claims both singularly and cumulatively, the Tribunal found that the appellant did not have a well-founded fear of persecution for any Convention reason.

19    As to the appellant’s claims under the complementary protection criteria, the Tribunal found that the appellant was not at risk of being subjected to torture or other forms of significant harm in Sri Lanka. It reiterated that although he might be detained and questioned upon his return to Sri Lanka, he was not at risk of significant harm.

Federal Circuit Court proceeding

20    In his original application for judicial review of the Tribunal decision in the Federal Circuit Court, the appellant raised six grounds of review. They were literally in the following terms (noting that there were many typographical errors):

1.    The Tribunal fell into jurisdictional error by failing to take into account the section 422B of the Migration Act 1985, (Exhaustive statement of natural justice hearing rule).

Particulars

a.    The applicant was not provided an opportunity to comment on the external sources the Tribunal had on processing measures which may be undertaken by authorities in Sri Lanka on failed Tamil asylum seekers. The Tribunal did not act in a way that is fair and just.

b.    The applicant was not provided opportunity to address the issue at the hearing nor at any point prior to making of adverse finding. This is in relation to the Home Office Report, Sri Lanka Policy Bulletin 1/2012 and the DFAT report 1446.

2.    The Tribunal committed a jurisdictional error of law by failing to consider whether relocation was reasonable or practicable if the Applicant were to return to Sri Lanka.

Particulars

a.    The Tribunal failed to deal with the manner in relation to relocation as stated in Plaintiff M13-2011 v Minister for Immigration and Citizenship [2011] HCA 23 (23 June 2011)

b.    The applicant cannot escape harm by relocation. The harm he fears in Sri Lanka is from high ranking Sri Lanka police personnel and the authorities. The applicant has been hiding prior to his departure to Australia. As a Tamil he has to register his name with the authorities and the policeman will be able to have access to the whereabouts of the applicant.

3.    The Tribunal fell into jurisdictional error when it failed to consider the issue of availability of adequate state protection to the Applicant in its finding.

Particulars

a.    The applicant claims fear harm in Sri Lanka on the Convention grounds of his Tamil race, his imputed political opinion and his membership of the particular social group consisting of failed asylum seekers.

b.    The applicant had informed the Tribunal that the said police officer had been to his parent’s house since he left to Australia asking for the whereabouts of the applicant.

c.    The applicant also had informed the Tribunal that he ‘may not be harmed at the airport but later, when he returned home, the authorities would seek to harm him.’

d.    The said police officer had threatened to kill the applicant if he refuses to continue to pay him the extortion sum.

4.    The Tribunal committed jurisdictional error by failing to give proper, genuine and realistic consideration to evidence before it in relation to the Applicant’s mental health issues.

Particulars

a.    The Tribunal gave no weight to the psychologist’s assessment provided by applicant that he was suffering from generalised anxiety disorder which was exacerbated by the uncertainty of his future. The Tribunal made its decision on the basis that ‘that the psychologist did not indicate that the applicant’s condition prevented him from providing information or discussing his claims.’

b.    The Tribunal failed to get further information which it considered relevant to this case from the psychologist under section 424 of the Migration Act 1958 (Tribunal may seek information). Instead it decided to form its own view on the issue of mental health without any medical evidence.

c.    Failure on the part of the Tribunal to consider exercising power under s427(1)(d) of the Migration Act 1958 (Cth). Although this power is discretionary in nature but it is important in providing a mechanism of review that is fair, just, economical, informal and quick according to substantial justice and merits of this case.

5.    The Tribunal committed jurisdictional error by applying an incorrect test in finding that the Applicant’s fear of persecution was not well-founded.

Particulars

a.    The Tribunal accepts that the applicant is a young Tamil from Udappu in Sri Lanka.

b.    The Tribunal accepts that the applicant was held by the authorities in the past during the civil war.

c.    The Tribunal further accepts that in September 2006 there was a bomb blast near applicant home and he assisted persons injured in the blast.

d.    The Tribunal accepts that the applicant will be detained and questioned when he returns to Sri Lanka.

e.    The Tribunal accepts that he was detained in general round up by the authorities and held in detention for one hour.

f.    However, the Tribunal finds that the applicant has not been involved in political activities or any other activities which will attract the adverse interest of the authorities or paramilitaries or the Sinhalese community in Sri Lanka. The Tribunal failed to take into consideration by being young Tamil, the authorities will link the applicant to the LTTE. In the past he was kidnapped and beaten by police. The Tribunal must consider whether the profile of young Tamil male who had been subjected to persecution, long-term extortion by a police officer, the imputed political opinion, and as a failed asylum seeker was likely to face persecution in the future.

6.    The Tribunal committed jurisdictional error by failing to consider whether the extortion claims subjected by the Applicant for several years, in context of the Applicant’s particular social group (i.e. a young Tamil who has imputed political opinion) and the political situation in Sri Lanka, have the characteristics of individual targeting motivated by Convention reasons.

Particulars

a.    The Tribunal restricted its finding very heavily on the UNHCR eligibility guidelines for assessing the International protection needs of asylum seekers from Sri Lanka [2012] on narrow issue whether the applicant fell under the group of high risk groups.

21    On 2 December 2013, the appellant filed an amended application for judicial review which raised only a single ground of review, which stated:

1.    The RRT did not consider my potential right to complementary protection although it has accepted the risks faced by young Tamils returning to Sri Lanka as failed asylum seekers that would face a real risk of significant harm. The RRT has accepted that I would be questioned and detained upon my return but it did not apply the correct test required by section 36(2)(aa).

22    The primary judge noted in [6] of his reasons for judgment that, although the amended application raised only one ground, the appellant’s written submissions made clear that he wished also to rely on the grounds in his original application and his Honour dealt with the matter accordingly. As is evident from the terms of the appellant’s original application for review which are set out in [20] above, the extortion claims were raised expressly in 4 of the 6 grounds of review (grounds 2, 3, 5 and 6). The extortion claims were central to the appellant’s case in respect of both his protection visa and judicial review applications.

23    As to ground 1 in the judicial review application, the primary judge found that there were two problems with the appellant’s claim that he was denied an opportunity to comment on independent country information. He found that it was clear from the Tribunal’s reasons that it had discussed with the appellant the independent country information upon which it relied and his Honour added that, in any event, there was no obligation upon the Tribunal to discuss such information with the appellant as it did not directly affect him.

24    As to grounds 2 and 3 (which concerned the possibility of relocation and the availability of adequate state protection), his Honour found that in this particular case the Tribunal did not find that the appellant would suffer persecution either now or in the foreseeable future if he returned to Sri Lanka and, accordingly there was no necessity for it to consider relocation or adequate state protection.

25    As to ground 4, which related to the way in which the Tribunal dealt with the psychologist’s assessment which had been provided by the appellant, his Honour found that the report did not establish that the appellant was unfit to attend a hearing or to put his case properly and that the Tribunal had not erred in proceeding as it had.

26    As to ground 5, which related to whether the correct test was applied regarding whether the fear of persecution was well founded, his Honour found that it amounted to an attempt to obtain an impermissible merits review and that it was also factually incorrect to assert that the Tribunal may not have considered parts of the appellant’s claim.

27    As to ground 6, which squarely raised the appellant’s extortion claims, his Honour found at [16]:

The difficulty the applicant faces in establishing this ground is that the Tribunal came to the conclusion on the basis of credibility that the extortion claims did not take place and thus it could not fall into jurisdictional error in the manner suggested. Credibility is a matter for the Tribunal par excellence. The Court cannot interfere with determinations of that type where they are made upon available evidence, as was done here. (Emphasis added).

28    An issue arises as to whether his Honour’s statement of the circumstances in which a judicial review court can interfere with an adverse finding on credibility by the Tribunal is correct (see further at [73]) below.

29    As to the amended application, which raised the complementary protection claim, his Honour found at [18]:

Once again, the applicant has made an allegation which is not borne out by the facts. As noted already in these reasons the Tribunal considered the applicant’s claim for complementary protection between [81] and [86] [CB 268-269]. It particularly considered the harm that it accepted the applicant might suffer as a returned asylum seeker. It concluded that this did not constitute significant harm for the purposes of the Act. In coming to this conclusion it made reference at [83] to independent country information it accepted. The Tribunal’s decision on this aspect of the matter cannot be impugned.

The appeal

30    The notice of appeal as filed was in the following terms:

1.    The Federal Circuit Court has not made a finding that the RRT did not give me an opportunity to comment on the the (sic) adverse information at the hearing of the Refugee Review Tribunal.

2.    The Federal Circuit Court has not made a finding that the RRT did not give me an opportunity to comment on the adverse country information at the hearing of the Refugee Review Tribunal.

3.    The Federal Circuit Court has not made a finding that the RRT did not comply with the procedural fairness required by the Migration Act.

31    On 18 July 2014, the appellant filed an outline of submissions, which he said were prepared by himself. They were literally in the following terms (noting again that there were numerous typographical errors):

I am the Appellant for my case. I have lodged my application by myself. I have given a Lawyer under the Legal Advice Scheme by Federal Circuit Court of Australia. I have met and sought his advice. The lawyer said that he could not help me in my court matter.

I do not agree with my RRT decision for the grounds that have been stated in my Amended Application that was filed with the Federal Circuit Court of Australia and was posted to the Responded Lawyer.

The RRT accepted that returnees like me would be interrogated and would be held in detention in Sri Lanka. The RRT accepted that the detention was in harsh conditions for a few days where the returnees’ identity and background checks were undertaken and where enquiries may be made. Although the RRT made the above finings it did not apply the correct test on this fining as the correct test as required by the Migration Act. Therefore the RRT declined its jurisdiction when it reviewed my Protection Visa Application.

I have country information to convince this court that failed asylum seekers were detained and abused by the Sri Lankan authorities although this court has no power to take this information into account. In addition, the RRT did not provide me an opportunity to comment on external information on about failed asylum seekers and all adverse information arose during the hearing.

However, if this court sends my case back to the RRT I can provide it to the new member of the RRT when he freshly looks at me case.

32    These submissions were in substantially similar terms to written submissions which were filed in another unrelated proceeding which was heard by the Court on the same day, namely SZSZR v Minister for Immigration and Border Protection (NSD400/2014).

33    The Minister also filed written submissions in the appeal. In brief, the Minister submitted that no appellable error was identified in the notice of appeal. The Minister also supported the findings by the primary judge that it was factually incorrect for the appellant to assert that he was not invited to comment on adverse information. Further, the Minister submitted that there is no basis to the appellant’s claim that the Tribunal’s discretion to proceed with a hearing under s 425 of the Act had miscarried or involved procedural unfairness. Finally, the Minister submitted that the allegation raised in the amended application concerning complementary protection was not borne out by the facts and the Tribunal had given detailed consideration to that matter in [81]-[86] of its reasons. Finally, the Minister submitted that the primary judge’s findings generally were free from any appellable error.

34    Prior to the hearing, the Court invited the parties to provide brief additional submissions in relation to the question whether the Tribunal’s reasons and findings for rejecting the appellant’s extortion claims were illogical or irrational. The Court also raised a separate question as to whether the Tribunal had dealt with all submissions of substance advanced by the appellant in respect of his knowledge of the CID officer’s identity. Neither of these matters was raised below but the Minister did not oppose them being agitated now. In particular the Minister submitted that he could point to no prejudice if the matters were raised for the first time on the appeal.

35    This was a sensible and commendable approach having regard to the fact that the appellant was self-represented and there is now a well-established principle that the Court needs to be alive to the possibility that there may be an arguable error which, with appropriate amendment or permissible assistance, could be put into proper form (see SZSLD v Minister for Immigration and Citizenship [2013] FCA 547 at [20] per Griffiths J). The absence of any prejudice to the Minister is also important.

36    The Minister provided supplementary written submissions on the first of those questions and Mr Knowles, who appeared for the Minister at the hearing of the appeal, orally addressed on the second of those questions. The appellant did not address either of those questions in written submissions, but he was given an opportunity at the hearing of the appeal to say anything he wished in relation to those two matters. For completeness, it might also be noted that the Minister did not require the appellant to file an amended notice of appeal raising the two new grounds of appeal which he was permitted to run for the first time during the appeal.

Summary of Minister’s written submissions on illogicality/irrationality

37    The Minister’s supplementary written submissions, which were directed to the issue of illogicality or irrationality, may be summarised as follows:

(a)    the Court should adopt the approach taken by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS), as subsequently applied by the Full Court in Tisdall v Webber [2011] FCAFC 76; (2011) 193 FCR 260 at [126]-[128] per Buchanan J (with whom Tracey J agreed), Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307 at [85]-[88] per Jagot J (with whom Nicholas J agreed) and SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [82]-[85] per McKerracher J (with whom Reeves J agreed) (SZOOR);

(b)    consistently with the observations made in SZMDS, the Court should not lightly find that a decision of the Tribunal is illogical or irrational, particularly where the decision in question is based on the Tribunal’s assessment of the credit of an applicant;

(c)    the primary judge was correct to find in [16] that:

Credibility is a matter for the Tribunal par excellence. The Court cannot interfere with determinations of that type where they are made upon available evidence, as was done here;

(d)    the Tribunal’s rejection of the extortion claims was not illogical or irrational in circumstances where, having regard to the entire evidence which was before it, it was open to the Tribunal to reject those claims in circumstances where the appellant was unaware of the CID officer’s identity; and

(e)    alternatively, if the Tribunal’s reasoning process was illogical or irrational, no error is disclosed because it would have been open to the Tribunal to reject the extortion claim on other grounds, including inconsistencies and omissions in the appellant’s various accounts relating to the extortion claims.

38    As will emerge below at [57]-[74], while I accept some of those submissions, I regard others to be more problematic and I also consider that there are additional relevant principles to apply in considering the grounds of illogicality or irrationality.

Consideration

39    I accept the Minister’s submissions that the appellant has failed to establish any appellable error by the primary judge in respect of the three grounds raised in the filed notice of appeal.

40    The first ground of appeal is to the effect that the primary judge erred in not accepting the appellant’s argument that the Tribunal did not provide him with an opportunity to comment on “adverse information” which was raised at the Tribunal hearing. In oral argument before me, the appellant was unable to identify any particular adverse information which was the subject of ground 1.

41    This ground of appeal must be rejected in circumstances where, as noted above, the appellant was afforded an opportunity to make further submissions after the Tribunal hearing and his migration agent/solicitor took advantage of that opportunity and provided written submissions dated 20 February 2013 to the Tribunal. The migration agent/solicitor did not seek an extension of time to deal with the matters arising from the Tribunal’s oral hearing. In my view, the primary judge did not err in rejecting the appellant’s complaint that he had not been given an opportunity to comment on adverse information which was raised at the Tribunal hearing.

42    The second ground of appeal involves an allegation that the primary judge erred in not finding that the Tribunal did not provide the appellant with an opportunity to comment on adverse country information. The relevant country information the subject of this ground of appeal appears to be that which is particularised in ground 1 of the appellant’s original application for judicial review (see [20] above). The appellant did not identify any additional material in the course of the hearing before me. However, as the Minister pointed out, it is evident from [51] to [52] of the Tribunal’s reasons that it raised with the appellant various country information, including the US Department of State report on Sri Lanka dated 24 May 2012, a Department of Foreign Affairs Trade Report No. 1446 dated 22 October 2012 (DFAT Report No. 1446) and a UK Home Office Country of Origin Information Report – Sri Lanka dated 7 March 2012, which was to the general effect that while certain groups of Tamils faced a continuing risk of harm in Sri Lanka, most Tamils were not at risk. It is also evident from [49] of the Tribunal’s reasons that it raised with the appellant during the course of the hearing the specific topic of the treatment of returnees and the elevated risk of harm if a returnee was a member of various groups, which included persons who were suspected of having links with the LTTE.

43    I reject this ground of appeal for substantially similar reasons to those relied upon in rejecting the first ground of appeal, namely that the appellant was afforded, and took advantage of, an opportunity to make further submissions to the Tribunal after the hearing, which amounted to a proper opportunity for him to say whatever he wished in relation to the country information referred to by the Tribunal at the hearing.

44    As noted above, in his written submission filed in support of his appeal, the appellant also drew attention to the fact that the Tribunal accepted that a returnee such as him would be interrogated and would be held in detention while identity and background checks were carried out. He argued that these findings did not involve the application of “the correct test as required by the Migration Act”. When asked at the hearing of the appeal to explain what he meant was the “correct test”, the appellant could not take the matter any further, which is perhaps unsurprising given that he was a litigant in person. In my view, the primary judge was correct to reject the appellant’s claim that the Tribunal had applied the incorrect test. At [75] of its statement of reasons, the Tribunal accepted that the applicant would be detained and questioned when he returned to Sri Lanka and might be charged if he was found to have committed an offence by, for example, leaving Sri Lanka illegally. However, in circumstances where the Tribunal found that the appellant did not have the profile of a Tamil person who was at risk of being targeted by the authorities or paramilitaries, it was open to the Tribunal to find the appellant was not at risk of harm which amounted to serious harm for Convention purposes. In reaching this conclusion, the Tribunal relied upon information contained in the UK Home Office report, Sri Lanka Policy Bulletin 1/2012 and the DFAT Report 1446, which indicated that Tamil failed asylum seekers are not commonly mistreated while their return is processed by Sri Lankan authorities. I agree with the primary judge that this particular aspect of the Tribunal’s reasoning did not involve the application of an incorrect test.

45    The appellant also claimed in his written submissions that he had country information which demonstrated that failed asylum seekers were detained and abused by Sri Lankan authorities on their return to that country. He accepted, quite correctly, that the Court had no power to take that information into account (because it was not provided below), but he argued that the new information could be provided to the Tribunal if his matter was remitted. Of course, whether the matter should be remitted turns on whether the appellant is able to establish an appellable error on the part of the primary judge in rejecting his judicial review application.

46    The third ground of appeal raises the issue whether the primary judge erred in not finding that the Tribunal failed to provide him with procedural fairness. It is evident from the appellant’s brief written submission in support of his appeal that his procedural unfairness complaint related to his claim that the Tribunal did not provide him with an opportunity to comment on the information concerning failed asylum seekers by simply raising that information with him at the hearing before the Tribunal on 6 February 2013. This argument presents a number of difficulties. As noted above, the issue of the treatment of returnees was specifically raised for comment at the hearing and the material relied upon by the Tribunal on this issue was discussed during the course of the hearing. To the extent that the appellant’s complaint of procedural unfairness relates to the fact that the material in question was only raised during the course of the hearing and not beforehand, in my view there was no procedural unfairness. That is because the Tribunal permitted the appellant to make further submissions following the hearing, an opportunity which the appellant availed himself of, as is reflected in the fact that his migration agent/solicitor supplied further written submissions dated 20 February 2013 to the Tribunal.

47    For the following reasons, however, I consider that different considerations arise in respect of the primary judge’s consideration and determination of the appellant’s judicial review grounds relating to the extortion claims.

48    As has been repeatedly emphasised by the High Court, any examination of whether the Tribunal has fallen into jurisdictional error must turn on a close examination of the statutory framework within which the Tribunal is conducting its review. The statutory provisions of particular significance in this regard are as follows.

49    Section 36 of the Act provides for a class of visas which are known as “protection visas”. Sub-sections 36(2)(a) and (aa) specify two criteria for the grant of a protection visa. They are in the following terms:

36(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;

…

50    Section 36(2A) defines the concept of “significant harm” as referred to in the complementary protection criterion in s 36(2)(aa) of the Act.

51    Section 54 imposes an obligation on the Minister, in deciding whether or not to grant or refuse to grant a visa, to have regard to all of the information in the visa application (including any additional relevant information provided by the visa applicant in accordance with s 55). By virtue of s 415(1), the Tribunal may, for the purposes of the review of an “RRT-reviewable decision”, exercise all the powers and discretions conferred by the Act on the person who made the decision. In my view, the obligation imposed by s 54 to have regard to all of the information in a visa application applies equally to the Tribunal as it does to the Minister or his delegate.

52    Section 65 of the Act provides that the Minister is to grant a visa sought by valid application “if satisfied” of various matters. These include that any criteria for the visa prescribed by the Act are satisfied (which of course include the criteria for a protection visa set out in ss 36(2)(a) and (aa)). Section 65 imposes on the Minister an obligation to grant a visa: there is no discretion in the matter. As Gummow and Hayne JJ held in Minister for Immigration and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 (SGLB) at [37]:

… The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a “jurisdictional fact” or criterion upon which the exercise of that authority is conditioned… .

53    It is also relevant to note that Pt 7 of the Act contains various provisions relating to review of protection visa decisions by the Tribunal. Of particular relevance and significance is s 414, which imposes an obligation on the Tribunal, upon receipt of a valid application for a review, to review the decision:

414    Refugee Review Tribunal must review decisions

(1)    Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.

(2)    The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).

Sub-section 414(2) was not engaged in this particular case.

54    Reference should also be made to s 430 of the Act, which stipulates what is required to be contained in the Tribunal’s statement of decision and reasons. It relevantly provides:

430    Refugee Review Tribunal’s decision and written statement

    Written statement of decision

(1)    Where the Tribunal makes its decision on a review, the Tribunal must make a written statement that:

        (a)    sets out the decision of the Tribunal on the review; and

        (b)    sets out the reasons for the decision; and

        (c)    sets out the findings on any material questions of fact; and

     (d)    refers to the evidence or any other material on which the findings of fact were based; and

        (e)    …

      (f)    …

    How and when written decisions are taken to be made

(2)    A decision on a review (other than an oral decision) is taken to have been made:

    (a)    …

    (b)    on the day, and at the time, the written statement is made.

Returning documents etc.

(3)    After the Tribunal makes the written statement, the Tribunal must:

  (a)    return to the Secretary any document that the Secretary has provided in relation to the review; and

  (b)    give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.

55    It should be noted that s 430 does not explicitly impose any obligation on the Tribunal in preparing a written statement to set out the submissions or arguments which it receives. The significance of this matter is further considered at [80(e)] below. It is relevant to note, however, that the legislation expressly contemplates that arguments will be presented to the Tribunal, as is reflected in s 425(1):

425    Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (Emphasis added).

56    In my opinion, the statutory obligation on the Tribunal to invite an applicant to present arguments i.e. make submissions, relating to the issues arising in relation to the decision under review indicates that, in conducting such a review, the Tribunal must consider any such arguments or submissions, at least those which are of substance and are clearly articulated (see further at [75]-[95] below).

(a)    Extent to which findings by the Tribunal are capable of being reviewed for jurisdictional error on the grounds of illogicality or irrationality

57    Identifying the relevant legal principles applicable to these grounds should begin with the High Court’s decision in Re Minister for Immigration and Multicultural affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 (S20/2002). Justices McHugh and Gummow (with whom Callinan J agreed at [173]) accepted that a determination of the Tribunal that it was not satisfied that the criteria for the grant of a protection visa were established was amenable to review for jurisdictional error if the determination “was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds” (see at [34] and [37]). It is also important to note the emphasis which their Honours placed on the importance of the written statement of reasons required to be given by the Tribunal under s 430 of the Act in applying those principles. Having regard to the reasons given by the Tribunal in S20/2002 the Court held that the Tribunal’s decision had not been shown to be illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds. Justice Kirby dissented.

58    The availability of judicial review for jurisdictional error based on grounds involving irrationality and illogicality was confirmed in SGLB, albeit in circumstances where the High Court again found that those grounds were not established in the particular case. The relevant principle was described by Gummow and Hayne JJ at [38]:

The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but 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. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act. However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error. (Footnotes omitted).

59    The next important case on this point is the High Court’s decision in SZMDS. The case involved a Pakistani man who sought a protection visa on the ground that he feared persecution because of his homosexuality if he were returned to Pakistan. In upholding the delegate’s refusal of his application, the Tribunal considered that the applicant’s conduct in returning to Pakistan for three weeks before coming to Australia and in failing to seek asylum during an earlier visit he had made to the United Kingdom was inconsistent with his claims that he was homosexual and feared persecution in Pakistan for that reason. The Federal Magistrates Court rejected his argument that the Tribunal had fallen into jurisdictional error, but the Federal Court allowed an appeal from that decision and held that the Tribunal had fallen into jurisdictional error in reaching its conclusion that the applicant was not a homosexual by an illogical or irrational process of reasoning.

60    After emphasising that the only avenue of judicial review in the case was that found in s 75(v) of the Constitution, which required jurisdictional error to quash the Tribunal’s decision, Gummow A-CJ and Kiefel J:

(a)    confirmed the view expressed by Gummow and Hayne JJ in SGLB that judicial review of the Tribunal’s decision as to the issue of satisfaction whether an applicant for a protection visa meets the relevant criteria is amenable to review for jurisdictional error if the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds (at [40]);

(b)    emphasised, however, that “the critical question” whether a determination of the Tribunal is irrational, illogical and not based on findings or inferences of facts supported by logical grounds “should not receive an affirmative answer that is lightly given” (at [40]); and

(c)    also emphasised the importance of the reasons given by the Tribunal for its determination as required by s 430(1) of the Act (while reaffirming the observations concerning the need for restraint in reviewing such reasons in cases such as Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 (Wu Shan Liang) (at [40] and [35])).

61    Having regard to those principles, Gummow A-CJ and Kiefel J held that the Tribunal’s reasoning underpinning its conclusion that there were inconsistencies in the applicant’s claim that he feared persecution because of his homosexuality was illogical.

62    Justices Crennan and Bell rejected the Minister’s submission that a want of reason, or illogicality or irrationality in a decision could not amount to jurisdictional error if the relevant power had been exercised in good faith. While their Honours accepted that not every instance of illogicality or irrationality in reasoning can give rise to jurisdictional error, they accepted the submission that “if illogicality or irrationality occurs at the point of satisfaction (for the purposes of s 65 of the Act) then this is a jurisdictional fact and a jurisdictional error is established” (at [119]).

63    After discussing the relationship between review for what is generally known as Wednesbury unreasonableness and irrationality or illogicality, their Honours expressed the relevant test in [130] and [131] as follows:

In the context of the Tribunal's decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

64    Applying those principles to the circumstances in SZMDS, Crennan and Bell JJ held that, on the probative evidence before the Tribunal, a logical or rational decision-maker could have come to the same conclusion as the Tribunal and that the Tribunal’s determination was not illogical or irrational because there was room for a logical or rational person to reach the same decision on the material before the Tribunal. Their Honours stated at [135]:

… 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… . (Emphasis added).

65    Their Honours held that none of these grounds was established, in the sense that the Tribunal’s reasons were not unintelligible, nor was there an absence of logical connection between the evidence as a whole and the reasons for the decision (see at [135]).

66    The other member of the majority in SZMDS, Heydon J, proceeded on the basis that the Tribunal’s decision was amenable to review for illogicality, but his Honour held that there was no illogicality in the Tribunal’s reasoning on the relevant question. At [78], his Honour observed:

The issue was one on which minds might differ. The Federal Court evidently operated on one assumption or conclusion about that issue. The Tribunal operated on another. The difference was one of degree, impression and empirical judgment. It did not stem from an error in logic by the Tribunal member. The difference could not be said to reveal an absence of any basis whatsoever for her conclusion.

67    As the Minister pointed out, (see [37(a)] above), the approach adopted by Crennan and Bell JJ in SZMDS has been applied in various subsequent Full Court decisions. It is sufficient to deal with SZOOR, in which there is an extensive discussion and analysis of SZMDS.

68    In SZOOR, the appellant, who was a Pakistani citizen, claimed that he had been beaten in his home country because of his imputed political opinion. In support of his claim to be entitled to a protection visa, the appellant provided to the Tribunal documents which included a medical examination report relating to injuries which he said he had sustained in the attack, as well as a newspaper article and a letter of support. The Tribunal found that the evidence was fabricated and pointed to the fact that the date of the medical examination was before the date the assault was alleged to have occurred, the newspaper article misstated the date of the alleged attack and the letter was expressly disclaimed by its purported author. The Tribunal also took into account an anonymous “dob-in” letter which made allegations of fraud against the appellant and discredited his claim that he feared persecution. The Tribunal regarded the letter to be credible and it reasoned that it supported the Tribunal’s conclusion that the appellant had fabricated his claims. The appellant appealed to the Federal Magistrates Court and raised several alleged jurisdictional errors, including a claim that the Tribunal’s use of the anonymous letter was illogical or irrational. That claim was rejected and an appeal was made to the Full Court. The appeal was dismissed.

69    Justice Rares analysed various High Court decisions relating to irrationality and illogicality. His Honour’s analysis may be summarised as follows:

(a)    there are differences in reasoning in the three separate judgments in SZMDS as to what suffices to support a finding that the decision under s 65 of the Act is irrational, illogical, and not based on findings or inferences of fact supported by logical grounds (at [2]);

(b)    as Gleeson CJ observed in S20/2002 at [20], it is often unhelpful to discuss, in the abstract, the legal consequences of irrationality or illogicality or unreasonableness. It is necessary to identify and characterise the suggested error and then relate it to the legal rubric under which the decision is challenged. Moreover, disagreement with a decision-maker’s reasoning is not a sufficient basis to make out this ground (citing Minister for Immigration and Citizenship v SZJSS [2010] HCA 18; (2010) 243 CLR 164 at [34] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) (at [6]); and

(c)    irrationality and illogicality as grounds for judicial review are distinct from an assertion that the decision-maker merely made a wrong finding of fact but, in the case of a jurisdictional fact, such as that created by s 65 of the Act, review is available on the grounds of irrationality or illogicality. Having regard to High Court authority, however, “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” and “[i]t 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” (at [12] and [15]).

70    Justice McKerracher gave separate reasons in SZOOR, with which reasons Reeves J relevantly agreed (subject to one qualification which was relevant only to the particular facts (see at [115])). Justice McKerracher’s analysis of the relevant legal principles may be summarised as follows:

(a)    not all errors of law made by a decision-maker will be jurisdictional errors and the reviewing court must not stray into the area of merits review, as opposed to jurisdictional review ([82]);

(b)    fact finding is not subject to review for Wednesbury unreasonableness, and can only be impugned where the factual determination is “illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds” ([83]);

(c)    in determining whether illogicality gives rise to jurisdictional error it is important to emphasise that a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion ([84]); and

(d)    having regard to the majority judgments in SZMDS, the test for review for jurisdictional error based on illogicality may be expressed as follows (at [85]):

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…

71    It might also be observed at this point that there may currently be a difference of opinion in the Court as to one aspect of SZMDS. It relates to the question whether, in determining whether irrationality or illogicality are made out, the Court should decide for itself whether the result was irrational on the materials before the decision-maker as opposed to whether the decision-maker’s reasoning was illogical or irrational (contrast, for example, SZRHS v Minister for Immigration and Citizenship [2014] FCA 121 at [68] per Farrell J and SZRKT v Minister for Immigration and Citizenship [2013] FCA 317; 212 FCR 99 at [150]-[156] per Robertson J (SZRKT)). It is unnecessary in this proceeding to resolve that apparent difference of opinion.

72    In my view, whichever approach is adopted, the Minister’s submission that the Tribunal’s reasoning process in respect of the extortion claims was not illogical or irrational should be accepted. Putting to one side for the moment the separate issue as to whether the Tribunal evaluated all relevant submissions of substance made by the appellant on the extortion claims, I accept the Minister’s submission that the Tribunal’s rejection of the extortion claims was not illogical or irrational based on the evidence which was before the Tribunal. In my view reasonable minds could differ as to whether the appellant’s inability to provide more detailed information on this matter was strongly probative one way or the other as to whether the alleged persecution had occurred, but I accept the Minister’s contention that the issue is a question of degree, impression and empirical judgment and that the Tribunal’s approach was not lacking in logic.

73    For completeness, I should also indicate, with respect, that I do not accept the primary judge’s statement in [16] of his Honour’s reasons to the effect that a judicial review court cannot interfere with a Tribunal determination on credibility where it is “made upon available evidence” (see [27] above). In my view, that states the approach too narrowly. In particular, jurisdictional error might be established in respect of such a determination on other grounds, such as illogicality or irrationality as those concepts are properly understood. Otherwise, however, I accept the Minister’s submission that the Tribunal’s reasoning process in respect of the extortion claims was not illogical or irrational within the meaning of the relevant authorities.

74    Merely because the Tribunal has not used illogical or irrational reasoning does not mean that its decision is unimpeachable for jurisdictional error. In particular, such a conclusion does not foreclose the possibility in an appropriate case of demonstrating that the Tribunal has fallen into jurisdictional error because, for example, it has failed to deal with one or more submissions of substance which were clearly articulated and put to it. That is the issue to which I will now turn.

(b)    Did the Tribunal consider and evaluate all submissions of substance regarding the extortion claims?

75    The Minister accepted that, by various paths, a failure by the Tribunal to consider and determine a submission of substance could amount to jurisdictional error. First, the Minister cited Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] (per Gummow and Callinan JJ) (Dranichnikov), which he contended stood for the proposition that the failure to consider a submission which was substantial, clearly articulated and relied upon established facts could involve a denial of procedural fairness (see also SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81 at [11] per Siopis, Perram and Davies JJ (SZRBA), where the Full Court allowed the appeal and held that there was procedural unfairness and jurisdictional error where an Independent Merits Reviewer failed to evaluate a submission of substance which relied upon a particular departmental note (to which no explicit reference was made in the reviewer’s reasons)).

76    The Minister also contended that the same conclusion could be arrived at if the reasoning of the Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547 (MZYTS) applied to the particular circumstances. In MZYTS, in describing the Tribunal’s statutory obligation or task in reviewing a decision refusing an application for a protection visa where the applicant argued that there were growing risks of politically-motivated violence for people like him in Zimbabwe (for which he had provided in support updated country information which was not considered by the Tribunal), the Full Court stated at [38]:

That task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there… . (Emphasis added).

77    Mr Knowles also helpfully drew the Court’s attention to the following recent observations of a differently constituted Full Court in SZRBA at [23] and [24] with respect to that particular passage in MZYTS:

Another way to arrive at the same conclusion may be to apply the reasoning of the Full Court in Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547 that the Refugee Review Tribunal cannot discharge its statutory review task without ‘a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the tribunal an accurate picture of the on-going circumstances on the ground’ (at [38]). MZYTS cannot be applied directly to an Independent Merits Reviewer because such a reviewer is not performing a statutory function. Accordingly, no question of the direct application of MZYTS arises in this case.

There is an issue to our minds as to whether MZYTS reveals any different principle to the ground of review that permits the setting aside of a decision which has not involved “proper, genuine and realistic consideration” of an application: see Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]. That ground is probably the same as the one exposed in Dranichnikov (above), i.e., a denial of procedural fairness. We mention it in the context of MZYTS only to note Basten JA's cautionary remark in Swift that one needs to be alert to the risk that the words ‘properly’, ‘genuinely’ and ‘realistically’ ‘may be taken, inappropriately, as an invitation to assess the correctness of the result, rather than the legality of the process’ (at [45]). It may be that the reasoning in MZYTS needs to be understood in a context which includes that customary admonition.

78    I generally accept the Minister’s submissions as outlined in [75] to [77] above, however, I would add the following three comments. First, I do not accept that procedural unfairness occurs only if the Tribunal has failed to deal with a substantial and clearly articulated submission which relies upon an established fact. That would preclude a finding of procedural unfairness (or, I would add, a constructive failure to exercise jurisdiction) if the Tribunal failed to deal with a submission of substance relating to a legal issue, such as a question of statutory construction.

79    Similarly, unqualified acceptance of the Minister’s submissions would preclude a finding of jurisdictional error where the Tribunal failed to evaluate a substantive submission made to it in direct response to concerns raised by it at the hearing, as occurred here, unless those concerns were somehow related to an established fact. In my view, the references in both Dranichnikov and SZRBA to a failure to deal with a substantial and clearly articulated argument which relied upon an established fact simply reflected the particular circumstances of those cases. Those references do not provide an exhaustive statement of the ambit of procedural fairness in respect of a failure to deal with a substantial and clearly articulated submission. It may well be that, in a particular case, a submission which has not been evaluated will not be seen to be a submission of substance if it does not rely on an established fact but, given the wide variety of potential circumstances in which such an issue can arise, it is imprudent to state an inflexible principle in this regard.

80    Secondly, it should be noted that the Full Court’s comments in SZRBA to the effect that the error described in the passage at [38] of MZYTS “is probably the same as the one exposed in Dranichnikov (above), i.e., a denial of procedural fairness” were expressed to be a “footnote” and are to be regarded as obiter dicta. In that context, I make the following observations. The error as established in Dranichnikov was not merely described as a denial of natural justice (or procedural unfairness). It was also regarded as a constructive failure to exercise jurisdiction (see at [25] per Gummow and Callinan JJ and, to similar effect, at [95] per Hayne J). It might also be noted that at [44] of MZYTS, the Full Court described the absence of any evaluation by the Tribunal of the visa applicant’s submission and updated supporting country information as signifying, in the context of the Tribunal’s statutory task, “a constructive failure to exercise jurisdiction”.

81    Thirdly, I consider that there are some additional legal principles to be considered in determining whether or not the Tribunal has committed jurisdictional error by failing to evaluate a substantive and clearly articulated submission. They are as follows:

(a)    as the High Court stated in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [25]):

… The duty imposed upon the Tribunal by the Migration Act is a duty to review.

In my opinion, the duty to review obliges the Tribunal to consider and deal with submissions of substance which are clearly articulated. As noted above, in assessing whether a submission is one of substance it may be relevant to take into account whether it relies upon an established fact, but that is not the only way in which that requirement may be met. Substantiality might also be established by the fact that, for example, a submission has been made in direct response to an important issue which the Tribunal has raised which bears upon the state of the satisfaction which it is required to meet under s 65 of the Act. In my view, that is the case here as the written submissions dated 20 February 2013 were provided in direct response to the Tribunal’s stated concerns regarding the credibility of the extortion claims and the appellant’s ignorance of the CID officer’s identity;

(b)    merely because the Tribunal fails to deal with a submission does not necessarily amount to jurisdictional error. Similarly, the Tribunal’s failure to ignore relevant evidence or other material does not necessarily establish jurisdictional error (see the pertinent observations of Robertson J in SZRKT at [97]);

(c)    there is no requirement for the Tribunal to refer to every piece of evidence or every contention made by an applicant in its statement of reasons because it may be that some evidence is irrelevant and some contentions may be misconceived. However, as the Full Court held in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46]:

… there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason….

(d)    there is a long line of authority which deals with requirements of s 430 of the Act and the circumstances in which a failure by the Tribunal to refer to particular evidence or make a particular finding such as to give rise to jurisdictional error can be inferred from the absence of any reference to those matters in the Tribunal’s statement of reasons (see, for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [60]-[68] per McHugh J; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [67]-[69] per McHugh, Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZGUR [2011] FCA 1; (2011) 241 CLR 594 at [32] per French CJ and Kiefel J and at [69]-[70] per Gummow J). However, in my view, different considerations may arise in a case where there is a failure to deal with a submission of substance (and not a failure to take into account a relevant consideration, consider evidence or make a finding of fact). As noted above, s 430 does not explicitly require the Tribunal to set out or summarise submissions which are made to it. Having said that, however, it is clear, as the Minister acknowledged, that a failure to deal with a submission of substance could amount to procedural unfairness. I would add that such an error might also be described as a constructive failure to exercise jurisdiction, noting that the Tribunal’s core statutory task is to conduct a review. In either case, jurisdictional error may be present;

(e)    notwithstanding that s 430 does not in its terms impose any obligation on the Tribunal to set out or summarise submissions of substance which are clearly articulated and made to it, in considering whether the Tribunal has in fact failed to consider and determine such a submission, it is appropriate to have regard to the Tribunal’s statement of decision and reasons and, in particular, the manner in which that document describes and deals with submissions made to the Tribunal which it has received. In an appropriate case this might involve a consideration of any part of the Tribunal’s statement of reasons which summarises the submissions it has received, as well as the parts of the Tribunal’s reasons which purport to consider and determine the submissions it has received. Accordingly, it may be appropriate to pay careful attention to the structure of the Tribunal’s reasons;

(f)    in SZRKT, in considering whether the Tribunal is obliged to consider a document, Robertson J said, consistently with VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [77], that much depends on the circumstances of the case and the nature of the document. Justice Robertson added that relevant factors to be considered where the question is whether there was a failure to consider corroborative evidence, include the cogency of the evidentiary material and also the place of that matter in the assessment of the applicant’s claims. In my view, similar factors are also relevant in considering whether the failure to deal with a submission of substance gives rise to a jurisdictional error (at [112]);

(g)    the appellant carries the burden of persuading the Court to draw an inference that the failure to deal with a submission which the Tribunal was obliged to consider amounts to a jurisdictional error (see, for example, MZYTS at [53]); and

(h)    it is important not to lose sight of the now well-established principle that the Tribunal’s reasons are not to be approached with an eye keenly attuned to the detection of error (see Wu Shan Liang and also the recent observations of Flick J in Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141; (2013) 61 AAR 531 at [19]-[20] (with whom Katzmann and Wigney JJ relevantly agreed)).

82    The central issue is whether there were in fact relevant submissions of substance which were clearly articulated and were made by or on behalf of the appellant which were not evaluated by the Tribunal. That raises the question whether the various submissions set out in the migration agent/solicitor’s written submissions dated 20 February 2013 relating to the Tribunal’s stated concerns about the credibility of the appellant’s extortion claims were submissions of substance and were not evaluated by the Tribunal.

83    As noted above, in assessing whether or not the Tribunal failed to evaluate one or more submissions of substance, it is appropriate to have regard to the entirety of the Tribunal’s statement of decision and reasons (including their structure), while bearing in mind the other relevant principles summarised above.

84    It is appropriate in this case first to focus attention on that part of the Tribunal’s reasons which purportedly summarises the submissions which were made by the appellant both during the course of the hearing before the Tribunal and subsequently in his migration agent/solicitor’s submissions dated 20 February 2013.

85    First, it is evident from the structure of the Tribunal’s statement of decision and reasons that in [44], [45] and [56] (which are set out in [10] and [11] above) the Tribunal was summarising relevant matters as they arose in the course of the hearing on 6 February 2013 and that in [59] onwards the Tribunal turned its attention to summarising the submissions dated 20 February 2013 made by the appellant’s migration agent/solicitor. The matters set out in [44], [45] and [56] highlight the importance in the review of the Tribunal’s stated concerns regarding the credibility of the extortion claims and the possibility that the Tribunal might find that those claims were fabricated unless the appellant was able to provide further information or details regarding the CID officer’s identity. Plainly this was a core issue in the review.

86    Secondly, the written submissions dated 20 February 2013 were obviously intended to respond to the Tribunal’s stated concerns. In those circumstances, it might reasonably be expected that the Tribunal would be at pains to ensure that it accurately summarised and evaluated all submissions of substance on that topic made by the appellant’s migration agent/solicitor in that document. In my view, however, [61] of the Tribunal’s reasons (which is set out in [12] above) does not accurately or comprehensively summarise all the migration agent/solicitor’s submissions of substance on that important topic. In oral argument, Mr Knowles did not suggest to the contrary. Indeed, he submitted that [61] “may be incomplete”. The summary in [61] of the Tribunal’s reasons suffers from the following deficiencies:

(a)    no reference is made to the submission which was made more than once in the 20 February 2013 submissions to the effect that the only way in which the appellant might have been able to find out further details about the CID officer’s identity was to make a direct inquiry of Sri Lankan authorities, but he had not done that in the past because the CID officer would likely come to know about the inquiries and that would increase the risk that the appellant would be subjected to further harm;

(b)    nor is there any reference to the submission to the effect that it would be futile for the appellant to inquire of other villagers as to the CID officer’s identity because they also simply knew him as “Mathaya”; and

(c)    while there are references to the submission that the CID was the secret intelligence arm of the Sri Lankan police which engaged in undercover and anonymous activities, no reference is made to the related submission that this meant that steps would be taken by the authorities to protect the identities of CID officers, with the consequence that it was not unreasonable for the appellant not to have made further inquiries. There is nothing in the Tribunal’s reasons to suggest that the Tribunal appreciated that the appellant’s migration agent/solicitor had made that particular submission.

87    Thirdly, in my view, these were all submissions of substance which were squarely directed at the Tribunal’s stated concerns that it may draw an adverse inference from the appellant’s failure to provide more detailed information about the CID officer’s identity. In describing them as submissions of substance, it is not suggested that the Tribunal was obliged to accept them. Rather, its obligation was to evaluate them and determine whether or not they should be accepted or rejected.

88    The next question is whether in fact the Tribunal did consider and determine all submissions of substance which were clearly articulated and made to it on the issue of the credibility of the extortion claims and, in particular, the appellant’s unawareness of the CID officer’s identity. In my view none of the three submissions identified in [86] above were considered and determined by the Tribunal.

89    The first submission related to the appellant’s primary contention that he would be at an increased risk of harm if he made inquiries of Sri Lankan authorities regarding the CID officer’s identity. That submission was plainly a submission of substance which was clearly advanced. In my view, for the Tribunal to discharge its statutory task of conducting a review of the delegate’s decision, it had to deal with that submission and it failed to do so.

90    The second relevant submission of substance relates to the contended pointlessness of the appellant making inquiries of his neighbours about the CID officer’s identity because he was commonly referred to as “Mathaya”. This submission directly responded to the Tribunal’s stated concern as recorded in [45] of its reasons that if the CID officer was a prominent police officer “his identity would be known by persons in the community”. The responding submission cannot be disregarded as one which lacked substance. On its face it was plausible and should have been considered. It was not.

91    The third submission of substance which was not considered or determined by the Tribunal relates to the appellant’s submission regarding the difficulties of establishing the CID officer’s identity in circumstances where he worked with an undercover and anonymous body such as the CID. The Tribunal’s reasons reveal no consideration of this submission. As noted above, only part of the submission was summarised in [61] of the Tribunal’s reasons. The summary contains no reference to the significance which the appellant submitted should attach to the covert nature of the CID’s operations in assessing whether the appellant could have established the CID officer’s identity and personal details.

92    I reject the Minister’s contention that the reference in [69] of Tribunal’s the reasons to “the CID officer’s privileged and powerful position prevented the applicant from finding out more information about him” represents an adequate consideration of that submission. The reference to the CID officer’s privileged and powerful position seems to be a reference back to a statement made by the appellant to the Tribunal that the CID officer concerned was a senior officer in the CID. That is a different point to his more general submissions regarding the practical difficulties of obtaining information about a body which operates covertly and anonymously. In my view, this was a submission of substance which had to be dealt with by the Tribunal. If it had done so, it may well be that the Tribunal would have arrived at a different conclusion on the appellant’s credibility (and the same could be said in respect of the other submissions of substance which are summarised at [86] above and which were not considered by the Tribunal).

93    I reject the Minister’s contention that, in any event, all substantive submissions made on behalf of the appellant were considered and determined by the Tribunal in [66]-[69] of its statement of decision and reasons (those paragraphs are set out in [13] above). In my view, the relevant submissions are not addressed in those paragraphs, either explicitly or implicitly. In circumstances where, as I have found, the Tribunal failed accurately to summarise the appellant’s submissions in [61] of its reasons, it is perhaps not unsurprising that it then failed to address, consider and determine all submissions of substance later in its reasons. The Tribunal’s attention seems to have been diverted by its inadequate appreciation of various substantive matters which were squarely raised by the appellant in direct response to the Tribunal’s stated concerns regarding his credibility.

94    Nor do I accept that the relevant submissions were implicitly considered and rejected by the Tribunal in [69] when it described the appellant’s evidence regarding the CID officer as “vague and superficial”. The fundamental point is that the appellant had put forward various submissions of apparent cogency in explaining why his knowledge of the CID officer’s identity and personal details was so limited, but the Tribunal did not consider those submissions. It is no answer to say that there was no requirement to evaluate these submissions because of the Tribunal’s overall conclusion that the appellant’s evidence was “vague and superficial”. The appellant’s submissions sought to explain the state of his evidence and why he was unable to be more specific in identifying the CID officer. In my view, those submissions had to be addressed.

95    In my opinion, the Tribunal’s failure to consider and determine these relevant submissions of substance constitutes a constructive failure to exercise its jurisdiction of reviewing the delegate’s decision. It also constitutes procedural unfairness. Both errors amount to jurisdictional error in the circumstances of this case.

Conclusion

96    The appeal should be allowed and the orders made below set aside, as also should the Tribunal’s decision of 26 February 2013. The appellant’s application for review should be remitted to the Tribunal for reconsideration according to law. Although the appellant is representing himself, the Minister should be ordered to pay his costs of the appeal and it will be a matter for the appellant to establish what, if any costs, he is entitled to recover.

97    Each side should bear their own costs of the proceedings below in circumstances where the point on which the appellant has succeeded arose for the first time in his appeal.

Associate:

Dated:    15 August 2014