FEDERAL COURT OF AUSTRALIA

SZSMR v Minister for Immigration and Border Protection [2015] FCA 655

THE COURT ORDERS THAT:

1.    Order 1 made by the Federal Circuit Court of Australia on 30 January 2015 dismissing the appellant’s amended application be set aside and in lieu thereof orders that:

1.1    The appeal be allowed.

1.2    The decision of the Refugee Review Tribunal made on 19 December 2012 be quashed.

1.3    The application to the Refugee Review Tribunal filed 14 September 2012 be remitted to the Tribunal to decide the matter according to law.

1.4    The first respondent pay the appellant’s costs.

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 the decision of a judge of the Federal Circuit Court of Australia (“FCC”) in SZSMR v Minister for Immigration and Border Protection [2015] FCCA 33 to dismiss his amended application challenging a decision of the Refugee Review Tribunal (“Tribunal”).

2    The Tribunal had affirmed the decision of a delegate (“delegate”) of the Minister for Immigration and Citizenship (“Minister”) to refuse to grant the appellant a Protection (Class XA) visa (“protection visa”) under s 65 of the Migration Act 1958 (Cth) (“Migration Act”).

3    The ground of appeal stated in the appellant’s notice of appeal is that “[t]he Judge did not consider the legal error made by the tribunal”. The legal error allegedly made by the Tribunal is not identified in the notice of appeal and the appellant did not file any written submissions in support of his appeal. As set out below, the appellant made oral submissions on his own behalf at the hearing of the appeal, through a Tamil interpreter.

Background to the appeal

4    The appellant entered Australia as an irregular maritime arrival. On 18 March 2012, the appellant participated in an entry interview with the Department of Immigration and Citizenship.

5    On 22 May 2012, the appellant received notification of a decision made by the Minister under s 46A(2) of the Migration Act to allow him to lodge a protection visa application. The same day, the appellant made an application for a protection visa, supported by a statutory declaration.

6    The delegate’s decision to refuse the appellant’s protection visa application was made on 23 August 2012.

Appellant’s grounds for seeking protection

7    The appellant’s grounds for seeking protection were summarised by the FCC judge as follows:

[6] In summary, the [appellant] claimed to fear harm from a group of people called the “Grease Devils”. The [appellant] stated that on 17 September 2011, he was patrolling the street and was just outside his home when he heard his wife screaming. The [appellant] claimed he found a Grease Devil attacking his wife. He claimed to have picked up a steel bar, and that the Grease Devil fled upon seeing the [appellant]. The [appellant] claimed to have chased after the Grease Devil. When he reached the street, the [appellant] claims that an army jeep was waiting and that the soldiers in the jeep told the [appellant] not to worry about the Grease Devil, but that the [appellant] would have to report to the army post the following day because he was carrying an iron bar.

[7] The [appellant] claimed that he reported to the military post with his wife on 18 September 2011, where the [appellant] was interrogated for one and a half hours in relation to what contacts he had with the Liberation Tigers of Tamil Eelam (LTTE). The [appellant] claimed he was also beaten and insulted at the post, and was then released but told to remain available.

[8] The [appellant] claimed that on 21 September 2011, at around 8.30pm, he was returning from his grandmother’s home by bicycle when he noticed a black van near his house. He claimed that as he approached his home, two or three people dressed in black came out of the van and started running towards him. The [appellant] states that he was scared and so dumped his bicycle and then ran away on foot until he reached his wife’s aunt’s home. The [appellant] states that he sneaked back home the following day and told his wife that he was too scared to stay there, and so he went to his niece’s home in a village approximately 12 kilometres away. The [appellant] states that he stayed with his niece for approximately three and a half months. He subsequently travelled to Colombo for the purpose of going to India, but as this plan did not work out he left Sri Lanka for Australia on 2 February 2012.

[9] The [appellant] claimed that, should he return to Sri Lanka, he feared he would be stopped at the airport because he originally came from an LTTE controlled area and “they will do with me whatever suits them”. The [appellant] claimed that he feared he would be harmed by the army or the Criminal Investigation Department (CID), and that he considers there would be no safe place for him in Sri Lanka.

Tribunal review of decision to refuse protection visa application

8    On 14 September 2012, the appellant filed an application for review of the delegate’s decision by the Tribunal. The Tribunal conducted a hearing on 30 October 2012, at which the appellant gave evidence with the assistance of a Tamil interpreter.

9    The Tribunal’s reasons state that the appellant confirmed that he feared persecution for the following reasons:

(1)    His imputed association with the Liberation Tigers of Tamil Eelam (“LTTE”) due to being from an area which was formerly controlled by the LTTE; and

(2)    His closer imputed association with the LTTE due to accusations made by the Sri Lankan Army after they saw the appellant chasing a grease devil holding an iron rod in his hands.

10    The reasons state that the appellant “confirmed that these were the only reasons that he feared persecution or serious harm, and these were the only reasons that he left Sri Lanka”.

11    Even so, the Tribunal also considered two other possible claims, namely:

(3)    As a failed asylum seeker returning to Sri Lanka from Australia, and/or a person who exited Sri Lanka illegally in travelling to Australia; and

(4)    As a person of specific interest to the Sri Lankan authorities, because the appellant had submitted that the Criminal Investigation Department (“CID”), the Sri Lankan army and unidentified persons had been searching for him since his encounter with the grease devil and since he exited Sri Lanka.

12    The appellant’s account of the “grease devil incident” was central to his claim for protection. The Tribunal questioned the appellant extensively about the incident and about grease devils, for example, asking the appellant to describe who grease devils were, what grease devils did, if he had seen the grease devil that came to his house, and to describe that grease devil and why the grease devil would come to the area where he lived. The Tribunal asked questions about what precisely the appellant was doing when the grease devil attacked his wife and raised with the appellant apparent inconsistencies between his version of events and previous versions.

13    The Tribunal’s decision record includes the following account of how it sought to raise inconsistencies and improbabilities with the appellant in the following paragraphs:

45. The Tribunal raised that there was information before it that would be the reason, or part of the reason, subject to the applicant’s response, for affirming the decision under review. The Tribunal said that it would invite the applicant to comment on or respond to the information either orally, after an adjournment, or in writing, or any way that the applicant wished. The Tribunal raised that the information was the difference between the comments made by the applicant during the entry interview, and the submissions made by the applicant at a later date. The Tribunal raised that the evidence to support a finding of contradictory evidence was as follows: that the applicant had said in his entry interview that grease devils stab women to find out where LTTE are; that the grease devil had entered his house by removing tiles; that grease devils were covered in paint (as opposed to grease); and that when the applicant had been asked why these people were called grease devils he had responded that he didn’t know.

46. In response the [appellant] said that during his entry interview his state of mind was very different, and he had not had food or water in three days, and that he could have been confused in his words. The [appellant] also raised that he had said grease, but the interpreter had mixed it up and said paint. [The Tribunal raised that the interpreter had said Grease Devils in other areas and in this context and this did not support that they had mixed up the words paint and grease.] In response the [appellant] also confirmed that his evidence was that Grease Devils did stab women to find out where the LTTE are. The [appellant] also said that he did not say tiles had been removed, he said that they had jumped from the rear side of the house to access his house.

47. The Tribunal also raised that it had difficulty believing the applicant’s submissions. The Tribunal raised one reason for this was that [sic] his description of the grease devils seemed fanciful. The Tribunal raised that the applicant had said the grease devils had knives on their fingers, and that they had a button or a system to alert the Sri Lankan Army, and that they may have it within their underwear. The Tribunal raised that this was difficult to accept as realistic. The applicant confirmed that this was his evidence. The Tribunal also raised that the applicant seemed to have increased his knowledge of grease devils since his time in Australia, and that under section 91R(3) of the Migration Act it must disregard any behaviour that has been undertaken for the sole purpose of furthering his refugee claims.

14    The Tribunal rejected the first claim of imputed association with the LTTE having regard to the following matters:

    The appellant entered and exited Sri Lanka several times during the period 1999 to 2007 without difficulty, despite being readily identifiable as a Tamil from an area previously controlled by the LTTE;

    On one of these occasions, the appellant was deported from Dubai to Sri Lanka after being denied entry due to holding a fraudulent visa;

    The appellant asserted several times during the hearing that he did not have issues until his interaction with the grease devil.

15    As to the second claim, the Tribunal did not believe that the appellant had had an interaction with a grease devil. The Tribunal’s first stated reason for disbelieving this aspect of the appellant’s claims was that, during his entry interview, the appellant described his wife’s attacker as a “grease man” but then said that he was covered in paint. The appellant also said that he did not know why they were called grease men. The Tribunal found that this information showed a general lack of knowledge, as country of origin information states that grease devils are referred to as such because they are covered in grease, making it difficult for people to grab and capture them. It also raised a doubt as to whether the appellant had seen and interacted with a grease man.

16    In his reasons, the FCC judge noted that the written record of the entry interview recorded that the appellant had described grease men as “people who paint their faces and only stab women to find out where the [LTTE] were coming or if the [LTTE] is still active in the area”. There is no evidence that the appellant ever said that his wife’s attacker was covered in paint. Thus, this aspect of the Tribunal’s decision seems to have been based on a misdescription of what the appellant had said at the entry interview.

17    The Tribunal’s other reasons for disbelieving this aspect of the appellant’s claims were:

    During the Tribunal hearing, the appellant said that the grease devil had attached knives to his nails and was about to stab everyone. This description was not supported by country of origin information or common sense, and the Tribunal considered it to be fanciful;

    The Tribunal also considered fanciful the appellant’s claim during the Tribunal hearing that grease men were able to alert the Sri Lankan Army to their whereabouts by something they were carrying, despite wearing only underwear and shoes and knives on their hands;

    During the Tribunal hearing, the appellant appeared to display significantly better knowledge about grease devils than he had shown during his entry interview, leading the Tribunal to conclude that the appellant had pursued information about grease devils in order to strengthen his claims;

    The appellant’s evidence concerning the events surrounding his interaction with a grease devil was “fanciful and contradictory”. The Tribunal said:

In his written statement the [appellant] said that people had been attacked and they had organised street patrols between villagers, and that he was patrolling the street when his wife was attacked. However, during the hearing the [appellant] contradicted this evidence and said that they were not allowed to patrol and he was not patrolling. Later in the hearing he amended his evidence again to say he was patrolling. In addition, when asked if his neighbour had chased the grease devil with him, the [appellant] said no, and that his neighbour was probably tired. This response is fanciful, considering that the [appellant’s] evidence was that he and his neighbour were both sitting at the front of their houses to guard against grease devils, so the idea that his neighbour would not give chase is unrealistic.

18    Concerning the possible claim to protection arising from the appellant’s situation if he were to be a failed asylum seeker returning to Sri Lanka from Australia, and/or a person who had exited Sri Lanka illegally in travelling to Australia, the Tribunal concluded that the appellant did not have a well-founded fear of persecution in the reasonably foreseeable future arising out of the risk that he faced on his return to Sri Lanka, which the Tribunal identified as the risk that he would be questioned by the CID and/or other Sri Lankan authorities regarding his illegal departure and the people on the boat in which he travelled. In reaching this conclusion, the Tribunal relied on country of origin information that all returnees are questioned by the authorities upon return and all but a relatively small number are released soon after. The Tribunal also relied on information that people with outstanding criminal matters may be detained, and that those who return without the knowledge of their families may be at risk, but noted that none of these factors applied to the appellant.

FCC application for judicial review

19    By s 476 of the Migration Act, the appellant was entitled to seek judicial review of the Tribunal’s decision. The appellant’s grounds for his application for judicial review of the Tribunal’s decision, set out at [23] of the FCC judge’s reasons, were:

(1)    The Tribunal committed jurisdictional error by taking into account irrelevant considerations;

(2)    The Tribunal committed jurisdictional error by failing to consider relevant considerations;

(3)    The Tribunal erred in concluding that the applicant did not have contact with a grease devil;

(4)    The Tribunal erred in placing undue weight on the alleged contradictions of the description of the grease devil by the applicant and by dismissing the applicant’s description as fanciful failed to assess the applicant’s evidence objectively and fairly;

(5)    The Tribunal erred in not considering available alternative information that Tamils/failed asylum seekers face detention and arrest on their return to Sri Lanka;

(6)    The Tribunal erred in failing to consider the possibility of the harsh consequences to the applicant if in fact he is of interest to the authorities arising out of the grease devil incident.

20    The appellant did not dispute the FCC judge’s summary of his complaint about the Tribunal’s decision, as follows:

[26] Although the grounds in the amended application might suggest otherwise, the [appellant’s] concern with the decision of the Tribunal centres upon his claim to have been imputed with a political opinion favourable to the LTTE as a consequence of him encountering a so called “grease man” or “Grease Devil” in his home and chasing him into the street with an iron bar, whereupon he stumbled upon personnel from the SLA. The [appellant] failed before the Tribunal because the factual basis for his claim was rejected. The [appellant’s] central contention is that the Tribunal’s adverse credibility finding was infected by a misunderstanding stemming from what he said about his claim at his initial interview after he arrived in Australia.

21    At [27] and [28] of his reasons, the FCC judge set out various aspects of the appellant’s claims and the findings of the delegate. In particular, he referred to the appellant’s description of grease men as “people who paint their faces and only stab women to find out where the [LTTE] were coming or if the [LTTE] is still active in the area”. He noted that the word “paint” was used as a verb, rather than a noun, implicitly recognising (contrary to what was stated in the Tribunal’s decision record) that the entry interview record does not include a statement by the appellant that the grease man “was covered in paint”.

Legal unreasonableness

22    After recording relevant passages of the Tribunal’s reasons, at [32] the FCC judge referred to an oral submission on behalf of the appellant that “the Tribunal’s decision was unreasonable in a legal sense because it had misunderstood and/or not fairly represented what the [appellant] had said at his initial entry interview”.

23    The FCC judge accepted that legal unreasonableness may be established because an adverse credibility finding is based upon a false factual foundation, citing Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145. However, he concluded that there was no legal unreasonableness in this case because:

(1)    It was “a matter of speculation what, if anything [the appellant] was suggesting grease men painted their faces with” at the entry interview;

The appellant was given an opportunity to clarify the matter at the Tribunal hearing but had not responded helpfully. The FCC judge set out paragraph 46 of the Tribunal’s decision record, quoted at [13] above.

(2)    The Tribunal’s adverse credibility finding was multifaceted. “The Tribunal found the [appellant’s] factual claim, as developed by the [appellant] before it, to be fanciful in several respects. That fanciful elaboration of his claim reduced the impact of any misunderstanding of what the [appellant] had said at his initial entry interview”.

Written submissions

24    The FCC judge next addressed written submissions filed on the appellant’s behalf. His Honour concluded that the submissions did not demonstrate any jurisdictional error by the Tribunal. The FCC judge summarised the submissions as follows:

(a)    the “substantial issue” was whether the appellant did have an interaction with a grease devil on 17 September 2011 as claimed;

(b)    in finding that the appellant did not have the interaction as claimed, the Tribunal relied on the fact that during the entry interview the appellant had stated that the grease devil was covered in paint when “the submission was made that there may have been an issue with the translation of the word”;

(c)    the Tribunal erred in finding that the appellant’s replies to questions asked at the entry interview about why grease men are called as such showed a general lack of knowledge;

(d)    the Tribunal, in requiring the appellant to provide detailed information about the grease devil, failed to take into consideration that there was a general panic about grease devils and that the appellant was at “the centre of a disastrous situation of hearing the screams of his wife to save her from the grease devil” and it was unreasonable to require the appellant to identify minute details in such a circumstance;

(e)    the Tribunal’s approach did not take into consideration the general information about widespread panic about the grease devils and failed to take into consideration relevant matters such as the appellant’s state of mind in the distressing circumstances;

(f)    the Tribunal did not take into account the general belief that grease devils were working with the army, and failed to take this into account in its assessment of the subjective fear of the appellant that he would face trouble for having attempted to harm a grease devil;

(g)    the Tribunal adverted to the fact that there was alternative information that failed asylum seekers faced detention and arrest in Sri Lanka, including the possibility of special questioning and detention, but erred in not taking into consideration the alternative information that was available.

Grease Devil Incident

25    Concerning the Tribunal’s finding that the appellant had not in fact had contact with a grease devil, the FCC judge found that there was no jurisdictional error for the following reasons:

    A fair reading of the Tribunal’s decision record showed that the appellant’s claim about the incident with the grease devil had been considered, and was rejected for reasons which the record identified, specifically that the claim lacked credibility and that the [appellant’s] evidence on this issue was “fanciful and contradictory”;

    The Tribunal explicitly considered country information concerning grease devils;

    The Tribunal highlighted the issues it perceived in the appellant’s evidence that led to its finding that the claim lacked credibility;

    The finding was a finding of fact par excellence, citing Re Minister for Immigration and Multicultural Affairs, ex parte Durairajasingham (2000) 168 ALR 407 at [67] (McHugh J);

    The appellant was seeking impermissibly to review the merits of the Tribunal’s decision.

Alternative Information about returning failed asylum seekers

26    The FCC judge noted that the Tribunal explicitly considered country information regarding the treatment of failed asylum seekers returning to Sri Lanka, including the treatment of Tamil returnees. The Tribunal then made findings regarding the likelihood of harm to the appellant as a returning failed asylum seeker.

27    The FCC judge found that there was no jurisdictional error arising out of the Tribunal’s choice of country information for the following reasons:

    the choice and assessment of country information is a factual matter for the Tribunal, citing NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] to [13];

    it is for the Tribunal to identify such material as it finds relevant to its reasoning and to give it appropriate weight, citing Tran v Minister for Immigration [2004] FCAFC 297 at [5]- [7] per Kiefel, RD Nicholson and Downes JJ; and WAEE v Minister for Immigration [2003] FCAFC 184; (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ;

    the Tribunal was not obliged to inquire into more recent country information than was before it, citing VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91; (2005) 141 FCR 291 at [41]; and VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29.

WZAPN

28    Finally, although the matter was not raised explicitly by the appellant, the FCC judge considered whether the decision in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (“WZAPN”) had any application to the case. In WZAPN, the Court held that the Tribunal had erred in its consideration of s 91R(2) of the Migration Act by impermissibly considering the severity of the potential threat to life or liberty. At the time of the FCC decision on appeal in this proceeding, the Minister had applied for special leave to appeal to the High Court of Australia from WZAPN but the application had not been determined.

29    The FCC judge concluded that WZAPN had no application to the appellant’s case.

Appellant’s submissions on the appeal

30    At the hearing of the appeal, the appellant appeared for himself and made the following submissions through a Tamil interpreter:

I wish to assert that if I return to my home country, I will face problems, not from the government but from the authorities. Even now, the returnees face problems such as mistreatment after being arrested. Lately, two children have lost their lives after being raped and the government is accused of being behind these incidents.

31    The appellant also said:

    “the army was disguised as grease devil and [he] had problems from grease devil” and that is why he fled Sri Lanka and sought refuge in Australia;

    if he returns to Sri Lanka, he will face mistreatment and problems and that is why he is pursuing legal avenues to get a favourable decision;

    he has described all the problems he faced and is of the view that his problems were not taken into consideration;

    he risked his life in a sea voyage which lasted for about 17 to 18 days and he was deprived of food and water. That is how he risked his life to get to Australia because he faced persecution in Sri Lanka and he is not willing to go back to his home country;

    he cannot go back to his home country.

Minister’s submissions on the appeal

32    On behalf of the Minister, it was submitted that the appellant had identified no basis upon which it can be said that the FCC judge erred in his consideration of the appellant’s case, particularly the case to the effect that the Tribunal’s findings of fact in relation to the appellant’s credibility were wrongly based on a significant factual error with the result that the decision was vitiated by legal unreasonableness.

33    Concerning the applicability of WZAPN, the Minister submitted that the FCC judge was correct both in finding that this case was distinguishable, and also in finding that there were two independent bases for the Tribunal’s decision such that any error of the kind identified by North J would not have affected the outcome.

Consideration

34    The appellant did not clearly identify the legal error upon which his appeal is founded.

35    In Neil v Nott [1994] HCA 23; (1994) 121 ALR 148 at 150, the High Court observed that a “frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy”. In Glew v Jasper [2010] WASCA 87 at [10], Newnes JA and Murphy J referred to this observation and continued:

[The Court] must be alert to the possibility that beneath inadequately expressed and often irrelevant material there may lurk an arguable case. And some leniency may be required in relation to compliance with the rules. But in the end the allowances that can be made for a litigant in person are necessarily limited, both as a matter of fairness to the other party, who must be adequately informed of the case they have to meet, and because the provision of acceptable grounds of appeal is fundamental to the exercise of the appellate function by the court.

36    In this case, having regard to the appellant’s reiteration to this Court of his previous claim that he fled Sri Lanka as a result of “problems from grease devil” and his contention that his “problems were not taken into consideration”, I have proceeded upon the basis that the appellant seeks to re-agitate the issues raised before the FCC judge. In identifying the scope of the appeal in this way, I am satisfied that I have not conferred a positive advantage to the appellant over his represented opponent since I have considered only issues that have previously been raised on the appellant’s behalf: cf Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at [28] citing Samuels JA and Mahoney JA in Rajski v Scitec Corporation Pty Ltd (unreported, Court of Appeal, NSW, Full Court, No CA 146 of 1986, 16 June 1986); Platcher v Joseph [2004] FCAFC 68 at [104] and [105]; Vaeula v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 147 at [59] to [61].

37    I did not understand the appellant to be raising any issue concerning the applicability of WZAPN and accordingly do not address that question further, except to note that the High Court has found that the decision was wrongly decided: Minister for Immigration and Border Protection v WZAPN [2015] HCA 22.

Jurisdictional error and errors of fact

38    The Tribunal made errors of fact when it proceeded on the basis that the appellant had said, at his entry interview:

(a)    that grease devils were covered in paint (paragraph 45 of the decision record) and

(b)    that the particular grease devil the appellant encountered was covered in paint (paragraph 66 of the Tribunal’s decision record).

39    The significance of these factual errors was the subject of the appellant’s central contention, as identified by the FCC judge, that the Tribunal’s adverse credibility finding was infected by a misunderstanding stemming from what he said about his claim at his initial interview after he arrived in Australia.

40    In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [53], the Full Court stated:

.. mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351–352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:

Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.

Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 481 [35] per McHugh J.

41    At [57], the Full Court referred to the following statement about the nature of the review function by Allsop J (as he then was, and with whom Spender J agreed) in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42]:

The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration … It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act … make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.

42    At [63], the Full Court said:

It is plain enough… that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.

43    In SZNPG v Minister for Immigration and Citizenship [2010] FCAFC 51, the Full Court said:

[27]…if the RRT failed to consider an element of an applicant’s claim, that would amount to jurisdictional error because Division IV of Part 7 of the Act requires a review of the whole of the applicant’s claim. In that case, the RRT would have failed to discharge its “imperative” duties…

[28] However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim:…

44    These principles were applied by Full Courts of this Court in MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; (2010) 117 ALD 441 and SZQRW v Minister for Immigration and Citizenship [2012] FCAFC 164; (2012) 134 ALD 454.

Legal unreasonableness and the grease devil incident

45    In SZSNW v Minister for Immigration and Border Protection [2014] FCAFC 145, referred to by the FCC judge, the Full Court dismissed the Minister’s appeal from a declaration made by a judge of the FCC that report and recommendation made by an independent merits reviewer was not made according to law. Mansfield J (at [16]) held that the decision was legally unreasonable because it had wrongly attributed to the asylum seeker a failure to complain of sexual abuse in circumstances where the complaint had been made and the decision significantly built on that wrongful attribution to reject the claims generally made by the asylum seeker.

46    Buchanan J (at [91]) held that the independent merits reviewer had made an error of law “when he disregarded the plain fact that the [asylum seeker] had raised claims to have been sexually assaulted during an interview which took place on Christmas Island directed specifically to assessing his claim to be a refugee. The [independent merits reviewer] became bound to take that fact into account when it embarked on findings adverse to the credit of the [asylum seeker], based on the false premise that he had not, as he asserted, made such a claim. At [92], Buchanan J concluded that it could not “be said that those erroneous conclusions could not have materially affected the outcome, in view of the interconnected nature of the [independent merits reviewer’s] findings on reliability”, citing FTZK v Minister for Immigration and Border Protection [2014] HCA 7 (2014) 310 ALR 1 per Crennan and Bell JJ at [97].

47    Perram J concluded (at [108]) that, if the Minister were not to exercise the discretion to decide not to lift the bar under s 46A of the Migration Act in reliance on the independent merits reviewer’s report, it would be a decision that would be legally unreasonable in the sense discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332. This was because the independent merits reviewer had concluded that the asylum seeker had lied to him about whether or not he had given a report of his sexual torture when interviewed at Christmas Island, when he had so that this finding should never have been made.

48    Unlike this case, in SZSNW v Minister for Immigration and Border Protection [2014] FCAFC 145, it was not necessary for the Court to find jurisdictional error in order to dismiss the appeal.

Significance of the Tribunal’s error concerning the appellant’s entry interview

49    The Tribunal’s error of fact concerned a matter that was central to the appellant’s claim for protection. This is not a case, like MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; (2010) 117 ALD 441, in which other parts of the decision record show that the Tribunal correctly understood the effect of the appellant’s evidence. Nor is it a case, like SZQRW v Minister for Immigration and Citizenship [2012] FCAFC 164; (2012) 134 ALD 454 in which the decision maker relied on erroneous references to the appellant’s evidence only in a peripheral way.

50    The Tribunal’s error manifested itself in two ways.

51    First, based on paragraph 45 of the Tribunal’s decision record (set out at paragraph 13 above), the Tribunal misstated the effect of the appellant’s explanation of grease devils, as recorded in the entry interview. The appellant was recorded to have said that they “are people who paint their faces” but the Tribunal asked the appellant to respond to the proposition that he had given contradictory evidence including that he had said that grease devils were “covered in paint”.

52    This question was unfair in that it was based on an asserted false premise, namely that the appellant had stated that grease devils were “covered in paint” during the entry interview.

53    Then, in reaching its findings about the appellant’s claim that he had an imputed association with the LTTE due to the Sri Lankan army apprehending him when he was armed and chasing a grease devil, the Tribunal repeated its error. The Tribunal commenced its analysis by saying:

The Tribunal has concerns as to the credibly [sic] of this claim, as raised with the [appellant] during the hearing. This is because of the following reasons; during the entry interview the [appellant] described his wife’s attacker as a ‘grease man’, but then said that he was covered in paint; he also said that he did not know why they were called grease men. This information shows a general lack of knowledge, as country of origin information states that grease devils are referred to as such because they are covered in grease, making it difficult for people to grab and capture them. This suggests that the [appellant] had limited knowledge of grease men, and their physical appearance, and raises doubts as to his having physically seen and interacted with a grease man.

54    The first error meant that the Tribunal’s assessment of the appellant’s credibility at the Tribunal hearing was informed by, among other things, the appellant’s answer to a question based unfairly on a misstatement of what he said at the entry interview.

55    The second error meant that the Tribunal disbelieved the appellant’s account of the grease devil incident on the basis of a misunderstanding of the appellant’s account concerning his claim in a significant respect.

56    By misunderstanding or misconstruing what the appellant had said at the entry interview (recorded on less than a page in the Department’s records), the Tribunal’s consideration of the appellant’s claim was flawed in a way which amounted to jurisdictional error because the question of whether the appellant’s account at the entry interview was credible was material (and arguably central) to the assessment of his claim. The errors caused the Tribunal to fail to consider the appellant’s true claim.

57    Having reached that conclusion, it is not necessary to decide whether the Tribunal’s error amounted to legal unreasonableness of the kind identified by Mansfield and Buchanan JJ in Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145. However, in my view, the error is analogous to the error identified by Mansfield J in that it involved a “wrong assertion” about the appellant’s evidence at the entry interview (suggesting that the Tribunal did not look carefully at the record of the entry interview, either before or after the Tribunal hearing), which wrong assertion was built upon to reject the appellant’s claim.

58    Although the Tribunal relied on a combination of matters to conclude that the “grease devil incident” had not taken place as the appellant claimed, I am not satisfied that the Tribunal’s error could not have materially affected its assessment of the appellant’s claim.

Alternative information about returning failed asylum seekers

59    The appellant did not identify any particular error by either the FCC judge or the Tribunal in relation to the Tribunal’s findings about the risks facing the appellant if he returned to Sri Lanka.

60    The matters raised by the appellant at the hearing of the appeal were not directed to any defect in the decision of either the FCC judge or the Tribunal in this respect and I am not satisfied that the FCC judge erred in failing to find jurisdictional error in the Tribunal’s decision on this basis.

Conclusion

61    The appeal will be allowed and the matter will be remitted to the Refugee Review Tribunal for determination according to law.

Associate:

Dated:    2 July 2015