FEDERAL COURT OF AUSTRALIA

SZUTM v Minister for Immigration and Border Protection [2016] FCA 45

ORDERS

THE COURT ORDERS THAT:

1.    Appeal dismissed.

2.    The appellant pay the first respondent’s costs.

3.    The name of the second respondent be changed to “Administrative Appeals Tribunal”.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from a judgement of the Federal Circuit Court of Australia (the Federal Circuit Court) dismissing an application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal): see SZUTM v Minister for Immigration & Anor [2015] FCCA 1212 (SZUTM). The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) to refuse to grant a Protection (Class XA) visa to the appellant.

BACKGROUND

2    The appellant is a Sri Lankan national of Tamil ethnicity. On 14 May 2013 she applied for a Protection (Class XA) visa. The appellant annexed a written statement to her application. In summary, she made the following claims:

(1)    she is a Tamil from Kondavil in Jaffna. After she married she moved to Colombo where her husband worked as a technical officer. During riots in 1983 she and her husband were "shipped" back to Jaffna. She was scared to travel back to Colombo and she stayed in Jaffna with her family. Her husband visited on weekends;

(2)    in 1990 her father died and her husband attempted to get her and her mother out of Jaffna. Upon discovering this, the Liberation Tigers of Tamil Eelam (LTTE) ordered the appellant's husband to return to Jaffna to work for it, failing which it would refuse to permit the appellant and her husband to leave Jaffna. The appellant's husband remained in Colombo where he worked as a private tutor;

(3)    in 1995, when the Sri Lankan Army (SLA) started to attack Jaffna, the appellant and her mother went to Vanni where they lived in various homes, paying rent. After giving all of their jewellery to the LTTE, they were permitted to move to Colombo. On their way through the army check point at Vavuniya, they were detained at the army camp and the appellant's husband came to release them. They arrived in Colombo after bribing an army officer;

(4)    in 2002, after the Peace Accord was signed, the appellant and her husband moved back to Kondavil, Jaffna to start farming and to renovate their residence that was damaged by bombing. Her husband wanted to assist Tamil youths who had discontinued their studies and gave private tuition in mathematics;

(5)    in 2003, her husband was abducted by the LTTE who told the appellant that they would only release him if he complied with their orders. The LTTE wanted her husband to work for them in Mullaitivu, training youths to build bunkers and platforms for their vehicles, boats and ships. The LTTE told the appellant that if her husband tried to escape they would take her to Mullaitivu to work;

(6)    the situation in Jaffna deteriorated. In 2006, the SLA started to attack Point Pedro and Valvettithurai. The appellant went to Colombo and was joined by her husband whose LTTE commander had given him a few weeks to return to Mullaitivu, failing which their cadres would detain him. The appellant remained in Colombo and her husband hid at a friend's place in a Sinhalese area;

(7)    after the defeat of the LTTE, the Sinhalese authorities began to threaten Tamils in Colombo asking for details of anyone having any connection to or, having worked for, the LTTE. The appellant and her husband had to be secretive as they were worried about what would happen should the authorities find out about the appellant's husband's work in Mullaitivu;

(8)    in 2011, at the request of her mother, the appellant and her husband returned to Jaffna. The appellant went back to her farming and her husband went back to providing private tuition. In January 2012, while celebrating the Hindu Pongal festival with students, three army officers came to the appellant’s home and arrested the students and her husband. The appellant's husband was identified as a LTTE accomplice and detained and tortured. The appellant was able to secure her husband's release within three days, following payment of a bribe. When her husband returned home he "looked half dead". The appellant went to get the doctor and, while she was out of the house, her husband committed suicide;

(9)    a few days after the death of her husband, army officers came to speak with the appellant. They asked her whether she had been living in Vanni with her husband and said they had information that she had frequently visited Mullaitivu and had given vegetables and chicken to the LTTE on a regular basis. When the appellant denied those accusations she was told to fall at the feet of the officers and to beg them to believe her. The appellant was taken to the same army camp at which her husband had been detained. The paramilitaries who had released her husband saw her there and told her that they would arrange for her release but that she should leave the country immediately;

(10)    two days later she was taken by the paramilitaries to a house where she remained until she paid them. Her siblings helped her to make the payment. Once released the paramilitaries told her to leave the country, that the army was aware of her and her husband's involvement with the LTTE, that they would kill her for escaping from prison and that if she was caught and she mentioned their names to the army or the police they would kill her;

(11)    the appellant went to Colombo where, through an agent, she obtained a visa and booked flights so that she could leave Sri Lanka.

3    The appellant participated in an interview with a delegate of the Minister on 10 October 2013. By a decision dated 28 November 2013, the delegate refused the grant of a protection visa. In her decision the delegate referred to the December 2012 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka. At 7-8 of her decision, the delegate includes the following passages from those guidelines:

The 2012 version of the Guidelines lists the risk profiles as follows:

…

(vi)    women in certain circumstances;

…

Reports have documented high levels of sexual and gender-based violence against women and girls in the final phase of the armed conflict, as well as in the post-conflict phase, including in parts of the country not directly affected by the conflict. However, this type of violence remains under-reported and, if reported, inadequately investigated according to several sources. Rape, assault with the intention to commit rape and “grave sexual abuse not amounting to rape” are prohibited under Sri Lankan penal law. Other sex-based crimes such as trafficking and sexual harassment are also prohibited according to the Penal Code. Marital rape is not a crime in Sri Lanka unless a judge has ordered a spousal separation.

A number of factors have been cited in various reports as contributing to increased insecurity and vulnerability of women in the north and east of Sri Lanka. The most relevant include the following:

a)    large numbers of female-headed households in the areas most affected by the armed conflict;

b)    women’s weak economic position;

c)    high militarization, including dependency on security forces for access to detained family members;

d)    impunity and weak administration of justice;

e)    prostitution and vulnerability to trafficking in displacement or post-relocation; and

f)    the vulnerable position of former female LTTE cadres and war widows.

4    At 9 of her decision, the delegate observed that country information indicated that single female headed households increased substantially in the former conflict areas of the north and the east and that, while estimates vary, the government has identified up to 90,000 war widows. The delegate noted that one particularly vulnerable group is young widows who married at a very young age to avoid forced recruitment, many of whose husbands had died or were missing and who struggled to provide for themselves and their dependants.

5    The delegate noted that the appellant was an older widow who owned her own home, was able to support herself on her husband's government pension and has been residing with her mother who was supported by the appellant's father's government pension. She also noted that the appellant and her mother had a poultry farm, they grew vegetables, the appellant's aunt lived close by and both the appellant and her mother were well known in the community and had sought assistance from the village officer. The delegate noted at 10 that she had taken into account that there were programs and assistance provided to single female headed households although she recognised that "there is more work to be done in adapting to the changing role of women in Sri Lanka, particularly in the former conflict zones of the northern and eastern parts of Sri Lanka".

IN THE TRIBUNAL

6    On 20 December 2013, the appellant applied to the Tribunal for review of the delegate's decision. On 31 December 2013, the Minister's department received a letter apparently referring to the appellant and alleging that she was a criminal (the Confidential Letter). On 7 January 2014, the Minister's delegate informed the Tribunal that s 438(1) of the Act applied to the Confidential Letter and that, in his view, the information contained in it should not be disclosed to the appellant or her representative because it was provided in confidence.

7    On 30 May 2014 the appellant attended a hearing before the Tribunal to give evidence and present arguments. A copy of the transcript of the hearing before the Tribunal, which was before the primary judge, includes an exchange between the Tribunal member and the appellant in relation to the Confidential Letter. In that exchange the Tribunal member put the content of the Confidential Letter to the appellant and sought her comment on it. The Tribunal asked the appellant if the police investigated the claims made by her father in law that she killed her husband and whether there was a criminal case against her. The appellant said that there was no police investigation or criminal case. The appellant claimed that if she returned to Sri Lanka her father in law would "… do this to me like he will make me get arrested and you know he will give me trouble".

8    On 19 June 2014, the Tribunal affirmed the decision of the Delegate.

9    The Tribunal rejected the appellant's claim that she had a well-founded fear of persecution based on her connection to the LTTE. The Tribunal also considered and rejected the appellant's claim that she had a well-founded fear of persecution as a failed asylum seeker. The appellant does not challenge those findings.

10    The Tribunal addressed the allegations about the Confidential Letter at [44] of its decision and addressed the claims the appellant made when the substance of that letter was put to her at [49] and [59] of its decision. At [44] the Tribunal noted that it was not in a position to make findings about whether the appellant was responsible for the death of her husband or whether there was a criminal case pending. It said that it "was unable to discuss the contents of the letter with its author and it does not have access to any evidence related to this matter". The Tribunal noted the appellant's claim that her father in law had accused her of murder before she left Sri Lanka out of revenge and that he was a troublesome character. The Tribunal made no findings on those matters. At [44], [49] and [59] the Tribunal said:

[44] The Tribunal is not in a position to make findings as to whether the applicant was responsible for the death of her husband by poisoning or that a criminal case is pending as claimed in the confidential letter. The Tribunal is unable to discuss the contents of the letter with its author and does not have access to any evidence related to this matter. The Tribunal notes the applicant’s comments that her father-in-law accused her of murder before she left Sri Lanka, out of revenge, as he was a troublesome character who did not like her. The Tribunal makes no findings in this regard.

…

[49]    The applicant also claimed at the Tribunal hearing that she fears her father-in-law will cause her to be arrested as he alleges she murdered her husband. This claim was not made to the Department, and was only made when the Tribunal referred to the confidential letter provided to the Department which suggested she had been involved in murdering her husband. The applicant has stated that she is innocent of these charges, and as set out earlier the Tribunal is not in a position to make any finding on this. On the basis of the evidence before it, the Tribunal does not accept that her father-in-law will report her to the police if he has not done so already (as claimed by the applicant). If he has already done so (as may be suggested in the confidential letter), then her claim has no veracity. Furthermore, if she is charged with a criminal offence this is a law of general application and is not a persecutory law for a Convention reason. As Brennan CJ stated in Applicant A:

... the feared persecution must be discriminatory .... [It] must be “for reasons of” one of [the prescribed] categories. This qualification … excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of “refugee”.

Consistently with Australian law, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR Handbook) states:

56.    Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim – or potential victim – of injustice, not a fugitive from justice.

The Tribunal does not accept therefore that there is a well-founded fear of persecution based on her father-in-law’s possible allegations to police, nor that the law would be implemented or enforced in a discriminatory manner.

…

[59]    The Tribunal is also not satisfied that the applicant’s father-in-law would cause her to be arrested on the basis that she had poisoned her husband. The Tribunal does not accept that he would report this to the police now, if he had not done so in the past (as claimed by the applicant). Further the applicant claims that she is innocent of such a charge. The Tribunal is not satisfied that there is a real risk of significant harm in this regard, as if she is innocent then the rule of law will apply and she will not suffer any kind of harm.

(footnotes omitted)

11    The Tribunal had regard to country information prepared by the Department of Foreign Affairs and Trade (DFAT) at [46], [80]-[82] and [87]-[88] of its decision in relation to aspects of the appellant's claims.

PROCEEDINGS IN THE FEDERAL CIRCUIT COURT

12    The appellant sought judicial review in the Federal Circuit Court. In her further amended application the appellant raised the following grounds:

(1)    the Tribunal failed to consider a claim that arose from the evidence before it namely a claim arising from her membership of a particular social group being war widows from the north of Sri Lanka or, alternatively, by reason of that fact in combination with other factors;

(2)    further or in the alternative to ground 1, the Tribunal constructively failed to exercise its jurisdiction by determining the claim in relation to the appellant's father-in-law in circumstances where it had indicated that it was not in a position to make findings;

(3)    further to ground 2, there was no evidence to support the Tribunal's finding at [49] of its decision that if the appellant was charged with murdering her husband the "law would not be implemented or enforced in a discriminatory manner" or alternatively the finding was irrational, illogical and not based on findings or inferences of fact supported by logical grounds;

(4)    further or in the alternative to ground 3, there was no evidence to support the Tribunal's factual finding at [59] that if the appellant is charged with murdering her husband the rule of law would apply or, alternatively, that finding was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

13    On 11 June 2015, the primary judge dismissed the appellant's application for judicial review.

14    In relation to ground 1, the primary judge accepted at [31] - relying on Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 (Dranichnikov) at [23] to [24] and NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1 (NABE) at [55] to [63] - that in some cases a failure to consider a substantial, clearly articulated claim relying on established facts may give rise to a jurisdictional error. The primary judge noted that there is "no bright distinction" between "claims and mere evidence" and that it follows that the Tribunal may fall into error "if it fails to consider an issue squarely arising from established evidence even if that issue is not the subject of an express claim by the applicant": SZUTM at [32].

15    The primary judge noted at [33] of his judgment that, while there may be some circumstances where an error arises by failing to consider an issue arising from evidence, those circumstances are limited. After referring to several authorities the primary judge found at [35], by reference to Dranichnikov and NABE, that as a "threshold" point the claim "must emerge clearly from the materials before the Tribunal and should arise from established facts". The primary judge also noted by reference to the decision in SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365 (SZSSC) that it was appropriate to ask whether there were relevant submissions of substance which were clearly articulated and made by or on behalf of the appellant which were not evaluated by the Tribunal.

16    For the reasons set out at [37] of his decision, referred to in further detail below, the primary judge found that the alleged claim did not emerge from established facts.

17    In relation to ground 2, the primary judge found at [40] to [42] of his decision that the appellant's case could be distinguished from Applicant NAFF of 2002 v Minister for Immigration (2004) 221 CLR 1 (NAFF): the appellant could not show that the Tribunal considered that its review function was incomplete but nevertheless proceeded to make a decision on the review. Unlike in NAFF the Tribunal did not state that it needed to take further steps that it had not then taken; the Tribunal gave the appellant ample opportunity to comment on the Confidential Letter and the case before the primary judge was not one in which the Tribunal considered that it should seek comment from the author of the Confidential Letter but failed to do so: SZUTM at [43].

18    The primary judge found at [44] of the judgment that there was no inconsistency between the Tribunal's statement at [44] of its decision, to the effect that it was not in a position to make findings about whether the appellant was responsible for the death of her husband by poisoning or that a criminal case was pending, and its statements at [49] and [59] of its decision.

19    The primary judge also rejected grounds 3 and 4. After setting out the relevant parts of the Tribunal's decision, the primary judge found that, while the challenge to the Tribunal's findings was arguable, after consideration and with the benefit of access to the Confidential Letter, jurisdictional error was not established: SZUTM at [48]. The primary judge gave three reasons for rejecting grounds 3 and 4 at [52] to [54] of his judgment:

(1)    first, extreme caution should be taken before making a finding of no evidence or illogicality;

(2)    next, there was evidence to which the Tribunal had regard which was capable of satisfying it of the statements it made at [49] and [59] about discriminatory or unfair operation of laws. The primary judge noted the DFAT country information considered by the Tribunal at [82] of its decision and found that the fact that there was evidence before the Tribunal upon which it could have formed a different view does not mean that the Tribunal fell into error: the weight to be given to evidence was a matter for the Tribunal;

(3)    thirdly, the Tribunal's findings at [49] and [59] of its decision were not central to its decision. That is, any error was either not jurisdictional or relief would likely be refused for discretionary reasons.

APPEAL TO THIS COURT

20    On 2 July 2015, the appellant filed a notice of appeal in which she raises the following grounds:

(1)    the primary judge erred in finding that the Tribunal did not fail to consider a claim clearly arising from the materials before it;

(2)    the primary judge should have found that a claim based on the appellant's membership of the particular social group, war widows from the north of Sri Lanka, arose clearly from the materials before the Tribunal and the Tribunal failed to consider that claim;

(3)    in the alternative, the primary judge erred in failing to find that:

(a)    the Tribunal constructively failed to exercise its jurisdiction; and

(b)    the Tribunals' findings at [49] or [59] were unsupported by any evidence or were illogical.

GROUNDS 1 AND 2

Appellants’ submissions

21    In support of these grounds, the appellant submits that she had not expressly claimed to be an associate of the LTTE or otherwise expressly put her claim for protection. Her statement was a narrative of her experience in Sri Lanka. The Tribunal asked itself whether the appellant was owed protection by reason of her political opinion, as a failed asylum seeker or due to the allegations made by her father-in-law. It did not ask itself whether the appellant would suffer serious harm by reason of her membership of a particular social group namely, women who are widows from the north of Sri Lanka. Had the Tribunal considered this claim it would have, as the delegate did, referred to the relevant parts of the UNHCR Guidelines.

22    The appellant submits that a close inspection of the passages relied on by the primary judge at [34] of his decision: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (Appellant S395) at [1] (Gleeson CJ), Minister for Immigration and Border Protection v SZSWB [2014] FCAFC 106 (SZSWB) at [33] (Gordon, Robertson and Griffiths JJ), SZTAD v Minister for Immigration and Border Protection [2014] FCA 1256 (SZTAD) at [17] (Bromberg J) and Dranichnikov at [78] (Kirby J), shows that those cases are instances where reference was made to Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 and are cases which dealt with a very different situation, namely where a visa applicant had argued that the tribunal failed to consider that he or she might be a member of the same family unit as another person who might be owed protection. The present case concerns a claim that the Tribunal failed to consider a way in which the appellant might be owed protection. The appellant also notes that the primary judge relied on SZSSC, a case also different from the present case as there was no dispute in that case that the claim that the tribunal did not consider had been made in a statutory declaration by the visa applicant and in submissions.

23    The appellant relies on the decision of a Full Court of this Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) at [58] where the Full Court said:

The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

24    The appellant submits that the only question is whether her claim as a widow clearly emerges from the materials; it does so because the death of the appellant's husband was a clear feature of her experience in Sri Lanka and was an issue raised in the delegate's decision. It was a claim that clearly emerged from the materials because it was an issue that the delegate had identified and considered and it was an issue that arose on the review because it was an issue in the decision that the Tribunal was tasked with reviewing.

25    The appellant submits that it is not a requirement that the claim must have arisen from "established facts" and relies on NABE at [55] where the Full Court says that a failure by a tribunal to make a finding in respect of a substantial, clearly articulated argument based on established facts was only one relevant circumstance that may amount to jurisdictional error.

26    In any event, the appellant submits that the primary judge was not correct in finding at [37] of his judgment that the appellant's claim based upon being a war widow was not based upon "established facts". A Full Court of this Court in SZSWB has interpreted the reference in Dranichnikov to a claim relying on "established facts" as a reference to the "factual predicates" to the making of a claim (at [5]) or the "asserted or established facts on which to found the claim" (at [43]). In SZSWB, the appellant argued that the tribunal failed to consider a claim that, if returned to Iran, he would be targeted by a rival cigarette seller. However, he had not established that he intended to sell cigarettes in the future. In the present case, the only factual predicates to the making of the appellant's claim were that she was a woman and a widow from the north of the Sri Lanka, which were all facts which were accepted by the Tribunal.

Minister’s submissions

27    The Minster's submissions adopt the reasoning of the primary judge set out at [14] to [16] above. In summary the Minister submits that the claim by the appellant that she is a widow from the north of Sri Lanka and would suffer harm for that reason was not put by the appellant to the delegate or to the Tribunal and that the primary judge was correct to reject the ground relied on before him to the effect that the Tribunal failed to consider a claim.

28    The Minister accepts that:

(1)    in some cases a failure to consider a substantial, clearly articulated claim relying upon established facts may give rise to jurisdictional error and there is no "bright distinction" between "claims" and "mere evidence";

(2)    it follows that the Tribunal may fall into error if it fails to consider an issue squarely arising from the established evidence even if the issue is not the subject of an express claim by the appellant; and

(3)    as the primary judge observed at [32] of his judgment, it is this line of authority that the appellant has to bring herself within to succeed.

29    While there may be some circumstances where error arises from the failure to consider a claim arising from evidence, those circumstances are limited. The Minister relies on Appellant S395 at [1] where Gleeson CJ says that a decision of the tribunal "must be considered in light of the basis upon which the application was made, not upon an entirely different basis which may occur to an appellant, or an appellant's lawyers, at some later stage" and a statement to similar effect in SZTAD at [17]. Further the Minister submits, relying on Kirby J in Dranichnikov at [78], that it is not the law that a party "can simply present the facts and leave it to the tribunal to search out, and find, any available basis which theoretically the Act provides for relief". In the Minister's submission, Parliament cannot have intended the Tribunal be subject to a "limitless task" of searching the record for every remote issue which could possibly arise.

30    It is for this reason, in the Minister's submission, that in NABE the Full Court identified at [67] - [68] as a "threshold" point that, where it is alleged that a tribunal failed to consider a claim, the "claim must emerge from the materials before the Tribunal" and in Dranichnikov at [24] that the claim should ordinarily arise from established facts. While NABE and Dranichnikov do not provide an exhaustive statement of the content of procedural fairness and the tribunal's duty to review, they provide useful indications of what courts have understood to be capable of constituting breaches of those duties. SZSSC at [78]-[79] does not assist the appellant. Those paragraphs emphasise the significance of submissions that were in fact put to the tribunal by an applicant.

31    In the Minister's submission, the alleged claim did not emerge clearly from established facts. Nor was there any other reason why such a matter should have been considered by the Tribunal. Further, the Minister contends that the primary judge's reasons at [37] are correct because:

(1)    the claim in question was not clearly made by the appellant, the Tribunal did not accept as a fact that the matters stated at p 33 of the 2012 UNHCR Guidelines were correct, it was not obliged to accept those Guidelines and, in that sense, any claim did not arise from "established facts";

(2)    the Tribunal had before it DFAT country information, to which it was obliged to have regard, which indicated that the security situation in Sri Lanka had greatly improved since the end of the military conflict and that, while people in the north faced challenges, the cause of those challenges was the effect of the conflicts and general economic conditions. This country information, which the Tribunal was entitled to accept, cut against any contention that war widows remained particularly vulnerable;

(3)    the UNHCR Guidelines were qualified in their language. They did not state that being a war widow was a risk factor for persecution or significant harm; rather they stated it was a risk factor for "increased insecurity and vulnerability". This is not the clear, unqualified language necessary to classify a claim that clearly or squarely emerges;

(4)    the delegate did not consider a claim arising from the appellant's status as a widow, nor was such a claim the subject of the delegate's decision. The delegate accepted that young widows were a vulnerable group but then identified why that risk did not apply to the appellant. The appellant did not dispute those findings before the Tribunal;

(5)    it is not to the point that the Tribunal accepted that the appellant was a widow from the north of Sri Lanka. That would only matter if the Tribunal's satisfaction as to those facts triggered some duty to consider. The appellant does not explain how those facts trigger a duty to consider where the appellant did not in fact contend that those facts gave rise to a risk of harm, the delegate did not consider that those facts gave rise to a risk of harm and no matters accepted by the Tribunal established that those facts gave rise to a risk of harm.

Consideration

32    The starting point for consideration of grounds 1 and 2 is the decision in NABE. In that case a Full Court of this Court considered the effect of a failure to deal with a claim. It said at [55]:

Although the discussion in S20 did not set any precise limit upon the scope of factual error which may amount to or indicate jurisdictional error there is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]….

33    The appellant relies on [58] of NABE (see [23] above) where the Full Court made a number of relevant observations. First, the review process is inquisitorial rather than adversarial. Secondly, the tribunal is required to deal with the case raised by the material or evidence before it. The tribunal is not to limit its determination to the case articulated by an applicant if evidence and material which it accepts raise a case not articulated. Thirdly, that, while it has been suggested that the unarticulated claim must be raised "squarely" on the material available to the tribunal before it has a statutory duty to consider it, the use of the adverb "squarely" does not convey any precise standard but rather indicates that a claim not expressly advanced will attract the review obligation of the tribunal when it is apparent on the face of the material before the tribunal.

34    In the present case it is also relevant to note [60] of the decision in NABE in which the Full Court said:

In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17], Selway J referred to the observation by Kirby J in Dranichnikov, at 405, that “[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances”. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548 that “[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made” (at [16]). Selway J however went on to observe in SGBB (at [17]):

But this does not mean the application is to be treated as an exercise in 19th Century pleading.

His Honour noted that the Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49] had said:

The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention “label” to describe his or her plight, but the Tribunal can only deal with the claims actually made.

His Honour, in our view, correctly stated the position when he said (at [18]):

The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.

This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.

35    At [61] the Court referred to observations made in three other cases noting that they were:

… consistent with the proposition that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal's obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate's decision on the basis of all the materials before it.

36    Finally at [63] the Full Court said:

It is plain enough, in the light of Dranichnikov, 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. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.

37    While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

38    Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on "established facts". At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must "emerge clearly from the materials before the Tribunal and should arise from established facts". I agree with the primary judge's approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

39    The primary judge went on to say at [36], relying on SZSSC at [82], that:

It is appropriate to ask whether there were in fact relevant submissions of substance which were clearly articulated and were made by or on behalf of the applicant which were not evaluated by the Tribunal.

40    With respect, in my view the reliance on SZSSC is misplaced in the present matter. In SZSSC the appellant had claimed that he had been the subject of extortion by a police officer. Those claims, which Griffiths J described as being at the core of the appellant's application for a protection visa, were included in a statutory declaration provided by the appellant and summarised at [4] of the decision. The appellant had made a number of detailed submissions to the tribunal about the extortion claims. At [14] of SZSSC Griffiths J identifies the issue before him to be whether the tribunal failed to consider all of the submissions of substance advanced on behalf of the appellant on what he described as the "core issue" of the extortion claims and, if so, whether that constituted a jurisdictional error. Here, it is not the case that the appellant's claim to be a member of the particular social group, war widows from the north, was an express claim which was the subject of submissions that the Tribunal failed to address. The issue is whether a clearly articulated claim arose from the materials before it. No particular submissions in support of such a claim were in fact put by the appellant let alone not addressed by the Tribunal.

41    The claim in question was not expressly made by the appellant either to the delegate or to the Tribunal. The delegate set out the appellant's claims at 4 to 5 of her decision. She referred to the appellant's claim to fear harm because of her husband's connection to the LTTE and, because her husband was detained as a result of suspected links to the LTTE, she would also be suspected of having such links. The delegate did not identify a claim resulting from the appellant belonging to the particular social group of war widows from the north.

42    The delegate referred to UNHCR Guidelines at 7 to 8 of her decision. This was not a document that the delegate had to accept; it was one of the factual matters considered by her. The extracted material referred to a "number of factors……as contributing to increased insecurity and vulnerability of women in the north and east of Sri Lanka" and then set out an inclusive list of the most relevant factors.

43    The delegate at 9 to 10 of her decision identified the increase in single female headed households, the "particularly vulnerable" group of young war widows and considered the facts relevant to the appellant in that context which effectively took the appellant out of the category of vulnerable people. That is so notwithstanding that no express claim was made in this regard.

44    Similarly, before the Tribunal the appellant made no express claim that she feared harm because she was a war widow from the north. So much is apparent from the material before the Tribunal and the transcript of the hearing. The Tribunal included in its decision at attachment B extracts from DFAT reports dated July 2013 and 2014. That material included a reference to a decrease in human trafficking and noted that, where there had been incidents of kidnapping, no particular social group had been targeted. The Minister relies on this country information to show that the position had changed from that reflected in the UNHCR Guidelines referred to in the delegate's decision which had identified an area of vulnerability for women as human trafficking. In its decision at [43] the Tribunal refers to country information from human rights organisations provided by the appellant which referred to instances of torture, sexual violence, restrictions on freedom of the press and other human rights abuses but noted that the targets for those abuses appeared to be people in opposition to the government or who had a profile with the LTTE and found that the appellant did not fall into either category.

45    In the absence of an express claim, the facts in this matter which the appellant says gave rise to an obligation on the part of the Tribunal to consider the claim in question were that she was a war widow from the north of Sri Lanka. She does not say that she faces a risk of harm as a result of those factual integers. I do not accept that the Tribunal was required to consider a claim arising from those two bare facts. There was no substantial, clearly articulated argument arising from established facts which the Tribunal failed to consider. Insofar as there were established facts they were no more than that the appellant was a female who was widowed and was from the north of Sri Lanka. The Tribunal considered the claims made by the appellant and the material before it in light of those claims.

46    The appellant says that in the context of the delegate's decision the issue was before the Tribunal because the Tribunal's task of review is shaped by the delegate's decision. In doing so she relies on NABE and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. However, as the appellant's counsel said frankly in his oral submissions, SZBEL was a different case. It considered s 425 of the Act and a tribunal's obligation to put an applicant on notice of issues that may be dispositive of a review. I do not think it is relevant in the context of the grounds of appeal now raised. The delegate had found that the appellant was not one of the women at risk as identified by the UNHCR Guidelines. As the primary judge found at [38] of his reasons, the appellant did not pursue any claim before the Tribunal arising from the delegate's findings in that regard. Further, the Tribunal did not need to consider a claim which did not arise on the material before it because the appellant was not a woman in relation to whom the circumstances in the UNHCR Guidelines applied.

47    In the circumstances I do not think that the primary judge erred in his findings and I reject grounds 1 and 2 of the notice of appeal.

GROUND 3

48    This ground, which has two parts, relates to the appellant's claims regarding her father-in-law. First, the appellant contends that the primary judge erred in failing to find that the Tribunal constructively failed to exercise its jurisdiction by saying at [44] that it was not in a position to make findings about the factual issues arising from the Confidential Letter. Secondly, the appellant contends that the primary judge erred in failing to find that the Tribunal's findings at [49] or [59] of its decision were unsupported by any evidence or illogical.

The appellant’s submissions

49    In oral submissions, counsel for the appellant noted that it was the appellant's contention that the primary judge had erred in not accepting ground 2 (the first part of this ground of appeal) and not accepting either ground 3 or ground 4 of the further amended application (the second part of this ground of appeal). Counsel for the appellant explained that before the Primary Judge, grounds 3 and 4 were not put in the alternative but further to ground 2. In order for the appellant to succeed on this ground of appeal she needs to establish that the primary judge erred in not accepting ground 2, the first part of ground 3 of this appeal, and not accepting either ground 3 or ground 4, the second part of ground 3 of this appeal.

50    In relation to the first part of the ground, the appellant submits that at the hearing the Tribunal put to her the substance of the Confidential Letter. The appellant, assuming the letter to have been sent by her father-in-law, claimed that he blamed her for her husband's death and that if she returned to Sri Lanka he would have her arrested and "give her trouble". At [44] of its decision, the Tribunal said that it could not make findings and "made no findings" in relation to whether the appellant was responsible for her husband's death or that a criminal case was pending or that her father-in-law accused her of murder, out of revenge, as he was a troublesome character who did not like her. The appellant submits that it would not be unusual to expect that if a tribunal was provided with a letter from a confidential source containing untested allegations it would give little or no weight to that material and proceed to consider an applicant's claims independently. However, here the appellant made her own claim at the hearing that raised factual issues in common with those raised by the Confidential Letter. In intimating at [44] that it was not in a position to make findings about the factual issues arising from the Confidential Letter, the Tribunal was intimating that it was not in a position to make factual findings about the appellant's claim regarding her father-in-law. The appellant submits that it is one thing for the Tribunal to say it cannot give weight to material containing untested allegations and another for the Tribunal to say that it is not in a position to determine entire factual issues.

51    The appellant further submits that for the Tribunal to then hold, at [49] and [59] of its decision, that it "does not accept that [the appellant's] father-in-law will report her to the police" and thus that the appellant's father-in-law would cause her to be arrested or that she would otherwise suffer harm was to do so in circumstances where, by its own admission, the Tribunal was not in a position to exercise its jurisdiction to determine those facts. The appellant submits that the Tribunal's error is similar to that in NAFF where the High Court found constructive failure to exercise jurisdiction in circumstances where the tribunal in that matter said it would write to the applicant seeking comment but then proceeded to issue its decision without doing so. The appellant contends that the principle in NAFF is broader than the basis on which the primary judge distinguished it. The appellant accepts that the Tribunal in the present case did not nominate any further step which it said it would take. However, the appellant submits that it ought to be inferred that the Tribunal's review process was incomplete because the Tribunal stated that it was not in a position to make findings and in doing so "acknowled[ged] that the purposes of the review had not been completely fulfilled": NAFF at [31].

52    The appellant submits it is open to surmise that, as the appellant's claim regarding her father-in-law was raised in the final part of the hearing, the Tribunal might have recognised that the issue, at the least, required further questioning and, if the Tribunal proposed to determine the issue solely on the appellant's credibility, that it would need to put its concerns in relation to the claim to her so that she could comment. The appellant relies on NAFF at [34] to the effect that the entitlement of an applicant to complain about the failure of the tribunal to complete the review process does not depend on the applicant being misled or prejudiced. The appellant submits that the primary judge erred in finding at [43(b)] and [43(c)] of his judgment that it was not open to the Court to infer the review function was incomplete because there was no procedural fairness or perceived necessity to invite comment or response.

53    The appellant also submits that it was not relevant whether it was possible for the primary judge to reconcile the Tribunal's statement at [44] of its decision with the findings at [49] and [59] of its decision. In the appellant's submission, the Tribunal's conclusions at [49] and [59] depended on intermediate factual issues such as whether her father-in-law "accused her of murder" and whether he was a "troublesome character who did not like" the appellant, upon which the tribunal said it was not in a position to make findings. Further, the appellant submits there is logically a relationship between whether the appellant was responsible for the death of her husband, whether that had been reported and whether there was a criminal case pending.

54    For the second part of this ground, the appellant submits that the Tribunal's findings at [49] and [59] of its decision were findings based on no evidence or, alternatively, were illogical.

55    The appellant submits that the Tribunal did not refer to any evidence in support of these findings. The primary judge accepted that the findings were supported by a DFAT country assessment which stated that "there are no official laws or policies that discriminate against … Tamils" and "there is no government-sanctioned discrimination in the implementation of laws …". However, the appellant contends that in its own terms, this evidence was qualified and notes that the DFAT material went on to say "however, in practice …" people in the predominantly Tamil north are monitored by police and receive fewer opportunities to access education and employment and remain economically vulnerable. In the appellant's submission it simply was not logical for the Tribunal to say at [49] that because a criminal law was of general application, it would not be implemented or enforced in a discriminatory manner. Nor was it logical for the Tribunal to assume at [59] that, if the appellant was innocent, the rule of law will apply and she will not suffer any harm. The appellant contends there was a lack of logical connection and that is sufficient to establish jurisdictional error.

The Minister’s Submissions

56    In relation to the first part of ground 3 the Minister's submissions largely follow the findings of the primary judge. The Minister submits that the present case is fundamentally distinct from NAFF. In the Minister's submission the distinction is that the appellant simply cannot show that the Tribunal considered that its review function was incomplete, but nevertheless proceeded to make a decision on the review.

57    The Minister notes that the tribunal member's final statements in NAFF are recorded at [11] of the judgment where the member stated that it was necessary for her to obtain further information from the appellant. That is not the case in the present proceedings and the inferences drawn by the High Court at [30] of NAFF are not open.

58    In relation to the second part of this ground, the Minister submits that the primary judge did not err in rejecting the appellant's contention that the Tribunal had made "illogicality" and "no evidence" errors. This is for three reasons.

59    First the cases establish that extreme caution should be exercised before findings of no evidence or illogicality are made: see Australasian Meat Employees' Union v Fair Work Australia (2012) 203 FCR 389 at [92]. The Minister submits that similarly "judges should not lightly interfere with" decisions on the grounds of unreasonableness or illogicality: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [106] (Gageler J). The Minister relies on the decision in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) at [130] - [131] where Crennan and Bell JJ said that the illogicality ground called for a determination that the finding was "one at which no rational or logical decision maker could arrive on the same evidence".

60    Secondly, the Minister submits that there was evidence to which the Tribunal had regard which was capable of satisfying it of the statements made in [49] and [59] concerning discriminatory or unfair operation of laws. The Tribunal considered the DFAT country assessment at [82] of its decision. It was entitled to accept that statement and it was open, based on the DFAT country assessment, to find that criminal laws were laws of general application, were not persecutory for a Convention reason and that, as a general proposition, the rule of law applied in Sri Lanka. The fact that there was evidence before the Tribunal upon which it could have formed a different view does not mean that the Tribunal fell into error. The weight to be given to evidence was a matter for the Tribunal.

61    Thirdly, the findings at [49] and [59] were immaterial to the Tribunal's decision. Any error was either not jurisdictional or relief should be refused for discretionary reasons. The findings were immaterial because, having regard to the way the appellant put her case, the risk of prosecution would only arise if the appellant's father-in-law were, in the future, to report her to the police and the criminal process was to ensue. However, the Tribunal did not accept that the appellant's father-in-law would in fact report her to the police. The Tribunal was entitled not to be satisfied as to the steps her father-in-law would take. Accordingly, the Tribunal was not satisfied of the necessary factual premise which would render material its findings at [49] and [59] in relation to the discriminatory or unfair operation of the criminal laws.

Consideration

62    The first part of ground 3 requires the Court to consider the decision of the High Court in NAFF and whether, as the appellant contends, it applies to the present case. In NAFF at the conclusion of the hearing, the tribunal member told the applicant that, given there were inconsistencies in relation to an aspect of the claim made, namely the dates of detention and the number of detentions, she would write to the applicant about that and the applicant would have 21 days to respond to the questions raised and to put any more information he wished to the tribunal. Contrary to that procedure, the tribunal member did not write to the applicant as foreshadowed and instead the tribunal sent the applicant a letter stating that it had considered all of the material relating to the applicant's case, that it had made its decision and that the decision would be handed down on a nominated date.

63    Relevantly, the majority of the High Court said at [30] to [31]:

There are some inferences which may reasonably be drawn from the Tribunal member's final statements when they are set against the background recorded in her reasons for decision. One is that she regarded the appellant's evidence about the detentions as having potential significance in the review. Another is that she had formed the belief that, despite her detailed questioning, the appellant had not done himself justice in circumstances where he had twice said he was confused and where doubts about interpretation had arisen – perhaps because he had not fully understood the questions which she had put to him, perhaps because in the stress of the moment he had not been able fully to communicate appropriate answers to them, perhaps because of the difficulty in assessing the credibility of evidence given through an interpreter. A third inference is that she believed that, as a result, the procedure had not been satisfactory because it had not been wholly fair to the appellant. In consequence, she thought that the process of review – so far as the appellant was to participate in it – should not be brought to a close, and that it was appropriate to hear more from him about the detentions. It can also be inferred that she had decided that a fair technique by which to take the matter forward was for the difficulties arising from the apparent inconsistencies to be explained to the appellant in written questions to be formulated by her, and to be calmly answered by the appellant in less stressful conditions.

The case, then, is an unusual one. In her closing remarks on 5 February 2002, the Tribunal member was herself acknowledging that the purposes of the review had not been completely fulfilled by the documents supplied before 5 February 2002 or by the events of 5 February 2002. She was indicating that she had not yet finished receiving the presentation of arguments by the appellant which he had been invited to make, pursuant to s 425(1) of the Act, by the letter of 13 December 2001. She was saying that procedural fairness required some further steps to be taken, so that the matters indicated could be ironed out one way or the other. It is clear that the Tribunal member was in the best position to judge whether the review process was incomplete. Her conduct is only consistent with the formation of a firm impression that it was.

64    The same situation cannot be said to arise in the present case. At [44] of its decision, the Tribunal said it was not in a position to make findings about whether the appellant was responsible for the death of her husband by poisoning or whether a criminal case was pending as claimed in the Confidential Letter. It said it was not able to contact the author of the Confidential Letter and did not have access to any evidence in relation to the matter. It noted the appellant's comments that her father-in-law had accused her of murder before she left Sri Lanka and went on to say it made no findings in that regard. It does not follow from those comments that the Tribunal acknowledged that its review process was incomplete. Rather, it was stating that the evidence did not allow any finding to be made about the appellant's responsibility or otherwise for the death of her husband or whether there was a criminal case pending in Sri Lanka. It cannot be said that the appellant in the instant case was left with the impression that the review process was incomplete; the Tribunal made no statement about this to the appellant. No inference can be drawn, as the appellant asserts, that the purpose of the review had not been fulfilled.

65    In my view, for the reasons articulated by the primary judge at [43] of his judgment, the inferences drawn by the High Court at [30] in NAFF cannot be drawn here:

(1)    the Tribunal did not in fact say it had to take any further steps, in contrast to the position in NAFF. As the primary judge correctly states any inference that a tribunal considered that its review function was not complete should not be drawn lightly;

(2)    the Tribunal gave the appellant opportunity to comment on the Confidential Letter as evidenced by the exchange recorded in the transcript in which the Tribunal member put to the appellant the content of the Confidential Letter for comment. The appellant does not contend that there was in that respect a breach of procedural fairness. This is not a case where the Tribunal was of the view that it needed to give the appellant a further opportunity to comment but then proceeded to determine the review without affording her that opportunity. The Tribunal member put to the appellant the matters of fact going to the credibility of the appellant's claims: she asked "So if you are innocent of these claims you have nothing to worry about is that correct" and "But if he was going to make these accusations to the police surely he would have done so already". The Tribunal member also asked whether there was "anything else" the appellant would like to say. The Tribunal member was entitled to be satisfied on that basis that she had taken all the steps necessary and appropriate to discharge her review function;

(3)    this was not a case in which the Tribunal considered that it should, but failed to, seek comment from the author of the Confidential Letter. The Tribunal said that it was unable to discuss the content of the Confidential Letter with its author. This is not a case of the Tribunal completing a review function in circumstances where it considered there were reasonably available but undischarged steps which it could take to complete the review.

66    I do not accept the appellant's submission that it was not relevant whether it was possible for the primary judge to reconcile the Tribunal's statement at [44] of its decision with the findings at [49] and [59] of its decision.

67    The primary judge found that the statements at [44] concerned the appellant's responsibility for her husband's death and the pendency of a criminal case (about which no findings could be made) while the statements at [49] and [59] concerned the issue of whether the appellant's father in law would report her. I agree with the primary's judge's findings in this regard. Contrary to the appellant's submission, the conclusions at [49] and [59] did not depend on intermediate factual issues such as whether the appellant's father-in-law "accused her of murder" and whether her father-in-law was a "troublesome character who did not like" the appellant. It follows that I similarly do not accept that there is logically a relationship between whether the appellant was responsible for the death of her husband, whether that had been reported and whether there was a criminal case pending. The Tribunal was able to make the findings it did without the need to make findings on intermediate factual issues.

68    Given the way the appellant put her case before the primary judge and my findings in relation to the first part of ground 3, the appellant cannot succeed on this ground: that is before the primary judge the appellant put her case on the basis that she had to succeed on the first part of ground 3 in this appeal (ground 2 before the primary judge) and either limb of the second part of ground 3 in this appeal (grounds 3 or 4 before the primary judge). While it is not necessary for me to do so, for completeness I consider the second part of ground 3. In this part of ground 3 the appellant contends that the primary judge erred in failing to find that the Tribunal's findings at [49] or [59] of its decision were unsupported by any evidence or illogical. The particular findings complained of are, in relation to [49], that if the appellant is charged with a criminal offence, "this is a law of general application and is not a persecutory law for a Convention reason" and thus the Tribunal did not accept that "the law would be implemented or enforced in a discriminatory manner" and, in relation to [59], that if the appellant "is innocent then the rule of law will apply and she will not suffer any kind of harm".

69    In order to consider this ground it is necessary to consider when a finding of no evidence or illogicality to support a jurisdictional error should be made. In that regard, in Australasian Meat Employees' Union v Fair Work Australia (2012) 203 FCR 389 at [92] Flick J observed that:

Considerable caution needs to be exercised before concluding that an absence of evidence to support a particular factual finding necessarily constitutes jurisdictional error. The starting point is to acknowledge that a mere factual error will ordinarily fall short of jurisdictional error. But where a fact is a critical step in a conclusion which has been reached — and where there is no evidence to support that finding — there may be jurisdictional error…. In Sagar v O’Sullivan Tracey J observed that it “is well-established that a statutory decision-maker may make a jurisdictional error by failing to base a decision on probative evidence”.

(citations omitted)

70    In oral submissions by counsel on behalf of the Minister my attention was also drawn to the decision in Australian Postal Corporation v D'Rozario (2014) 222 FCR 303 in which a "no evidence" ground was considered by a Full Court of this Court and is relied on by the Minster to establish that in order to succeed on this ground there must be no evidence or other material to justify the finding. In that regard, Jessup J at [78] of his decision found that:

… In my view, Mr Victory’s submission provided a sufficient factual basis, slender though it was, for that finding in a setting in which the question is not whether the finding was wrong or against the weight of evidence but whether there was no evidence at all that could on any view have sustained the finding.

71    Bromberg J also considered the issue and at [118] said:

An insufficiency of evidence or other material does not sustain a “no evidence” finding. The ground will not be made out unless it is established that there was no evidence or other material to justify the finding made: VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 202 at [33]–[37] (Spender, Tamberlin and Kenny JJ); Australian Retailers Assn v Reserve Bank of Australia (2005) 148 FCR 446 at [575] (Weinberg J); and SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 at [31] (Kenny J). The necessary evidence could be either direct or found in material which permitted the decision-maker reasonably to infer that the condition existed: SGLB at [41] (Gummow and Hayne JJ, with whom Gleeson CJ agreed at [1]); Shop, Distributive and Allied Employees Assn v National Retail Assn (No 2) (2012) 205 FCR 227 at [31] (Tracey J).

72    The appellant relies on the decision in SZMDS in which there were differing approaches about what would constitute illogicality amounting to jurisdictional error. At [50] to [53] of their decision Gummow ACJ and Kiefel J, in dissent, refer to an absence of a "logical connection between the evidence and the reasons" of the tribunal. In his decision at [78], Heydon J observed that the "issue" was one on which "minds may differ" and found at [87] that in that matter the tribunal's reasoning was not "illogical". At [130] to [131] Crennan and Bell JJ said:

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.

73    The appellant's counsel in oral submissions contended that the test propounded by Crennan and Bell JJ was based on an analogy with Wednesbury unreasonableness in that it has to be so illogical that no logical decision maker could come to that decision on the same evidence. The appellant's counsel submitted that the test had to be read in light of what the majority said in Li at [68] that:

Lord Greene MR's oft-quoted formulation of unreasonableness in Wednesbury has been criticised for "circularity and vagueness", as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision − which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation, which was decided less than two years after Wednesbury, at a time when it was the practice of the High Court to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area.

(footnotes omitted)

74    In other words, the appellant submits that it is not correct to say that the principle only applies when the decision is so illogical that no logical decision maker could have come to that decision on the same evidence. This submission goes to the interaction between the principles identified in SZMDS and Li. However, this is not a matter which needs to be resolved here. This case can be determined by an application of the principles identified in SZMDS.

75    In that regard, it cannot be said that there was no evidence to support the findings complained of at [49] and [59] of the Tribunal's decision. In my view, the primary judge was correct to accept, as he did at [53] of his decision, that the findings were supported by the DFAT country assessment which was extracted and included as attachment B to the Tribunal's decision. That included at [82] that "today there are no official laws or policies that discriminate against Sri Lankans (including Tamils) on the basis of ethnicity …" and that "DFAT further assesses that there is no government-sanctioned discrimination in the implementation of laws and policies". The appellant submits that this evidence was qualified in that it went on to say that people in the north may receive fewer opportunities to access education and employment. However, the relevant part of [82] referred to by the appellant in that regard goes on to say that this is due to "the effects of the conflict" and "general economic conditions, and not as a result of discrimination on the basis of ethnicity". Even if the evidence is "qualified" as the appellant asserts, as the primary judge observes at [53], the fact that there may have been evidence before the Tribunal upon which a different conclusion may have been formed does not mean that the Tribunal fell into error. There was no illogicality in the Tribunal's decision in coming to its findings at [49] and [59] of its decision.

CONCLUSION

76    In light of the matters set out above, I will order that the appeal be dismissed and that the appellant pay the first respondent's costs.

Associate:

Dated:    5 February 2016