FEDERAL COURT OF AUSTRALIA

SZWCO v Minister for Immigration and Border Protection [2016] FCA 51

ORDERS

THE COURT ORDERS THAT:

1.    The name of the second respondent be amended to the “Administrative Appeals Tribunal”.

2.    Leave to amend the notice of appeal filed 22 July 2015 be refused.

3.    The appeal be dismissed.

4.    The appellant is to pay the costs of the first respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    In this matter, the appellant attempted to push the boundaries, not only of permissible judicial review of migration decisions by the Federal Circuit Court of Australia, but also the proper scope of appellate review by this Court.

2    The appellant is a citizen of Sri Lanka. In August 2012, he attempted to travel to Australia by boat without any visa or travel papers. The boat he was on board was intercepted by Australian authorities and, on 9 August 2012, the appellant was transferred to immigration detention on Christmas Island. On 7 November 2012, the first respondent, the Minister for Immigration and Border Protection (Minister), determined that the appellant was not precluded by s 46A of the Migration Act 1958 (Cth) (the Act) from applying for a visa. The appellant subsequently applied for a protection visa under s 36 of the Act. That visa application was first refused by a delegate of the Minister, and then on review by the second respondent, then the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal).

3    Undeterred, the appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia, alleging jurisdictional error on the part of the Tribunal. That application was dismissed on 1 July 2015. The appellant now appeals from the judgment of the Federal Circuit Court.

The visa application and the Tribunal’s decision

4    The appellant claimed that he was entitled to a protection visa on the basis that he had a well-founded fear that he would be persecuted if he was forced to return to Sri Lanka for essentially three reasons: first, because he is an ethnic Tamil and a practising Hindu; second, because the authorities in Sri Lanka would believe or suspect that he was associated with the Liberation Tigers of Tamil Eelam (LTTE); and third, because he would be returned to Sri Lanka as a failed asylum seeker. In light of the relatively narrow issues that arise in the appeal, it is unnecessary to detail the claims and evidence that the appellant advanced in support of his visa and review applications. The Tribunal’s reasons contain an exhaustive recitation of the appellant’s case that it is largely unnecessary to repeat.

5    In very brief terms, the appellant claimed that, whilst he was living in Sri Lanka during 2006, he was invited by a person named Ramesh to join a splinter group of the LTTE, the Tamil Makkal Vidthalai Pulikal or “TMVP”. When the appellant refused to join, Ramesh became angry and told him that something would happen to him. On the appellant’s account, something did happen. The appellant claimed that in November 2006 he was abducted, threatened, beaten and detained for a few days by members of the TMVP. That was not, however, the end of his ordeal. The appellant said that the pressure to join the TMVP continued. In 2007, Ramesh demanded that the appellant do work for the TMVP. Ramesh demanded money from the appellant and threatened to report him to the “CID” (the Criminal Investigations Department of the Sri Lankan police force) as a person connected with the LTTE if he did not pay. According to the appellant, similar threats and demands for money were made during 2009. Ramesh, who had apparently since joined the CID, again threatened to report the appellant to the CID as a member of the LTTE if the appellant did not pay. The appellant said that he paid Ramesh only half the money that Ramesh had demanded. As a result, Ramesh threatened to kill the appellant’s family and, it would appear, also told the CID that the appellant was a member of the LTTE.

6    The result of Ramesh’s actions was that, in 2010, the appellant was interrogated by the CID but then released. He was picked up by the CID again in 2011 and, this time, not only interrogated and accused of being a member of the LTTE, but also beaten and detained. He was not, however, charged with any offences and was released in a few days. The appellant also claimed that the CID, through Ramesh, demanded more money from him. The appellant said that he paid most of the money. He subsequently left Sri Lanka using a passport in his own name that he had managed to obtain. The appellant claimed that, following his departure, his wife, who remained in Sri Lanka, received threatening phone calls from Ramesh and others.

7    The appellant claimed that if he was returned to Sri Lanka he would, upon his arrival at the airport, be detained, interrogated and seriously harmed because he was a Tamil from the North East of Sri Lanka, which was a former LTTE stronghold. That alone would raise suspicions that he was connected with the LTTE. The appellant also said that he would be detained and interrogated as a failed asylum seeker returned from Australia.

8    Unfortunately for the appellant, the Tribunal was not satisfied that he was telling the truth in relation to the events that grounded his claim that the authorities in Sri Lanka would believe or suspect that he had an association with the LTTE.

9    The appellant gave evidence before the Tribunal and repeated the claims that had been the basis for his visa application. The Tribunal did not, however, regard him as a credible witness. Whilst the Tribunal accepted that the appellant had refused Ramesh’s overtures to join the TMVP, it did not believe that the appellant was being truthful in relation to most of the other events that were central to his case that he feared persecution or was at risk of serious harm. The Tribunal found that the appellant had exaggerated or inflated his claims and that, in most respects, his evidence was not credible. In detailed and exhaustive reasons, the Tribunal traced what it considered to be a pattern of inconsistencies and variations in the appellant’s evidence. The Tribunal found that those inconsistencies were not minor and that they cast doubt on the credibility of the appellant’s overall account of what he said happened to him in Sri Lanka.

10    The Tribunal summarised its conclusions in relation to the credibility of the appellant’s claims in the following terms in its reasons (at [73]):

I am not satisfied having regard to all the information, evidence and materials before the Tribunal as to the applicant’s claims that he has a well-founded fear of persecution or significant harm should he return to Sri Lanka. I do not accept the applicant’s claims that he has a well-founded fear that he is at risk of persecutory harm from Ramesh or the CID or Sri Lankan government authorities more generally should he return to Sri Lanka. As indicated I do not accept many of the applicant’s claims in relation to having been harmed by Ramesh or the CID previously. I have referred elsewhere in these reasons to my findings in relation to those claims. I also believe that the applicant has inflated or exaggerated a number of aspects of his claims in an effort to strengthen his protection Visa application. In particular I believe the applicant has significantly exaggerated his claims in relation to his dealings with Ramesh as well as his claims to fear harm from Ramesh should he return to Sri Lanka.

11    In relation to the appellant’s claims based on the fact that he was of Tamil ethnicity and a practising Hindu, the Tribunal noted (at [51]) that the appellant “did not advance any specific claims in relation to his Hindu faith and [that] this claim effectively merged into [his] wider claim [that] he feared harm on the basis that he was a Tamil with perceived links to the LTTE”. The Tribunal also found, in effect, that the mere fact that the appellant was a Tamil did not give rise to a well-founded fear of persecution or a risk of significant harm. In that respect, the Tribunal relied (at [67]) on so-called “country information” from reputable sources that suggested that Tamils, including Tamils of the Hindu faith, were not at risk of being subject to persecution or significant harm on that basis alone. That aspect of the Tribunal’s decision and reasons was not challenged in the court below and is not in issue on this appeal.

12    The Tribunal’s findings in relation to the appellant’s claims based on the treatment of failed asylum seekers on their return to Sri Lanka also turned on the contents of country information on that topic. In short, the Tribunal accepted country information that indicated that failed asylum seekers, including Tamils, were not subjected to any persecution, serious harm, or mistreatment upon their return to Sri Lanka. In its reasons, the Tribunal concluded as follows (at [68] and [69]):

I accept DFAT country information in relation to the treatment of returnees or failed asylum seekers upon their return to Sri Lanka. The DFAT country report in discussing that aspect refers to the treatment of returnees and the exit and entry procedures and the detention of people/returnees who are suspected of having committed an offence of leaving Sri Lanka illegally. The applicant left Sri Lanka legally on his own passport and on that basis committed no offence in leaving. The written submissions made on behalf of the applicant surmise that perhaps a bribe was paid on his behalf to allow him to leave the country without difficulties (there is no evidence before the tribunal to support this proposition) and/or that the applicant was not placed on an alert list by Ramesh as he did not expect the applicant to leave the country. As there is no independent evidence before the Tribunal about these issues I do not accept these submissions. I believe the evidence indicates that the applicant was allowed to leave Sri Lanka because he was of no interest to Sri Lankan authorities.

The DFAT country information indicates that involuntary returnees are processed at the airport by the Sri Lankan Department of Immigration and Emigration and the state intelligence service and the airport CID. This may take several hours. DFAT assesses that Sri Lankan returnees are treated according to the standard procedures, regardless of their ethnic background and religion and that the assessment is that detainees are not subject to mistreatment during their processing at the airport. The report indicates that most returnees from Australia are questioned by police upon their return. The country information as discussed above sets out the broad processes that all returnees are subject to upon return and those processes apply without regard to race or religion.

13    The Tribunal’s conclusions in relation to the overarching question of its satisfaction in terms of the protection visa criteria in s 36(2)(a) and (aa) of the Act were as follows (at [74] and [75] of the Tribunal’s reasons):

I have considered the applicant’s claims both individually and cumulatively. I have considered the totality of the applicant’s claims of the evidence and submissions and country information in relation to those claims. In those circumstances I am not satisfied that the applicant has a well-founded fear of persecutory harm should he return to Sri Lanka now or in the reasonably foreseeable future. I am not satisfied that having regard to all the aspects that I have referred to that there is a real chance of [sic] the applicant would face persecutory harm should he return to Sri Lanka on the basis that he is a Tamil of the Hindu faith and a perceived LTTE supporter or on the basis that he is a failed asylum seeker.

I have also considered whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk the applicant would suffer significant harm. I have considered the applicant’s claims both individually and cumulatively and had regard to the totality of those claims and the evidence and available information. Having considered all the material before the Tribunal and for the reasons discussed previously I am not satisfied that the applicant faces a real risk of significant harm should he be returned from Australia to Sri Lanka on the basis that he is a Tamil of the Hindu faith and perceived to be an LTTE supporter or because he is a failed asylum seeker.

The Federal Circuit Court proceedings and the judgment of the primary judge

14    The appellant’s conduct of the proceedings below was unsatisfactory. The appellant, who has at all times been legally represented, attempted to amend the grounds of his application in the Federal Circuit Court on a number of occasions. That is of some relevance given that, in this Court, the appellant also applied for leave to amend his notice of appeal to include arguments that were either never advanced, or were effectively abandoned, before the primary judge.

15    The appellant’s initial application contained two grounds. The first ground was that the Tribunal’s decision was “legally unreasonable”. The particulars of that ground included a number of factual findings made by the Tribunal relating to its conclusion that the appellant had given inconsistent evidence. The second ground was that the Tribunal had failed to consider the appellant’s claim that he would be persecuted on account of the fact that his passport was fraudulently obtained. At one stage, the appellant was given leave to file an amended application but failed to file it within the time allowed. The amended application that was eventually filed out of time added, as a particular to the second ground, the contention that the Tribunal had failed to consider his claim that he feared “recruitment … by the TMVP in [the] near future”. The amended application also added a third ground based on the contention that the Tribunal had “fail[ed] to apply [the] real chance test” in relation to a number of findings.

16    At the hearing of the application the appellant’s counsel sought leave to file a further amended application. The further amended application abandoned all previous grounds (or proposed grounds) and contained the following single ground:

1.    The Second Respondent engaged in legal error by failing to consider a claim or integer of a claim that arose on the information and evidence before it.

1.1    The Applicant squarely raised a claim to fear harm from the Sri Lankan authorities on the basis that he lacks “normal travel documents”;

1.1.1    The Applicant had claimed that he had obtained his Passport through use of a forged document and had destroyed the document during his voyage to Australia;

1.2    The Second Respondent failed to deal with this integer of his claims, namely whether the absence of travel documents or the fact that he left Sri Lanka with forged documents would place the Applicant at risk of harm.

17    The Minister did not consent to the filing of the further amended application. The primary judge reserved his decision on the question of whether to grant leave to amend and heard argument in relation to the sole ground relied on by the appellant. The primary judge ultimately refused leave to amend and dismissed the application on the basis that there were no other grounds relied on by the appellant. The refusal of leave to amend was based not only on the fact that there was no merit in the ground sought to be raised, but also on the fact that no reasonable explanation had been given in evidence for the failure by the appellant (or his lawyers) to comply with the court’s order in relation to the filing of an amended application.

18    It should be noted that some of the grounds abandoned by the appellant before the primary judge are similar to grounds that the appellant now wishes to ventilate on appeal by way of an amended notice of appeal.

19    As for the single ground that was the subject of argument and submission, the primary judge rejected the contention that the Tribunal had failed to consider any claim, or integer of a claim, that had in fact been advanced by the appellant. The proposed further amended application appeared to contend that the Tribunal had failed to consider two related claims. The first was said to be that the appellant feared persecution because he lacked “normal travel documents”. The second was said to be “whether the absence of travel documents or the fact that [the appellant] left Sri Lanka with forged documents would place [the appellant] at risk of harm”.

20    In relation to the claim based on the absence of “normal travel documents”, the primary judge noted that it was clear that the Tribunal had accepted the appellant’s evidence that he no longer had a passport. The primary judge found, however, that to the extent that the appellant raised a claim based on the fact that he no longer had a passport, that claim was conclusively dealt with at [69] of the Tribunal’s reasons. In short, the Tribunal found that all involuntary returnees were subject to the same procedures and process regardless of their ethnic background and religion and that “detainees are not subject to mistreatment during their processing at the airport”.

21    As for the alleged claim that the appellant faced harm on his return to Sri Lanka on account of his having obtained his passport unlawfully, the primary judge found that the appellant never made such a claim. The primary judge concluded (at [22]) that the appellant had “never claimed that the fact that he had obtained his passport in a particular way might give rise to a well-founded fear of persecution”. Whilst the appellant did give evidence that he changed his birthdate on his birth certificate and arranged for another person to apply for his passport because he was too young, the primary judge found (at [23]) that “neither at the hearing nor anywhere else did he connect that with any well-founded fear of persecution”. The primary judge also found (at [28]) that the appellant “in fact never submitted to the Tribunal that he had not legally left Sri Lanka on his own passport”.

22    At [29] of the judgment below, the primary judge concluded as follows:

In summary, this so-called claim is no more than a reconstruction made by the applicant’s lawyers well after the Tribunal’s decision had been made. There was no requirement for the Tribunal to consider the claim and no jurisdictional error has arisen in respect of it.

Appeal grounds

23    The notice of appeal filed by the appellant contains the following single ground of appeal:

Ground 1

1.1    The Court erred in finding that the Second Respondent did consider the applicant’s claim or integer of claim that arose on the information and evidence before it.

Particulars

The Applicant squarely raised a claim to fear harm from the Sri Lankan authorities on the basis that he lacks “normal travel documents”

The Applicant had claimed that he had obtained his passport through use of a forged document and had destroyed the document during his voyage to Australia.

1.2    The Court erred that the Second Respondent did not fail to deal with this integer of claims, namely whether the absence of travel documents or the fact that he left Sri Lanka with forged documents would place the Applicant at risk of persecution.

24    The written submissions filed by the appellant foreshadowed that the appellant proposed to seek leave to rely on two grounds of appeal relating to arguments not pursued at first instance. It would appear that the appellant also attempted, without leave, to file in the Federal Court Registry an amended notice of appeal that contained three grounds. At the hearing of the appeal the appellant, through his counsel, sought leave to file that document. The Minister opposed the grant of leave.

25    Given that one of the relevant considerations on the question of leave was the merits of the proposed additional grounds, the question of whether leave to file the amended notice of appeal was to be granted was reserved. Both the appellant and the Minister advanced submissions in relation to the proposed additional grounds.

Should leave to file the amended notice of appeal be granted?

26    The proposed amended notice of appeal is unsatisfactory in a number of respects. First, despite being extremely lengthy and discursive, the grounds of appeal in many respects lack clarity and specificity. The detailed particulars either do not appear to directly engage with the grounds, or do not greatly assist in comprehending the grounds. Indeed, in many respects the so-called particulars serve only to obscure and confuse. It is at least doubtful that the amended notice of appeal complies with the requirement in r 36.01(2)(c) of the Federal Court Rules 2011 (Cth) that a notice of appeal should state “briefly but specifically, the grounds relied on in support of the appeal”. Second, the amended notice of appeal is not marked up so as to clearly indicate the amendments. In fact, the amended notice of appeal is an entirely new document that bears little, if any, resemblance to the original notice of appeal. Whilst the proposed amended notice of appeal contains underlining, that underlining appears to be for emphasis, not to indicate the new parts of the notice.

27    The three proposed grounds of appeal, omitting the particulars, are as follows:

1.    The Court erred in not finding that the [Tribunal] erred in considering whether the [appellant] was entitled to complementary protection by only considering the test in section 36(2)(aa) on the basis of harm relevant to Convention protection, leading to a constructive failure to exercise jurisdiction, amounting to jurisdictional error.

2.    The Court erred in not finding that the [Tribunal] erred in failing to consider a claim or integer of a claim that arose on the material before it, namely that the appellant would face persecutory harm on the basis of an absence of travel documents and the fact the appellant had left Sri Lanka with documents obtained fraudulently, leading to a constructive failure to exercise jurisdiction, amounting to jurisdictional error.

3.    The Court erred in not finding that the [Tribunal] erred by engaging in unreasonable and illogical reasoning in making conclusions on particular matters, leading to a constructive failure to exercise jurisdiction, amounting to jurisdictional error.

28    Proposed appeal ground 2, though worded differently, is similar to the existing ground of appeal. Proposed appeal grounds 1 and 3, however, are entirely new grounds. The alleged errors on the part of the Tribunal were not the subject of any ground, submission or argument that was pressed in the court below. Accordingly, the primary judge made no findings in relation to those alleged errors. It is, therefore, somewhat misleading, if not nonsensical, to allege that the court below erred in the way contended in these grounds.

29    In SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 (SZKMS), Lander J was required to entertain an application to amend a notice of appeal in similar circumstances to this matter. His Honour noted that it would be undesirable for a number of reasons to permit an appellant to raise, for the first time, on appeal, new grounds for reviewing a Tribunal’s decision.

30    First, it would mean that the appeal court in effect becomes the de facto primary court. In those circumstances, the appeal court would be determining issues of fact and considering arguments for itself without the benefit of consideration and determination by the court from which the appeal is brought. That is particularly unsatisfactory where, as here, the appellate jurisdiction of the Court is being exercised by a single judge pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) and any appeal from that single judge is to the High Court of Australia. This Court’s role as an intermediate court of appeal would as a result be significantly undermined. The High Court would be burdened by applications for special leave to appeal from judges sitting alone who have not had their decisions reviewed on appeal.

31    Second, and perhaps more fundamentally, to allow new grounds to be raised for the first time on appeal would effectively defeat the statutory scheme in relation to judicial review of decisions of the Tribunal in respect of protection visas. Parliament has conferred jurisdiction in respect of such review applications on the Federal Circuit Court to the exclusion of this Court: s 476A of the Act. If new grounds are allowed to be advanced on appeal, that jurisdiction is effectively being exercised by this Court.

32    Third, there is ample authority to the effect that, other than in exceptional circumstances, a party should be bound by the conduct of his, her or its case: Metwally v University of Wollongong (1985) 60 ALR 68 at 71; [1985] HCA 28 at [7]; H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 at [6]-[8]; Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543; [2002] FCAFC 105.

33    In Coulton v Holcombe (1986) 162 CLR 1, a majority of the High Court (Gibbs CJ, Wilson, Brennan and Dawson JJ) said (at 7):

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

34    It is plainly not in the interests of the administration of justice for judicial review proceedings in the Federal Circuit Court concerning decisions of the Tribunal to be reduced to preliminary skirmishes.

35    There is no doubt that the Court has a discretion to allow a party to advance a ground of appeal not advanced in the court from which the appeal is brought where it is in the interests of justice to do so: Iyer v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71; [2000] FCA 1788 (Iyer). In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, the Full Court said (at [46]) that leave to argue a ground not raised before the primary judge should only be granted “if it is expedient in the interests of justice to do so” and that the Court may grant leave if the point has merit and there is no real prejudice to the respondent.

36    As Lander J pointed out in SZKMS (at [29]), however, there is a potential difficulty with a test that focusses on potential merit versus prejudice to the respondent in cases concerning judicial review applications in respect of decisions of the Tribunal. That difficulty is that the Minister will almost never be able to point to any real prejudice of the conventional kind. The test then simply becomes one of the potential merit of the new grounds. The same concern was expressed by Gyles J in Iyer (at [62]):

In my opinion, it is wrong to analyse the question which arises here as requiring a balancing of prejudice. Departure from the proper role of appeal in the court system is not simply a discretionary procedural decision. Furthermore, in public law matters like this, it can always be said that no actual prejudice apart from costs is suffered by the respondent compared with the prejudice to the appellant. It can easily be overlooked that there is a significant public interest in the timely and effective disposal of litigation. This aspect has particular force in this area of public law, where delays in dealing with applications for protection visas are obviously to be avoided if possible. In the present case, there was no bona fide ground of appeal from the primary decision and the litigation should have ended at that point more than 7 months ago. It is unnecessary, for present purposes, to go beyond the authorities cited by Mansfield J on the issue. Leave to argue the points sought to be raised should be refused. The appeal should be dismissed and the appellant ordered to pay the costs of the respondent. In coming to this view, I have had regard to the nature of the points sought to be argued, but not to the ultimate merits of those points.

37    The observations of Gyles J are apposite to the circumstances of this matter.

38    The following considerations strongly militate against the grant of leave to raise the new grounds (grounds 1 and 3 of the proposed amended grounds of appeal) that were not raised in the court below. First, the appellant was represented by solicitor and counsel in the court below. Second, it is readily apparent from the judgment of the primary judge that the appellant’s conduct of the case in the court below was less than satisfactory. The appellant attempted to change his review grounds on a number of occasions and was unable to proffer any satisfactory explanation for the failure to comply with orders in relation to the filing of an amended application. Third, the “new” grounds sought to be ventilated on appeal are very similar to those that were abandoned in the court below. The abandonment of those grounds would appear to have been a deliberate forensic decision by the appellant’s then solicitor and counsel. Fourth, the appellant has not advanced any evidence explaining why the new grounds were not raised in the court below. The appellant’s new counsel, who appeared at the hearing of the appeal, intimated from the bar table that he had a different view to the appellant’s counsel in the court below concerning the merits of these grounds. That is far from an adequate or satisfactory explanation. If it were, appellants might be encouraged to change counsel so they can present new and different arguments on appeal.

39    Fortunately, it is unnecessary to decide whether those considerations alone provide sufficient reason to refuse the appellant leave to rely on the new grounds. That is because, for the reasons that follow, neither of the two new grounds have any merit. This lack of merit, together with the other matters just referred to, provide sufficient reason to refuse the appellant leave to rely on the two new grounds. Accordingly, leave to file the amended notice of appeal is refused.

PROPOSED APPEAL GROUND 1

40    This proposed ground of appeal is couched in broad terms and purports to challenge the Tribunal’s decision on the basis that the Tribunal failed to consider whether the appellant met the complementary protection criterion in s 36(2)(aa) of the Act independently of its factual findings concerning whether the appellant met the Refugee Convention criterion in s 36(2)(a) of the Act. The suggestion appeared to be that the Tribunal only considered the question of complementary protection by reference to its factual findings in relation to the appellant’s claims concerning his fear of persecution on the basis of his Tamil ethnicity, his Hindu faith, or his perceived political connections with the LTTE. The appellant submitted that the Tribunal did not consider or assess the appellant’s claims in relation to a more “generalised” risk arising from the fact that he had refused his then friend’s attempts to get him to join the TVMP.

41    The appellant conceded that he did not clearly articulate, either before the Tribunal or at any earlier stage of his protection visa application, a claim that there was a real risk that, if returned to Sri Lanka, he would suffer significant harm at the hands of the TVMP, the Sri Lankan military, or anyone else, because back in 2006 he had refused to join the TVMP when asked to do so by Ramesh. That concession was properly made. The appellant was represented at the Tribunal hearing by a caseworker from the Refugee Advice and Casework Service (RACS). When asked about his claims at the commencement of the hearing in the Tribunal, the appellant agreed that his claims were based around the fact that he was a Tamil, a Hindu, that the Sri Lankan authorities would believe that he was an LTTE supporter and the fact that he would return to Sri Lanka as a failed asylum seeker. He did not suggest that he feared harm from anyone on the “generalised” basis that he had refused to join or support the TVMP.

42    In circumstances where this claim was not clearly articulated, the question becomes whether this supposed claim nevertheless clearly arose on the materials before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]-[63]. If the claim did clearly arise on the materials, the next question is whether the Tribunal dealt with it.

43    The appellant pointed to the following material that he contended clearly supported the existence of such a claim. First, the appellant pointed to the fact that the Tribunal accepted the appellant’s evidence that, in 2006, Ramesh attempted to recruit the appellant to join the TMVP and the appellant refused. The Tribunal also appeared to accept, or at least not reject, the appellant’s claim that Ramesh had threatened him as a result of his refusal. In that regard, however, the Tribunal noted (at [55]) that “the [appellant] was not concerned about the threat that the [appellant] claims was made by Ramesh after he declined to join the TMVP”. That is hardly consistent with a claim that there was a real risk that the appellant would suffer significant harm as a result of his refusal of Ramesh’s failed attempt to recruit him to the TMVP.

44    The appellant also pointed to the fact that paragraph 33 of the statutory declaration he submitted in support of his visa application, the appellant stated that he feared being attacked, detained or killed by the TMVP, armed groups and authorities if he was forced to return to Sri Lanka. In the very next paragraph of the statutory declaration, however, the appellant stated that the reasons he would be “targeted” were his race and religion, his imputed political opinion and membership of a particular social group as an LTTE suspect and “due to my political opinion arising from my refusal to assist the TMVP”. Thus, the appellant linked any risk that he would be harmed to his political opinion. Whilst not elaborated on, it would appear that the political opinion arising from his refusal to join the TMVP was that he supported the LTTE. That aspect of the appellant’s claim was repeated in similar terms in written submissions supplied to the Tribunal by the appellant’s legal advisers.

45    Finally, the appellant relied on the fact that, at [71] of the Tribunal’s reasons, the Tribunal referred to country information that suggested that “the TMVP and other Tamil militant groups who switched their allegiance to the government during the conflict … continued to be active in Sri Lanka, including in criminal activity”. That information was said to support a finding that there was still a risk that the appellant would be harmed by the TMVP, even though his refusal to join the TMVP was back in 2006.

46    It is difficult to see how any of the material relied on by the appellant in support of this proposed appeal ground could be said to clearly raise a claim that there was a real risk that the appellant would suffer significant harm from the TMVP, other than perhaps as a result of some perceived association with the LTTE arising from his refusal to join TMVP. To the extent that such a claim arose on the materials, the Tribunal dealt with it. The Tribunal stated as follows (at [71]):

…. The applicant did not claim that he had any further contact with or from the TMVP after that time other than in relation to an aspect of his claims surrounding telephone calls to his wife when the applicant was in Indonesia. He did not claim that he received any threats from the TMVP other than from Ramesh when he was connected to that organization and he also claimed that he feared being beaten by TMVP members if he did not do work for them. This was at the time he was building the sheds. The evidence before the Tribunal was that he was never beaten. The applicant did not raise before the Tribunal any additional specific claims to fear harm from the TMVP or provide any evidence to the Tribunal in relation to that claim other than his claim that his wife had received telephone calls while the applicant was in Indonesia and those calls were said to be threatening and the applicant claimed those threats came from Ramesh and the applicant claimed that he feared harm from the TMVP in connection to those calls. His evidence in relation to the TMVP claim was in practical terms related to his claims to fear harm from Ramesh. Having considered the applicant’s claims regarding the TMVP and the evidence I’m not satisfied that the applicant faces a real chance of persecution or faces a real risk of significant harm should he return to Sri Lanka on the basis of an imputed political opinion that he supported the LTTE by not assisting the TMVP or by having an imputed political opinion by not assisting the TMVP.

47    The appellant’s contention that the material clearly raised a claim that there was a risk of harm from the TMVP that was not linked to his political opinion, or imputed political opinion as an LTTE supporter, or someone who did not assist the TMVP, is rejected. The Tribunal dealt with and ultimately rejected any case or claim that clearly arose on the materials relating to a risk of harm arising from the appellant’s refusal to join the TMVP. It dealt with and rejected that claim in terms of both the Refugee Convention criterion in s 36(2)(a) and the complementary protection criterion in s 36(2)(aa) of the Act. The Tribunal did not constructively fail to exercise its jurisdiction by failing to consider and determine whether any aspect of the appellant’s claims satisfied the complementary protection criterion.

48    This proposed ground of appeal is really a classic example of an appellant’s legal advisers conducting an ex post facto trawl through the materials that were before the Tribunal with a view to reconstructing or piecing together some case that was never clearly articulated or apparent on the materials so that it can then be alleged that the Tribunal did not consider the claim and therefore did not properly exercise its jurisdiction. Worse still, in this matter either this trawling exercise was only conducted after judicial review proceedings in the Federal Circuit Court had been dismissed, or (as suggested by the appellant’s counsel) the appellant or his original legal advisers did not see any merit in the point at the first instance stage. Either way, the first attempt to ventilate this argument was on appeal to this Court. Such an approach to the judicial review of decisions of the Tribunal in the Federal Circuit Court, and to the conduct of appeals to this Court is, to say the very least, not to be encouraged.

49    Given that this proposed appeal ground was not a matter that was the subject of the application in the court below, and given it has no merit, leave to amend the notice of appeal by including this ground is refused.

Appeal ground 2

50    The question raised by appeal ground 2 is whether the primary judge erred in rejecting the appellant’s contention that the Tribunal failed to deal with two aspects of his claims: first, that he would be persecuted because he lacked normal travel documents; and second, because he had obtained his passport by submitting a false birth certificate that included an incorrect date of birth. The short answer to this ground is that the primary judge was correct to reject the contention that the Tribunal failed to deal with these aspects of the appellant’s claims.

51    In relation to the claim based on the fact that the appellant did not have any travel documents, it is clear, as the primary judge found, that to the extent that any such case was articulated or arose on the materials, it was simply part of the appellant’s case that he feared persecution if returned to Sri Lanka because he was a failed asylum seeker. The Tribunal accepted that the appellant would be returned to Sri Lanka without a passport. There was, however, nothing in the materials to suggest that the appellant claimed that he would be persecuted on that basis alone.

52    The appellant relied on one passage from written submissions provided to the Tribunal on his behalf by his RACS representative. That passage referred to the fact that the appellant lacked normal travel documents in the context of a claim that, as a failed Tamil asylum seeker with suspected links with the LTTE, he would be subjected to greater scrutiny and taken into police custody upon his involuntary return. There was, however, nothing to suggest that the fact that the appellant did not have a passport made his position any more perilous. As the primary judge found, the Tribunal dealt with the appellant’s claims insofar as they related to him being a failed asylum seeker.

53    In relation to the contention that the Tribunal failed to deal with the appellant’s claim that he would face persecution because he had fraudulently obtained the passport that he used to depart Sri Lanka, the primary judge was correct to find that the appellant never articulated any claim that he would face persecution on that basis. Nor did any such claim clearly arise on the materials before the Tribunal.

54    The Tribunal accepted, or at least did not reject, the appellant’s evidence that he obtained his passport by having someone submit a birth certificate containing a false date of birth. Nowhere, however, did the appellant suggest that this would result in him being persecuted upon his return. Nor was there any material before the Tribunal that was capable of supporting any such claim. The appellant relied on a passage in country information that was before the Tribunal that suggested that it was an offence in Sri Lanka to depart the country without a valid passport. This passage was never referred to or relied on by the appellant or his legal advisers in support of his review application. In any event, the evidence before the Tribunal did not necessarily support a finding that the circumstances in which the appellant obtained his passport meant that his passport was not valid, or that there was any possibility of him being prosecuted for such an offence, or that prosecution for an offence that applied to the population in general would in any event amount to persecution.

55    The primary judge was correct to characterise the appellant’s challenge to the Tribunal’s decision on the basis of this supposed claim as amounting to nothing more than a reconstruction made by the appellant’s lawyers well after the Tribunal’s decision had been made.

56    This ground of appeal is accordingly rejected.

Proposed appeal ground 3

57    Proposed appeal ground 3 contends that the Tribunal engaged in “unreasonable and illogical reasoning” in arriving at conclusions on “particular matters” with the result that the Tribunal constructively failed to exercise its jurisdiction. The proposed amended notice of appeal lists ten particulars of supposedly unreasonable and illogical reasoning. Eight of the particulars relate to findings or reasoning which, together with a number of other findings and circumstances, led the Tribunal to conclude that the appellant was not a credible witness and that he had inflated or exaggerated a number of his claims. The other two particulars relate to findings or reasoning that, to say the very least, were not important, let alone critical, to the Tribunal’s ultimate decision.

58    In reality, this proposed appeal ground, which was not ventilated at all in the court below, amounted to little more than a thinly disguised attack on the merits of the Tribunal’s decision. It was also based on a misunderstanding of the basis upon which a decision of the Tribunal can be found to have involved jurisdictional error on the basis of illogicality or irrationality.

59    Given that this appeal ground raised an argument not advanced in the court below, and that leave to amend to include this ground is to be refused, it is not an appropriate case in which to consider the precise scope of the illogicality or irrationality ground of judicial review. It is sufficient to make a few short points.

60    First, the Minister submitted that a decision of the Tribunal can only be overturned on the basis of illogicality or irrationality if it is shown that the end result is one at which no logical or rational decision-maker could arrive. That submission was based on the joint judgment of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS), where their Honours said as follows (at [130]-[131]):

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.

61    In Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT), Robertson J expressed the opinion that “the reasons of Crennan and Bell JJ in SZMDS in relation to the illogicality or irrationality ground of review do not support a focus limited to the end result, albeit the overarching question is whether the decision was affected by jurisdictional error” (at [151]). Robertson J also reviewed a number of authorities in this Court that had considered the reasoning of Crennan and Bell JJ. His Honour concluded that none of those authorities supported the limitation contended by the Minister. The authorities his Honour reviewed included Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 (per Kenny J at [40]-[41]); Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 (SZOCT) (per Jacobson J at [10], Buchanan J at [64] and Nicholas J at [71]) and SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (per Rares J at [2]-[4] and [15], McKerracher J at [82]-[85] and Reeves J at [113]).

62    The analysis by Robertson J of the reasoning in SZMDS is, with respect, plainly correct. It is clear that in SZMDS, Crennan and Bell JJ did not restrict their consideration of alleged illogicality or irrationality to the end result, being the conclusion about the state of satisfaction required by the prescribed criteria of the visa in question. Rather, they had regard to whether (at [132]) “findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error”. The “processes of reasoning” to which their Honours referred to included the processes of reasoning in relation to findings and conclusions upon which the ultimate decision was based. Nor is there anything in the reasons of Heydon J, who was the third member of the majority in SZMDS, that suggested that illogicality or irrationality can only be made out if the end result is one that no reasonable or rational person could arrive at.

63    Second, it is clear from the judgment of Crennan and Bell JJ in SZMDS that not every lapse in logic will give rise to jurisdictional error. If particular findings or reasoning “on the way” to the ultimate decision are challenged on the basis of illogicality and irrationality, it must be shown that the finding was not one that could have been made by, or reasoning that could not have been employed by, a reasonable or rational person. Emphatic disagreement does not suffice. If the finding of fact or reasoning employed was a finding or reasoning upon which reasonable minds might differ, it cannot be concluded that the finding or reasoning was illogical or irrational. As Robertson J put it in SZRKT (at [148]):

In my opinion, the ground of “engaging in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds” is to be taken to refer to extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal.

64    Third, whilst the inquiry may not be limited to the question whether the end result is illogical or irrational, it does not follow that the ultimate decision will be found to have been affected by jurisdictional error if it can be shown that any finding made, or any reasoning employed, by the decision maker on the way to that ultimate decision may have been illogical or irrational. If the impugned finding or reasoning was immaterial to the ultimate decision, it is difficult to see how the decision could be said to have been affected by jurisdictional error: cf. SZRKT at [158]; SZOCT (per Nicholas J at [83]-[84]). Likewise, if the ultimate decision was supported by other findings that were open on the evidence, and other reasoning that was logical and rational, there may be no proper basis for concluding that the ultimate decision was so infected by the impugned finding or reasoning as to involve jurisdictional error.

65    It is not desirable, and perhaps not possible, to come up with a single test or form of words to determine or describe when some illogical or irrational fact-finding or reasoning on the way to arriving at the ultimate decision can be said to sufficiently infect the final decision so as to constitute jurisdictional error. Each case and each decision must be considered having regard to the particular facts and circumstances of the case. Ultimately, it will depend on the nature and degree of the illogicality or irrationality involved.

66    An example, apposite to this case, may assist in illustrating this point. Many decisions of the Tribunal ultimately turn on findings about the honesty and credibility of the review applicant. If the Tribunal finds that the review applicant was not a credible witness and had falsified or exaggerated the claims that provided the basis for the claim that they had a well-founded fear of persecution, or were at risk of significant harm, it is likely to be open to the Tribunal to find that it was not satisfied that the review applicant was a non-citizen to whom Australia owed protection obligations. Often an adverse credibility finding is based on a number of facts and circumstances. If one of the findings, or the Tribunal’s reasoning based on that finding, could be said to be illogical or irrational, it does not necessarily follow that the Tribunal’s ultimate decision was affected by jurisdictional error. If the degree and nature of the illogicality or irrationality was not significant, and other facts and circumstances found by the Tribunal were capable of logically and rationally supporting the adverse credibility finding, or even that reasonable minds might differ based on those matters, it could not be concluded that the adverse credibility finding was illogical or irrational. Nor could it be found that the Tribunal’s decision that it was not satisfied that the visa applicant was a non-citizen to whom Australia owed protection obligations involved jurisdictional error.

67    If, on the other hand, the illogicality or irrationality involved was extreme and significant, such that the adverse credibility finding was no longer supported by rational or logical findings or reasoning, that may be sufficient to support a conclusion that the Tribunal’s ultimate finding, its lack of satisfaction that the visa applicant had satisfied the criteria for a protection visa, was affected by jurisdictional error. That would almost certainly be the case if the Tribunal’s lack of satisfaction was not based on any independent finding that was unaffected by the illogicality. As has already been emphasised, however, generalisations are not desirable. There is no single test or form of words to describe what is sufficient. Each case must be considered on its own facts and circumstances.

68    It remains to briefly consider the ten particulars that the appellant put forward as supporting a finding that the Tribunal’s ultimate decision was affected by jurisdictional error. Each of them can be dealt with in short terms. That is because, even if any of the individual findings or reasoning involved any illogicality or irrationality, which in most, if not all, cases is doubtful, the nature and degree of the illogicality was not serious and certainly not such as to infect the Tribunal’s ultimate decision.

69    The first particular concerns nothing more than an observation or aside made by the Tribunal (at [72]) concerning the availability to the appellant of state protection. It suffices to say, in relation to that particular, that even if some illogicality was involved, the Tribunal made no finding concerning the availability or otherwise of state protection. That is because the Tribunal found, in effect, that it was not satisfied that the appellant was in need of state protection. Any illogicality involved in the Tribunal’s observation about state protection was immaterial and irrelevant to the ultimate decision by the Tribunal.

70    The second particular relates to the Tribunal’s finding that the appellant was able to leave Sri Lanka on his own passport. The appellant contended that this finding was illogical because the appellant gave evidence that he obtained his passport using a false birth certificate. That fact does not undermine the Tribunal’s finding at all. It certainly does not make it illogical or irrational. In any event, the finding that the appellant left Sri Lanka on his own passport was only one of many facts and circumstances that led the Tribunal to conclude that the appellant was not seen by the Sri Lankan authorities as having any connection with the LTTE. That finding was logically and rationally supported by the material before the Tribunal.

71    The remaining particulars are all individual findings or aspects of the Tribunal’s reasoning which led it to find that the appellant was not a credible witness. It is unnecessary to consider those particulars individually. That would give them more credit than they deserve. None of them rise any higher than findings or reasoning that the appellant, or his legal advisers, apparently disagree with. None of them involve any illogicality or irrationality, let alone serious or extreme illogicality or irrationality. They all involve matters about which reasonable minds might differ. Most of them involve nothing more than issues concerning matters of weight or impression. Indeed, most of them involve nothing more than quibbles about minor factual findings, or minor aspects of the Tribunal’s reasoning which, whether considered individually, collectively or cumulatively, amount to only a small part of the Tribunal’s overall findings and reasoning that led it to conclude that the appellant was not a credible witness.

72    Two examples will suffice. Particular 3 concerns the Tribunal’s observation that it had difficulties with the appellant’s evidence that he was detained by the police in October 2011. One of the stated difficulties was the fact that the civil war in Sri Lanka ended in May 2009. The appellant contended that this reasoning was irrational because there was some material before the Tribunal that suggested that persons with LTTE links continued to be detained after the end of the war. Even if that be so, the weight that the Tribunal gave to the fact that the war ended in May 2009 was entirely a matter for it. Reasonable minds might differ as to whether that matter was deserving of any weight in the scheme of things.

73    Particular 6 concerns the Tribunal’s finding that there was a discrepancy between the appellant’s accounts in respect of how long he was detained by the TMVP in November 2006. The Tribunal’s reasoning in that regard is said to be illogical because the discrepancy was between one account where the appellant said five days, and one account when the appellant said “a week”. It may well be that some would regard this as a trivial discrepancy. But again, it is a matter about which reasonable minds might differ. More significantly, this was but one of many findings relating to discrepancies, or other issues or problems, with the appellant’s evidence. The appellant’s argument may have had some substance if the Tribunal’s adverse credibility finding was based on this discrepancy alone.

74    The fact that the Tribunal gave some weight to all or any of the particularised matters does not mean that the Tribunal’s reasoning was illogical or irrational. Still less does it mean that the Tribunal’s overall reasoning concerning the credibility of the appellant’s evidence was undermined to any significant extent, given that there were a number of other matters which led it to conclude that the appellant’s evidence was not credible.

75    This sort of parsing and pernickety challenge to the Tribunal’s factual findings, particularly factual findings concerning credit and credibility, under the guise of a supposed illogicality or irrationality review ground, is not to be encouraged. It amounts to little more than impermissible merits review. That is not to say that adverse credibility findings can never be challenged on the ground that the finding, and the Tribunal’s ultimate decision based on it, was illogical or irrational. As Flick J pointed out in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31], adverse credibility findings do not shield a Tribunal’s decision-making processes from scrutiny. The particulars relied on by the appellant in this matter, however, fell well short of demonstrating a proper basis for finding jurisdictional error on the basis of illogicality or irrationality. There was no demonstrated illogicality or irrationality, let alone extreme illogicality or irrationality that would support a finding of jurisdictional error.

76    Given that this ground was not ventilated in the court below and in any event has no merit, leave to amend the notice of appeal to include this ground is refused.

CONCLUSION AND Disposition

77    Leave to amend the notice of appeal to include the two grounds (grounds 1 and 3) that were not the subject of the appellant’s application in the court below is refused. The sole ground of appeal (either as particularised in the original notice of appeal, or as ground 2 in the proposed amended notice of appeal) has no merit. The application must accordingly be dismissed. In all the circumstances, it is appropriate that the appellant, as the unsuccessful party, be ordered to pay the Minister’s costs as agreed or assessed.

78    The orders of the Court are as follows:

1.    The name of the second respondent be amended to the “Administrative Appeals Tribunal”.

2.    Leave to amend the notice of appeal filed 22 July 2015 be refused.

3.    The appeal be dismissed.

4.    The appellant is to pay the costs of the first respondent as agreed or assessed.

Associate:

Dated:    5 February 2016