FEDERAL COURT OF AUSTRALIA

AMZ15 v Minister for Immigration and Border Protection [2016] FCA 1195

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

1    The appellant is a Sri Lankan national, who desires a protection visa to enable him to remain in Australia. Like any other visa, provided the application is valid the Minister must grant the visa if he is satisfied that the relevant statutory criteria have been met; if not, he must refuse to grant it: Migration Act 1958 (Cth), s 65. The principal criteria for the grant of a protection visa are contained in s 36 of the Act. Relevantly they include the criterion in s 36(2), which at the time required that the appellant be:

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

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

2    Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”) to anyone who is a “refugee” within the meaning of the Convention. That includes any person who, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …”

3    The appellant arrived in Australia on 16 July 2012 as “an unauthorised maritime arrival”, having entered Australia by boat at Christmas Island and, by reason of that entry, becoming “an unlawful non-citizen” (Migration Act, s 5AA). He claims to fear persecution in Sri Lanka because he is an ethnic Tamil, because political opinions sympathetic to the Liberation Tigers of Tamil Eelam (“LTTE”) have been imputed to him, and because of his membership of two particular social groups: Tamil men who have either been active or suspected of being active in the LTTE or affiliated with the organisation and Tamil men who have escaped from Sri Lanka and sought asylum in a western country. His application for a protection visa was initially considered by a delegate of the Minister who was not satisfied that the appellant satisfied the criterion contained in s 36(2) of the Act. He applied to the Refugee Review Tribunal (the functions of which are now carried out by the Administrative Appeals Tribunal) for review of that decision. The Tribunal affirmed the delegate’s decision. The appellant then applied to the Federal Circuit Court seeking, amongst other things, to have the Tribunal decision quashed and the Tribunal reconsider and redetermine his application for review of the delegate’s decision according to law. But that application was also unsuccessful and the Federal Circuit Court made an order dismissing the application. This is an appeal from that order.

The original claims

4    In a statement dated 22 November 2012 which accompanied his visa application, the appellant made the following claims.

5    He is an ethnic Tamil of the Hindu religion who fled Sri Lanka for Australia in fear for his life. He had been a supporter of the Tamil National Alliance (“TNA”) since he was 18. In about 1995 his wife’s brother left school to join the LTTE and, because of his brother-in-law’s involvement with the LTTE, the Sri Lankan army suspected his entire family of involvement with that organisation. After the Sri Lankan civil war ended, his vehicle was stopped at an army checkpoint and he was asked for his identity documents. When he did, “the army” “ripped” his document, asked him if he supported the LTTE, made him lie face down on the road, and hit him on the back and shoulders with sticks and guns. He went to hospital for treatment for his wounds and has an ongoing problem with one of his thumbs.

6    After the 2010 Presidential election in which he had supported the TNA, the army came to his home and demanded that his son drive for them. They took his son to an army camp for questioning, after which his son was very afraid and asked his father to send him out of the country. Within a week of his son’s release from the camp, the appellant arranged for him to go to Saudi Arabia. Later, “the army” returned to the appellant’s house, demanded that he drive for them, and beat him. A week after his son left the country, “the army” came to his house looking for his son and questioned his wife about their son and the appellant, accusing both of them of involvement with the LTTE and threatening to kill them. He became very afraid, stopped working as a taxi driver, sold all his vehicles, and never returned home. His family then moved around from place to place and he stopped his active support of the TNA. In 2012 “the army” returned to his home during the night and interrogated his daughter about his and his wife’s whereabouts. After the appellant left the country, his wife told him that “the army” returned again to his home looking for him.

7    The appellant fears that he will be killed and tortured because he is a Tamil from the Eastern Province who is involved in Tamil politics and is suspected of being associated with the LTTE. He does not think that the Government will protect him from harm because they do not protect Tamils, especially those from the Eastern Province.

8    Since he has been in Australia, his mind has been filled with worries about his family and he has felt “quite confused”. He has found it very difficult to remember when things happened and he had difficulty answering questions in his entry interview and when writing his statement. He was in tears while doing so.

9    On 6 December 2012 he submitted a far lengthier statement which expanded on his background and history and his reasons for fearing persecution. Annexed to the statement were several articles about the plight of Tamils in Sri Lanka.

The invitation to attend a Tribunal hearing and its aftermath

10    On 19 December 2014 the Tribunal wrote to the appellant to advise that it had considered the available material but was unable to make a favourable decision on that information alone. Accordingly, he was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case (see Migration Act, s 425). The hearing was fixed for 30 January 2015. That morning medical records from Cumberland Hospital were emailed to the Tribunal. They revealed the following information.

11    On 16 October 2014 the appellant was admitted to Cumberland Hospital, having been transferred from Westmead Hospital. He had been taken by his son to Westmead Hospital due to his mental state, which had declined over the previous few weeks. The appellant reported not sleeping well over that time, hearing voices in the Tamil language, intense at night, telling him that some people would kill him and his son. He said that he was very concerned about the safety of his wife and three other children who remained in Sri Lanka. He reported that his wife’s brother was involved in the terrorist organisation, LTTE. He was diagnosed with an adjustment disorder, PTSD, and generalised anxiety disorder.

12    The hospital notes also indicated that he had had a previous admission to Logan Hospital (in Queensland) from 2 to 9 December 2013.

13    On 3 November 2014 the appellant was referred by his GP to a psychologist, suffering from depression and post-traumatic stress disorder (“PTSD”).

14    The hearing took place as scheduled on 30 January 2015.

15    The appellant was questioned through an interpreter over a period of about an hour and a quarter. When asked whether he remembered what month and year the “army round up” took place, he said he did not. The Tribunal member reminded the appellant that the war ended in May 2009 and asked him whether he remembered roughly how long after it the army came to his home. He did not. He also said that he did not remember when his brother-in-law had died, why he had died, or how he had died.

16    At one point during the interrogation the member informed the appellant:

I just want to give you my understanding of your evidence today about the problems you had with the army once the war finished. Essentially there was one problem; you had gone to your brother-in-law’s home, he died, you pay tribute, some photos were taken and when you got back home the army came and saw the photos. They said that because of the brother-in-law they suspected you were in the LTTE, they hit you and then they left. You then went into hiding and came to Australia. You did not know of any problem your son … had except that after this occasion when the army came to your home you sent him to Saudi Arabia so he would be safe. This is quite different from what you have said in your written statements. You made a written statement in November 2012, in this statement you say how after the war ended at a checkpoint the army beat you.

After that in 2010 you were helping the TNA, and then the army came and took your son … away to a camp, and you thought they had tortured him, but he wouldn’t tell you what happened. But because of that, you arranged for him to go to Saudi Arabia. Then one week after he left the army came back again, and they said that you and [your son] were in the LTTE, and after that you stopped work and you stopped living at home and you did that until then you left Sri Lanka. Now, why didn’t you tell me about all of those things today?

17    The appellant’s response was:

I don’t remember. My memory is not good.

18    The following exchange then took place:

TRIBUNAL:     Well, is what you said in this written statement of November 2012 that I just read to you, is that correct?

APPELLANT: This is the problem. That’s why.

TRIBUNAL:     But is what I read to you from that statement, is it correct?

APPELLANT: This is the problem. This is the problem I have because of my brother-in-law and the photographs.

TRIBUNAL:     But, you know, there’s no mention in this written statement about these photographs.

APPELLANT:     Yes, I didn’t say that at the time because I had family issues. My family, they didn’t stay at one place and they’ve been moving from here and there, so I couldn’t concentrate and I didn’t say that at the time.

TRIBUNAL:     Now, you made two further written statements in December 2012, and in these statements you say that after 1995 the army suspected your family were in the LTTE because at that time your wife’s brother … joined the LTTE, and you then talk about the army demanding your vehicle, and again taking away your son … Again that’s all different from what you told me today. Do you wish to comment on that?

APPELLANT: My mind is not clear, you know. My brain can’t working, you know. I told you this is the problem that I have (indistinct) there’s nothing else I’d like to say.

TRIBUNAL:     I also notice that, as I said to you before, in your first statement you say how in February 2010 you sent your son to Saudi Arabia, and one week later you went into hiding. In the statement you did in December 2012 you say something different. You talk about again that you sent your son to Saudi Arabia in February 2010, but you say that it is not until March 2012 that you go into hiding. You say that it was because at that time the army came with guns looking for you. So why did your two written statements give different dates as to when you went into hiding?

APPELLANT:    This is the truth. I don’t remember. I don’t remember and I don’t know what to say because I was slumming here and there to protect my life. I didn’t think about, you know, saying everything in sequence and things like that so.

TRIBUNAL:    In your first statement you say that in 1995 your wife’s brother joined the LTTE, and for that reason then the army suspected your family of involvement with the LTTE, and you say that as a result your brother … was put into detention for two years from that time. In your later statement you say that in fact [your brother] was put in jail long before then in 1986. No why is that?

APPELLANT:    I don’t remember. My memory is not good. I’m worrying what I’m going to do and it’s not good. It’s true he was in jail, but I don’t remember.

TRIBUNAL:     In your written statements again you talk about how when your wife’s brother joined the LTTE then the army thought the whole family were in the LTTE, and then you say how eventually your family got a letter from the LTTE saying that your wife’s brother got killed, and that was a letter you said was written in 2001. ... Now, look, I find all of that very different from your account today, which was that the army started suspecting you of supporting the Tigers after you had gone to your wife’s brother’s home to see him, but found out he was dead, and some photos were taken. Do you wish to make any comment about that?

APPELLANT:    This is the problem. I told you are ready I go back to my life by the army so I have already told you what my problem is, and that there is nothing to say. My brain is not working. I don’t remember and I’m not having enough sleep so. That’s much I can tell you (indistinct).

(Emphasis added.)

19    I will return to the answers and part answers emphasised above later in these reasons.

20    After the Tribunal member finished questioning the appellant, he turned to his migration agent and asked him whether he had anything to add. He told him that he had some submissions to make about the appellant’s mental condition and “his inconsistency in his evidence”. In fact, he made no submissions. Rather, he asked the Tribunal member how much weight he put on “the health documents”. The member replied that he would take them into account. The migration agent then asked him whether he needed to “get more detail”. The Tribunal member told him it was not for him to say but that if he wanted more time to do that, then he would give him that time.

21    Later, records relating to the earlier hospital admission in Queensland were furnished to the Tribunal. According to the hospital notes, the appellant had been brought in by ambulance and police who had been contacted by his housemates who felt threatened that he was sleeping with a knife under his pillow. Through a Tamil interpreter he stated that he could hear the voices of “the boys from the next room”, saying that they wanted to bomb the place or shoot him. He was concerned that his housemates were practising a type of black magic on him, which gave him headaches or made him feel tired or weak. He stated that he kept a knife under his pillow for self-protection. He had become paranoid that his son was trying to poison him and had begun to eat separately. He also believed that people had threatened to kill or rape his wife. His son reported a deterioration in his father’s mental state over five weeks, during which time he was talking to himself and gesturing in the mirror and had run away from home in the middle of the night. The son said his father’s sleep had deteriorated over the past three weeks and his father had not eaten for the past three days. The notes included a past history of trauma in Sri Lankan: “tortured by the military”. The diagnosis was of a psychotic disorder.

22    A summary of treatment he had received from a social worker/counsellor at the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”), dated 17 January 2015, and a report by a clinical psychologist from STARTTS dated 5 March 2015 were also submitted.

23    The psychologist conducted a mental state examination of the appellant on 27 February 2015. Amongst other things, the appellant reported experiencing ongoing worry and ruminating thoughts about being deported to Sri Lanka where he believed he would be imprisoned and killed, as he believed that fleeing the country would be perceived by the army as an admission of guilt. He also reported ruminating about never seeing his children again. He told the psychologist that when ruminating thoughts of this kind were triggered he suffered a number of symptoms including constant nervousness, heart palpitations and dizziness, difficulty breathing, body tension and shaking, restlessness, headaches, and experiences of panic (all of which, the psychologist noted, are symptoms associated with hyperarousal). He reported recurrent intrusive memories and vivid flashbacks of the trauma he said he had experienced, which exacerbated the symptoms of hyperarousal.

24    During the assessment, the psychologist made a number of significant behavioural observations. Relevantly, she wrote:

[W]hen [the appellant] spoke about experiencing beating and harassment in Sri Lanka he was fidgeting in the chair during the disclosure, his speech was rapid and at times he seemed to dissociate during disclosure. He also presented with signs of low mood and sadness particularly when he spoke about his family. At these times he was teary and he had to take small pauses and would sigh while speaking.

25    Later in the report, in the course of her discussion of the PTSD and anxiety-related symptoms, the psychologist noted:

Due to his preoccupation with rumination and re-collections (sic) of traumatic experiences and accompanied emotional distress, [the appellant] stated that he is often not present in reality and has difficulties recalling things, often having to be reminded of the conversations that took place or things that he did, indicating the presence of dissociation and dissociative states. This was also observed during the assessment session as [the appellant] struggle to recall details of his past and current experiences, his recollections were fragmented and not in chronological order, and at the point of escalated distress, he was experiencing dissociative reactions.

(Original emphasis.)

26    The psychologist diagnosed the appellant with PTSD and major depressive disorder. She recommended ongoing psychological treatment and supportive counselling and strongly recommended a full psychiatric assessment “with the aim of determining aspects of his dissociative states and presence of auditory hallucinations as well as the review of the psychopharmacological management of his symptomatology” and ongoing psychiatric monitoring to evaluate and manage his suicide ideations. If any such assessment took place, the results were not proffered to the Tribunal.

27    Notably, the psychologist said that “memory deficits and fragmented recollections, dissociation as well as avoidance of triggers of the trauma and irritability, are … clinical features associated with PTSD”. She also wrote that the appellant was unable to explain the reasons for his earlier hospitalisation “due to memory impairment”.

28    No submissions were made to the Tribunal as to the significance of this material or the extent to which, if at all, it could or did explain the inconsistencies in the appellant’s accounts.

The Tribunal decision

29    The Tribunal had a number of concerns about the appellant’s credibility based on inconsistencies between statements he had provided to the Department and his oral account to the Tribunal, which differed in material respects from those statements.

30    In the result, the Tribunal concluded that the appellant was not a witness of truth and determined that the account of events on which his visa application rested was false.

31    The appellant attributed the inconsistencies in his evidence to his mental state. According to the Tribunal, he claimed not to be able to concentrate, not to have a clear memory, to be unable to say things in sequence, and not to be getting enough sleep.

32    The critical part of the Tribunal’s decision appears in [28]–[29]. It begins with a reference to the report of the clinical psychologist:

28    According to this evidence, symptoms reported to a psychologist by the applicant reflected, in the opinion of that psychologist, chronic post-traumatic stress disorder and major depressive disorder. This was said to be due to claims the applicant made about his past difficulties with the Army in Sri Lanka and ongoing worry about returning there. This caused the applicant to have difficulty recalling certain things and in overall functioning. The applicant was admitted to hospital in December 2013 and in November 2014 due to his mental health for which he was taking medication and for which the psychologist recommended he continue to receive treatment.

29    The Tribunal has carefully considered this medical evidence and the applicant’s own claims about his mental state. The Tribunal can appreciate how someone in the applicant’s mental state, as assessed in his medical evidence, could have difficulty recalling certain events including consistently recalling when they occurred. However, even making allowance for this, the inconsistencies in his account relate to fundamental matters in his life about which he can be reasonably expected to give a consistent account. The Tribunal does not accept that these inconsistencies can be explained or excused due to his mental state.

33    It was common ground in the appeal that the “fundamental matters in [the appellant’s] life” to which the Tribunal was referring in [29] were those matters mentioned at [27] of its reasons:

    the appellant’s son being taken and held by the Army;

    when he and his wife went into hiding; and

    the reason for the Army’s suspicion that he and his family were involved with the LTTE.

34    The Tribunal appears to have accepted the assessment of the clinical psychologist that the appellant suffered from post-traumatic stress and major depressive disorders. But the Tribunal did not consider that there was any credible evidence of the cause of those conditions (at [58]). Nor did the Tribunal consider that those conditions exposed the appellant to a real chance that he would suffer serious harm if he were to return to Sri Lanka, saying that once his immigration status had been resolved his mental state “could well improve” and noting that once he returned to Sri Lanka he would have the support of his family to help him access any necessary treatment (at [36], [58]).

35    The Tribunal concluded from independent country information that the risk of a Tamil returnee suffering serious or significant harm upon returning to Sri Lanka was “remote” (at [45]–[46], [53]–[59]).

The application to the Federal Circuit Court

36    The application contained four grounds:

(1)    The Tribunal failed to comply with s 425(1) of the Act, by failing to invite the appellant to give evidence and present arguments on whether he could be reasonably expected to give a consistent account about “fundamental matters in his life” ([29]), whether his mental state could possibly improve once the uncertainty about his immigration status was resolved, and whether he would have the support of his family to help him access treatment in Sri Lanka ([36], [58]), those issues not being obviously open on the known material.

(2)    The decision was illogical or irrational.

This ground challenged the reasoning in [29]. The appellant pleaded that it was not open to the Tribunal to engage in this process of reasoning and to make the finding that it did, “including because”:

(i)    there was only one conclusion open on the evidence … — that the applicant could not be reasonably expected to give a consistent account, including about “fundamental matters in his life” or any other matter — and that conclusion was not reached; or

(ii)    the decision ... that the applicant could be reasonably expected to give a consistent account about “fundamental matters in his life” … was not open …; or

(iii)    there is no logical connection between the evidence before the tribunal (including the medical evidence about the applicant’s mental condition and oral evidence he provided at hearing) and the inference made by the tribunal that the applicant could be reasonably expected to give a consistent account of “fundamental matters in his life”.

(3)    The Tribunal made critical findings (at [29], [36] and [58]) without probative evidence.

(4)    The Tribunal’s decision was legally unreasonable because there was no evident and intelligible justification for the conclusions at [29], [36] and [58].

The decision of the primary judge

37    In relation to ground 1, the primary judge held that what the Tribunal said at [29] was not an issue arising on the review but a reason given by the Tribunal for rejecting the appellant’s explanation for the inconsistencies in his evidence. His Honour said that it was clear on the authorities (citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152) that it is unnecessary for the Tribunal to give an applicant advance warning of an adverse finding, “unless not obviously open on the known materials, or to give an applicant a running commentary on his or her evidence”. His Honour accepted that the appellant’s mental state was an issue arising on the review, but said it was one that the appellant raised, and held that it was unnecessary for the Tribunal to give the appellant an advance warning that it might not accept what he said about it. As for the matters considered by the Tribunal at [36] and [58], his Honour held that they were “not … issues necessitating ventilation at the hearing”. He described them as “merely observations about hypothetical possibilities”, rather than issues relevant to the review, noting that the appellant had not made a claim that his mental health was relevant to his substantive claims for protection.

38    With respect to ground 2, the primary judge rejected the contention that the Tribunal’s reasoning or its conclusion in [29] was illogical or irrational. It is convenient to reproduce his Honour’s reasons on this question in full:

31.    The acceptance of the applicant’s argument would produce a conclusion that, upon presentation of the medical evidence, the Tribunal was in effect bound to either avoid making a finding that the inconsistencies in the applicant’s evidence supported a conclusion that the claims were false, or to adjourn the review and the hearing pending confirmation that the applicant would be of sufficient capacity to participate in the hearing.

32.    The applicant’s approach, at least in this case, unjustifiably confines the Tribunal’s area of decisional freedom. Unlike the circumstances that arose for instance in Minister for Immigration v SCAR [(2003) 128 FCR 553], the Tribunal was alive to the applicant’s mental health problems, and in particular detail, having had the benefit of reading various medical reports about the applicant’s symptomology and treatment recommendations. The Tribunal’s statutory function was to determine, in full knowledge of the relevant material submitted to it by the applicant, whether the applicant’s evidence was given consistently and truthfully, and consequently, whether it should be believed. This process of determination is at the heart of the Tribunal’s review function.

33.    Adopting, as the applicant does in his written submissions, a strict logic approach to interpreting the Tribunal’s reasons is prone to lead to erroneous consideration of the actual reasons given by the Tribunal, understood in context. The Tribunal did not find, as the applicant appears to assert, that the applicant had PTSD, that people with PTSD cannot consistently recall any events, and the applicant was expected to be able to recall fundamental matters in his life. A fair reading of the Tribunal’s reasons reveals rather that the Tribunal accepted the applicant had mental health issues, which could affect a person’s ability to recall certain events consistently, but that the applicant was reasonably expected to have been able to recall momentous events in his life notwithstanding his PTSD. There was nothing illogical about this reasoning.

34.    It was open for the Tribunal, having regard to the evidence before it as to the applicant’s mental state, to assess whether the evident inconsistencies and vagueness in the applicant’s evidence was explicable by virtue of his mental health condition, or whether it was indicative of a person who was not giving a truthful account of his claims. The Tribunal reached the latter conclusion. It formed this view upon the basis of its evaluation of the applicant’s evidence, and the manner of its presentation. Unless it could be said that the former option was the only option open on the evidence, and the Tribunal failed to take that option, then the Tribunal’s decision is not properly characterised as irrational or illogical in accordance with Crennan and Bell JJ’s judgment in SZMDS.

39    His Honour relied on the same reasons to reject ground 4. It is unnecessary to refer to his reasons for rejecting ground 3, as they are not challenged in the appeal.

The appeal

40    The grounds of appeal took issue with the primary judge’s conclusions concerning grounds 1, 2 and 4, claiming errors in each respect.

41    Ground 1 of the notice of appeal pleads that the primary judge misconstrued or misapplied the judgment in SZBEL and should have found that the Tribunal failed to comply with s 425 of the Migration Act.

42    Ground 2 pleads that the primary judge erred by not finding that the Tribunal’s decision was illogical or irrational, misdirecting itself (at [31]–[32] and [34]) by considering whether the appellant was sufficiently capable of participating at a hearing before the Tribunal, failing (at [33]–[34]) to “properly or adequately consider and apply the test for illogicality or irrationality to the tribunal’s reasons and conclusions given the evidence before the tribunal and its ‘decisional freedom’”, and (at [34]) misconstruing or misapplying the test for illogicality or irrationality as expressed by Crennan and Bell JJ in SZMDS.

43    Ground 3 pleads that the primary judge erred (at [26]–[34] and [46]–[47]) by failing to “properly or adequately” consider whether the Tribunal’s decision was legally unreasonable or by erroneously “conflating” the tests for illogicality and irrationality on the one hand and legal unreasonableness on the other.

Did the primary judge misconstrue or misapply SZBEL and fail to comply with s 425 (ground 1)?

44    Section 425(1) of the Migration Act provides that “[t]he Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review”. Subsection (1) is excluded in certain circumstances (including where the Tribunal is disposed to find in the applicant’s favour on the papers or where the applicant consents (see subs (2)) but none of those circumstances applied in the present case. The obvious purpose of s 425 is to ensure that the applicant has an opportunity to be heard against the possibility that his or her application will not be successful.

45    In SZBEL the High Court held that, in the absence of any notification by the Tribunal to the contrary, an applicant is entitled to assume that the issues the delegate considered dispositive of the application are the issues arising in relation to the decision under review and if the Tribunal is inclined to reach its decision by reference to another issue, a failure to notify the applicant would be a denial of procedural fairness. The Court said at [35]:

The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

46    The appellant complained first that the primary judge did not consider the transcript of the Tribunal hearing when it disposed of this point at [22]–[23], instead improperly confining himself to the decision record. The appellant also complained that the primary judge did not consider whether the Tribunal’s conclusion at [29] was discussed at the hearing.

47    The appellant contended that the Tribunal was obliged to put to an applicant its own appraisal of the evidence if it was not an “obvious and natural appraisal” (SZGQZ v Minister for Immigration and Citizenship [2007] FCA 1091, [16]–[17]) and that the conclusion that the appellant could be reasonably expected to be able to recall “fundamental matters” was not an “obvious and natural appraisal” and found no support in the evidence. Indeed, the appellant submitted that it “tended to be contradicted by ... the evidence”.

48    The appellant also submitted that the primary judge was wrong to consider (at [23]) that the delegate had made no findings about the appellant’s mental state, that the delegate did not consider the appellant’s ability to provide a consistent account, nor have any expectation that he could give a consistent account about “fundamental matters in his life”.

49    I reject these submissions.

50    The primary judge was correct to observe that the delegate made no findings about the appellant’s mental state. The submission to the contrary was based on an erroneous reading of his Honour’s reasons and the emphasised parts of the following passage in the delegate’s reasons (at AB212–3):

I acknowledge that applicants may have difficulties recalling certain details, depending on their personal circumstances, that previous trauma and the journey here can cause difficulties, and that applicants may have difficulties when being interviewed by authority figures. However, the applicant’s entry interview was conducted over 2 months after he arrived, which I would consider sufficient time to recover from the boat journey, and be able to recall events reasonably accurately. I also consider that these questions are simply put, and would not cause confusion to applicants. As I have noted, the applicant was able to understand and respond clearly to the subsequent question regarding membership of social or religious groups, and so it is reasonable for me to consider that he would have understood and been able to accurately answer the previous question regarding participation in politics, or at least to answer accurately whether or not he was involved, even if he could not describe his activities fully. Furthermore, the applicant claims to have been a constant supporter of the TNA since he was 18, i.e. for over 30 years. I do not consider that if this was genuinely the case, that he would not recall or be confused about this.

(Emphasis added.)

51    To the extent that the delegate touched upon the possibility of a mental health explanation for the difficulties in the appellant’s account, her remarks were generic. They related to applicants in general, not this applicant in particular. More importantly, perhaps, as the Minister submitted, the delegate made findings with respect to the appellant’s inability to recall events it was expected he should be able to recall. For this reason, reliance on SZBEL is misplaced. The appellant was already on notice that this was an issue arising on the appeal.

52    In any case, at [29] of its reasons the Tribunal was not raising a new issue. It was dealing with the material proffered by the appellant’s migration agent to explain the inconsistencies in his account. The failure of the primary judge to refer to the transcript does not bespeak error. The appellant’s point was that it was apparent from the face of the transcript that the appellant was not given an opportunity to comment on the conclusion the Tribunal reached at [29]. But the primary judge implicitly accepted as much. His Honour’s opinion was that the Tribunal had no obligation to afford him that opportunity. The question is whether that opinion was wrong. It was not, for the reasons his Honour gave.

53    The appellant submitted that none of the medical or other evidence suggested an ability of PTSD sufferers generally or of him in particular to provide consistent accounts. That may be so but none of that evidence indicated that the appellant’s inability to do so “in relation to fundamental matters in his life” could be explained by his mental condition. The attention of the experts does not appear to have been drawn to the inconsistencies raised by the Tribunal. Nor do the experts appear to have been asked for their opinions on whether the appellant’s mental disorders could account for the inconsistencies. Certainly, there was no material before the Tribunal to indicate that they had been or, if they had, that they would have provided an opinion that would have assisted the appellant.

54    In SZBEL at [47] the Court said that where there are specific aspects of an applicant’s account that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal is obliged to at least ask an applicant to expand upon those aspects of the account and explain why it should be accepted. That is precisely what the Tribunal did here. The Tribunal identified the issues that arose in relation to the decision. The appellant’s capacity to give a consistent account of the fundamental matters in his life was the subject of the very matters the Tribunal canvassed with him in the extract from the transcript reproduced above at [18]. To the extent that his mental state might have accounted for the inconsistencies, the Tribunal invited submissions and afforded the appellant an opportunity to provide further evidence. I do not accept that the Tribunal’s conclusion that the appellant could be reasonably expected to give a consistent account about fundamental matters in his life was a conclusion which would not obviously be open on the known material. In the absence of an opinion from the psychologist that the inconsistencies in the appellant’s account were caused by his mental disorders, when that was the very purpose of procuring the opinion, such a conclusion was plainly open.

55    The appellant was not denied procedural fairness.

56    The appellant had an opportunity to be heard in relation to the issues arising in relation to the decision under review, including the matters of concern to the Tribunal. That he may not have taken full advantage of the opportunity is beside the point. SZBEL is not authority for the proposition that the Tribunal is obliged to warn an applicant that his or her explanation might not be accepted, whether in whole or in part. Nor, as the Court observed in SZBEL at [48] and as the primary judge recognised, does “[p]rocedural fairness … require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given”.

57    The primary judge did not misconstrue or misapply SZBEL and the Tribunal did not fail to comply with s 425.

Did the primary judge err in not finding that the Tribunal decision was illogical or irrational (ground 2)?

58    The appellant contended that the Tribunal’s conclusion at [29] that he could be expected to give a consistent account of fundamental matters in his life was illogical or irrational either because it was “simply not open on the evidence” or “there is no logical connection between the evidence and the inferences or conclusions drawn” (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] per Crennan and Bell JJ).

59    The fact that the Tribunal acknowledged that the appellant could have difficulty recalling certain events, including consistently recalling when they occurred, does not, as a matter of logic, as the appellant implied at one point in his submissions, require the conclusion that he would have difficulties recalling all events in his life. Indeed, the appellant acknowledged that it was open to the Tribunal to accept the PTSD diagnosis, consider that it was based on the appellant’s own account which the Tribunal had itself considered and rejected, and then reject the appellant’s credibility by reason of evidentiary inconsistencies. It seems to me, however, that that is what the Tribunal did. The Tribunal accepted that the appellant had chronic PTSD and major depressive disorder and that those conditions might account for some of his claimed lapses in memory, including difficulties in consistently recalling when certain events occurred, but not all of them, and, in particular, not the “fundamental matters” identified in [27]. This was no more than an application of common sense to the evidence. It was neither illogical nor irrational.

60    It is a matter of ordinary experience that people are capable of recalling “fundamental matters” in their lives, though many have difficulty with some matters of detail. In the absence of evidence to prove otherwise, a tribunal of fact is entitled to act on the basis of that experience. Here, the evidence did not prove otherwise. The appellant provided a long list of references in the appeal book to the appellant’s professed memory deficits and his inability to give a consistent or coherent account. Some of them appear in the transcript in the passage extracted above at [17]–[18]. But the only expert evidence that touched upon the matter was the report of the clinical psychologist obtained after the hearing. The appellant drew attention to two passages in the psychologist’s report. The first is the passage extracted above at [25]. The second appears under the heading “Assessment Findings”:

[M]emory deficits and fragmented recollections, dissociation as well as avoidance of triggers of the trauma and irritability, are also clinical features associated with PTSD.

61    The psychologist did not say, however, that all the appellant’s difficulties of recollection were attributable to the presence of dissociation or were indicative of a dissociative state. The specific matters the Tribunal raised with the appellant were not apparently canvassed with the psychologist. Certainly they did not appear anywhere in her report. Moreover, it is one thing not to recall an event, another to recall it differently on different occasions. The psychologist did not deal with the latter, which was the basis for the Tribunal’s conclusion and the basis upon which she was apparently retained.

62    The Tribunal could certainly have reasoned from the report — indeed from the evidence as a whole — that the appellant’s memory deficits were in all likelihood attributable to his PTSD. But it was not under any legal obligation to do so. There was an alternative explanation which was not excluded by the expert evidence: that the appellant’s story was untrue. Furthermore, while the Tribunal may have accepted that the appellant had PTSD, it was not bound to conclude that he had experienced “dissociation” or “dissociative states”. Nor was it bound to attribute all of the appellant’s claimed memory deficits and fragmented recollections to his mental disorder(s). These were matters upon which reasonable minds could differ.

63    In these circumstances, the illogicality ground is not made out. As Crennan and Bell JJ explained in SZMDS at [131]:

[T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

64    The appellant submitted that the Tribunal’s reasonable expectation that the appellant could provide a consistent account was “self-contradicted by its own efforts to extract evidence at hearing”. He pointed to the Tribunal’s observations that he was “demonstrably vague” and could not recall “certain details” (at [12], [14], [15], [19] and [25]); to his claims that his memory was “not good” (at [20] and [25]) and that he “just did not think to say everything in sequence” ([24]); and to the Tribunal’s repeated attempts to elicit information and clarify details ([13] and [14]). This submission must also be rejected. The Tribunal accepted that he had difficulties with recollection. The question it had to resolve was whether these difficulties accounted for the significant inconsistencies in his evidence. The Tribunal concluded that some of the difficulties the appellant was experiencing in giving a consistent account might be explained by reference to his mental state “as assessed in his medical evidence” (which I take to be the evidence of the clinical psychologist and perhaps also the hospital notes), but not all of them. Contrary to the appellant’s contention, this conclusion was open on the evidence, especially in view of the omission of the “medical” evidence to address the particular failures of recollection and inconsistencies of concern to the Tribunal. In any case, as I have already observed, the Tribunal was not obliged to accept the “medical” evidence or to conclude that it explained the difficulties the appellant had in responding to the Tribunal’s questions or reconciling or accounting for the different versions of his story.

65    In SZMDS at [133] Crennan and Bell JJ said that the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it engaged and to make the findings it made on the material before it. This was the approach the primary judge took. There is no error in his Honour’s conclusions on this question.

Did the primary judge give inadequate consideration to the question of whether the Tribunal’s decision was legally unreasonable (ground 3)?

66    The primary judge put to one side the extensive analyses of legal unreasonableness carried out by the members of the High Court in Li. His Honour simply said that for the reasons he had given in relation to ground 2 (the illogicality/irrationality ground), the Tribunal’s decision was not legally unreasonable as the appellant had asserted.

67    The appellant is critical of this approach essentially for three reasons.

68    First, he submits that the unreasonableness inquiry requires the Court to consider the “terms or scope, subject and purpose of the particular statutory provisions at issue” (Minister for Immigration v Li (2013) 249 CLR 332 (“Li”) and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1), but the primary judge did not do this.

69    Second, the appellant noted that a decision can be characterised as legally unreasonable because of a specific identifiable jurisdictional error, a conclusion or outcome reached, or the reasoning process utilised (relying on Minister for Immigration and Border Protection v Eden [2016] FCAFC 28, Stretton, and Li). Yet, the appellant submitted, the primary judge only considered whether there had been a specifically identifiable jurisdictional error, without conducting an “outcome focused” assessment of the Tribunal’s reasoning process. He contended that his Honour failed to consider whether a decision-maker could reasonably come to the same conclusion as the Tribunal.

70    Third, the appellant submitted that the primary judge erred in failing to consider whether the Tribunal’s “overall decision was inferentially a proportionate response” (relying on Eden).

71    The difficulty with the first submission is that the appellant did not indicate how a consideration of the terms or scope, subject and purpose of the relevant provisions in the present case would have resulted in a different outcome.

72    As for the second submission, it is true that “the jurisdictional error ground of unreasonableness” is not limited by illogicality or irrationality (Li at [68]), but it does not follow from this truism, as the appellant’s submissions insinuated, that the primary judge erred because, in dismissing ground 4 (legal unreasonableness for lack of an evident and intelligible justification for certain conclusions, particularly the conclusion in [29])) he relied on the reasons he had given for dismissing ground 3 (the illogicality or irrationality ground). It does not follow when, as here, the proposition that there was an evident and intelligible justification for one conclusion (the conclusion in [29]) was, in substance, the same point advanced in support of the contention that the decision was illogical or irrational. As the Minister put it:

It is not suggested that a decision which is rational might not be unreasonable, but findings by a Court relevant to determining a ground of asserted illogicality, for instance, are not necessarily irrelevant to a consideration of a ground of asserted unreasonableness. The hinge of the appellant’s argument that the Tribunal’s decision was unreasonable (in that it lacked, the appellant submits, an “evident and intelligible justification”) was that the Tribunal’s finding at T[29] was not based on any evidence, and was “unjust” and “beyond a lawful exercise of power” ... Specifically, in the Court below, the primary basis upon which the appellant asserted that the Tribunal’s decision was unreasonable was that its finding at T[29] lacked an evident and intelligible justification in that there was no justification for the finding that a person with the appellant’s mental health condition could be reasonably expected to give a consistent account about fundamental matters in his life. In essence, the appellant propounded the same basis for its argument of legal unreasonableness as it did for its argument of illogicality/irrationality (or at least, the basis for each of the grounds before the Court below overlapped). It was, in those circumstances, not inappropriate for the primary judge to determine the ground by reference to earlier findings made in respect of the illogicality/irrationality ground.

(Original emphasis.)

73    The appellant submitted that the correct question was whether a decision-maker could reasonably have come to the conclusion the Tribunal reached (relying on Stretton at [21] per Allsop CJ) but that the primary judge did not consider this question, either expressly or implicitly. This submission must also be rejected. That is the very question his Honour was addressing at [34] of his reasons.

74    On the third point, the appellant contended that the Court erred by failing to undertake “a proportionality analysis by reference to the scope of the power” (Li at [73] per Hayne, Kiefel and Bell JJ), noting that in Li the plurality had said (at [74]) that “an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached”.

75    There are several difficulties with this argument.

76    The first is that it takes the remarks in Li out of context. Li was a case about the exercise of a discretion. This is not. The point the plurality was making in Li was that, by analogy with the statement made in House v The King (1936) 55 CLR 499 at 505 (that an appellate court may infer that there has been a failure properly to exercise a discretion “if upon the facts [the result] is unreasonable or plainly unjust”), a court reviewing the exercise of a statutory discretion by an administrative decision-maker could conclude that the decision to exercise the discretion in a particular way was unreasonable (and an excess of power) if it is not possible for the court to understand how the decision was reached: see Li at [67]. Assuming this approach is apposite to non-discretionary decisions, the end point of the discussion in Li was that “[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. That is not this case. The evident and intelligible justification lies in the Tribunal’s inability to accept that all the inconsistencies in the appellant’s evidence were attributable to his mental disorders or either of them and to its conclusion that he was not telling the truth.

77    It will be a rare case indeed in which a disproportionate response will lead to a finding of jurisdictional error. As Stretton well illustrates, even where the decision under review is a discretionary one, there are real dangers in applying a proportionality analysis to an administrative decision without sliding into merits review.

78    The appellant submitted:

The impugned conclusion at [29] of the Tribunal’s decision had a disproportionate effect in terms of reasoning and outcome because it was the basis upon which the Tribunal rejected the appellant’s explanation for evidentiary inconsistencies, found that the appellant lacked credibility, and rejected the entirety of the appellant’s claims. Expecting a person with PTSD to provide a consistent account of fundamental matters went against the tide of the medical evidence, but this “reasonable expectation” was considered sufficient to displace independent documentary material which was not found to have been fabricated. The Tribunal’s false premise was a foundational or critical element because it was the basis upon which the Tribunal ultimately decided to affirm the delegate’s decision.

79    Having regard to the deficiencies in that evidence, the argument about disproportionality is weak at best. There was no evidence that a person with PTSD could be expected to give an inconsistent account of fundamental events in his life, let alone that the inconsistencies with which the Tribunal was concerned were attributable to his PTSD. In any case, the Tribunal’s decision was within the area of “decisional freedom” within which reasonable minds may differ: Stretton at [7] (Allsop CJ).

80    The bright line the appellant sought to draw between irrationality or illogicality on the one hand and legal unreasonableness on the other is largely illusory. His approach smacks of “the over-categorisation of more general concepts and over-emphasis on the particular language of judicial expression of principle” the Chief Justice counselled against in Stretton at [2] and [10]. See, too, the Full Court’s remarks in Eden at [65]. As Allsop CJ went on to observe in Stretton at [2], “it is unhelpful to approach the task by seeking to draw categorised differences between words and phrases such as arbitrary, capricious, illogical, irrational, unjust, and lacking evident or intelligent justification, as if each contained a definable body of meaning separate from the other”.

Conclusion

81    None of the grounds of appeal is made out. The various criticisms of the Tribunal and the primary judge are not justified. The appeal must therefore be dismissed. Costs should follow the event.

Associate:

Dated:    7 October 2016