FEDERAL COURT OF AUSTRALIA

AYG18 v Minister for Home Affairs [2019] FCA 454

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

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

REASONS FOR JUDGMENT

FLICK J:

1    The Appellant in the present proceeding, identified by the pseudonym AYG18, is a citizen of Sri Lanka.

2    In May 2014, he applied for a Protection (class XA) visa. A delegate of the Minister for Immigration and Border Protection refused that application in January 2016. An application for review of the delegate’s decision was then filed in the Administrative Appeals Tribunal (the “Tribunal”). The Tribunal affirmed the delegate’s decision on 2 February 2018.

3    The Appellant then sought review by the Federal Circuit Court of Australia of the Tribunal’s decision. In June 2018 that Court dismissed the application: AYG18 v Minister for Home Affairs [2018] FCCA 2119. The primary Judge rejected each of the Grounds of Review there relied upon. The Appellant then filed a Notice of Appeal in this Court.

4    The matter first came before the Court on 21 November 2018. On that occasion, Counsel for the Appellant sought to rely upon an affidavit annexing a transcript of the proceeding before the Tribunal, a copy of which had only just been provided to Counsel for the Respondent Minister. The matter was adjourned to 27 November 2018, with the Appellant agreeing to pay the costs thrown away by reason of the adjournment. Both parties again appeared represented by Counsel at the adjourned hearing. The Second Respondent filed a Submitting Notice, save as to costs.

5    The appeal is to be dismissed.

The Grounds of Appeal

6    Before the Federal Circuit Court there were 26 Grounds of Review relied upon. The primary Judge rejected each of these Grounds.

7    The Notice of Appeal filed in this Court repeats each of these 26 Grounds, prefaced with the following statement (without alteration):

The Federal Circuit court failed to find, in respect of the AAT that the AAT declined its jurisdiction to me on the basis of grounds including the main grounds stated in my Federal Circuit Court Amended Application filed in the Federal Circuit Court on 6 June 2018.

8    An Outline of Submissions filed on behalf of the Appellant confines these Grounds to Grounds 10, 11, 13, 17, 19, 20, 21, 22, 24 and 25. Those Grounds stated (again without alteration) as follows:

10.    AAT erred when it found the applicant was inconsistent and shifted in his evidence [paragraph 43] in respect of making a complaint to HRC.

Particulars

1.    The applicant at hearing was specifically referring to a complaint to his person, to which the applicant answered ‘no’, whereas the evidence that he made a complaint at paragraph 63 of his Statement and also in the hearing referred to his vehicle.

2.    Accordingly there was no inconsistency or shifting of evidence.

11.    The Tribunal considered the applicant’s explanation concerning why he complained to the HRC in Vavuniya was inconsistent or shifting [paragraph 42] without any proper basis or reason.

Particulars.

1.    The explanation given by the applicant in the hearing was clear, logical, and without challenge from the Tribunal.

…

13.    AAT erred when it found the applicant was inconsistent and shifted in his evidence [paragraph 41] in respect of drawing a distinction between the evidence the applicant gave concerning the CHRD operating under ‘our parish’ and also not operating ‘under our church’, when there is no inconsistency

Particulars.

A parish different to a church, and there may be a number of separate churches within the same parish.

…

17.    AAT erred in concluding that it was difficult to understand why, and highly improbable, the applicant would be told to travel to a secret army camp when the applicant gave evidence explaining the very reasons in the hearing. [para 54];

…

19.    The AAT erred when it found the evidence that the applicant decided to leave Sri Lanka in 2012 and other evidence of a life-threatening incident in 2013, was ‘conflicting’, when there was no such conflict [paragraph 64];

20.    The AAT erred in finding the applicant was untruthful in relation to the visa and passport, when the evidence given by the applicant was straightforward and there was no basis for the Tribunal in making the conclusion it did [para 60];

21.    AAT erred in concluding the Applicant did not leave as early as possible/received the passport and waited before leaving Sri Lanka, when the applicant was unaware the visa and passport were issued prior thereto and only provided to the applicant at the airport. [60]

22.    AAT erred in concluding it was improbable that the Applicant’s father would omit information that would potentially strengthen the family’s prospects of being granted a visa when it had no basis to so find [paragraph 63];

…

24.    The AAT erred in not giving the applicant the benefit of the doubt and not proceeding on the basis that the material and/or evidence might possibly be true, contrary to MIMA V RAJILINGHAM (1999) 93 FCR 220;

25.    The AAT erred when it found the evidence of the applicant’s work prior to leaving Sri Lanka [paragraph 65] was ‘contrived’, when it did not give reasons and when the applicant’s explanation was clear and consistent;

The reference in Ground 11 to the Tribunal’s reasons for decision at para [42] was corrected in the Appellant’s written Outline of Submissions to be a reference to para [43].

9    These Grounds of Appeal, it will be noted, refer to individual paragraphs of the Tribunal’s reasons for decision. All of those paragraphs are set forth in that part of the Tribunal’s reasons where it is addressing “Whether the applicant’s claims about his past experiences in Sri Lanka are credible” and, more specifically, his “Claims to have been involved in human rights activism”.

10    Grounds 10, 11 and 13 of the Notice of Appeal refer to the Tribunal’s reasons at paras [41] and [43] which state as follows:

41.    Before the Tribunal the applicant was asked to name the organisations he provided information to and he responded the IOM, the ICRC, and the CHRD. Asked what CHRD stood for, he initially responded it was a non-government, independent human rights organisation. He told the Tribunal he couldn’t recall what CHRD stood for but he would provide this information later. Asked how he contacted the CHRD, the applicant said he used to call them, he had friends, and he told the Tribunal these friends were based in Vavuniya. However, asked whether the CHRD had an office in Vavuniya, he said they did not, it was in Colombo. He claimed that he had four friends who worked for the CHRD but they were no longer in Sri Lanka and that he had no contact with anyone who was working for the CHRD. It was put to the applicant that the Tribunal could not locate information about the CHRD in Jaffna or Vavuniya but it could locate information about a Centre of Human Rights and Development that was established in 1997 and was based in Colombo. The applicant told the Tribunal this was not the organisation he was referring to. Later in the hearing, the applicant told the Tribunal that CHRD stood for the Catholic Human Rights Organisation and that this organisation operated ‘under our parish’. He confirmed that the CHRD was a human rights committee that sat within his parish of his catholic church. However, when asked to clarify where the committee was based, he told the Tribunal it was registered in Colombo. It was put to him that he attended a Catholic church in Vavuniya. The applicant then told the Tribunal that [the CHRD] was based in Colombo and it was not under ‘our church’.

…

43.    Secondly, the applicant has provided inconsistent and shifting evidence about whether he complained to the HRCSL about his mistreatment at the hands of the Sri Lankan authorities. At the hearing, when the applicant was asked whether he had ever made a complaint to a human rights organisation, he told the Tribunal he had not. It was put to the applicant that in his written claims he stated that ‘In 2013/2014 I made a complaint to the HRC in Vavuniya against the Sri Lankan Security Forces’ threats and mistreatments’. The applicant then gave evidence that in 2013 when he went missing his father called the office to make a complaint and they told him to come in person. However, then they knew he was alive so they didn’t proceed with the complaint. The applicant was asked whether he personally made any complaints about the Sri Lankan authorities to any organisation, person, body or agency. The applicant then shifted his evidence again and claimed that in 2013, he complained to the HRC in Vavuniya about the damage done to his vehicles by the HRC. He claimed that because this was a complaint about property, rather than his person, it was not accepted by the HRCSL. It was put to him it was difficult to understand why he would travel from Jaffna to Vavuniya to complain to the HRCSL about damage to his vehicle. The applicant claimed his vehicles were registered in Vavuniya. I find the applicant’s evidence about his interactions with the HRCSL has changed over the protection visa application process. The applicant has not produced any documentation corroborating his claims that either he or his family ever made a complaint to the HRCSL or to any other human rights body in Sri Lanka. On the evidence before it, I do not accept that the applicant or his family members ever made, or attempted to make, a complaint to the HRCSL for any reason.

(footnotes omitted)

11    Ground 17 of the Notice of Appeal directs attention to the Tribunal’s reasons at para [54] which states as follows (without alteration):

54.    The delegate accepted that the applicant meant that he was told to attend a SLA base at Pothuvettuvan. However, the delegate noted that she was unable to locate any town or military base in Sri Lanka with this name and, while there was a place named Puthuvedduvan in Mullaitivu district, but there was no information of any SLA base located there. Before the Tribunal the applicant maintained that he was detained at a SLA camp in the Vanni district. When it was put to the applicant that neither the Department or the Tribunal could find any publicly available information about an SLA base at Pothuvettuvan or Puthuvedduvan, the applicant told the Tribunal that the Department of Immigration and normal people in Sri Lanka could not find this camp. He gave evidence the SLA base was a huge camp in the middle of the forest and he claimed it was about 100 kilometres away from where he lived in Jaffna. He gave evidence that there were no publicly available documents about this camp. He suggested that the location of the camp was secret because it was formerly an LTTE camp, but I find his evidence on this point unpersuasive. Furthermore, as I put to the applicant, it is difficult to understand why, if he was living in Jaffna, a highly militarised area in the north of Sri Lanka, that he would be told to travel to a secret army camp which, according to the applicant’s own evidence was 100 kilometres away. Other inconsistencies are also apparent: before the Tribunal the applicant claimed he was summoned to a secret SLA base while he was living in Jaffna, while his evidence to the Department indicates that this occurred when he was in Vavuniya. Overall, I consider the applicant’s claims that he was summoned to a secret SLA army base over 100 km from where he was living in Jaffna to be highly improbable and unsupported by the available country information.

12    Ground 19 of the Notice of Appeal directs attention to the Tribunal’s reasons at para [64], which states as follows:

64.    Furthermore, the timing of the applicant’s first visitor visa application undermines his claims that he left Sri Lanka because he was targeted by the Sri Lankan authorities in life threatening incidents. The applicant first applied for a visitor visa in May 2013 before he claims he was assaulted at an SLA base in August 2013. In evidence to the Tribunal the applicant said that he travelled to Australia because in 2013 there was an incident that threatened his life and, even before that, there were many incidents including damage to his vehicles. However, he subsequently told the Tribunal he decided to leave Sri Lanka in 2012. He agreed that it took some time to obtain the visa and he acknowledged that the ‘life threatening incident’, which he claimed occurred in August 2013, happened after he applied for a visa to travel to Australia. As discussed above, the applicant has also given conflicting evidence about when he relocated to Jaffna and when he started hiding and the timing of his visitor visa application reinforces the Tribunal’s concerns about the credibility of his claims that he escaped from his Vavuniya house and began to hide in Jaffna peninsula and that ‘he could not go out or continue his business as they were looking for me’.

(original emphasis)

13    Grounds 20 and 21 of the Notice of Appeal direct attention to the Tribunal’s reasons at para [60], which states as follows:

60.    The timing of the applicant’s travel to Malaysia in 2007 and the fact that he voluntarily returned to Sri Lanka in July 2008, months before his Malaysian work permit was due to expire in December 2008, undermines his claims that he was of adverse interest to the Sri Lankan authorities during this period. As discussed with the applicant, his passport was issued on 3 October 2007 and the fact he was able to obtain this passport might suggest that he was not of interest to the Sri Lankan authorities at that time. The applicant said he didn’t go to the passport office in Colombo, he applied for the passport in the local area in Vavuniya and it took about three to four months for him to receive the passport. He claimed the date on the passport is the date it was printed and it did not come to him until two or three months later. When it was put to the applicant that the Malaysian entry work permit that appears in his passport was granted on 2 November 2007 and the applicant did not leave Sri Lanka until 13 December 2007, the applicant claimed that he did not apply for a visa himself, an agent did. It was put to the applicant that the entry permit had been stamped and signed by a consular officer in Colombo on 2 November and that the fact that he stayed in Sri Lanka for over a month might suggest that he was not afraid of being harmed. The applicant then claimed that the agent only gave him the passport at the airport when he was departing; he didn’t know when the agent got the passport or when the visa was issued. This evidence is difficult to reconcile with his earlier evidence that he applied for his passport in his local area of Vavuniya and I find the applicant has not been truthful about how and when he obtained his passport.

14    Ground 22 of the Notice of Appeal directs attention to the Tribunal’s reasons at para [63], which states as follows:

63.    Also of concern, the applicant was included in an offshore humanitarian visa application lodged by his father in 2006 but this application does not mention the applicant’s claimed involvement in human rights activism. The applicant told the Tribunal that his father applied for this visa, not him, and the application did not say anything about the problems the applicant had in Sri Lanka. The applicant was asked why, if he wanted to get out of Sri Lanka, he didn’t include information about the problems he was having in this application. The applicant responded that he only knew his problems were not included in the application after he did his first interview in Australia. He knew that his father applied for something like this but he did not give any more information and it is not his culture to question the father. However, in his written claims the applicant states that in 2006 he and his family members decided to flee Sri Lanka because they were being threatened as a result of the applicant’s activities. I find it improbable that the applicant’s father would omit information that would potentially strengthen the family’s prospects of being granted the visa. Furthermore, the applicant was an adult and has acknowledged that he knew about the application. The failure to mention the applicant’s claimed involvement in human rights activism between 2003 and 2006 in the offshore humanitarian visa application casts doubt upon the credibility of this aspect of the applicant’s evidence and this, in turn, raises further questions about the applicant’s credibility as a witness generally.

(footnote omitted)

15    Ground 25 of the Notice of Appeal directs attention to para [65] of the Tribunal’s reasons, which states as follows:

Also of concern, while the applicant now claims he was forced to stop work and start hiding before he left Sri Lanka, the documentation the applicant provided with his visitor visa application indicates that he was working up until he left Sri Lanka. As I put to the applicant, documentation he provided with his visitor visa application (copies of which he filed with the Tribunal), indicated that he was working up until he left Sri Lanka. For example, a letter from ‘St Jude Material Suppliers’ dated 5 Mach 2014 certifies that the applicant ‘supplies civil construction material for the above construction company and works for the above constructors’. The applicant has claimed he stopped working earlier than stated in the support letters he provided with his visitor visa application. He has claimed that the letters he provided in support of his visitor visa application indicated he was working up until the time he left Sri Lanka, because he was still providing vehicles and services to one company (but was not doing so personally) and that he wrote letters to the other companies stating he was suspending his service for a few moths only, but the agreements were not cancelled. Based on that, they might have thought he was still working. I find this explanation contrived and unconvincing.

(footnote omitted)

The Grounds of Appeal – an overview

16    A number of general observations should be made in relation to the Grounds of Appeal as advanced before this Court.

17    First, albeit differently expressed, each of the initial Grounds of Review advanced before the Federal Circuit Court sought to challenge findings of fact made by the Tribunal. The task of that Court was essentially one of judicial review as opposed to merit review: cf. Plaintiff M64-2015 v Minister for Immigration and Border Protection [2015] HCA 50, (2015) 258 CLR 173 at 184. French CJ, Bell, Keane and Gordon JJ there observed:

[23]    ... the scope of judicial review of administrative action, … is confined to the legality of the Delegate’s decision. In particular, judicial review is concerned with whether the Delegate’s decision was one which he was authorised to make; it is not:

“an appellate procedure enabling either a general review of the … decision … or a substitution of the … decision which the … court thinks should have been made.”

(footnote omitted)

The merits of the claims made by the now-Appellant had been and were to be resolved by the Tribunal and not the primary Judge. The task of judicial review should not “trespass on the merits of the exercise of administrative power” lest it “put its own legitimacy at risk”: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 38 per Brennan J.

18    The task of this Court, albeit a task frequently muddied by the manner in which Grounds of Appeal are expressed, remains a task of undertaking appellate review – that is, discernment of appealable error on the part of the primary Judge, and not the Tribunal. It is (generally speaking) no part of the function of either the Federal Circuit Court, at first instance, or this Court, on appeal, to make its own findings of fact in substitution for those made by the Tribunal. The making of findings of fact is a matter entrusted by the Legislature to the Tribunal.

19    Second, to the extent that the now-Appellant seeks to challenge the manner in which the Tribunal resolved what it perceived as “inconsistent” or “shifting” accounts of factual events, it was the task of the Tribunal to weigh competing evidence and to make findings of fact.

20    Third, “adverse findings as to credibility are a matter for the Tribunal and considerable caution must be exercised before reaching the conclusion that adverse findings as to credit expose legal error”: QLN146 v Republic of Nauru [2018] HCA 42 at [8], (2018) 92 ALJR 877 at 878 per Gordon J (Bell and Keane JJ agreeing).

21    Fourth, caution must be exercised in discerning legal error – let alone jurisdictional error – in a course of administrative reasoning weighing a variety of factors and a characterisation of that reasoning process as legally unreasonable: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, (1999) 197 CLR 611 (“Eshetu”). In reversing a decision of a Full Court of this Court, Gleeson CJ and McHugh J said:

[40]    The essence of the suggested illogicality or unreasonableness in the Tribunal's decision, as observed by Hill J, and accepted by Davies and Burchett JJ, although strongly contested by Whitlam J, is said to lie in the process of reasoning by which the Tribunal came to regard the information given by Mr Eshetu as to the December 1991 incident which led to his departure from Ethiopia as implausible. It was considered by Hill J that the Tribunal failed to give sufficient weight to certain information before it, especially information from EHRC, and attached unwarranted importance to the absence of any independent record of the alleged occurrences. Whitlam J was of the view that the reasoning displayed no error. Even if it did, however, there is a serious question whether the suggested error is of the kind to which the Wednesbury privilege is directed. We are not here concerned, for example, with the unreasonable exercise of a discretion, and it is difficult to characterise the Tribunal's decision, even on Hill J’s view of it, as an abuse of power. Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as “illogical” or “unreasonable”, or even “so unreasonable that no reasonable person could adopt it”. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.

“The requirement of reasonableness”, it is to be constantly recalled, “is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker”: Minister for Immigration and Citizenship v Li [2013] HCA 18 at [30], (2013) 249 CLR 332 at 351 per French CJ (“Li”). The fact that another decision-maker “may have reached a different view, and have done so reasonably, is not to the point”: Eshetu [1999] HCA 21 at [147], (1999) 197 CLR at 657 per Gummow J.

22    Finally, it is a course prone to the serious potential for error to focus attention on particular paragraphs of a Tribunal’s reasons for decision divorced from the more general and overall context in which findings may be made: QLN146 v Republic of Nauru [2018] HCA 42, (2018) 92 ALJR 877 at 878. Gordon J there observed:

[7]    First, as is always the case, what is said in the Tribunal’s reasons must be understood in the context of the whole of the reasons. Examining sentences, or parts of sentences, in isolation is apt to lead to error.

The reasons of an administrative decision-maker, as a general “proposition”, are not to be read with an eye “attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“ Wu Shan Liang”)) but in a “practical and common-sense manner”: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 at [47], (2015) 231 FCR 513 at 528 per Flick, Griffiths and Perry JJ (“Ayoub”).

23    To these comments may be added on overriding caveat. Each of the propositions is a general comment, each of which permits of exceptions. A finding of fact, for example, may not be immune from judicial scrutiny where there is no evidence or other material upon which the finding may be made: cf. Eshetu [1999] HCA 21 at [145] and [147], (1999) 197 CLR 611 at 656 to 657 per Gummow J. Even adverse findings of credit are not immune from judicial scrutiny and may be impugned. As McKerracher, Griffiths and Rangiah JJ observed in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, (2016) 253 FCR 496 at 508 to 509:

[38]    There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:

   (a)    failure to afford procedural fairness;

   (b)    reaching a finding without any logical or probative basis;

   (c)    unreasonableness; and/or

(d)    jurisdictional error as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451.

24    The general comments, however, remain a touchstone from which a reviewing Court will normally commence. And, a recitation of general principles without any attempt on the part of a Judge undertaking a task of judicial review to apply those principles to the facts and circumstances of an individual case and the reasons of the decision-maker may expose the Judge to appellable error by reason of failing to explain the reasons for a decision reached: cf. DQA16 v Minister for Immigration and Border Protection [2018] FCA 2086 at [67] per Wigney J; BDS17 v Minister for Immigration and Border Protection [2018] FCA 1683 at [71] per Flick J.

25    A litigant seeking judicial review is entitled to such reasons as reveal a Judge directing attention to the facts and circumstances of the instant case rather than a Judge merely reciting a ritualistic incantation of general principles.

The admissibility of the Tribunal transcript

26    The written Outline of Submissions filed on behalf of the Appellant sought to advance Grounds 10, 11, 17 and 22 of the Notice of Appeal by reference to both the reasoning of the Tribunal and the transcript of its proceeding.

27    This was the transcript which occasioned the adjournment of the hearing from 21 November to 27 November 2018.

28    At the hearing on 27 November 2018, Counsel for the Respondent Minister objected to the admissibility of the transcript on the basis of:

    a failure to comply with r 36.57 of the Federal Court Rules 2011 (Cth).

Counsel further submitted that:

    the transcript was of no relevance to the identification of any appellable error said to have been committed by the primary Judge, as opposed to an impermissible challenge to the findings made by the Tribunal.

The objection was noted and a decision as to admissibility deferred. The hearing on 27 November 2018 proceeded upon the basis that oral submissions could be directed to the transcript.

29    It is concluded that the tender of the transcript should be rejected.

30    Although no explanation was provided as to “why the evidence was not adduced in the court appealed from”, as required by r 36.57(2)(d) of the Federal Court Rules, it may safely be assumed that at least part of the explanation is to be found in the fact that the Appellant appeared in person before the primary Judge but was represented by Counsel before this Court.

31    It is the absence of relevance to the resolution on appeal of the Grounds of Appeal, however, which dictates the rejection of the tender rather than any failure to engage with r 36.57(2)(d). It is not open to an Appellant to claim that a primary Judge erred in resolving arguments by reference to the material then available to it and not by reference to material which was not placed before the Court for scrutiny.

32    Even had the transcript been admitted before this Court, it should be noted that it would have led to no different conclusion.

An inconsistent account and shifting evidence

33    Grounds of Appeal 10, 11 and 13 of the Notice of Appeal focus attention on the Tribunal’s reasons at paras [41] and [43]. It is argued that the primary Judge erred in not concluding that it was not open to the Tribunal to characterise the now-Appellant’s evidence as “inconsistent” and “shifting”.

34    In expanding upon Grounds 10 and 11 and the reference to the Tribunal’s reasons at para [43], the Appellant’s written Outline of Submissions seek to further refer to the evidence the now-Appellant gave during the course of the hearing before the Tribunal. This evidence (in summary form) was said to confirm:

    that the now-Appellant made a complaint to a human rights organisation about his vehicle; and

    that he did not make the complaint in Jaffna because the vehicle was not registered in Jaffna.

The difficulty for the now-Appellant, both before the Federal Circuit Court and this Court on appeal, is that the task of resolving issues of evidence and that of making findings of fact was a task entrusted to the Tribunal. In circumstances where there is some evidence before the Tribunal upon which findings may be made, the fact that a different decision-maker (or even a Court conducting judicial review) may have made a different finding does not of itself expose error: cf. Eshetu [1999] HCA 21 at [147], (1999) 197 CLR at 657 per Gummow J; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [131], (2010) 240 CLR 611 at 648 per Crennan and Bell JJ.

35    Paragraph [43] of the Tribunal’s reasons:

    identifies the evidence which it regarded as being “inconsistent”;

    identifies the difficulty it was having in assessing the evidence (e.g. it being “difficult to understand why he would travel from Jaffna to Vavuniya to complain”); and

    refers to the fact that there was no corroborative evidence of the claims being made.

This process of reasoning, and the findings made by the Tribunal, were matters entrusted to the Tribunal to determine. The findings it made, and the reasoning it pursued, were findings open to it on the materials then available.

36    In rejecting the Grounds of Review comparable to Grounds of Appeal 10 and 11, it should be noted that the reasons of the primary Judge do not expressly engage with the Tribunal’s reasons. A party to the proceeding, including (in particular) the Appellant, would have little assurance that these two Grounds were resolved by reference to the arguments sought to be advanced and not by reference to some general statement of legal principle divorced from the facts of the case under consideration. Reasons for rejecting Grounds of Review have to engage with the merits of the particular arguments sought to be advanced; a recital of general principles of law will generally not suffice.

37    But no application was made by Counsel for the Appellant to amend the Notice of Appeal when the apparent deficiency in the reasons of the primary Judge was referred to during his submissions in reply and after the deficiency had been canvassed with Counsel for the Respondent Minister during her oral submissions.

38    The unease with the reasoning process can thus be left to one side as an issue not pursued on appeal. It is unnecessary to resolve whether the reference at para [18] of the reasons of the primary Judge to the “making [of] a complaint to the HCR” could have been a sufficient engagement with Grounds 10 and 11.

39    Confined to the arguments advanced by Counsel on behalf of the Appellant, no discernible appellable error is exposed by the primary Judge’s rejection of the comparable Grounds of Review.

40    Grounds 10 and 11 of the Notice of Appeal are thus rejected.

41    In expanding upon para [41] of the Tribunal’s reasons and Ground 13 of the Notice of Appeal, the Appellant’s written Outline of Submissions states that the Human Rights Organisation “was not under ‘our parish’ and later not under ‘our church’” and contend that there “is no basis for inferring (if the AAT did so infer) any inconsistency, as a church and a parish are not the same thing”.

42    The difficulty for the Appellant is that para [41] of the Tribunal’s reasons expose the central concern of the Tribunal being that the now-Appellant could not advance any consistent or verifiable account as to the identity or location of the entity “CHRD”. This was but part of the Tribunal’s reasoning process which led it to the findings it made at para [42] of its reasons.

43    Ground 13 of the Notice of Appeal is also rejected. The findings of the Tribunal were findings open to be made.

Improbable, conflicting and untruthful evidence

44    Grounds 17 and 19 of the Notice of Appeal have in common a challenge to the assessment made by the Tribunal to the reliability of the evidence given by the now-Appellant.

45    Ground 17 takes issue with the assessment made by the Tribunal (at para [54]) of the Appellant’s claims to have been “summoned to a secret SLA army base over 100 km from where he was living in Jaffna to be highly improbable and unsupported by the available country information”. This finding follows immediately after a “concern” (at para [53]) that the “account of being summoned to an SLA base in August 2013 was improbable and unsupported by available country information”.

46    Ground 19 takes issue with the finding of the Tribunal (at para [64]) that there was “conflicting” evidence. In expanding upon Ground 19, the Appellant’s written Outline of Submissions maintain that:

The sequence appears to be that:

a.    He decided to leave in 2012;

b.    He first applied for a visa in May 2013,

c.    He was assaulted at an SLA base in August 2013;

So understood, it is said on behalf of the Appellant that there was no “conflicting” evidence.

47    The “conflict” in the evidence to which the Tribunal refers at para [64], however, is not a “conflict” as to this sequence of events but rather “conflicting evidence about when he relocated to Jaffna and when he started hiding and the timing of his visitor visa application”. So understood, the “conflict” included the conflict between the decision to leave Sri Lanka in 2012 by reason of the “life threatening incident” which occurred thereafter, in August 2013.

48    The primary Judge addressed the counterpart to Ground 17 by stating in his reasons for decision that:

[25]    … Ground 17 refers to the factual finding in respect of the applicant being told to travel to a secret army camp.

The primary Judge also concluded that the “adverse findings … were open to the Tribunal”: [2018] FCCA 2119 at [26]. What the “adverse finding” was in respect to Ground 17 was not further addressed. The primary Judge rejected the comparable Ground of Review to that now set forth in Ground 19 of the Grounds of Appeal as follows:

[24]    Ground 19 reflects the applicant’s disagreement with the adverse finding of the Tribunal in relation to his decision to leave Sri Lanka and the alleged life-threatening experience. It was open to the Tribunal to make those adverse findings, and the Tribunal’s adverse reasons cannot be said to be illogical or unreasonable. No jurisdictional error is made out by grounds 10, 11, 13, 15 and 19.

The references in the reasoning of the primary Judge to the arguments sought to be advanced in Grounds of Review to the comparable Grounds 17 and 19 in the Notice of Appeal were but passing. But, again, there was no challenge to the adequacy of the reasoning of the primary Judge.

49    Grounds 17 and 19 are, in such circumstances, rejected. The findings of the Tribunal were findings open to be made.

Untruthfulness & unconvincing evidence

50    Grounds 20 and 21 of the Notice of Appeal seek to challenge the findings of the Tribunal in respect to the account given by the Appellant as to the manner in which he obtained his passport. Those Grounds seek to challenge the findings of the Tribunal that:

    the Appellant “has not been truthful about how and when he obtained his passport” (at para [60]).

Although both Grounds 20 and 21 in the Notice of Appeal refer to the Tribunal’s reasons at para [60], the written Outline of Submissions also refer to the Tribunal’s reasons at para [61] which contains the further finding made by the Tribunal that:

    the Appellant’s evidence about his travel to Malaysia was “unconvincing”.

51    In expanding upon Ground 20 of the Notice of Appeal, the Appellant’s written Outline of Submissions maintains that the explanation provided by the now-Appellant “on its face appears reasonable” and that “the conclusion [of the Tribunal] is unreasonable”. The written Outline of Submissions further contend that the Tribunal “did not explain what it was that was difficult to reconcile and, on its face, there does not appear to be anything that would be difficult to reconcile”.

52    The concluding remarks of the Tribunal at para [60] of its reasons and its observation that “the applicant has not been truthful about how and when he obtained his passport” invite scrutiny. The Tribunal did not express itself in terms of evidence being “inconsistent” – but the basis upon which it expressed the concluding remark as to “truthfulness” was not fully explained. But such reservations as to the adequacy of the reasoning of the Tribunal does not expose error either because:

    the subject-matter of the Tribunal’s reasons at para [60] was not so much directed at the question as to “how and when he obtained his passport” but rather whether the now-Appellant came to the “adverse interest” of the Sri Lankan authorities; and/or

    the reasoning of the Tribunal should be read in a “practical and common-sense manner” (cf. Ayoub [2015] FCAFC 83 at [47], (2015) 231 FCR 513 at 528) and not with an eye attuned to the perception of error: Wu Shan Liang (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. So read, there remains a concern expressed, albeit on one view an ill-expressed concern, as to the obtaining of the passport and the visas.

Although the Appellant may be critical of the reasoning of the Tribunal, and critical of the weight attached by the Tribunal to evidence or other material contrary to that sought to be emphasised by the Appellant, the ultimate conclusion of the Tribunal falls nowhere near the bench mark of unreasonableness: cf. Eshetu [1999] HCA 21, (1999) 197 CLR 611. The Tribunal in the present case made an “evaluative judgment” open to it on the evidence and other materials available and, as such, that judgment of the Tribunal was not susceptible to review by the primary Judge: Li [2013] HCA 18 at [30], (2013) 249 CLR 332 at 351 per French CJ.

53    Grounds 20 and 21 are thus rejected.

Improbability

54    Ground 22 of the Notice of Appeal directs attention to para [63] of the Tribunal’s reasons and the Tribunal’s finding that it was “improbable that the applicant’s father would omit information that would potentially strengthen the family’s prospects of being granted the visa”.

55    The argument advanced by Counsel on behalf of the now-Appellant was that it should not have fallen to the now-Appellant to explain the reasoning of his father, with respect to the offshore humanitarian visa application, and that the Tribunal’s finding of improbability on this point was unreasonable and irrational.

56    Again, however, the weight to be given by the Tribunal to individual evidence and the inferences to be drawn from the available evidence were all matters entrusted to the Tribunal for its consideration.

57    The finding as to the “improbability” of this particular aspect of the evidence was a matter within the bounds of a reasonable decision-maker.

58    Ground 22 is thus rejected.

Unreasonableness and appellable error

59    In the written Outline of Submissions, the now-Appellant contended that Grounds 24 and 25 of the Notice of Appeal “make it clear that the overall decision of the AAT was unreasonable”.

60    Ground 24 of the Notice of Appeal primarily contends that the Tribunal erred in its failure to give the now-Appellant the benefit of the doubt. No question arises as to an administrative decision-maker being obliged or required to give a claimant “the benefit of the doubt”. Although an administrative decision-maker should always be conscious of the practical difficulties facing any claimant, especially a claimant seeking refugee status, it generally remains a matter for the claimant to place before a decision-maker sufficient material upon which a positive state of satisfaction can be reached. A lack of satisfaction on the part of a decision-maker, as to the reliability of claims being made, remains just that. If a claim has not been made out, it may be inappropriate for a decision-maker to make good that deficiency and give a claimant the “benefit of the doubt” and thereby transform a lack of satisfaction into a positive finding: cf. SZHIS v Minister for Immigration and Multicultural Affairs [2006] FCA 1641 at [10] to [11] per Jacobson J. In a non-adversarial setting, such as the proceedings before the Tribunal in the present case, in some circumstances it may nevertheless be appropriate to give a claimant the “benefit of the doubt”. The assessment by the Tribunal as to the reliability and credibility of the now-Appellant in the present case would (in any event) tell against it extending any “benefit of the doubt”: cf. SZHUF v Minister for Immigration and Citizenship [2007] FCA 1686 at [9] per Allsop J.

61    Nor is there any substance to Ground 25. The Tribunal’s assessment that the explanation provided by the now-Appellant with respect to its concern that, despite the now-Appellant’s claim he was forced to stop working, he was continuing to work up until he left Sri Lanka was “contrived and unconvincing” was an assessment open to it on the evidence. The Tribunal had available to it documents which supported that concern and the now-Appellant’s explanation, in part, that he was “not doing so personally” and that he had suspended services but not cancelled the agreements was not considered by the Tribunal to be convincing.

62    Grounds 24 and 25 are therefore rejected.

The Tribunal’s reasons in context

63    The Appellant has sought to focus particular attention upon paras [41], [43] [54], [60], [64] and [65] of the Tribunal’s reasons and within those paragraphs sought to concentrate attention upon findings by the Tribunal that there were (for example) “inconsistencies” in the evidence or that other evidence was “improbable”. It would be a mistake, however, to view the findings of the Tribunal in those paragraphs divorced from the balance of the reasons provided: cf. QLN146 v Republic of Nauru [2018] HCA 42 at [7], (2018) 92 ALJR 877 at 878.

64    The rejection of some evidence by reason of it being inconsistent with other evidence, the characterisation of some evidence as improbable, or an adverse finding as to credit on one issue should not poison an administrative process of reasoning such as to lead to the rejection of other plausible or credible evidence. The reasoning process of an administrative decision-maker nevertheless is a process which takes into account the entirety of the available evidence, including findings which may support or detract from an ultimate conclusion.

65    Viewed in context, the adverse findings seized upon by the Appellant are but part of a more generally expressed disquiet on the part of the Tribunal as to the reliability of his evidence. In making its assessment, however, the Tribunal was fully conscious of the difficulties confronting persons in his position. The Tribunal thus stated at the outset of its consideration of his claims (at para [24]) the following note of caution:

In assessing the credibility of the applicant’s claims, the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

(footnote omitted)

After making this observation the Tribunal nevertheless went on to also observe (at para [26]):

I have significant concerns about the credibility of the applicant’s claims which, cumulatively, have led me to conclude that the applicant has not told the truth about the reasons he left Sri Lanka and the reasons that he does not want to return to Sri Lanka now. I am not satisfied that these concerns can be excused or explained by the difficulty of remembering traumatic events that occurred some years ago or the fallibility of human memory. Key elements of the applicant’s claim have changed over time, his evidence about his claimed human rights activism in Sri Lanka was vague, confused and he provided inconsistent evidence about which organisations he contacted in Sri Lanka.

In addition to these comments, the Tribunal went on to make further assessments as to the claims being advanced, including the following:

    the failure to provide “meaningful details” about the preparation of reports about “war crimes” (at paras [44] and [45]);

    the giving of “inconsistent evidence about when he relocated from Vavuniya to Jaffna” (at para [50]); and

    the failure to “credibly explain” why supporting letters were not produced from any of the organisations he claimed to have provided with information “about human rights violations and war crimes” (at para [58]).

These examples are by no means exhaustive.

66    In the present case, the individual findings of the Tribunal at paras [42], [43], [54] and [60] are only supported by the other adverse assessments made by the Tribunal of the Appellant.

67    The focus on the individual paragraphs of the Tribunal’s reasons, which were the subject of scrutiny by the Federal Circuit Court and this Court, had the very real prospect of attempting to discern legal error in discrete aspects of the reasoning process and to divorce those discrete aspects from the entirety of the reasoning process. Such a course runs the risk of running counter to the caution advanced in Wu Shan Liang against reading reasons for decision with an eye attuned to the perception of error. Although individual aspects of the reasoning process of the Tribunal may potentially have been better expressed, when read in context, one simple message emerged – i.e., the Tribunal had real problems in accepting the truthfulness or the reliability of the account being advanced by the now-Appellant.

CONCLUSIONS

68    None of the Grounds of Appeal addressed in the written Outline of Submissions individually expose any error on the part of the Tribunal nor any reason to conclude that its decision was “unreasonable”.

69    The final contention advanced on behalf of the Appellant, namely that the primary Judge erred in dismissing the same arguments, is also rejected.

70    Notwithstanding the focus in submissions before this Court on the reasons of the Tribunal, it is not to be forgotten that that focus was itself fundamentally misplaced. The task of this Court is to consider whether there was any appellable error committed on the part of the primary Judge.

71    When attention is directed to the decision of the primary Judge, considerable reservation is expressed as to the adequacy of the reasoning provided for rejecting the comparable Grounds of Review as are now relied upon before this Court. Some of those Grounds of Review have been more exposed to more scrutiny than others. Although there is some limited reference in the reasons of the primary Judge to the actual argument sought to be canvassed with respect to some of the Grounds of Review, such reference as is made to the arguments may have been insufficient to alert the now-Appellant to the fact that his arguments had been considered and resolved. Reservation is expressed as to whether it would be apparent to the now-Appellant that the primary Judge in fact actively engaged with the arguments presented to that Court for resolution.

72    But no challenge was made on appeal to the adequacy of the reasoning of the primary Judge. The focus of oral submissions advanced on behalf of the Appellant remained more a challenge to the findings and reasons of the Tribunal than an attempt to identify appellable error on the part of the primary Judge. The substance of each of those challenges has been separately considered and each has been rejected.

73    None of the Grounds of Review had any merit before the primary Judge and none of the Grounds of Appeal have been made out.

74    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

Associate:    

Dated:    4 April 2019