Federal Court of Australia

WZATX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1262

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant must pay the first respondent's costs of the appeal including the costs of the hearing on 27 August 2020.

3.    On or before 4.00 pm on 15 September 2020, the parties must file any minute of consent orders fixing a lump sum in relation to the first respondent's costs.

4.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent's costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The appellant is from Sri Lanka. He claims he has a well-founded fear of persecution should he be returned to that country. The basis of the claim is that he is a young Tamil male with imputed links to the Liberation Tigers of Tamil Eelam (LTTE). Other aspects of his protection claims are no longer in issue.

2    The appellant unsuccessfully applied for a Protection (Class XA) visa (Class XA Visa) and also unsuccessfully applied for a Safe Haven Enterprise Visa (SHEV), which is also a form of protection visa. Those unsuccessful applications, which were refused by delegates of the first respondent (Minister), have been the subject of review by the Administrative Appeals Tribunal (AAT) and its predecessor the Refugee Review Tribunal, on a total of three occasions. The appellant asserts that the tribunal which reviewed the delegate's decision on the last of those occasions (Third Tribunal) erred in failing to take account of a video he sent to it as evidence of his claims, and that it also erred in exercising a discretion under s 416(2)(b) of the Migration Act 1958 (Cth) to take as correct certain aspects of the previous decision of the AAT (Second Tribunal).

3    The Federal Circuit Court of Australia dismissed the appellant's application for judicial review on those bases (and other bases not pursued on appeal). The issues raised by the present appeal from that decision are whether the AAT made a jurisdictional error by failing to consider the video, and whether it misconstrued or misapplied s 416(2). For the following reasons, the appeal will be dismissed.

The decision of the Second Tribunal

4    I adopt the chronology set out at [3] of the primary judge's decision, which was not the subject of challenge. It is not necessary to describe the course of proceedings before the first tribunal, the Refugee Review Tribunal, at all. But it is necessary to describe the subsequent decision of the Second Tribunal because the decision of the Third Tribunal, which was before the primary judge, adopted parts of the Second Tribunal's decision. It is also necessary to describe the somewhat involved history of the videos on which the appellant relied (there were two) as the error on the part of the Third Tribunal which he sought to establish depended in part on the provenance of the videos and certain purported translations of them.

5    On 5 May 2017 the Second Tribunal handed down its decision on a review of the decision of a delegate of the Minister to refuse the appellant's application for the Class XA Visa. During the course of that review, the appellant claimed that he had escaped an attempt to abduct him by three or four people who were in a white van. That claim was new. The appellant did not mention the alleged abduction attempt in his entry interview, his interview with the delegate or in the previous review by the Refugee Review Tribunal. While he had said previously he feared 'white van' abduction because he had been told it had happened to other Tamils, this was the first time he claimed that there had been any attempt to abduct him. It was this incident which, the appellant said, led his father to make the arrangements that resulted in the appellant's departure from Sri Lanka.

6    There was also material before the Second Tribunal suggesting that on the night of the alleged abduction, when the appellant was at a relative's house, people came to the family home asking after him and forcibly searching the house. The appellant also claimed in the course of the Second Tribunal's review that after he left Sri Lanka, people came to the house asking his parents where he was, although the last time that happened was early 2017. Those people were not the police and the appellant and his family were unsure of who they were. They did not wear uniforms or identify themselves, although the appellant and his family believed that they were connected to the police or the army. They spoke to his parents in Tamil.

7    It is also relevant to note that the appellant told the Second Tribunal that he never had any other problems with the police or authorities. He had no idea why the people in the white van tried to grab him. He suggested it may have been related to his father's past, which is a reference to a claim that his father was jailed for a couple of months in 1986 or 1987 (before the appellant was born). But the appellant told the Second Tribunal that he was unaware of any family members involved with or suspected of being involved with the LTTE. Neither he nor his family had any problems relating to politics or religion, beyond the racial tensions that arose from being Tamil in a Sinhalese dominated society.

8    When asked by the Second Tribunal to explain why he had not mentioned the alleged abduction before, the appellant said he was afraid to mention it because of fears for his family and fears that the Sri Lankan authorities would discover that he was in Australia. He said that at the time of the latest review before the Second Tribunal he was 21 years old and more mature.

9    Nevertheless, in its findings of fact the Second Tribunal said that the appellant's failure to make the abduction claim before the review hearing caused it to have concerns about his credibility. Given that the appellant's claims had consistently been founded on fear of white van abductions, it would be highly unusual that he would not mention an attempt to abduct him in that way, when that narrow escape was what prompted him to leave Sri Lanka, if it were in fact true. The appellant could conceivably have been reluctant to reveal an imputed LTTE connection, for fear of repercussions. But the attempted abduction claim did not necessarily impute any such connection, so the Second Tribunal found it 'somewhat incomprehensible' that the appellant did not mention it earlier.

10    The Second Tribunal drew adverse credibility findings as a result of the claim. It did not accept that there was any attempted white van abduction involving the appellant before he left Sri Lanka. And it did not accept the evidence that the authorities had been coming to his parents' house regularly to ask his whereabouts, either in 2017 or earlier.

11    Setting aside the claims about the attempted abduction and its aftermath, on the basis of country information about the improving situation in Sri Lanka generally, the Second Tribunal was not satisfied that the appellant faced a real chance of serious harm on his return to Sri Lanka for any Convention reason. Nor was it satisfied that he met the complementary protection criterion.

The course of the Third Tribunal's review

12    In the meantime, the appellant had applied for the SHEV. That is the application which has led to the present appeal.

13    At his interview with the delegate, which was held after the Second Tribunal handed down its decision in relation to the review of the refusal of the Class XA Visa, the appellant reiterated the claim that there had been an attempt to abduct him by people in a white van. The delegate was not satisfied that there was any credible evidence that the attempted abduction had occurred, and for that and other reasons refused to grant the SHEV. The appellant applied for review to the AAT. To minimise confusion I will refer to the tribunal member who decided the review application, and the members of the AAT's staff who communicated with the appellant in the course of that review, compendiously as the Third Tribunal.

14    The Third Tribunal held a review hearing on 11 September 2017, which the appellant attended. On 10 October 2017 the Third Tribunal wrote to the appellant enclosing the Second Tribunal's decision on the Class XA Visa and referring to s 416 of the Migration Act. The Third Tribunal described several relevant findings adverse to the appellant that the Second Tribunal made. The Third Tribunal then said in the letter:

When considering a further protection visa application (n [sic] the present case, your application for a Safe Haven Enterprise visa Subclass XE-790(SHEV)), s.416 of the Act provides that the Tribunal is not required to reconsider any information considered in an earlier application, if that application has been finally determined. The Tribunal may also have regard to, and take to be correct, any decision of the Minister or review body made about or because of that information.

At the commencement of its hearing with you on 11 September 2017, the Tribunal stated that it wished to understand why you believed that your claims for protection had been misconceived in previous forums by prior decision-makers.

15    The Third Tribunal then said that it had considered the Second Tribunal's decision on the appellant's claims and noted:

The Tribunal sought to determine from you at the hearing whether or not there is additional evidence that might suggest to the Tribunal that either your circumstances have materially changed since that earlier decision was made, or that this earlier decision was misconceived.

This information is relevant to the review because if the Tribunal accepts and takes to be correct the previous findings on which [sic] the previous decision that you did not hold a well-founded fear of persecution on the basis of either the Refugee Criteria, or the Complementary Criteria now or in the reasonably foreseeable future, if you were returned to Sri Lanka, it would appear to negate your claims for protection under both s.36(2)(a) and s.36(2)(aa) of the Act in your present application.

16    The letter from the Third Tribunal specifically drew the appellant's attention to the fact that the claim about the attempted 'white van' abduction was not raised in the original application for protection and invited him to comment on the apparent inconsistency.

17    The appellant responded in a letter dated 18 October 2017 saying, relevantly:

1)    This refers to your letter sent to me on the 10th of October 2017 where you wanted me to comment or respond to information.

2)    In this regard I wish to make the following observations:

a)    Why I did not make reference to a white van abduction in my original application was a fear that the government of Australia will look adversely at persons associated or perceived to be associated with the LTTE.

b)    This was what was told to me and I was also confused in my mind in this regard.

c)    The same fact applies to the reason why the letter of complaint from my mother to the police was not produced in evidence.

3)    My credibility has not been accepted and it appears that a decision had been made not to recommend a Protection Visa on this basis.

4)    At the time I fled the country I was quite confused in mind and this fact would have affected my initial statements and submissions.

5)    I also submit that I have a well-founded fear of retuning [sic] to Sri Lanka due to the current state of affairs in that country. In this regard I refer to a press released [sic] on the 14th of July 2017 issued by the UNHCR representatives investigating the situation in Sri Lanka. I also submit a reference to the proposed Counter Terrorism Act which appears to be worse than the Prevention of Terrorism Act.

18    On 25 October 2017, the appellant emailed the Third Tribunal saying (all errors in original):

Hi this is [the appellant] my sister took some video clips by her mobile, the people who come to my house and search for me always they have come on 24/10/2017 (Tuesday night) she took this videos without knowing them have look at it … thanks [the appellant]

An mp4 video file (First Video) was attached to the email.

19    On 26 October 2017 the Third Tribunal responded saying that without a certified translation into English, it was not possible to verify what was said in the First Video. It also said that nothing could be seen in the video and it was impossible to identify who was speaking.

20    On 1 November 2017 the appellant sent another email to the Third Tribunal which said (all errors in original):

… i have send some videos i don't know why one of the video doesn't go through i send that video below >as well it is not showing the face because the main thing is my sister took these videos without knowing them (hiding her phone by side) at the same time if she focus on the face and if they notice it it will make big trouble for my family, … it was night time and her mobile phone quality is not good. The video telling that the people who looking for and come to my house often.they asking my mom about me where am i ..'?

Where do you hiding your son … ? And

Some this kind of questions if you translate it you will understand what happening … we don't get enough time to translate of course you know it was happened on 24/10/2017 … please take your time and translate it please the language is sinhalamand bit of tamil i give permission to translate those videos it ready important thing it's all about my life please don't ignore this …

A different mp4 video file (Second Video) was attached to this email.

21    On 3 November 2017 the Third Tribunal wrote a letter replying to the appellant's letter of 18 October 2017, referring to passages from the Second Tribunal's decision on the Class XA Visa that were relevant to the submissions the appellant made in the letter, and making him aware that the Third Tribunal may rely on the findings of the Second Tribunal. It also referred to the First Video and said that as no video was viewable on the recording, and the audio was not 'transcribed into English', and the Third Tribunal had no way of verifying the authenticity of the recording or its contents, the Third Tribunal may consider accepting the appellant's email submission attaching the video but according it little, if any, weight.

22    On 20 November 2017 the appellant emailed the AAT saying 'Hi this is a translation of the videos'. Two pdf files were attached to the email. They each contained what appears to be a transcription or translation of a conversation. Each was handwritten and signed by a person, above a stamp indicating that the person was a 'sworn translator' based in Trincomalee, Sri Lanka. The first in order of appearance in the appeal book said:

P:    Where is son?

M:    Son is not here.

P:    Where did he go?

M:    I don't know where.

P:    I come daily, you say no.

M:    I don't know where. If I know, I will tell you.

P:    We come here daily, don't we?

M:    I don't know where he went.

P:    No, No, you son is not here?

M:    If I know, I will tell you.

P:    If he likes, ask him to come.

P:    Where did he go? Don't know about your son!

M:    If I know, I'll tell you.

P:    You always say like that.

P:    Tell that we will come tomorrow.

M:    Yes, alright.

P:    Ok Madam. I'm going.

M:    Ok. Ok.

23    The second said:

P:    Where's he? Where's he? Isn't he here?

M:    Son is not here.

P:    You can't say your son is not here.

M:    Son is not here.

P:    We come here daily. You always say like this.

M:    I'm telling the truth. Son is not here.

P:    When we come here you always act like this. You can't do like that. You must bring your son. Where is he now?

M:    Son is not here.

P:    You can't say like that madam. You always tell like this.

M:    That is what we say.

P:    That we can't do. Ask him to speak to us over the phone. When we come here you always tell lies! lies!

M:    I am telling the truth.

P:    You always tell lies! lies! What to do now?

M:    I don't know.

The reasons for decision on the second AAT review

24    The Third Tribunal gave its decision affirming the refusal of the SHEV on 27 November 2017. The resolution of the issues raised by the appellant's submissions depends on a full understanding of the Third Tribunal's reasons, considered as a whole. It is therefore necessary to describe the reasons in some detail.

25    The Third Tribunal noted that the appellant was required to satisfy the same statutory requirements to obtain a SHEV as applied in relation to the Class XA Visa that was the subject of the earlier review by the Second Tribunal. The Third Tribunal noted that the claims made in the application for the Class XA Visa, determined by the Second Tribunal, were substantially the same as those made in the application before the Third Tribunal. The Third Tribunal set out in full the letter referred to at [14]-[15] above.

26    The Third Tribunal then set out the written submissions that the appellant made in response to that letter, which in so far as they are relevant to this appeal are quoted at [17] above. The Third Tribunal went on to consider the quoted submissions, in terms which made it appear that the Third Tribunal considered that they all related to the claim that the appellant had been the subject of an attempted white van abduction. I do not consider that this was the Third Tribunal's intention, and it may have been a product of injudicious copying and pasting, but in any event the appellant did not seek review of the decision on that basis.

27    The Third Tribunal quoted passages of its earlier decision that dealt with the alleged abduction, saying that the Second Tribunal had previously considered submissions similar to the ones in the appellant's letter of 18 October 2017 and did not find them convincing. The Third Tribunal did not, at that point, adopt the Second Tribunal's findings to that effect but said it would discuss them below.

28    The Third Tribunal's reasons then referred to its letter of 3 November 2017, which is mentioned at [21] above. After separately dealing with the letter of complaint from the appellant's mother to the police, and describing country information about a claim based on fears about the current state of affairs in Sri Lanka, the Third Tribunal turned to the question of whether the appellant had any actual or perceived profile as a member or supporter of the LTTE, and returned to his claims to have been the subject of an attempted white van abduction. It dealt with both claims in the section of its reasons which appeared to be devoted to paragraph 5 of the appellant's submission of 18 October 2017 (quoted at [17] above).

29    The Third Tribunal's reasons then proceeded on the basis that the appellant's protection claims could be divided up so as to include claims about his actual or perceived LTTE profile in Sri Lanka, and the white van abduction claims. The Third Tribunal found:

35.    The Tribunal notes that the fact of 'white van abductions' has not been in issue in any of the country information or previous determinations relevant to the applicant's claims. The issue consistently raised by the Tribunal with the applicant has been the underlying question of the credibility of the applicant's particular claims. Accordingly, the Tribunal finds that the applicant's submission does not adequately address the Tribunal's underlying credibility assessment of the applicant's claims to have been targeted by a 'white van abduction' - an assessment that it shares with the previously constituted Tribunal which finally determined the applicant's protection (Subclass XA-866) visa application.

36.    To the extent that the applicant's claims for protection relate to his actual or perceived LTTE profile in Sri Lanka now, or in the reasonably foreseeable future, the Tribunal has found, below, that the applicant does not hold a well-founded fear of persecution on this basis. For present purposes, the Tribunal notes that the Tribunal, as previously constituted in the applicant's prior protection (Subclass XA-866) visa proceedings, has already considered the applicant's claims for protection on the basis of his actual or perceived LTTE profile in Sri Lanka now, or in the reasonably foreseeable future, and found those submissions to be unpersuasive. This Tribunal, therefore, takes to be correct and relies upon the those [sic] findings of the previously constituted Tribunal relating to the applicant's actual or perceived LTTE profile in Sri Lanka now, or in the reasonably foreseeable future.

A little further on the Third Tribunal said:

38.    It appears, therefore, that the Tribunal, as previously constituted in the applicant's prior protection (Subclass XA-866) visa proceedings, has already considered submissions in similar terms to those contained in submission 2(c) above, to the extent that they are relevant, and found those submissions to be unconvincing. This Tribunal, therefore, takes to be correct and relies upon the foregoing findings of the previously constituted Tribunal with regard to the applicant's late 'white van abduction' claims in the present application.

30    Then, after dealing with another submission which is not now relevant, the Third Tribunal, under a heading 'Findings of prior-determined application proceedings', discussed further the appellant's claims concerning his Tamil ethnicity and LTTE profile, and the alleged abduction attempt. It noted the Second Tribunal's findings that absent a significant risk profile, ethnic Tamils do not generally experience persecution on the basis of ethnicity alone. It quoted a paragraph from the Second Tribunal's reasons to the effect that it had not accepted that the appellant fell within the profile identified by the United Nations High Commissioner for Refugees as being at risk of serious harm. The Third Tribunal then went on to have regard to more recent country information than had been referred to by the Second Tribunal, suggesting that the situation for Tamils in Sri Lanka had continued to improve. It concluded that this country information was materially consistent with the country information that was surveyed and relied upon in the Second Tribunal's decision. It then quoted two passages from that earlier decision in relation to the appellant's claims that he held a well-founded fear of persecution in Sri Lanka. One was to the effect that the appellant did not fall within the profile identified as being at risk of serious harm, because in direct questioning from the Second Tribunal he had denied that he or his family had ever been involved with the LTTE or suspected of being involved with them. The other said that the Second Tribunal did not accept that the appellant would be imputed to have perceived links to the LTTE and that his father would continue to have such perceived links.

31    The Third Tribunal then went on to consider a claim by the appellant that in recent times he had been told that people had come to his parents' house asking about his whereabouts. The Third Tribunal considered that the appellant had not raised these issues before. It was at this point that it dealt with one or both of the videos which the appellant had sent to it. It quoted the appellant's email of 25 October 2017 and said that the attached media file contained no recognisable vision and was not interpreted. It quoted from its reply letter to the appellant to that effect and then quoted in full the appellant's email of 1 November 2017. The Third Tribunal's reasons do not mention the fact that there was a second, different media file attached to that email.

32    The Third Tribunal's reasons then quote the alleged translations of the videos in full. However they do so under the following comment:

On 21 November 2017, the applicant provided the following translation [sic] of the recorded speech in the media file [sic] provided to the Tribunal on 26 November 2017 [sic] …

So the Third Tribunal seems only to be referring to one media file, and the date given of 26 November 2017 is obviously wrong. The quotation of the translations presents them as if they are one translation of one conversation, and they are in the reverse order to the order in which they appear in the appeal book.

33    The Third Tribunal then commented on the translations and the aspect of the appellant's claims they might have supported as follows:

64.    The applicant was advised by the Tribunal, in the letter of 3 November 2017 referred to above, that the the [sic] Tribunal has no way of verifying the authenticity of either the recording or any of its contents. Accordingly, the applicant was further advised that the Tribunal may consider accepting the submission but accord it little, if any, weight. Although the Tribunal did subsequently receive the foregoing transcript of the audio component of the media file, the applicant's submissions do not address the question of the Tribunal's inability to independently verify either its authenticity or any of the content contained therein.

65.    Accordingly, the Tribunal accepts the foregoing media file and the translation offered by the applicant as some evidence in support of the applicant's late claims to be the subject of continuing interest to persons unknown in Sri Lanka. However, given the nature of the media file and the content of the translated transcript, it is not possible for the Tribunal to verify its authenticity. Accordingly, the Tribunal places little weight on this evidence.

66.    The Tribunal finds that the applicant's evidence at the hearing relating to these integers of his claims is vague and lacking in appropriate detail or substantive corroboration. The Tribunal further finds that the applicant's explanation for failing to raise the foregoing integers of his claims at the first reasonable opportunity is illogical and lacking in credibility. Accordingly, the Tribunal finds that these integers of his claims for protection lack credibility.

34    The Third Tribunal then turned to the Second Tribunal's treatment of the appellant's claims about his Tamil ethnicity as follows:

67.    The Tribunal notes that the applicant failed to persuade it that the 5 May 2017 decision of the previously constituted Tribunal (which finalised the applicant's prior protection (Subclass XA-866) visa application and appeals process) either misapplied the law, misinterpreted the relevant country information or misconceived the applicant's claims for protection on the basis of his Tamil ethnicity if he were to return to Sri Lanka now or in the reasonably foreseeable future. Accordingly, the Tribunal takes to be correct and relies upon the findings of the previously constituted Tribunal, referred to above (which finalised the applicant's prior protection (Subclass XA-866) visa application and appeals process), with respect to the applicant's Tamil ethnicity extracted.

35    Accordingly, the Third Tribunal took to be correct and relied on the Second Tribunal's findings that the appellant did not fall within the profile as being at risk of serious harm and would not be imputed to have perceived links to the LTTE.

36    The Third Tribunal then returned to the attempted 'white van' abduction. It recorded what the appellant said at the latest review hearing by way of explanation of his delay in making that allegation and found that 'evidence in this respect is consistent with his evidence before the previously constituted Tribunal'. It then said:

72.    The Tribunal advised the applicant that this explanation at the hearing did not appear to be logical, given that, by the relevant point in time, the applicant had been formally interviewed or otherwise heard on three prior occasions. The applicant responded by suggesting that he deliberately did not provide the information in case it jeopardised his chances of obtaining protection. The Tribunal notes that this explanation is at variance with the applicant's prior explanation that he did not understand how the integer of his claims was relevant to his protection application. Accordingly, given that the applicant has provided some evidence consistent to that which he provided to the previously constituted Tribunal, and given that the applicant has provided illogical and inconsistent evidence on this integer of his claims to this Tribunal, the Tribunal places little weight on this integer of the applicant's claims.

37    Then, on the subject of the Second Tribunal's findings, the Third Tribunal said:

73.    The Tribunal further finds that the applicant's evidence, and his most recent submissions of 18 October 2017, do not adequately address the Tribunal's underlying concerns about the findings made in the 5 May 2017 decision of the previously constituted Tribunal (which finalised the applicant's prior protection (Subclass XA-866) visa application and appeals process) about the substantial lack of credibility of this integer of the applicant's claims.

74.    The Tribunal further notes that, in his written submissions dated 18 October 2017, referred to above, the applicant has failed to provide any information to suggest that the 5 May 2017 decision of the previously constituted Tribunal (which finalised the applicant's prior protection (Subclass XA-866) visa application and appeals process) has either misapplied the law, misinterpreted the relevant country information or misconceived the applicant's claims for protection on the basis of his having been the subject of a 'white van abduction' prior to leaving Sri Lanka.

75.    Accordingly, the Tribunal takes to be correct and relies upon the previously constituted Tribunal's findings discussed above relating to this integer of the applicant's claims, which were that:

The Tribunal does not accept, based on the evidence before it, that the applicant faces a real risk of being abducted by persons associated with a white van, or otherwise kidnapped, abducted or 'disappeared'. The Tribunal does not accept that the applicant's profile indicates that he would face kidnapping for the purposes of ransom.

76.    Therefore, this Tribunal takes to be correct and relies upon these findings of the previously constituted Tribunal (which finalised the applicant's prior protection (Subclass XA-866) visa application and appeals process) in relation to the applicant's claim to face a real risk of being abducted by persons associated with a white van, or otherwise kidnapped, abducted or 'disappeared', either extra-judicially or for ransom, in the present application.

38    On the basis of these findings, and after considering another basis of the protection claim which is not presently relevant, the Third Tribunal found that the appellant met neither the refugee criterion for a protection visa in s 36(2)(a) of the Migration Act or the complementary protection criterion in s 36(2)(aa). It affirmed the delegate's decision not to grant the SHEV.

The judicial review application in the Federal Circuit Court

39    The first ground of review was that the Third Tribunal had constructively failed to exercise jurisdiction due to a misconstruction or misapplication of s 416(2)(b) of the Migration Act. That was supported by particulars, only two of which are relevant to the appeal, namely:

1.2    The Tribunal erred in the exercise of the discretion to 'take to be correct' a decision, or decisions, of the previous review body by not considering the new information: Tamil independence-related activities in Australia, allegations of persons subsequently enquiring about him at his parents' house, new video evidence (and associated transcription) said to capture such a visit, and anonymous letters said to have been thrown into his parents' house requiring about his whereabouts.

1.3    The Tribunal erred in its purported evaluation of the future risk of harm, because evaluating the future required the Tribunal to consider the possibility that the video and transcript was genuine and corroborative of the balance of the Applicant's claims, and the Tribunal's adoption of the previous review body's decision foreclosed the Tribunal from undertaking a 'what if I am wrong?' analysis.

40    The appellant's key submission in relation to particular 1.2 was to the effect that the Third Tribunal remained bound to conduct its own review after giving the appellant a meaningful opportunity to give evidence and present arguments, so it was under a duty not to let the findings of the Second Tribunal so 'overshadow' its own exercise of jurisdiction that it has not considered all the evidence and submissions before it.

41    The primary judge dealt with this briefly, quoting from authorities on s 416 to the effect that the Tribunal is at liberty in a proper case to adopt or accept the conclusion or process of reasoning of the previous tribunal in whole or in part: see especially Nejad v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 153 at 158 (Beaumont J).

42    In relation to particular 1.3, the appellant said there was a real possibility that the videos and transcript were true, so in effectively discounting them in assessing the future risk of harm, the Third Tribunal fell into error. The 'what if I am wrong' analysis to which the particular refers is described in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [60] as arising out of the need, in assessing protection claims, to take into account the possibility that alleged past events did occur, even if it is more probable than not that they did not occur. This arises out of the need to engage in reasonable speculation about the chances of a hypothetical future event occurring. But it only arises if a fair reading of the reasons allows the conclusion that the decision maker has a real doubt about its findings on material questions of fact: see Rajalingam at [60], [67].

43    The primary judge held that there was nothing in the AAT's reasons to indicate that it had any real doubt about its findings on credibility and it stated in clear terms it did not accept the white van abduction claim. In relation to the 'media file' (singular), his Honour found that the AAT considered the whole of the translation and placed little weight on it because it had not been independently verified as to its authenticity. In those circumstances there was no occasion to apply the 'what if I am wrong' analysis.

44    The primary judge gave the appellant leave to raise at the hearing another ground of review, ground 1A, which alleged the following error, said to be a failure to take into account a mandatory consideration:

The Administrative Appeals Tribunal overlooked evidence submitted by the Applicant attaching a video file named 'VID-20171025-WA0000.mp4' [that is, the Second Video] to an email on 1 November 2017 which purported to capture footage of persons making enquiries about the Applicant in Sri Lanka, and its associated translated transcript, which was dispositive in that it went directly to a claim and indirectly to the Applicant's credibility.

45    The primary judge's conclusion on this ground was that the AAT's mistake in referring to the translated transcript as one transcript and not two separate transcripts was irrelevant because it clearly considered both translations, and the misconception of evidence is not jurisdictional error.

Ground of appeal 1 - the second video file

46    By his first ground of appeal, the appellant asserts that the primary judge fell into error in not finding that the Third Tribunal failed to consider a mandatory consideration, or denied procedural fairness, or constructively failed to exercise jurisdiction, in not considering the Second Video and the translation of the Second Video. The appellant submitted that the Second Video 'was capable of supplying an answer to a dispositive issue' for the Third Tribunal as to whether he was of ongoing interest (to unspecified persons) and 'capable of changing the entire complexion' of the case given that the appellant was, in fact, disbelieved. The Second Video was capable of both supporting the appellant's claim of attempted abduction and bolstering his credibility.

47    I accept that the Third Tribunal misdescribed what it had received in the form of the putative translations. It referred to them as a translation of a single recording 'in the media file provided to the Tribunal on 26 November 2017'. The appellant contended that this alleged failure to understand the translations as separate descriptions of two separate events 'denies much of the probative value of the material'. The proposition appears to be that if the Third Tribunal had understood that unidentified people had come looking for the appellant on two occasions rather than one, the second time would have corroborated the first. Counsel submitted that 'to assimilate two events into one is to overlook both'.

48    I do not accept that. The simple fact is that the Third Tribunal did not overlook either or both of the First Video or the Second Video. If it is assumed that the two putative translations were indeed accurate translations of speech on the two media files, then the Third Tribunal considered the content of both files in the only way reasonably open to it, given that the videos contained no vision and were in Tamil and some Sinhalese. It read the translations. It reproduced them in full in its reasons. It accepted them as part of the materials on which the review was conducted. It commented on them. It considered their contents. The result of the consideration was that it gave them little weight. The contention that the Third Tribunal overlooked the content of either video must be rejected. The primary judge's conclusion was correct for the reasons he gave.

49    Further, it was open to the AAT to give the videos little weight, given the almost complete lack of context provided by the appellant as to who was speaking, the rudimentary nature of the purported translations provided, and the lack of any basis to independently verify the origin of the videos, or whether the purported translations did in fact translate things recorded in the videos. It was common ground that there was no useful vision in either of the videos and that none of the speaking recorded in them was in English. To say that the Third Tribunal should have viewed the Second Video (assuming it did not), which had no useful vision and was entirely in languages the Tribunal did not understand, is to say the Tribunal fell into error by failing to undertake a pointless exercise.

50    It is true that when it combined the two translations, the Third Tribunal placed the one that appears first in the appeal book after the one that appears second. But it is unclear which translation is of the video that was recorded first, and which of the one that was recorded second. Nor is it clear whether the First Video, so labelled because it seems to have been the first one received by the Third Tribunal from the appellant, was recording the event or part of an event that was first in time. All of this underscores how the material which was the foundation of ground 1 lacked any cogency. In any event, from the content of the translations, the ordering chosen by the Third Tribunal makes sense, as it concludes with the unidentified person, who was apparently asking about the whereabouts of the appellant, saying that he (or she) is going.

51    The substance of the appellant's complaint is that the Third Tribunal misconceived the two translations as translating what was said on a single occasion. But he has not established that there was more than one occasion. The email of 25 October 2017 with which the appellant sent the First Video said (emphasis added) 'my sister took some video clips by her mobile, the people who come to my house and search for me always they have come on 24/10/2017 (Tuesday night) she took this videos'. The appellant seems to be saying that more than one video was taken on a single occasion which took place on 24 October 2017. In his next email of 1 November 2017 the appellant said '… i have send some videos i don't know why one of the video doesn't go through i send that video below' (emphasis added) and later 'you know it was happened on 24/10/2017'. The best interpretation of these emails in the context of the videos and purported translations themselves is that the appellant was sending two videos taken on the same occasion on 24 October 2017. So he has not discharged his onus of establishing the factual premise for his argument that the Third Tribunal assimilated two occasions into one. He has not established that there were two occasions. It is likely that the Third Tribunal's misdescription of the videos as if they were a single file is of no moment because, while there were two files, together they recorded a single occasion.

52    I do not accept that treating the two translations as one was an error of any kind, and nor do I accept that if it was an error, it denied any significant probative value to the material. The Third Tribunal found that the material had little probative value and that finding was open to it. Two videos which have little evidentiary weight are hardly more convincing than one, especially when it is unclear whether they were evidence of two separate occasions.

Ground 2

53    This ground alleges errors in the Third Tribunal's exercise of its discretion under s 416 to have regard to, and take to be correct, any decision that previous review bodies had made about or because of information considered in an earlier Tribunal application. There were three particulars to ground 2 which described three errors in the application of s 416. They were:

a.    The AAT purported to 'take to be correct' a previous Tribunal's finding that the Appellant's account of a 'white van' abduction attempt was not credible, which was not a 'decision' within the meaning of paragraph 416(2)(b) of the Act but merely a finding of fact.

b.    The AAT's discretion under paragraph 416(2)(b) miscarried because it did not first consider fresh information not available to the previous Tribunal before considering whether to 'take to be correct' the Tribunal's findings on the information then before it.

c.    The AAT's taking to be correct a previous Tribunal's findings of fact as to some integers of the Appellant's claim, while quarantining the Appellant's new claims, exposed error in the assessment of future risk contemplated by subsection 36(2) of the Act.

Ground 2(a)

54    The Minister objected to the appellant proceeding with ground 2(a), on the basis that it was not raised with the primary judge. After some discussion between bar and bench at the hearing on 5 February 2020, and with the assent of counsel on both sides, I ruled that the objection would be resolved on the following basis. The appellant's representatives were to be given an opportunity to review the transcript of the Federal Circuit Court hearing. If it appeared from the transcript that the point had been raised below, the appellant would file an affidavit containing the evidence to that effect, and the court may then make orders programming further written submissions on the point. If the transcript indicated that the point was not raised before the primary judge, the appellant would not press it.

55    An affidavit of Ganasan Arujunan, the solicitor for the appellant, was filed on 4 March 2020. It annexed two pages of transcript and asserted that they showed the argument put in ground 2(a) was merely a refinement or necessary element of ground 2(c). However, it was not clear why Mr Arujunan made this assertion. No submission that a finding of fact is not a 'decision' within the meaning of s 416(2)(b) appeared in the two pages of transcript annexed. It was therefore necessary to reconvene the hearing to address the point.

56    At the reconvened hearing, counsel for the appellant submitted that ground 2(a) was part of ground 2(c) because they both mean that it was impermissible for the Third Tribunal to 'cherry pick' selected findings of the Second Tribunal. But this does not advance the appellant's position. It may indeed be possible to describe both grounds, or the consequences of both grounds, at a level of generality that encompasses them both. But to do so is to choose a level so high as to obscure the fact that they are different grounds. Ground 2(a) raises a specific question of the construction of s 416: does the reference to 'any decision that a review body has made about or because of that information' in s 416(2)(b) permit a subsequent tribunal to accept specific findings of the previous tribunal to be correct, rather than just accept (or not accept) the correctness of the decision as a whole? As will be seen below, ground 2(c) was developed without reference to that question of construction, but instead was advanced in terms of the Tribunal's duty to review the material before it as a whole. So I do not accept that ground 2(a) is merely a refinement or necessary element of ground 2(c). Nor do I accept that the transcript annexed to Mr Arujunan's affidavit shows that it is.

57    That being so, and subject to one further argument, the appellant should in my view be held to the choice accepted on his behalf by counsel at the hearing on 5 February 2020: either he shows that ground 2(a) was argued in the Federal Circuit Court, or he does not press ground 2(a). Since he has not shown the first, he must be held to the second. While the appellant also made submissions relying on the principles that apply generally to the discretion to permit a new point to be advanced on appeal, in my view it would not be in the interests of the administration of justice to permit him to depart from the choice he accepted, by way of experienced counsel, at the hearing on 5 February 2020.

58    The further argument, which counsel for the appellant also raised at the reconvened hearing, was that by failing to object or take any other step after the filing of Mr Arujunan's affidavit on 4 March 2020, the Minister has waived his opposition to ground 2(a). I do not accept that. The reality is that after the filing of the affidavit it was for the court to make a determination about leave to proceed with the ground and, depending on what the determination was, to program further submissions. The affidavit created uncertainty which, regrettably, was not resolved until the reconvened hearing on 27 August 2020. Viewed objectively in the context of that unresolved uncertainty, the Minister's inactivity in those circumstances should not be construed as acquiescence to the appellant's wish to proceed with ground 2(a).

59    For those reasons, at the reconvened hearing on 27 August 2020 I ruled that the appellant does not have leave to proceed with ground 2(a).

The appellant's case under grounds 2(b) and 2(c)

60    The precise nature of the errors asserted at particulars (b) and (c) were, with respect, more clearly expressed in the written submissions of counsel for the appellant than they were in the grounds themselves. The errors identified in the submissions were:

(1)    Because the Third Tribunal did not consider the Second Video, the discretion under s 416(2) miscarried, since that means that it could not have considered the discretion in light of the whole of the evidence, because it did not consider the whole of the evidence.

(2)    The Third Tribunal fell into error in its application of s 416(2)(b) by first taking to be correct the Second Tribunal's findings on the 'white van abduction' attempt, and subsequently rationalising away the fresh evidence or material of the video and related transcript which might have rationally corroborated that claim.

(3)    The Third Tribunal approached the Second Tribunal's findings on the basis that they would prevail unless the appellant persuaded the Third Tribunal that those findings were wrong. That was said to involve a misunderstanding of the discretion which caused the Third Tribunal to 'quarantine' the 'old' and the 'new' evidence, meaning that it did not consider the whole of the evidence before exercising the discretion under s 416(2)(b).

61    The first two of these submissions can be resolved briefly. As to the first, I have concluded above that the AAT did consider the contents of the video in the only way open to it. The essential premise for this contention is not made out. As to the second, it is true that at a point in its written reasons which appears before the passage where it discusses the video, the Third Tribunal expressly took to be correct and relied on the Second Tribunal's findings about both the appellant's actual or perceived LTTE profile and the white van abduction claims. But, as Emmett J observed in SZNOL v Minister for Immigration and Citizenship [2012] FCA 917 at [47], expressions of conclusion in a certain sequence do not indicate a failure to consider the evidence as a whole. And I do not consider that the submission that the Third Tribunal rationalised the video material away is a fair characterisation of what it did. The Third Tribunal gave the video material little weight based on reasoning which, as I have explained, it was open to adopt.

62    Counsel for the appellant developed the third submission as follows. The Third Tribunal's primary duty was to conduct a review of the delegate's decision under s 414(1). Under s 425, subject to limited exceptions, the Third Tribunal was obliged to invite the appellant to appear before the tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. It was necessary for that opportunity to be 'meaningful, not merely a "hollow shell or empty gesture"': Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 at [31]. The power under s 416, however, is permissive. It did not oblige the Third Tribunal to refuse to consider any information the Second Tribunal had considered in the earlier review, nor did it oblige the Third Tribunal to take as correct any decision the Second Tribunal had made about or because of that information: SZNOL at [23].

63    The appellant submitted that the discretion whether to take an earlier decision to be correct miscarries when the tribunal does not consider the whole of the evidence. The tribunal must incorporate any new evidence with the previous evidence. It was submitted that to do otherwise would be to foreclose the assessment of varying degrees of probability of future events which the High Court mandated in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575.

64    The appellant submitted that the Third Tribunal misunderstood the discretion, and that this was evidenced by the letter of 10 October 2017, where it asked the appellant whether he had any additional evidence that might suggest that his circumstances had materially changed since the decision of the Second Tribunal, or that the Second Tribunal's decision was wrong. The Third Tribunal then went on to evaluate the submissions it had received from the appellant in answer to that question, when it was required to conduct an evaluation of the evidence before the Second Tribunal in light of any new evidence. The submissions sought to characterise the Third Tribunal's approach as putting itself in the position of appellate court, where the appellant must persuade the Third Tribunal that there was error in the findings of the Second Tribunal.

Principles regarding s 416

65    Section 416 is as follows:

Multiple review applications - consideration of information

Scope

(1)    This section applies if:

(a)    a non-citizen has made an application (the earlier application) to a review body for review of a decision under this Part [Part 7]; and

(b)    the earlier application has been determined by a review body; and

(c)    the non-citizen makes a further application, to the Tribunal, for review of a Part 7-reviewable decision.

Review body not required to consider earlier information

(2)    The Tribunal, in considering the further application:

(a)    is not required to consider any information considered in the earlier application; and

(b)    may have regard to, and take to be correct, any decision that a review body has made about or because of that information.

(3)    In this section:

'review body' means:

(a)    the former Refugee Review Tribunal; or

(b)    the Tribunal.

Note:    The Refugee Review Tribunal was abolished from 1 July 2015, and its functions transferred to the Migration and Refugee Division of the Administrative Appeals Tribunal ('the Tribunal').

66    It is evident from the terms of s 416 that the appellant is correct to submit that it is in permissive terms. The Tribunal is not required to refuse to consider the information that was before a previous Tribunal, or to have regard to the previous Tribunal's decision, or to take it to be correct: Singh v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 440 at 449-450 (Mansfield J); Nejad at 158 (Beaumont J); Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 83 (Wilcox J, Burchett and North JJ agreeing); SZNOL at [23]; and SZSLM v Minister for Immigration and Border Protection [2014] FCA 945; (2014) 240 FCR 267 at [25]-[28], [42] (Jacobson J). By the same token, in a proper case the Tribunal is at liberty to adopt or accept the conclusion or the process of reasoning in whole or in part: Nejad at 158

67    The appellant here relied in particular on a passage from SZKOX v Minister for Immigration and Border Protection [2015] FCCA 789 at [19], where Manousaridis J said:

Although [s 416] is a permissive section, it is always subject to the Tribunal's obligation to review an application before it. That means that it is not open to the Tribunal to utilise s 416 in a manner that prevents or constrains it from considering all evidence and submissions that are before it.

68    Reeves J approved Manousaridis J's reasoning in SZKOX v Minister For Immigration and Border Protection [2015] FCA 990 at [29]-[31], although that was a decision on an application for an for extension of time to seek leave to appeal, where it is appropriate for the court to approach the question at a reasonably impressionistic level: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J). In BUL15 v Minister for Immigration and Border Protection (No 2) [2018] FCA 597 at [38], Moshinsky J followed Reeves J in saying that '[i]t may be accepted that the Second Tribunal was required to consider the evidence and submissions before it and to exercise its independent judgment'. However this was said by way of obiter as his Honour considered that the second Tribunal in the case before him had complied with these requirements.

69    I consider that it would be a mistake to read the two SZKOX decisions and BUL15 too broadly, so as to conclude that in every case where it is open to the Tribunal to apply s 416, it must review all the evidence placed before it, including information that was before the previous Tribunal. That would be contrary to the plain words of s 416(2)(a). That paragraph provides that the Tribunal, in considering the further application, is not required to consider any information considered in the earlier application. In my respectful view, the observation of Manousaridis J quoted above is correct provided that it is understood to mean that s 416 does not prevent or constrain the Tribunal from considering all the evidence before it. To appreciate that is one thing; it is quite another to conclude, contrary to the plain words of s 416, that the subsequent tribunal is always required to consider all the evidence before it, even if some or all of that evidence was information that was before the previous Tribunal.

70    It is no doubt true that the obligation of the subsequent tribunal to approach the review with an open mind is a fundamental requirement of the discharge of its duty to conduct a review. In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [63], Bell, Gageler and Keane JJ said of a situation where there were two Tribunal decisions about an asylum seeker's claims, the first one of which had been quashed, '[t]he task of the Tribunal as differently constituted was obviously to make an independent assessment of the merits of the appellant's claims, including by reference to its own independent assessment of his credit …'. But, in my view, the manner in which that obligation is to be discharged is informed by s 416. In WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568 at [16] Lee and Moore JJ described s 416 as a qualification to the requirement that the Tribunal consider all relevant material and, after having regard to that material, make the findings of fact necessary to support its determination.

71    The Tribunal may decide not to consider information that was considered by a previous Tribunal. It may have regard to a decision of the previous Tribunal made about or because of that information. It may take that decision as correct. It has a discretion about whether to do any of these things. It must approach that discretion with an open mind. It will err if it proceeds on the basis that the manner in which a previous Tribunal decides a matter constrains it: see Soboleva v Minister for Immigration and Multicultural Affairs [2001] FCA 528; (2001) 113 FCR 353 at [21]. But if it properly exercises the discretion in favour of doing any of the things that s 416 permits it to do, that does not mean that it has closed its mind. It just means that after reviewing the range of material before it, it is taking a source of material about the matters in issue as probative, or even conclusive, as to those issues. Section 416 expressly permits it to do so.

72    As with any discretion, the discretions under s 416 must be exercised on a proper understanding of their parameters and with regard to relevant factors. In Singh at 449-450 Mansfield J held (in relation to a previous, but not materially different, version of s 416):

Section 416 of the Act, which is set out above, makes provision for later applications for review by the Tribunal. It is significant that it is in permissive terms. Thus the Tribunal reviewing the later application is not required to consider any information considered in the earlier application, and may have regard to and take to be correct any earlier decision of the Tribunal made about or because of that application. It is not obliged to do so. Whether it does so is up to the Tribunal, and the Tribunal will have to make that decision in the circumstances then before it. In effect, in relation to an earlier application reviewed by the Tribunal, the Tribunal adopts one of two alternate paths: either it decides that it is appropriate to 'adopt' the earlier decision, and if it does not then it must retraverse the entire material before it, or if it does do so then it need only traverse the new material before it and adopt the earlier decision. If the Tribunal constituted by one and the same person has made the earlier decision, then it seems to me to be clear that the Tribunal is unlikely to be sufficiently removed from the process to meaningfully consider whether it is appropriate to 'adopt' the earlier decision for the purposes of the later decision.

It might be said in response that this analysis is too theoretical, as s 416 does not create any 'right' on the part of the applicant to have the Tribunal consider whether to 'adopt' the earlier decision or to go behind it. That is, it provides a vehicle for the Tribunal if it considers it desirable to go behind an earlier decision but starts from the premise that the applicant must build on an existing decision of the Tribunal. The respondent also fairly points out that the Tribunal, on the face of its reasons, has also done no more than it was expressly entitled to do: it has expressly had regard to, and taken to be correct, its decision on the earlier application.

73    So the exercise of the discretions will depend on the circumstances that are before the subsequent Tribunal. It is undesirable to constrain the discretions by laying down prescriptive rules that go beyond the terms of s 416 itself. But a few things may be said. First, the subsequent Tribunal will need to read the reasons of the previous Tribunal with an open mind, including a mind open to the possibility that the previous Tribunal made an error. It is difficult to see how it could properly exercise the discretions without doing at least that. Second, the discretions must be exercised with regard to the evident purpose of s 416(2), understood as a whole. When both paragraphs of that subsection are read together, it is plain that it is intended to permit the subsequent Tribunal to rely on the decision of the previous Tribunal about information that was before the previous Tribunal instead of the subsequent Tribunal considering that information for itself afresh. Third, it is difficult to see how the subsequent Tribunal could, correctly, decline to consider the previous information without also accepting the decision of the previous Tribunal as correct. If it did so, it would be excluding the previous information from consideration without allowing it to have any bearing on its own decision, either directly, or indirectly via the decision of the previous Tribunal. That would not be consistent with its obligation to review all relevant material, even taking into account the qualification afforded by s 416. Fourth, the converse of the previous point does not follow. That is, it is open to a subsequent Tribunal to both consider the information that was before the previous Tribunal and have regard to the previous Tribunal's decision and/or take it to be correct. To that extent, it is possible for the Tribunal to exercise the discretion under s 416(2)(a) independently of the discretion under s 416(2)(b). Given the permissive nature of each of those paragraphs, I do not read the 'and' that connects them as requiring that the discretion is always to be exercised the same way in respect of both paragraphs.

Application of principles

74    It follows from the discussion above that I do not accept the submissions of the appellant here that the discretion miscarries when the tribunal does not consider the whole of the evidence. It is a contradiction in terms to say that a Tribunal can only properly exercise a discretion not to consider certain evidence placed before it, if it has first considered all of the evidence. The appellant's submissions appeared to put the obligatory nature of the requirement to conduct a review together with the purely permissive nature of s 416 to suggest that the former must override the latter. But, as has been explained, the permission in s 416 operates as a qualification to the duty of review in s 414 and s 425.

75    Contrary to the appellant's submissions, the Third Tribunal was not required to conduct an evaluation of the evidence before the Second Tribunal in light of any new evidence, if to evaluate means to consider the 'old' evidence in order to make dispositive findings of fact on the basis of it. The Third Tribunal only needed to have regard to the information before the Second Tribunal to the extent necessary to ensure that the discretion under s 416 was informed by relevant circumstances including the nature of the information it was proposing not to consider. If, as the Third Tribunal did, it exercised the discretion against considering information that was before the Second Tribunal, no further evaluation was necessary.

76    Nothing about the process of assessing varying probabilities described in Guo dictates a different conclusion. If the question was one where the previous Tribunal should have undertaken that process, and it did not, then that will be a matter relevant to the subsequent Tribunal's discretions under s 416(2). If there is new evidence before the subsequent Tribunal which requires it to undertake that process, then it can do so, if appropriate by modifying the conclusions of the previous Tribunal to reflect the new evidence.

77    Nor do I accept that the Third Tribunal erred in proceeding on the basis that it was necessary for the appellant to show error in the Second Tribunal's decision. In SZNOL Emmett J found no error in the reasoning of a tribunal that had approached its discretion under s 416 on precisely that basis: see [25]-[26], [45], [48]. Contrary to the characterisation advanced by the appellant here, that does not involve the subsequent Tribunal setting itself up as an 'appellate body' from the previous Tribunal. It just involves the subsequent Tribunal having regard to a question which is obviously relevant to the exercise of the discretion under s 416: is there any reason to consider that any material findings of the previous Tribunal were wrong? It is acceptable to approach the discretion from that perspective, provided that the subsequent Tribunal's focus on that question does not cause it to disregard new information before it, or to fail to approach the review with an open mind.

78    The appellant criticised the Third Tribunal's letter of 10 October 2017 which is described at [14]-[15] above as setting up the Second Tribunal's findings as prevailing unless the appellant persuaded the Third Tribunal that it was wrong. But that is not what the letter did. Rather, it asked three questions: was there further evidence, had the appellant's circumstances changed, or was the Second Tribunal's decision misconceived? Each of those questions was relevant, and asking then demonstrates that the Third Tribunal was alive to several reasons why it might not turn out to be appropriate to accept the Second Tribunal's decision as correct. The fact that the Third Tribunal asked for the appellant's comment on those matters does not mean that it was going to follow the Second Tribunal's decision without regard to any new information or submissions that the appellant made.

79    Nor, on a fair reading of the Third Tribunal's decision, did it do so. The Third Tribunal's consideration of the Second Tribunal's decision started with a statement that the claims the appellant was making before the Third Tribunal were the same as the claims that he had made before the Second Tribunal. The appellant has not challenged the accuracy of that statement. So the Third Tribunal wrote the letter of 10 October 2017, which it set out in full in its reasons. It set out the appellant's submission in response to the letter (see [17] above). The Third Tribunal said that some of those submissions had already been considered by the Second Tribunal and found to be unconvincing. It wrote to the appellant informing him of that and saying that if the Third Tribunal took the Second Tribunal's decision to be correct, that could be the reason or part of the reason for affirming the delegate's decision not to grant the SHEV.

80    The Third Tribunal said it shared the Second Tribunal's assessment of the appellant's credibility. It said so in terms which indicated that it had made its own assessment, based in part on the appellant's failure to deal adequately with concerns about his credit which the Third Tribunal had raised with him. The Third Tribunal made its own findings that the appellant did not hold a well-founded fear of persecution on the basis of his Tamil ethnicity or LTTE profile. The Third Tribunal took the Second Tribunal's decision on those matters to be correct in the context of its own assessment, an assessment which included appropriate consideration of new country information and the new information comprised by the videos and further claims the appellant had made at the hearing before the Third Tribunal. The Third Tribunal also conducted its own assessment of the credibility of the white van abduction claims, before determining that the appellant had not adequately addressed the findings of the Second Tribunal. There was nothing erroneous about that approach, or about finding in that context that, in the absence of the appellant demonstrating error on the part of the Second Tribunal, the Third Tribunal should take the findings of the Second Tribunal to be correct and to rely on them.

81    In my view, the Third Tribunal's reasons read fairly as a whole indicate that it appreciated that it was obliged to bring an independent mind to review before it: cp. Nejad at 158. The appellant has not demonstrated any error in the Third Tribunal's approach to the discretions under s 416.

Disposition

82    The appeal will be dismissed and the appellant must pay the Minister's costs of the appeal.

Associate:

Dated:    1 September 2020