Federal Court of Australia

CKR16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1612

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

SC DERRINGTON J:

Introduction

1    The appellant appeals from a judgment of the Federal Circuit Court (FCC) delivered on 26 February 2020 dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (AAT) dated 29 July 2016, affirming a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) not to grant the appellant a Protection Visa.

2    On the morning of the hearing, the appellant sought leave to file an amended Notice of Appeal. The Minister did not oppose the grant of leave and leave was granted.

By the amended Notice of Appeal, the appellant relies on three grounds:

1.     The Federal Circuit Court failed to find that the AAT failed to consider claims, and integers of the Applicant’s claims.

Particulars

  a.     Failing to make findings regarding the Applicant’s assault in 1994

  b.     Failing to make findings regarding roundups during the civil war

  c.     Failing to make findings regarding the Applicant’s detention in 1996

d.     Failing to make findings regarding the harassment of the Applicant’s brother

e.     Failing to make findings as to the round-ups in 2007/8.

f.     Misunderstanding the Applicant’s claim regarding the assault of the Applicant in 2009, by considering that the Applicant alleged that he had authority to determine who used the Batticaloa temple

g.     Failing to make findings as to whether the Applicant’s premises in Colombo were searched in 2010.

h.     Failing to make findings as to the claim that the Applicant was required to do ‘favours’ while in Colombo.

i.     Failing to make findings regarding the Applicant’s involvement in the proposed meeting in Batticaloa in June 2012.

2.     The Federal Circuit Court failed to find that the AAT misunderstood and failed to give any consideration to the Applicant’s disabilities (i.e. his personal vulnerabilities) in determining well-founded fear.

3.     The Federal Circuit Court failed to find that the decision of the AAT was legally unreasonable.

a.     In making an adverse credit finding on the basis that the “entity he was being pressed to join had varied markedly over time” ([48], [70]) when there was no such inconsistency or variation.

b.     In drawing adverse conclusions from the photographs of the Applicant, on the basis that they do not show “any reluctant involvement” in a meeting, when such a conclusion cannot be logically drawn.

3    For the reasons that follow, the appeal should be dismissed.

Relevant legislative provisions

4    In relation to protection visas, generally and in the circumstances of this case, it is important to keep in mind the structure of the mandated power of the Minister under s 65 of the Migration Act 1958 (Cth) (Migration Act) to grant visas. It provides:

65    Decision to grant or refuse to grant visa

(1)    Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a)    if satisfied that:

    (i)     the health criteria for it (if any) have been satisfied; and

(ii)     the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)     the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)     any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)     if not so satisfied, is to refuse to grant the visa.

5    Section 36 sets out the criteria which have to be met for the purposes of the granting of a protection visa:

36    Protection visas—criteria provided for by this Act

(1A)    An applicant for a protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and

(b)    at least one of the criteria in subsection (2).

…

(2) A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

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

…

6    Section 36(2)(a) uses the word “refugee”, which is defined by s 5H:

5H    Meaning of refugee

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality — is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)    in a case where the person does not have a nationality — is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

7    The expression “well-founded fear of persecution” as it is used in s 5H is defined by s 5J, which provides, inter alia:

5J    Meaning of well-founded fear of persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

8    It follows that, for the granting or refusal of a protection visa under s 65, the Minister must be satisfied (or, for refusal, “not [be] so satisfied”) of a number of matters, including that the applicant meets the refugee or the complementary protection criteria.

9    In the present case, in its Statement of Decisions and Reasons (AAT Reasons), the AAT recorded that it was “not satisfied that [the appellant] faces a real chance of Convention-related persecution in the reasonably foreseeable future in Sri Lanka” nor that “his claimed fear of Convention-related persecution is well founded” (AAT Reasons [87]). The AAT was also not satisfied that there were “substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm” (AAT Reasons [102]). It was not contended in the FCC or before this Court that the AAT had incorrectly identified the test to be applied in relation to whether a person has a well-founded fear of persecution by reference to the existence of a “real chance” of serious harm.

Background

10    The following summary of the facts is based on the documents in the Appeal Book filed on 25 September 2020.

11    The appellant is a citizen of Sri Lanka who arrived in Australia on 1 July 2012. On 3 January 2013, the appellant applied for a Protection (Class XA) (Subclass 866) Visa.

12    In support of his application for a protection visa, the appellant claimed that he feared returning to Sri Lanka because of his refusal to obey the Karuna Group’s demands to help them during the 2012 election campaign. He raised the following matters in support of that fear.

13    First, he said that during the war in Sri Lanka, following military action in his area between the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lankan Army, the Special Task Force (STF), would go into the appellant’s village and conduct “roundup” operations. The appellant was caught during the roundups, detained for two or three days during which he was beaten and then released.

14    Secondly, his eldest brother received adverse attention from the LTTE in about 1998 as a consequence of which the appellant and his brothers would go to Colombo to escape the adverse attention.

15    Thirdly, his second eldest brother was detained at Boosa detention facility by the Sri Lankan authorities, although he was unsure when and why.

16    Fourthly, in 1996, the appellant was caught in a roundup while working in Colombo following a bomb blast. He was detained by the army for 21 days under suspicion that he was involved in the LTTE. He was caught in another roundup in Colombo in 2007 or 2008 but was released after approximately 11 hours after showing his registration document. Searches were conducted of the room where he and his brother worked up until 2010 and he was spoken to harshly by the Sri Lanka authorities.

17    Fifthly, in 2009 or 2010, he was asked by the Karuna Group to help them during the parliamentary elections in Batticaloa district. The Karuna Group is a Tamil paramilitary group that works with the Sri Lankan government and operates mainly in the Batticaloa district. At the time, the appellant was in charge of the lighting and audio equipment for a temple in Batticaloa. He was asked to set up the stage for the ruling party candidates. When he initially refused, he was beaten and threatened with a gun. The Karuna Group members said they would let the appellant live if he agreed to set the stage on the specified date. On 1 June 2012, the Karuna Group called the appellant’s mobile and realising he was at the temple, went to see him there. They insisted he join the ruling party and bring as many friends as possible to a meeting in Batticaloa. The appellant agreed to the request as he was afraid to refuse but then fled the country as he feared the Karuna Group that has committed many atrocities against Tamil people.

18    Sixthly, the appellant claimed that on return to his village, up until 2012, he was required to report to the Sri Lankan Army base that had been set up there and that, at various times, he was required to provide them with alcohol or a silver ring. They would also call him while he was in Colombo and ask him to charge their mobile phones.

19    Finally, the appellant claimed that he feared harm on return to Sri Lanka because of his illegal departure and making a claim for asylum in Australia.

20    On 20 December 2013, a delegate of the Minister refused to grant the appellant the visa. The delegate did not accept the credibility of the appellant’s fifth and sixth claims.

21    On 9 January 2014, the appellant sought review by the then Refugee Review Tribunal. On 6 November 2015, the then Refugee Review Tribunal affirmed the decision not to grant the appellant a visa.

22    On 11 December 2015, the appellant filed an originating application seeking judicial review in the FCC. On 17 February 2016, orders were made by consent allowing the application on the basis that the Minister accepted that the Refugee Review Tribunal had failed to ask the correct question namely, whether the expectation that the applicant would remain in Colombo to avoid harm in Batticaloa would be reasonable.

23    On 29 July 2016, the AAT affirmed the decision not to grant the appellant a visa.

24    On 31 August 2016, the appellant filed an originating application seeking judicial review in the FCC. The grounds for review were essentially the same as the grounds of appeal now agitated by the amended Notice of Appeal with the exception of grounds one, three and four below, which are not reagitated. For the reasons delivered on 26 February 2020 (FCC Reasons), the primary judge dismissed the application.

25    On 17 March 2020, the appellant filed a notice of appeal in this Court.

26    On the morning of the hearing, and over the objection of the Minister, the appellant sought leave to adduce into evidence transcripts of audio recordings of the appellant’s protection visa interview on 26 July 2013, the appellant’s two tribunal hearings held on 27 February 2015 and 2 November 2015, and of the hearing before the AAT on 26 July 2016, which were annexed to three affidavits of Shamili Kugathas filed on 20, 26 and 28 October 2020 respectively. A fourth affidavit of Shamili Kugathas, also filed on 28 October 2020, sought to explain why, despite not having been relied on before the FCC, the evidence is now considered essential.

27    None of the transcripts was in evidence before the FCC. No application pursuant to r 36.57 of the Federal Court Rules 2011 (Cth) to receive further evidence on appeal had been foreshadowed until the electronic lodgement of the first affidavit, nine days before the hearing, and the subsequent electronic lodgement of the two further affidavits on 26 and 28 October 2020. No reference to any further evidence being adduced on appeal was made in the appellant’s written submissions that had been filed on 1 October 2020.

28    Counsel for the appellant submitted that the primary purpose for which the transcript evidence was sought to be adduced was to establish that the FCC had erred in failing to find that the AAT had failed to consider particular claims (which were to past harms) on the incorrect basis that those claims had been withdrawn by the appellant. It was contended that, in order to say whether or not the appellant has withdrawn his claims, it was necessary to assess what evidence he gave at his protection visa interview and before the various tribunals. This alleged error was neither a ground of review before the FCC nor a ground of appeal raised by the amended Notice of Appeal.

29    In oral argument, the appellant accepted that the FCC did not proceed on the basis that the appellant had withdrawn any of his claims. Rather, the primary judge found that “There is no evidence that the Applicant either expressly or impliedly maintained a claim to fear future harm on any or all [of previously referred to bases]” (FCC Reasons [86]). The alleged error is misconceived. In the circumstances, leave to rely on further evidence on appeal should be refused.

Ground One

30    The appellant contends that various integers of his claim, referred to in sub-paras (a)-(i) of Ground One of the amended grounds of appeal were not given proper consideration by the Tribunal in the sense referred to by Black CJ in Tickner v Chapman (1995) 57 FCR 451, such as to amount to jurisdictional error on the part of the AAT. He contends that the FCC erred in failing to so find.

31    Focussing on the task that was before the AAT, s 65(1)(a) obliged it to determine whether or not it was satisfied that the appellant met the criteria prescribed by the Migration Act for the grant of a protection: that is, that because of his race, imputed political opinion, and as a member of a particular social group, he had a well-founded fear of persecution. That required the Tribunal to determine the appellant’s essential claim that he was of Tamil ethnicity, that he was a suspected member of or a person with links to the LTTE, and that he was a member of a particular social group, failed asylum seekers returning from the West, as a result of which he claimed to suffer a well-founded fear of persecution.

32    A failure by a tribunal to consider all of an applicant’s claims to fear future harm for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, constitutes a jurisdictional error: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at [42]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [45]; NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55].

33    That does not mean, however, that a decision-maker is required to make a finding of fact with respect to every claim or issue raised by an applicant: WAEE at [47]; Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320 at [46]. Nor does the obligation of a tribunal to give reasons require a “line-by-line refutation of the evidence of the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal”: Buadromo at [48].

34    As was observed by the Full Court in WAEE:

[45]    In conducting its review the Tribunal must have regard to the criteria for the grant of a protection visa and in particular the criterion that the applicant for a visa is:

‘… a non-citizen in Australia to whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;’ (s 36(2)(a) read with s 415(1))

The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.

[46]    It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

[47]    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

35    The appellant’s complaint stems largely from the observation that the AAT repeated much of the record of the previous tribunal such that there was not an appropriate consideration of those claims by the AAT. That criticism is unfounded. The AAT set out the evidence that had been presented before the previously constituted tribunal (AAT Reasons [33]-[46]) and the evidence presented to the AAT (AAT Reasons [47]-[64]). It is pertinent to note that the AAT recorded that the appellant indicated that he did not know why he had been called back to the AAT to give evidence again and that he had said all he needed to say in his previous evidence (AAT Reasons [55]). In such circumstances, it is unsurprising that the AAT repeated the record of the previous tribunal.

36    As observed by the primary judge (FCC Reasons [86]), it is apparent that the AAT

accepted the Applicant’s claims to have experienced various past issues with the Sri Lankan authorities which were of limited duration and had occurred prior to, during, or immediately after the war. There was no evidence that the Applicant either expressly or impliedly maintained a claim to fear to future harm on any or all of those bases (particularly any harm based on a perceived association with the LTTE). Rather, his claimed fear of future harm, as presented to the Tribunal, related primarily to localised circumstances in his home district and to the Karuna Group (as well as his illegal departure and the fact that he was a Tamil failed asylum seeker). In any event, the Tribunal considered the relevance of past events to the Applicant’s fear of future harm.

37    The AAT’s conclusion in relation to the s 36(2)(a) factors is set out at paragraph 65 of the AAT Reasons. The AAT accepted that the appellant is an “unmarried Hindu Tamil male national originating from Sri Lanka’s previously conflict-ridden east.” The AAT continued:

Having regard to the UNHCR and other relevant material cited above, and giving weight to that independent information, I am not satisfied that any of these characteristics attributable to [the appellant], either separately or cumulatively, or in combination with any other factors such as his 1994 or 1995 detention and beating, or his inclusion in roundups during the war, or his brother’s long past detention, or the checks to which he was subjected in Colombo or on the road back to his village, or his illegal departure or asylum-seeking in Australia, would lead to his being imputed with pro-LTTE political opinion or profile, let alone to a real chance of his being persecuted in Sri Lanka in the reasonably foreseeable future. (emphasis added)

38    It is apparent from this paragraph that the AAT both considered and accepted the following claims as particularised in the amended Notice of Appeal:

(a)    The appellant’s claim to the assault in 1994 – as so found by the primary judge (FCC Reasons [95]);

(b)    The appellant’s claims regarding roundups during the civil war (albeit without resolving an apparent inconsistency in the number) – as so found by the primary judge (FCC Reasons [99]);

(c)    The appellant’s detention in 1996, it being a consequence of a roundup – as so found by the primary judge (FCC Reasons [104]);

(d)    The claims regarding the harassment of the appellant’s brother – as so found by the primary judge (FCC Reasons [111]);

(e)    The appellant’s claims regarding roundups in 2007/8 – as so found by the primary judge (FCC Reasons [114]);

(f)    (g) The appellant’s claim to his premises being searched in Colombo in 2010 – as so found by the primary judge (FCC Reasons [119];

(g)    (h) The appellant’s claim that he was required to do “favours” while in Colombo (assuming it was a matter that was required to be considered at all given the appellant’s statement that it was no longer an issue in his case (FCC Reasons [122]), or a matter that required express consideration (FCC Reasons [127])) – as so found by the primary judge (FCC Reasons [123]-[124]).    

39    The primary judge was correct to hold that the AAT had considered the claims advanced by the appellant as particularised in paragraphs (a) – (e) and (g) – (h) of Ground One of the amended Notice of Appeal.

40    The claim particularised at paragraph (i) of Ground One of the amended Notice of Appeal is that the AAT failed to make findings regarding the appellant’s involvement in a proposed meeting in Batticaloa in June 2012. The appellant claimed that, on 1 June 2012, someone from the Karuna Group had telephoned him and, after realising he was in the temple, came to see him and demanded that he join the Sri Lanka Freedom Party (SLFP) and bring as many friends as possible to a meeting in Batticaloa on 10 June 2012. He claimed he said he would do this but then prepared to leave Sri Lanka.

41    The appellant submits that the finding by the AAT, that “On the evidence before me, I do not accept that [the appellant’s] claims as to why he left Sri Lanka in mid-June 2012 are credible” (AAT Reasons [72]), could not be justified as the AAT had failed to make findings about the 2012 claims beyond disbelief in relation to the 2009/10 incident.

42    As found by the primary judge (FCC Reasons [150]), the AAT Reasons, at [55], canvass in some detail the appellant’s claim that various organisations would pressure him today, or in the reasonably foreseeable future, to join them. The AAT referred to inconsistencies in the appellant’s claims about which entity he was being forced to join. The AAT found the appellant’s claim (AAT Reasons [70])

to be far-fetched to the point of being fanciful that someone is waiting for him to return to Batticaloa so that the process of forcing him into this party or that can be completed or, if he resists, he can be punished with death. I give no weight to the letter from the local temple because I find [the appellant’s] claims inconsistent and far-fetched. In addition, I find that the content of the letter is unreliable because: one, it suggests as at 2012 that [the appellant] worked continuously for the previous 18 years at the temple whereas for the bulk of the previous twelve he was living and running a sole trader business in Colombo; and, two, contradicting his own claims about last being in his home village in 2012, it suggests that he left that village for the last time, after continuously working there in 2011.

43    The primary judge was correct to observe that, it was in light of all those findings, not simply those in relation to the 2009/10 events that the AAT made the findings as to the appellant’s credibility in relation to his claims as to why he left Sri Lanka in mid-2012. The primary judge was correct to conclude that there was no error on the part of the AAT (FCC Reasons [153]).

44    For these reasons, Ground One cannot succeed.

Ground Two

45    The appellant contends that the FCC erred in finding that the AAT had adequately addressed the appellant’s claim that his disabilities (being his personal vulnerabilities) contributed to a well-founded fear of persecution. The appellant submits that the finding of the AAT, at [101], is unclear:

With regard to [the appellant’s] hearing loss and disposition to depression and anxiety, I am not satisfied on the evidence before me that I have substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm.

46    The gravamen of the appellant’s contention is that the AAT should have considered that his personal circumstances elevate his risk of suffering significant harm in the sense referred to in paragraph 2.22 of the Department’s Procedural Advice Manual 3 “Refugee and humanitarian – Complementary Protection Guidelines”. It is submitted that the primary judge failed to consider whether the appellant’s claim to be a vulnerable person arose on the materials such that the level of risk of harm would be increased. In particular, the appellant contended that, by using the phrase “disposition to anxiety and depression”, the AAT made a finding that was contrary to the evidence before it and so failed to adequately consider the appellant’s claim.

47    There is no substance to this ground. The primary judge carefully outlined the AAT’s consideration of the appellant’s hearing loss and his anxiety and depression, including by referring to the number of professional reports that had been received by both the Department and both Tribunals (FCC Reasons [224]). The primary judge also referred to the absence of any evidence that the appellant expressly claimed that he was a vulnerable person such that any harm he faced would amount to serious or significant harm, or that it was suggested that because of his hearing loss, anxiety and depression, the feared harm may impact him differently, for example if he were temporarily detained on his return to Sri Lanka (FCC Reasons [226]).

48    The primary judge was correct to find that the AAT had adequately addressed the possibility that a claim to fear harm by reason of hearing loss and depression arose on the material before it in its findings in relation to those characteristics (AAT Reasons [86] and [101]) and in conjunction with its cumulative findings (FCC Reasons [228]).

49    For these reasons, Ground Two cannot succeed.

Ground Three

50    The appellant contends that the FCC erred in failing to find that the AAT’s decision was legally unreasonable for two reasons: the first, in making an adverse finding on the basis that the appellant’s claims as to which entity he was being pressed to join have “evidently varied markedly over time” (AAT Reasons [48]); the second, in drawing adverse conclusions from the photographs of the appellant on the basis that they do not show any “reluctant” involvement in a meeting (AAT Reasons [71]), when such a conclusion cannot be logically drawn.

51    As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135], the question that needs to be asked in determining whether a decision was legally unreasonable is whether:

[on] the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

52    It is also pertinent to recall the Chief Justice’s observations in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1:

[8]    The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].

…

[11]    The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

[12]    Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.

[13]    The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.

53    The Chief Justice emphasised, at [8], that the role of this Court in conducting judicial review of a tribunal’s decision is supervisory and cannot involve substituting the Court’s view as to how a discretion should be exercised for that of an administrative decision-maker. Similar observations were made by the Full Court in CGQ15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [60], referring to the decision of Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at [52], and by the Full Court in BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 at [327].

54    The issue, therefore, is whether the arguments advanced in support of this ground of appeal go beyond a challenge to the merits of the evaluative exercise carried out by the AAT, so as to substantiate a finding of legal unreasonableness: BHL19 at [330]. Considerable caution must be exercised before readily acceding to a proposition that adverse findings as to credit expose jurisdictional error because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth an attack on the merits of a tribunal’s findings and decision: SZUXN at [56].

55    For a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [148]; SZUXN at [52]; CQG15 at [60].

56    As to the first matter raised by the appellant under this ground, being the adverse finding based on inconsistencies in the appellant’s claims as to which entity he was being pressed to join, the difficulty for the appellant is in demonstrating the necessary degree of illogicality. The AAT recorded the appellant’s claim to being forced to join, variously, the Karuna Group and the SLFP (AAT Reasons [47]-[48]). As was found by the primary judge, the country information referred to by the AAT suggested there was a clear distinction between the paramilitary Karuna Group and the SLFP political party. A reasonable decision-maker could draw the conclusion that the appellant had been inconsistent about which entity he was being forced to join.

57    The primary judge was correct to find that it was reasonably open to the AAT to find that the appellant’s evidence varied on the issue and to draw an adverse inference from the inconsistency in the appellant’s evidence (FCC Reasons [241]).

58    As to the second matter, the drawing of adverse conclusions from the photographs of the appellant, the AAT found (AAT Reasons [71]):

Overall, I do not accept that he has been truthful as to the state of relations between him and the figures associated with the Karuna Group or the local TVMP or the local SLFP in 2009-2010.

59    The appellant submits that this credibility finding is unreasonable or illogical, following on as it does directly from the AAT’s finding in relation to the photographs (AAT Reasons [71]):

I am prepared to accept on the photographic evidence that he helped set up the audio for such a gathering and that he attended it. I do not accept on the evidence before me that he was to any significant extent or for any significant reason reluctant to do this. The photographs he has presented put him on stage right behind Karuna.

60    It is contended that the photographs cannot logically provide any insight into the appellant’s state of mind or motivation.

61    The conclusion recorded by the AAT in paragraph [71] is made in the context of its summation of its findings in relation to the appellant’s claims for protection under s 36(2)(a) of the Migration Act. It had previously considered the photographs which had been shown to it by the appellant, presumably to support the appellant’s claim that he had set up the event as described, and had found (AAT Reasons [51]):

These four photographs do indicate that [the appellant] attended a meeting at which Karuna spoke at some time in the past, and the election posters are satisfactory evidence of the vent occurring in late 2009/early 2010. However, on their own, these photographs do not suggest any reluctant involvement on [the appellant’s] part, particularly given his very close proximity to Karuna on the podium or at least behind the speakers in two of the photographs. (emphasis added)

62    As the primary judge found, the AAT was of the view that, on their face, the photographs did not support the appellant’s claim that he was coerced into setting up the event and being forced to operate the audio equipment. This was not a finding as to the appellant’s state of mind or motivation. It was simply a finding that the evidence, such as it was, did not support the claim.

63    The subsequent finding in [71] must be considered in that context and in the context of the Tribunal’s further findings, recorded earlier in paragraph [71], that “In my own assessment, I find that the appellant’s claims about 2009-10 are problematic” and “I consider it very unlikely that on the evidence before me that [the appellant], who was hardly ever in his home village, would have any influence over whether the temple ever did lend its equipment to political activities”. It is merely a factual description of the photographic evidence produced by the appellant, which the AAT had previously found, was not sufficiently probative of the appellant’s claim of coercion.

64    As with the first matter raised under this ground, the appellant is unable to demonstrate “extreme” illogicality. The primary judge was correct to find that the Tribunal did not fall into jurisdictional error for reasons of illogicality or irrationality (FCC Reasons [250]).

65    This ground too must fail.

Materiality

66    In his written submissions, the appellant raised the further issue of alleged errors by the AAT in failing to make findings about the appellant’s alleged ongoing difficulties in Colombo and in failing to consider and make findings about whether the appellant would (or could) “stay” in Colombo when concluding that it would be reasonable and practicable for the appellant to relocate to Colombo or resume his residence there (AAT Reasons [69]).

67    The appellant submitted that if he were successful in one of the grounds raised, then the finding on relocation is attended with doubt and will be material in the sense referred to in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123. This submission was not developed in oral argument.

68    The appellant conceded that, if the other grounds of appeal failed, then this issue was of no relevance.

69    In view of the conclusions reached above, it is unnecessary to deal with this alternative submission.

Disposition

70    It follows that the appeal is to be dismissed. There is no apparent reason why costs should not follow the event.

Associate:

Dated:    6 November 2020