Federal Court of Australia

CJC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 50

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The appellant is a male citizen of Sri Lanka of Tamil ethnicity who arrived in Australia in 2012 as an irregular maritime arrival, and applied for a protection visa in November of that year. On 14 April 2014, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused to grant the appellant a protection visa. On 14 May 2014, he applied to the Administrative Appeals Tribunal for review of the delegate’s decision.

2    On 21 March 2016, the appellant appeared before the Tribunal (first hearing). The hearing was adjourned shortly after it started. On 21 April 2016, the appellant again appeared before the Tribunal but, as a result of an objection advanced by the appellant’s representative to the interpretation provided, this hearing was adjourned after around two and a half hours (second hearing). On 11 May 2016, the appellant again appeared before the Tribunal (third hearing). No objection was made about the interpreter at this hearing. On 4 August 2016, the Tribunal decided to affirm the decision of the delegate.

3    The appellant then applied for judicial review by the Federal Circuit Court of Australia (FCCA) of the decision of the Tribunal. On 27 February 2020, a judge of that Court dismissed the application: CJC16 v Minister for Immigration & Anor [2020] FCCA 325 (Judge A Kelly, the primary judge).

4    The appellant now appeals from the decision of the FCCA. In his amended grounds of appeal, he contends that:

(1)    the FCCA erred in failing to find that the decision of the Tribunal was affected by jurisdictional error because it was based in part on a finding that was irrational, namely the finding that the appellant was “someone who has not been of interest to the authorities over the last nine years for any reason”;

(2)    The FCCA erred in failing to find that the Tribunal asked itself the wrong question, in that it effectively elevated compliance with the 2012 UNHCR Guidelines to the test for a well-founded fear of persecution; and

(3)    The FCCA erred in failing to find that the appellant was denied procedural fairness, or alternatively, the Tribunal breached s 425 of the Migration Act 1958 (Cth) (Act), by taking into account translated evidence from a hearing in which the Tribunal accepted the interpreter had not been able to convey the appellant’s evidence accurately.

5    At the hearing, the appellant abandoned reliance on ground 2. The Minister opposes the appeal and advances a Notice of Contention relevant to ground 1, to which I refer in more detail below.

2.    BACKGROUND

6    The primary judge provided a detailed and accurate review of the background to the appellant’s claims and the reasons given by the Tribunal, none of which is relevantly in contest. Parts of that background are set out below.

7    In November 2012, the appellant applied for a protection visa, providing a statement of claims dated 5 November 2012 in which he stated that:

(a)    he was born in a village in the Batticaloa District;

(b)    his village had been under the control of the Liberation Tigers of Tamil Eelam (LTTE), but after the civil war, Tamils, including himself, had been rounded up by the Sri Lankan Army and taken to the Criminal Investigation Unit (CID);

(c)    he was arrested and then taken to an army camp on four or five occasions, where he was beaten;

(d)    he was also stopped by CID officers (whilst transporting a load of sand on his tractor), who then detained and interrogated him for two hours;

(e)    in the year before he left Sri Lanka, he was called and questioned about LTTE activities in his village by the CID four or five times;

(f)    about four or five months before he left Sri Lanka, he was interrogated and physically beaten by the CID; and

(g)    he could not relocate within Sri Lanka because the army and CID were present throughout the country, and as a Tamil he would suffer harm in any area inhabited by Tamils.

8    On 19 July 2013, the appellant’s representative added further claims to the visa application, relevantly including that (1) he had been working concurrently as both a bus and tractor driver and had been stopped by authorities in the course of doing so; and (2) he satisfied a UNHRC category for protection (being that he was perceived to be a former LTTE supporter).

9    The delegate decided to refuse to grant the visa. Concerning the question of perceived links to the LTTE, the appellant stated that he had not been of interest to the authorities until after he returned to Sri Lanka in 2007 following a trip to Saudi Arabia. He also stated that he worked as a bus driver from 2007 until 2012, when he departed Sri Lanka. The delegate did not accept that the appellant would have been able to work as a bus driver until his departure from Sri Lanka in 2012 if the authorities suspected he had links to the LTTE. Nor did the delegate accept he had been questioned by the CID four or five times in the 12 months before his departure or, as he did not have a profile of interest, that his wife had been questioned as to his whereabouts.

10    In summary, the delegate did not consider that the appellant was of interest to the Sri Lankan authorities, including the CID, by reason of his having previously lived in an LTTE controlled village or due to a perception that he was involved in activities supporting the LTTE after the war. The delegate did not regard as plausible the appellant’s claim to be of interest to the Sri Lankan authorities due to perceived LTTE links, and identified a variety of factors which supported that conclusion. Of particular relevance to the delegate was that the appellant had been able to work continuously as a bus driver in the period from 2007 to 2012 and, had he been of interest to the authorities due to having LTTE links, it was not plausible he would have been able to undertake this work, including the transportation of sand, over such a prolonged period.

11    The delegate concluded that the appellant was not a person in respect of whom Australia owed protection obligations, either as a refugee or by way of complementary protection.

12    The appellant was represented at the hearing before the Tribunal which, as I have noted, was heard in three tranches. In its decision record, the Tribunal provided a background of the proceedings, including the reasons for the various adjournments, to which I refer below in relation to ground 3. As the primary judge recorded at [21], in undertaking its assessment of the appellant’s claims, relevantly, the Tribunal found that:

(a)    the applicant had provided consistent testimony throughout his interview with the delegate and his Tribunal hearings: T[71];

(b)    the applicant was a Tamil of Hindu religion who was married with a daughter, he drove buses and tractors, and was also a manual labourer who travelled to Saudi Arabia for work in 2006 until re-entering Sri Lanka in 2007. The Tribunal found that the applicant had encountered no difficulties with the authorities in so returning to Sri Lanka in 2007: T[72]-T[74];

(c)    the applicant’s house had been destroyed by fire during fighting between the army and LTTE, that his wife and daughter had moved from different residences within Eastern Province following his departure to Australia, and that the Sri Lankan authorities were aware he had departed the country illegally: T[75]-T[76]; and

(d)    it did not accept the applicant’s claims to having become a person of interest to the Sri Lankan authorities in 2012: T[77].

3.    GROUND 1: IRRATIONAL AND ILLOGICAL DECISION

13    In ground 1, the appellant contends that the FCCA erred in failing to find that the decision of the Tribunal was affected by jurisdictional error because it was based in part on a finding that was irrational, namely the finding at T[108] that the appellant was “someone who has not been of interest to the authorities over the last nine years for any reason”. The appellant contends that the primary judge erred first, in finding that, despite accepting that the Tribunal’s decision was based in part on a finding that was irrational, the decision was not affected by jurisdictional error because the irrationality was not “extreme”; and secondly, in finding that, despite accepting that the Tribunal’s decision was based in part on a finding that was irrational, the decision was not affected by jurisdictional error because the overall conclusion was open to the Tribunal.

14    Before addressing the detail of the appellant’s submissions, it is convenient to summarise the reasons of the Tribunal relevant to this ground.

15    As a matter of structure, the reasons commenced with a summary of the application for review and of the relevant law. The reasons then considered the claims advanced by the appellant, first providing the background to the claims (at T[22] – [40]) before conducting a detailed review of the appellant’s evidence given over the three hearing days (at T[41] – [65]). The Tribunal then proceeded to assess the claims and make findings. Most relevantly, the Tribunal made specific findings in relation to the appellant’s Tamil ethnicity and suspected affiliation with the LTTE (at T[82] – [96]) and, separately, as to the risk of harm arising from the appellant’s illegal departure and possible imprisonment upon his return to Sri Lanka (at T[97] – [110]). The Tribunal then considered the complimentary protection obligations (at T[115] – [126]).

16    In the context of its consideration of the appellant’s claim to have a suspected affiliation with the LTTE, the Tribunal made the following relevant findings:

(a)    It accepted that the appellant was arrested, detained by the road, only to be further detained and then physically assaulted by the Sri Lankan army;

(b)    Members of the Sri Lankan army deliberately identified the appellant as a member of the LTTE despite there being no evidence of an association;

(c)    Members of the Sri Lankan army had the appellant’s name and picture on a wall in a certain room;

(d)    The appellant was required to physically present himself to the same army facility every Sunday in order to report to the same authorities who accused him of having LTTE sympathies;

(e)    The appellant continued to report to the authorities every Sunday until a few months before his departure from Sri Lanka in 2012;

(f)    The appellant ceased reporting because he had a genuine fear of being harmed by the authorities; and

(g)    Authorities in rural districts in the Eastern Province had noted the appellant’s evasion of weekly sign-ins (which first occurred in 2012) and threatened to harm or kill him.

17    However, the Tribunal did not accept that the appellant had a well-founded fear of persecution. It is necessary to pay close attention to the reasoning of the Tribunal to understand the basis for this conclusion. In essence, the Tribunal concluded that whilst the Sri Lankan army and authorities had directed their attention to the appellant, they did not in fact consider that he was a person affiliated, or closely associated, with the LTTE. Rather, the instances summarised above in (a) – (g) were part of a ruse or tactic of intimidation directed to the appellant as a Tamil.

18    In this regard, the Tribunal records putting to the appellant that if he had been a person of ongoing adverse interest to the authorities in Sri Lanka, he would have been arbitrarily arrested and held in custody under the Prevention of Terrorism Act, which was not done. The Tribunal said at T[89]:

...the Tribunal considers [that] the applicant has not claimed he [was] detained for any extended periods of time or interrogated under the PTA strongly indicates to the Tribunal that being falsely accused in such a dramatic manner and being required to regularly report to the authorities were designed to intimidate, shame and instil dread into local Tamil communities in the Eastern Province by a victorious Sri Lanka army.

…

However he does claim his wife moved from house to house due to intimidation and he claimed the CID warned his wife that the applicant would be killed if he returned to Sri Lanka. To this extent, the Tribunal finds accepted past incidents of harm, intimidation and threats by the authorities were directed to the applicant to intimidate the applicant and other Tamils and they were directly [sic, directed] to him for a Convention reason, namely his ethnicity. However, the Tribunal does not accept the authorities behaved as though the applicant had any ongoing, genuine or elaborate links to the LTTE or was a threat to the integrity of the Sri Lankan state or would be subjected to the forceful provisions of the PTA, indicating further that the applicant is not a person of adverse interest to the authorities.

19    Although somewhat tortuously worded, it is apparent that the Tribunal found that the harm to which the appellant had been subjected was not due to an ongoing interest that the authorities (including the Sri Lankan army) had in him as a member or affiliate of the LTTE, but rather because he was a Tamil in the region who could be intimidated. In this context, in the following paragraph of its reasons (at T[90]) the Tribunal noted that although the appellant had been threatened with harm or death because of his failure to attend weekly check-ins, it considered that this fact was outweighed by the rapidly evolving situation in post-conflict Sri Lanka. Citing country information, the Tribunal determined that the current persons at risk of persecution or serious harm on return to Sri Lanka are individuals who are perceived to be a threat to the integrity of the Sri Lankan state “because they are perceived to have a significant role in relation to post-conflict Tamil separatism”. In this context, the Tribunal found at T[91] that the appellant was not such a person and so he did not fall within the category of persons at risk of serious harm. The Tribunal buttressed this finding by observing at T[92] that the appellant had not suggested that he or his immediate family had any involvement with the LTTE, and that an earlier false accusation by a prejudiced Muslim co-worker of the appellant had not led to further harm to him. Both of these facts indicated to the Tribunal that the appellant had no profile as a member of the LTTE insofar as the authorities were concerned.

20    On the basis of this reasoning, the Tribunal rejected the appellant’s claim that he was “a person with any elaborate or low level links associated with either the LTTE or any separatist Tamil organisation, imputed or otherwise” (at T[93]).

21    It is in the context of these findings that the Tribunal turned to consider the risk of harm to the appellant as a result of his illegal departure, if he is returned to Sri Lanka. It said, referring, amongst other things, to the findings summarised above: “based on the applicant’s particular circumstances and the country information, he would not face an extended administrative detention on his return on the basis of this [sic, his] ethnicity or political opinion” (emphasis added). In developing its reasons further, the Tribunal later said (at T[103]):

The Tribunal accepts that the applicant as a failed asylum seeker/returnee or Tamil failed asylum seeker/returnee may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka. It also accepts that he was falsely accused of supporting the LTTE with the supply of goods but has made an earlier finding that the accusations [sic] was not only false but not genuinely held by the authorities. The Tribunal made a further finding arising from this [that] the applicant does not have a particular profile as someone of adverse interest to the authorities.

22    The Tribunal then turned to consider whether there is a chance or risk of harm to the appellant after his release into the community in Sri Lanka. It is in this context that the basis for ground 1 of the appeal arises. The Tribunal said at [108] (emphasis added):

Based on the information before it, the Tribunal accepts as possible that after the applicant is released on bail and has returned to his village, there may be a follow-up visit by the police or the CID to his home for a subsequent interview, however the Tribunal does not find such questioning or monitoring constitutes serious harm within the meaning of s.97R(1). Taking into consideration the applicant’s profile as someone who has not been of interest to the authorities over the last nine years for any reason including for having suspected links with the LTTE, the Tribunal does not accept that the applicant faces a real chance of being detained once he is released in the community.

23    The primary judge considered the reasons given by the Tribunal in some detail, and accepted (at [88]) that “at first sight” the reasoning at T[108] was irrational, having regard to the earlier findings made by the Tribunal. Earlier in his reasons, the primary judge referred to the relevant authorities concerning an allegation of illogical or irrational reasoning, which I set out below (citations omitted):

[36]    A decision may also be affected by jurisdictional error if it was based on an illogical or irrational finding of fact made ‘along the way’ to making the decision, including where there is no logical connection between the evidence before the Tribunal and the inferences or conclusions drawn. Counsel for the applicant relied upon Minister for Immigration and Border Protection v SZUXN, where Wigney J had observed that “A decision based on, or flowing from, irrational and illogical reasoning or factual findings is likely to be legally unreasonable and beyond power.” It will be observed that his Honour’s statement of principle was not expressed in absolute terms.

[37]    In SZUXN, when addressing the need to demonstrate extreme illogicality, Wigney J noted that:

. . . not every lapse in logic in the decision-making process will result in jurisdictional error. If particular findings or reasoning on the way to the decision-maker’s ultimate conclusion and decision are challenged on the basis of illogicality or irrationality, jurisdictional error will not be made out unless it is shown that the findings could not have been made, or the reasoning could not have been employed, by a reasonable or rational decision-maker.

After referring to an oft quoted passage in Minister for Immigration and Citizenship v SZMDS, his Honour continued:

Crennan and Bell JJ found that the impugned finding or reasoning by the Tribunal was not illogical or irrational because on the probative evidence before the Tribunal a logical or rational decision-maker could have come to the same conclusion. Heydon J, who was the other member of the majority in SZMDS, also found that the Tribunal’s reasoning was not illogical because it was a matter about which reasonable minds might differ: the “difference was one of degree, impression and empirical judgment” (at 632 [78]). Gummow ACJ and Kiefel J dissented. They found that the Tribunal’s reasoning was illogical. Their Honours nevertheless emphasised that the “critical question” whether a determination of the Tribunal is irrational, illogical and not based on findings or inferences of facts supported by logical grounds “should not receive an affirmative answer that is lightly given” (at 625 [40]). As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], 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”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

[38]    Upon those principles, Wigney J rejected a submission for the Minister that a decision of the Tribunal could only be overturned on the basis of illogicality or irrationality if it was shown that the end result was one which no logical or rational decision-maker could arrive at, doing so on the basis that “jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings ‘on the way’ to the final conclusion.” His Honour concluded that:

Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result.

There, the illogicality challenge related to adverse credibility findings. Wigney J concluded that, when the Tribunal’s reasoning concerning the subject interview was read fairly and in the context of its overall reasoning, it had not been illogical, irrational or unreasonable for the Tribunal to have paid regard to the absence in the applicant’s statement during an interview addressing a particular topic when assessing his credibility overall.

24    The primary judge noted that the reasons of the Tribunal should not be read with an eye keenly attuned to error, citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (Brennan CJ, Toohey, McHugh and Gummow JJ) at 272. He also considered that the question of whether the decision was tainted by extreme rationality or illogicality was best resolved by giving consideration to how the Tribunal’s reasons are to be properly understood, having regard to the whole of its reasons, citing Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 at [71] (Gummow and Hayne J); [84] and [87] (Callinan and Heydon JJ).

25    In this connection, the primary judge went on to say (citations omitted and emphasis added):

[101]    Considered in the context of its earlier findings, the statement at [108], read fairly, should be properly understood as meaning that the applicant had not been of any real interest to the authorities. Construed in that way, the statement at [108] was a dispositive finding but not in the way that the applicant suggested. Instead, it was dispositive in the sense that the Tribunal examined whether the applicant faced a real chance of harm by being detained following release into the community on the basis that he was not of any real interest to the authorities. In my opinion, when the Tribunal’s Reasons are read fairly, as a whole and construed in that way, I do not conclude that such reasoning could not have been employed by a reasonable or rational decision-maker. To the contrary, properly understood, on the evidence before the Tribunal, I am satisfied that a logical or rational decision-maker could well have come to precisely the same conclusion. Viewed in context, the matters considered at [61]-[81] above provided a proper justification for the conclusion that the applicant would not face a real chance of harm by being detained following release into the community as he was not of any real interest to the authorities.

[102]    To establish that the Tribunal’s reasoning was illogical or irrational to the degree necessary to constitute jurisdictional error, it is not sufficient that the court might disagree emphatically with a Tribunal’s reasoning. And although it will not be sufficient to demonstrate that a Tribunal has preferred one finding of fact over another, the present case should be distinguished from cases of that kind. To the contrary, the conclusion at [108] properly understood is in my opinion, consistent with the findings that the applicant was not of real interest to the authorities for any reason. That was because the Tribunal had earlier examined in detail, and rejected, the primary claim to fear persecution by reason of the applicant’s Tamil ethnicity and any LTTE affiliation or support.

26    The appellant submits that the finding at T[108] was irrational, and that the primary judge correctly accepted this. He submits that it was not reasonably open to the Tribunal to conclude that the appellant had not been of any interest at all to the Sri Lankan authorities since 2007. The appellant submits that the primary judge erred in nonetheless finding that the irrationality did not lead to jurisdictional error, for two reasons.

27    First, the appellant submits that the primary judge erred in concluding that although the finding at T[108] was irrational, it was not “extremely irrational”, and therefore did not constitute jurisdictional error. The appellant contends that this reasoning impermissibly introduces an extra layer of “extreme irrationality” into the process of assessing whether the Tribunal’s reasoning is affected by jurisdictional error. In this context, the appellant relies on the explanation given in AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 (Mortimer J):

[24]    Referring to CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [61], the Minister submitted that the alleged illogicality or irrationality of reasoning must be of an “extreme” kind, not a matter on which reasonable minds might differ, and not a matter on which a supervising Court simply disagrees with a decision-maker, even emphatically.

[25]    Save for the gloss arising from the word “extreme”, those propositions can also be accepted and are well established. There is nothing in High Court authorities such as Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 which suggests that the adjectival description of “extreme” is a necessary element in a finding of illogicality or irrationality. If the decision-maker’s fact finding is proven to be irrational or illogical, in a way which was material to the outcome of the review, that is sufficient. The stringency of the threshold arises in the need for the decision-maker’s reasoning to be capable, objectively, of being described as irrational or illogical.

28    Secondly, the appellant contends that the primary judge’s conclusion that the Tribunal’s finding at T[108] was both irrational and sufficiently connected to the Tribunal’s ultimate conclusion ought to have been dispositive of the appeal. Instead, the primary judge incorrectly considered whether the Tribunal’s reasons, viewed as a whole, provided a “proper justification for the conclusion that the applicant would not face a real chance of harm” (at [101]). This, the appellant submits, is inconsistent with the authorities that establish that an irrational or illogical finding along the way to a conclusion will constitute jurisdictional error if there is a sufficient connection between the irrational finding and the ultimate decision.

29    At the hearing, the appellant appeared to accept that underlying both of these contentions was the more fundamental question of whether it was reasonably open for the primary judge to construe T[108] of the Tribunal’s reasons in the way he did at [101]. In addressing this proposition, the appellant submitted that the construction adopted by the primary judge was not reasonably open because it, in effect, reversed the Tribunal’s finding at T[108] in order to bring it into conformity with the remainder of the Tribunal’s reasons. In doing so, the appellant submitted that the primary judge impermissibly repaired the Tribunal’s reasons to do away with an irrational finding.

30    I am unable to accept the submissions advanced by the appellant.

31    At the outset, I should note that I do not accept that the primary judge found that, properly understood, the final sentence in T[108] was irrational or illogical. The primary judge’s reasons involved consideration of the meaning of that sentence in the context of a careful review of the Tribunal’s reasons as a whole. As much is apparent from the primary judge’s reasoning at [90] and [91], where he makes plain that the commencement of his task on review was to focus upon the whole of the reasoning of the administrative decision-maker when deciding how those reasons, read fairly, are properly to be understood.

32    The primary judge reached his conclusion at [101] and [102] where he found that the statement at T[108] should be understood to mean that the appellant had not been of any real interest to the authorities. In my view, that finding was open to him. It is, of course, trite to observe that the Tribunal’s reasons are not to be construed minutely and finely with an eye keenly attuned to the perception of error. A court should not be concerned with looseness in the language or with unhappy phrasing: Wu Shan Liang at 272.

33    The impugned sentence in the Tribunal’s reasons at T[108] is:

Taking into consideration the applicant’s profile as someone who has not been of interest to the authorities over the last nine years for any reason including for having suspected links with the LTTE, the Tribunal does not accept that the applicant faces a real chance of being detained once he is released in the community.

34    The statement that the appellant’s “profile as someone who has not been of interest to the authorities” can be understood as a conclusion that he is not someone in whom the authorities have had a genuine or real interest. The later words “...for any reason”, however, undermine that construction, and were this sentence to be part of a statute, it would be an error to water down its meaning. However, the sentence is not part of a statute. In light of the numerous findings made by the Tribunal to the effect that the appellant was not of real interest to the authorities because he did not have the type of LTTE profile that would enliven such interest, it was open to the primary judge to consider the meaning of this sentence in the context of the reasons as a whole. That included making allowance for an infelicity of expression. Here, the words “for any reason” are inconsistent with the reasoning of the Tribunal in all other respects. In addition to the other examples given above as to the approach of the Tribunal, one may see that in T[103] and T[106] it said (emphasis added):

[103]    …The Tribunal accepts that the applicant as a failed asylum seeker/returnee or Tamil failed asylum seeker/returnee may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka. It also accepts that he was falsely accused of supporting the LTTE with the supply of goods but has made an earlier finding that the accusations [sic] was not only false but not genuinely held by the authorities. The Tribunal made a further finding arising from this [that] the applicant does not have a particular profile as someone of adverse interest to the authorities.

    …

[106]    The Tribunal does not accept on the evidence before it that the applicant has a profile which would be of any concern or interest to the Sri Lankan authorities. Considering the information put to the applicant in the hearing, as well as the information referred to in the written submissions from the applicant’s adviser, and the applicant’s profile as someone who was of no interest to the authorities leading to serious or significant harm and was not genuinely suspected of having links with the LTTE, the Tribunal does not accept that the applicant faces a real chance of persecution on his return to Sri Lanka…

35    It is in this sense that the reference to “interest to the authorities” in T[108] may also be understood. That understanding is supported by the several passages in the Tribunal’s reasons concerning the attitude of the Sri Lankan authorities towards the appellant, that I have summarised at [16] – [20] above, and to which the primary judge made detailed reference in his reasons.

36    Having reached the conclusion that, despite what might be said at first sight to be the apparent meaning of the impugned sentence, the Tribunal was not making a finding that was inconsistent with its earlier reasons, it was open to the primary judge to conclude, as he did, that there was no absence of a logical or rational basis in the Tribunal’s reasons for the conclusion that the appellant would not face a real chance of harm on his return to Sri Lanka. Having done so, the distinction between an irrational or illogical conclusion and “extreme irrationality” becomes irrelevant, there having been neither in the Tribunal’s reasons.

37    The Minister’s Notice of Contention provides that the decision of the primary judge should be affirmed on the following ground:

The Tribunal’s finding that the appellant was “someone who has not been of interest to the authorities over the last nine years for any reason” (AB 351 [108]), when properly understood in the manner explained by the primary judge (AB 389 [101]), was not irrational.

38    Given my conclusion that the primary judge did not accept that, properly understood, the Tribunal’s reasons were irrational, it is unnecessary to deal with the matter raised in the Minister’s Notice of Contention.

39    Accordingly, ground 1 must be rejected.

4.    GROUND 3: LACK OF PROCEDURAL FAIRNESS

40    In ground 3, the appellant contends that the FCCA erred in failing to find that he was denied procedural fairness, or alternatively, that the Tribunal acted in breach of s 425 of the Act, by taking into account translated evidence from a hearing in which the Tribunal accepted that the interpreter had not been able to convey the appellant’s evidence accurately.

41    The background to this ground arises from the three tranches of hearing conducted by the Tribunal. The first hearing was a false start because the appellant’s representative was unable to attend. The second was of significance because the interpreter withdrew from the hearing after about two and a half hours. The third was the substantive hearing.

42    In its reasons, the Tribunal said in relation to the second and third hearings at T[45] (emphasis added):

The Tribunal explained to the applicant that the Tribunal had referred itself to the relevant guidelines on the requisite standard of interpreting and said that [it] would place little weight on the previous hearing’s oral evidence unless there were substantial discrepancies between the testimonies provided on 21 April and 11 May 2016. There were no objections to using the particular interpreter present at the third hearing. The applicant claimed that the previous interpreter prevented the applicant providing evidence by shortening his Tamil comments and by contributing to the impression that the applicant was providing oral evidence lacking in detail.

43    The appellant contends that the Tribunal ought to have given no weight to the evidence adduced at the second hearing and that in giving it some weight it denied him procedural fairness and a hearing that complied with s 425(1) of the Act. In support of this contention, the appellant cites the reasons of Allsop CJ in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212 where he said:

[9]    The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair…

[10]    How the decision-maker approached the matter may be critical. If an error of interpretation or translation can be seen to lead to a material and adverse finding relevant to a decision against the person, the unfairness of the hearing is self-evident. It may not be possible, however, to show how one or more inaccuracies affected the decision, since it will often be impossible to show what the decision-maker would have done with different information. This is especially so if the decision is based in part, or in whole, on credit. It is at this point that the focus upon the process becomes important. The enquiry is not to investigate, and the applicant’s burden is not to establish, a precise causal link between any irregularity and an adverse result, but to assess whether the decision-making process (including the hearing and the making of the decision) was fair. Even if one cannot show an operative causal influence of any irregularity upon the decision, it may still be that the irregularity might reasonably have had such an effect through its materiality or repetition or context. Any such conclusion may affect the legitimacy of the process in that it may not be able to be concluded that it was fair. Such may be expressed as requiring the appearance of a fair hearing: cf Assistant Commissioner Condon v Pompano 295 ALR at 693 [209]; NIB Health 115 FCR 561 at 583 [84]; R v Tran [1994] 2 SCR 951 at 988, Lamer CJ, writing for the Canadian Supreme Court otherwise comprised of La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ, in a passage cited by Kenny J in her Honour’s influential decision in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; 92 FCR 6 at 19-20 [30]. It can, in this context of adequacy of communication through interpretation, be perhaps better expressed as requiring that the hearing be fair. How, it might be asked rhetorically, can a hearing be described as fair, when it can be shown that real and potentially material errors of substance occurred in interpreting or translating a person’s version of events to a decision-maker, being errors that may well have affected the decision in a real way, though such causal effect cannot be demonstrated one way or another?

44    The appellant submits that the present is a case of relying on evidence that was adduced in circumstances accepted to have fallen short of the requisite standard, as required by s 425(1) of the Act, whereby the Tribunal was required to provide the appellant with a meaningful opportunity to be heard and to convey evidence. Having taken steps to ensure procedural fairness by adjourning the second hearing and convening the third hearing, the Tribunal negated those steps by relying on evidence that was given through the interpreter at the second hearing. The appellant submits that it cannot now be determined from the Tribunal’s reasons precisely which parts of the evidence were given weight, and so the reliance on evidence that was stripped of its reliability must lead to the conclusion that the process before the Tribunal was not procedurally fair.

45    I am unable to agree with the appellant’s contentions.

46    Section 422B(1) of the Act provides that Division 4 of Part 7 is taken to be an exhaustive statement of the requirements of the natural justice rule in relation to the matters with which it deals. This, of course, underscores the importance of the Tribunal complying with the provisions of Division 4 of Part 7: SZFDE v Minister for Immigration [2007] HCA 35; 232 CLR 189 at [31]. Section 425(1) provides that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. This provision has long been interpreted to require that an applicant be provided with a real chance to present their case: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Hayne, Kiefel (as she then was) and Bell JJ) at [61]. An effective subversion of this obligation will have the effect of also subverting the observance by the Tribunal of its obligation to accord procedural fairness to applicants for review which is, of course, relevant to assessing whether the Tribunal has fallen into jurisdictional error: SZFDE at [32]. A failure to provide an opportunity for a non-English speaking applicant to present evidence with the assistance of an interpreter may result in a failure to comply with this obligation.

47    However, in the present case, there can be no doubt that the Tribunal provided the applicant with an opportunity to appear before the Tribunal and to give evidence and present arguments. Upon determining that the interpretation services provided at the second hearing were inadequate, the Tribunal invited the appellant to attend the third hearing, which was conducted in full and with no complaint as to the quality of the interpretation provided. Notwithstanding this fact, the appellant submits that the Tribunal failed to accord procedural fairness to him, or acted in breach of s 425(1) of the Act, by giving some weight to the evidence adduced during the second hearing. At the hearing, the appellant developed this argument by submitting that because s 425(1) requires the Tribunal to provide a meaningful opportunity to give evidence and present arguments, it must follow that the Tribunal is required to base its decision on evidence given in that context, and not on evidence adduced in a context not satisfying the s 425(1) requirements. In not following this approach, the appellant submits that the Tribunal conducted itself in a way lacking the appearance of fairness, and thus fell into jurisdictional error.

48    The question of whether a party has been denied procedural fairness often calls for an evaluation of the circumstances arising upon the facts of the particular case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [26]; SZRMQ (Allsop CJ) at [9]. Each case will turn on its facts. The fact that the second hearing was abandoned because of apparent deficiencies in the interpretation and, as the primary judge found at [148], that the third hearing was conducted with a different interpreter and without complaint, are factors that are relevant to the evaluation.

49    The present ground of appeal relies on the statement in T[45], that the Tribunal would place “little weight” on the evidence in the second hearing, to impugn the fairness of the process. It is not clear to me how, as the appellant submits, it can be said that the obligation in s 425(1) should be understood in these circumstances to translate to a requirement, under the obligation to provide procedural fairness, for the Tribunal to entirely ignore the content of the second hearing. As the Minister submits, there is nothing in Division 4 of Part 7 of the Act which required the Tribunal to disregard the entirety of the evidence at the second hearing. This is, of course, not to say that the Tribunal was not otherwise limited in the use to which it could legitimately put the evidence adduced at the second hearing. As the Minister submits, the Tribunal was not permitted to make findings based on the evidence given at the second hearing if doing so would have been irrational, illogical or unreasonable in the circumstances.

50    In my view, the appellant’s submissions do not adequately address the limited use to which the Tribunal put the evidence from the second hearing. I do not accept, as the appellant submits, that this is a case in which it is not clear to what extent the Tribunal’s decision relied upon the evidence from the second hearing, such that it is impossible to be certain that there is no causal link between the impugned evidence and the Tribunal’s ultimate decision: cf SZRMQ (Allsop CJ) at [10]. Critically, at no point in its reasons did the Tribunal rely on the evidence from the second hearing other than to support its conclusion that the account of facts offered by the appellant was consistent and, therefore, to be accepted. At T[71], the Tribunal found that the appellant had provided substantively consistent testimony in the second and third hearings. At T[84], the Tribunal accepted the appellant’s factual claims. Nowhere does the Tribunal say, or imply, that there was a material discrepancy between the evidence of the appellant at the second hearing as opposed to the third hearing. In his submissions on appeal, although the appellant did not suggest otherwise, he maintained, unjustifiably in my view, that in order to maintain the appearance of fairness, the Tribunal was required to completely disregard the evidence from the second hearing.

51    In this context, I note the Court is entitled to take the reasons of the Tribunal as setting out the findings of fact it considered material to its decision, and as reciting the evidence and other material which it considered relevant to the findings it made: ss 430(1)(c) and (d) of the Act; see also Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [10], [34] and [68]. The reasons of the Tribunal represent what it considered important and material, and may in a given case enable a Court on review to find jurisdictional error: see Yusuf at [10], [44] and [69]; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 (Kenny, Griffiths, Mortimer JJ) at [49].

52    The primary judge took into account in his evaluation of whether or not the appellant was denied procedural fairness the use that the Tribunal made of the evidence given at the second hearing. He concluded, having regard to the content of T[71] and T[84], that at no point in its reasons did the Tribunal rely on a discrepancy between the evidence given at the second or third hearings as the basis for making any finding adverse to the appellant (at [154]). He also concluded that the Court should infer from the absence of any other reference in the Tribunal’s reasons to the evidence given at the second hearing that such evidence played no other part in the Tribunal’s decision (at [155]). I see no error in that approach, or in the primary judge’s rejection of this ground.

53    Accordingly, in my view, ground 3 of the appeal must also be dismissed.

5.    CONCLUSION

54    For the reasons set out above the appeal must be dismissed. The appellant must pay the first respondent’s costs.

Associate:

Dated:    3 February 2021