Federal Court of Australia

BUG16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 325

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant pay the First Respondent’s costs of and incidental to the appeal, to be agreed or assessed failing agreement.

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

REASONS FOR JUDGMENT

ANASTASSIOU J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia (as it was then known): BUG16 v Minister for Immigration & Anor [2020] FCCA 1203. The primary judge dismissed an application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal. The Tribunal had earlier affirmed a decision of a delegate of the First Respondent, then the Minister for Immigration and Citizenship (now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs), to refuse to grant the Appellant a class XA Protection Visa under s 65 of the Migration Act 1958 (Cth).

2    For the reasons that follow, the appeal is dismissed.

Background

3    The Appellant is a citizen of Sri Lanka of Tamil ethnicity and Hindu faith. The Appellant arrived in Australia on or around 20 June 2012 as an unauthorised maritime arrival. Prior to arriving in Australia, the Appellant had lived in Batticaloa, that being a major city in the Eastern Province of Sri Lanka. On 16 October 2012, the Applicant was granted a bridging visa while detained in immigration detention.

4    On 23 November 2012, the Appellant applied for the Protection Visa with the assistance of a Registered Migration Agent. In his application for a Protection Visa, the Appellant made the following claims:

(1)    in 2007, the Appellant’s brother bought a truck which he used to run a business moving loads of sand and delivering construction materials. The Appellant claimed that the “Karuna Group” (being a pro-government militant group) would borrow the vehicle, at times accompanied by army officers;

(2)    in 2011, army officers came to his house and asked to borrow the truck. The Appellant said that he did not have the keys and could not lend the truck to them. The soldiers argued with him, beat him and told him to go to their camp the following day;

(3)    when the Appellant went to the army camp the following day he was severely assaulted. His brother went to the camp and took him to hospital. Due to these injuries, he could not walk for some time;

(4)    the Appellant’s brother sent him away to live at the residence of his aunt. The army came looking for him there but left him alone when they saw him in bed. It took the Appellant six months to recover from his injuries;

(5)    the Appellant received death threats while recovering from his injuries. As a result, his older brother arranged for the Appellant and his other brother to travel to Australia; and

(6)    the Appellant fears persecution by the Sri Lankan army either because he has been labelled a “trouble-maker” or because they believe he is opposed to them or the Government.

5    On 16 August 2013, the Appellant attended an interview with a delegate of the Minister. At the interview, the Appellant added that:

(1)    his older brother had gone missing and was recently named in the newspaper as being a member of the Tamil United Front (TUF);

(2)    the army officer to whom he refused to lend the truck had also accused him of being one of the “grease men” and beat him up;

(3)    he had helped to deliver posters for the Karuna Group during the election in 2012;

(4)    both the army and the Karuna Group demanded money from his brother and harassed his family when they could not find him;

(5)    the army had come to look for his brother and came to shoot him and his mother before he left for Australia; and

(6)    shortly prior the interview, the Appellant’s parents had gone into hiding in Sri Lanka due to reports that his brother was involved with the TUF.

6    During the course of the review process, the Appellant further supplemented his claims to include the following:

(1)    that he fears harm as a result of his and his family’s support of the Tamil National Alliance;

(2)    that he was sexually assaulted by a member of the army in 2011 – who would force him to have anal and oral sex – and fears it would happen again if he were to return to Sri Lanka; and

(3)    that he suffers from depression and would not be able to avail himself of medical treatment in Sri Lanka.

7    Taken collectively, the Appellant therefore claimed to fear harm upon return to Sri Lanka on the following bases:

(1)    membership of a particular social group; namely, as a Tamil from a traditional Hindu village;

(2)    membership of a particular social group; namely, as a person opposed to the Sri Lankan Government;

(3)    imputed political opinion; namely, as a person with imputed anti-government and pro-LTTE political opinion; and

(4)    membership of a particular social group; namely, as a failed asylum seeker.

8    On 28 August 2013, the delegate refused to grant the Appellant a protection visa because the Appellant did not satisfy s 36(2) of the Act. That section relevantly provides:

36 Protection visas – criteria provided for by this Act

(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;

…

9    On 24 March 2015, the Refugee Review Tribunal, as it was then known, affirmed the delegate’s decision. The Appellant sought review of that decision. On 27 July 2015, the Refugee Review Tribunal’s decision was set aside by consent by the Circuit Court for the reason that the Tribunal had failed to consider the Appellant’s claim that he had a well-founded fear of persecution as a Sri Lankan Tamil.

10    On 3 September 2015, 8 October 2015 and 11 January 2016, a newly constituted Tribunal invited the Appellant to attend a hearing. On each occasion, the Appellant’s representative responded by requesting that the hearing be postponed and provided supporting medical evidence. In particular, the Appellant’s representative submitted that the Appellant suffered from back pain, post-traumatic stress disorder (PTSD) and severe psychological distress, and would be unable to attend or give coherent evidence at a hearing.

11    The chronology and contents of that correspondence is particularly relevant to the first ground of appeal, though also to other grounds where those factual matters are relevant. At this stage, it is sufficient to explain that the first ground of appeal concerns the question of whether the Minister failed to make an obvious inquiry about a critical fact, by not requiring the Appellant to visit, and be examined by, a Commonwealth medical officer. I turn to the relevant correspondence.

12    On 3 September 2015, the Tribunal first invited the Appellant to appear to give evidence and present arguments relating to the issues in his Protection Visa application. The Tribunal indicated that a hearing had been arranged for 7 October 2015 at 2:00pm. The letter also included the following:

If you are not able to attend the hearing you should advise us as soon as possible. Any request to postpone a hearing must be made in writing as early as possible, including the reasons for making the request. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment…

13    The Appellant’s representative responded on 2 October 2015 at 10:21am:

We refer to the above matter and write to confirm that the [Appellant] has requested us to represent him at the AAT Hearing.

We note that the matter is fixed for 7 October 2015. We have been informed by his Doctor that [the Appellant] has been going through a depressive mental state and has been under the treatment of Mental Health Practitioners.

A copy of the Interim Medical Report is attached hereto. The Mental Health Practitioner has recommended that the [Appellant] ‘is not in a fit and proper mental state to understand and face an inquiry at this stage’. As recommended by the Mental Health Practitioner, we request that you please fix this Hearing for a date after five months. When we receive a further certificate from the Doctor and the Mental Health Practitioners, we will forward same to you.

Also, while attempting to get detailed instructions to provide Submissions, we noted that the Applicant had difficulty in providing coherent answers. Therefore it will be appropriate to adjourn the Hearing fixed for 7 October 2015. Please find attached Response to Invitation Hearing.

[Emphasis added]

14    On 6 October 2015 at 12:19pm, the Tribunal relevantly notified that the Appellant’s representative that:

… On 2 October 2015 we received a request that the hearing be postponed. The Member has agreed to the request and the hearing will be rescheduled. As soon as a new hearing date is available we will write to you again.

…

15    The Appellant’s representative responded on 6 October 2015 at 12:33pm, reiterating the request that, considering the health condition of the Appellant, the case be adjourned for at least five months in accordance with the assessment in the Interim Medical Report provided to the Tribunal on 2 October 2015.

16    On 8 October 2015, the Tribunal said to the Appellant’s representative:

…

On 2 October 2015 the Tribunal received a letter from your representative requesting that your hearing, scheduled for 7 October 2015, be postponed for five months as a Mental Health Social Worker has assessed you as not being in a fit and proper mental state to understand and face inquiry into your case. The presiding Member is not prepared to grant a five month delay on the hearing of your case on the basis of the information currently provided. The member notes that you previously attended an interview at the Department of Immigration and a hearing of the Tribunal and did not appear to be unfit to provide information regarding your case on these occasions.

A hearing of your case has been rescheduled for 11 November 2015.

Should you wish to request further delays, please provide a report from an appropriately qualified psychologist or psychiatrist detailing why you would be unfit to provide evidence at that time and when you might be able to attend a hearing. Similarly, if a postponement is requested in relation to any medical issues, please provide a detailed medical report from a suitably qualified medical practitioners.

…

Finally, the Member requests that a medical report be obtained regarding the nature of the injuries you claim to have sustained as a result of being sexually assaulted in 2011 and the continuing physical problems which you experience because of this.

…

[Emphasis added]

17    The Appellant’s representative responded by letter dated 9 November 2015:

…

The [Appellant] has instructed us to inform the Tribunal that in view of his current financial status, having no permission to work and his Medicare being withdrawn, he is unable to seek any proper medical assistance or report as required by the Tribunal to obtain further medical evidence to support the adjournment.

…

… The [Appellant] notes the Tribunal’s request to provide a detailed medical report from a suitably qualified medical practitioner, psychologist or psychiatrist. The [Appellant] was not in a position to seek proper medical assistance from a qualified medical practitioner other than a GP in view of his financial situation and also his inability to communicate with the specialised doctors because of his communication barrier. It will involve double the cost if he is to request for assistance through an interpreter.

…

Being a Refugee Applicant with no Medicare and no income, our client was in a position to seek assistance only from the Mental Health Social Worker. This is the only service which is available for people of his calibre. It is for this reason that he managed to obtain a report from his current Mental Health Social Worker who has been assessed on behalf of Commonwealth Government by the Australasian Associate of Social Workers (AASW) as having specialised mental health expertise.

…

Finally, the [Appellant] has informed us that he is still suffering from symptoms of PTSD and that he is unfit to properly present his case. We are expecting a further report from the Mental Health Social Worker as she is still treating the [Appellant] for his condition as referred by his GP.

He has therefore instructed us to inform the Tribunal that he is prepared to present himself before a Commonwealth Medical Officer for his health and mental assessment if referred to by the Tribunal for free of charge as he cannot afford to obtain the medical reports from professionals suggested by the Tribunal.

Under these circumstances, we would appreciate the [Appellant’s] request for an adjournment be granted.

[Emphasis added]

18    On 11 January 2016, the Tribunal acceded to the Appellant’s request and re-scheduled the hearing for 2 March 2016. The Tribunal relevantly added:

Please advise the Tribunal immediately if you believe you will have problems attending this hearing as if you are unable to attend the Tribunal may need to seek assessment of your ability to provide evidence from a Medical Officer of the Commonwealth in order to determine how best to proceed with assessment and finalisation of your case …

[Emphasis added]

19    On 29 January 2016, the Appellant’s representative responded as follows:

…

[The Appellant] has informed us that his General Practitioner is currently looking after and caring for his mental condition and has given a further referral to an Accredited Mental Health Social Worker…

[The Appellant] has been advised that he needs to get a specialist mental health doctor’s report and he has informed us that his attempt to get a Report from a specialist has been quoted a fee of $1,500 to obtain such a report to be submitted to the AAT. Please refer to our previous correspondence dated 9 November 2015 sent to the Tribunal.

In these circumstances, [the Appellant] has been explained the option that has been offered by the AAT by way of your letter dated 11 January 2016 that there could be arrangements made by AAT for him to be examined by a Commonwealth Medical Officer. [The Appellant] wishes to and is keen to be examined and treated by the Commonwealth Medical Officer on being referred by you. As suggested in your letter, please make the necessary arrangements for [the Appellant] to be examined and treated by a Commonwealth Medical Officer.

[The Appellant] would appreciate your making this arrangement as he is still suffering from mental illness and would have difficulty in going through an interview at this stage.

20    On 17 February 2016, the Tribunal refused any further postponement, but invited the Appellant to make any reasonable requests for special arrangements for the hearing. In particular, the Tribunal wrote:

…

The Member has considered the request carefully for a further postponement in the hearing but has decided not to postpone the hearing. However, while the Member appreciates that you are nervous and distressed, she is not satisfied that you are unable to attend the hearing. The Member notes that the most recent medical certificate from your doctor states only that you are not well enough to work full time. In these circumstances she does not believe that an assessment by the Commonwealth Medical Officer is necessary.

[Emphasis in original]

21    On 23 February 2016, the Appellant’s representative responded as follows:

Our client was expecting to be referred to the Commonwealth Medical Officer as suggested by the AAT in previous correspondence.

It appears that our client is still suffering from psychological and medical problems and is being looked after by his GP and his Accredited Mental Health Social Worker. He does not have any funds to obtain private psychological reports.

As you have decided that he should go through the Hearing on 2 March 2016 at 1pm without the Commonwealth Medical Officer’s examination and Report, our client would attend the Hearing. Please find enclosed Response to Hearing Invitation.

Our client is still nervous and distressed and would therefore like to provide his evidence by telephone. He agrees to be in teleconference with the AAT at 1pm on 2 March 2016…

22    As it transpired, the Appellant attended the hearing before the Tribunal on 2 March 2016 by telephone and was assisted by an interpreter and his migration agent.

23    After the hearing, on 29 March 2016, the Appellant’s representative responded to a request for comment or response from the Tribunal by noting:

… you would appreciate that the [Appellant] has been very emotional in saying that his mental condition has deteriorated because of the fear that he is facing from the government authorities in Sri Lanka. His Accredited Mental Health Social Worker…has provided a further Report in relation to the [Appellant’s] mental health condition which is attached hereto.

We note that during the time we were attempting to get full instructions from the [Appellant], he was not coherent and did not have proper memory to recite his story. We found him to be extremely stressed and confused. He was not clear in explaining his claims…

24    The Appellant’s representative also submitted a report from an Accredited Mental Health Social Worker, dated 16 March 2016, which included the following clinical observations:

[The Appellant] is seeking regular counselling for his PTSD…I have explained in detail about the severe trauma that has significantly impaired his psychosocial occupational functioning. He remains emotionally distressed about the sexual abuse and the other torture and trauma that he experienced at the hands of the Sri Lankan army and the other paramilitary group[.] He continues to display severe emotional distress and demonstrates significant difficulties to express his disturbed thoughts and becomes thought blocked and demonstrates difficulties with remembering whilst providing his history coherently. The prognosis remains unpredictable and would require long term psychotherapy.

He is observed to be extremely worried about the reoccurring of the sexual assault and torture by the perpetrator who is residing closer to his home. He also observed to be experiencing retraumatised feelings and often experiences significant distressing feelings of shame, hopeless, helpless and worthless. He was also observed to be experiencing severe back pain and was not able to sit on the chair for an hour. He was observed to be getting up frequently during sessions due [to] severe pain at his back. From the regular counselling session that are held fortnightly, it is observed that [the Appellant] remains at significant harm [sic] to his physical and mental health if he were to be deported back to Sri Lanka. It could be concluded that he remains at confirmed risk of continued sexual assault if he is deported back to his country. Therefore I request the concerned immigration authorities to review his application for protection VISA with justified fairness…

25    On 30 June 2016, the Tribunal affirmed the Minister’s decision not to grant the Appellant a Protection Visa. The Tribunal’s key findings were summarised by the primary judge at [13]-[36] of the Circuit Court’s decision in BUG16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1203:

13. The Tribunal summarised the relevant law. The Tribunal then summarised the Applicant’s claims as made in his entry interview, his Visa application, the interview before the Delegate, the first review application, the hearing with the first Tribunal on 15 December 2014, the arrangements made for the hearing before the Tribunal on 2 March 2016, the pre-hearing evidence and supporting documents, the evidence provided at the hearing on 2 March 2016 and the post-hearing submissions and documents. The Tribunal provided an overview of the country information relevant to providing context to the Applicant’s claims.

14. The Tribunal considered the Applicant’s ability to provide evidence to the Tribunal in light of his mental state. The Tribunal stated that it had given careful consideration to the reports provided by the Applicant that related to the Applicant’s mental state and his ability to provide evidence. The Tribunal accepted that the Applicant had been depressed and anxious for some time, however it did not accept that the Applicant was incapable of providing evidence regarding his application.

15. The Tribunal stated that it had listened to the recordings of the Applicant’s interview with the Delegate and the evidence given at the first Tribunal hearing. The Tribunal considered that the Applicant was generally able to answer questions in a reasonably coherent and responsive fashion. The Tribunal noted however, that the Applicant’s responses to concerns of the interviewer were suggestive of someone attempting to overcome inadequacies in his evidence and not someone who was unable to recall what happened or someone unable to explain his situation.

16. The Tribunal accepted that the Applicant had become more anxious and depressed since the first Tribunal hearing, however it considered that the Applicant was able to answer many of the Tribunal’s questions without apparent difficulty during the hearing. The Tribunal did not accept that the Applicant’s mental state meant that he was unable to provide evidence to the Tribunal, or that all of the serious inconsistencies in some of the Applicant’s claims were as a result of his mental state.

17. The Tribunal did not accept that the Applicant’s back pain hampered his ability to provide accurate evidence to the Tribunal. The Tribunal also did not accept that the Applicant’s age, level of education, or intelligence hampered the Applicant’s ability to provide evidence to the Tribunal.

18. The Applicant’s claims were then considered by the Tribunal. The Tribunal referred to a number of inconsistencies in the Applicant’s accounts of how he came to be beaten by soldiers. The Tribunal did not accept the Applicant’s explanation for the inconsistencies. Inconsistencies highlighted by the Tribunal included whether the assault happened in 2010 or 2011, and whether the Applicant was assaulted the day after he did not give the keys to his brother’s truck to the soldiers. The Tribunal also pointed out that there was no reference to the Applicant’s claims that his finger was amputated during the attack, nor in the police or medical reports that were provided to the first Tribunal. The Tribunal was also not satisfied that the Applicant had provided an honest or accurate account of the cause of his back pain and did not accept that the Applicant was injured by soldiers in 2010 or 2011. The Tribunal believed that the Applicant had sought to use the fact that he genuinely suffered from back pain, as evidence to support his claims.

19. The Tribunal noted that even if it were to accept that such an assault occurred, there was no credible evidence before the Tribunal that the Sri Lankan Army or anyone else had a continuing adverse interest in the Applicant following the claimed assault.

20. The Tribunal accepted that the Applicant lived with his aunt prior to coming to Australia, while he was recovering from back injuries or problems. However the Tribunal did not accept that the Applicant was at his aunt’s house because he was hiding from the Sri Lankan Army or anyone else. In making this finding the Tribunal noted the Applicant’s evidence that he was attending school and working during the last six months he lived in Sri Lanka. The Tribunal also noted the inconsistencies in the Applicant’s evidence regarding whether he was staying at his aunt’s where he was bedridden, or whether he only stayed there at night.

21. The Tribunal stated that the Applicant’s evidence that he and his family were harassed as a result of his brother’s work in Sri Lanka, was not persuasive and the Tribunal did not accept those claims. In making this finding, the Tribunal noted the Applicant’s conflicting accounts of why his brother had gone missing and when he learned of this.

22. While the Tribunal doubted that the Applicant’s father was assaulted by people looking for the Applicant’s brother in mid-2012, the Tribunal stated that even if it accepted that this occurred, it occurred four years earlier and there was no evidence that the Applicant’s brother or anyone else had been harmed at that time due to any association with the Applicant’s brother. The Tribunal did not accept that the Applicant faced a real chance of serious harm because of his association with his brother.

23. The Tribunal accepted that the Applicant’s brother faced demands for money for unpaid access to his vehicles but, on the basis of a lack of evidence suggesting that the Applicant or his family had ever faced serious harm in this regard, the Tribunal did not accept that the Applicant faced a real chance of harm on return to Sri Lanka because people had demanded or extorted money from his brother.

24. The Tribunal was not satisfied that the Applicant faced a real chance of serious harm for any reason associated with the presence of “grease men” in his area, noting country information that stated this problem did not continue after 2011.

25. The Tribunal noted that the Applicant stated at the second Tribunal hearing that he could not remember claiming before the Delegate and at the first Tribunal hearing, that he had distributed posters for the Karuna group in 2012 and that he had been accused of setting fire to a Karuna group poster and had been slapped. The Tribunal also noted that the only election to occur in 2012 in Sri Lanka occurred four months after the Applicant’s departure from country. In these circumstances, the Tribunal found that these claims made by the Applicant lacked credibility. The Tribunal also stated that even if it did accept these claims, it would not be satisfied that this would cause the Applicant problems on his return to Sri Lanka.

26. As the Applicant had not claimed prior to the second Tribunal hearing that he was a member of the TUF or the Tamil National Alliance, the Tribunal did not accept these claims as credible.

27. The Tribunal accepted that the Applicant was taken to an army camp five or six times while living in Sri Lanka, but noted that there was no suggestion that he suffered serious harm during these round-ups. The Tribunal noted that the country information indicates that round-ups which occurred during the civil war, rarely occur now. The Tribunal did not accept that the Applicant was labelled as a troublemaker by the Sri Lankan Army.

28. The Tribunal outlined some medical reports provided by the Applicant that referred to his claimed experiences of sexual assault. The Tribunal concluded it was not satisfied that the sexual assault occurred and provided a number of reasons for its conclusion:

a)    Firstly, the Tribunal noted that this claim was not raised with the Delegate or the first Tribunal.

b)    Secondly, during the second Tribunal hearing the Applicant agreed that the assault had occurred when he was detained at the army camp, as opposed to the perpetrator’s home. The Tribunal also noted that the Applicant’s statement to the mental health worker regarding when and by whom he was sexually assaulted, was at odds with the information he provided to his doctor, which stated that he was sexually assaulted by soldiers in 2012 when he was also assaulted with a rifle butt.

c)    Thirdly, the Tribunal found it implausible that the Applicant would accompany the man who assaulted him to the man’s home more than once. The Tribunal did not believe that the Applicant would have submitted to these repeated attacks, rather than ask for his brother’s assistance, as his brother was a successful businessman with good connections to local officials and members of groups such as the Karuana group.

29. The Tribunal concluded that even if it were to accept that the Applicant was sexually assaulted as claimed, it would not accept that he would experience similar harm if returned to Sri Lanka. The Tribunal acknowledged that sexual abuse of people in detention did occur, but found there was nothing in the evidence that suggested the Applicant would be sexually assaulted if he were to be briefly detained upon return to Sri Lanka due to his illegal departure.

30. In relation to country information, the Tribunal was not satisfied that the Applicant faced a real chance of serious harm on account of his Tamil ethnicity. The Tribunal did not accept that the Applicant would be believed to support the LTTE or to hold any other unacceptable political opinions on return to Sri Lanka, because of his ethnicity or due to his time in Australia.

31. In relation to the Applicant’s illegal departure from Sri Lanka, the Tribunal found that the Applicant would be likely to be briefly detained and questioned at the airport, then transferred to the Magistrates’ Court, where he would likely be charged and fined for leaving the country illegally. The Tribunal accepted that there was some possibility that he may be remanded for a short period while waiting to be brought before a Magistrate, but found that this treatment related to the non discriminatory operation of a law of general application and would not amount to harm suffered for a reason provided under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees (Refugees Convention).

32. The Tribunal accepted that people with mental health issues may have difficulties obtaining adequate care in Sri Lanka, however it did not accept that the Applicant would be denied proper healthcare for a Refugees Convention reason. The Tribunal accepted that there was some degree of stigma attached to mental health conditions in Sri Lanka, but did not accept that this would amount to serious harm.

33. When considering the Applicant’s claim under the complimentary [sic] protection criteria, the Tribunal referred to reports of failed asylum seekers facing torture or serious harm, but noted that these appeared to be isolated cases involving people with suspected links to the LTTE, and the Applicant had no such real or suspected links. The Tribunal did not accept that there was a real risk that the Applicant would be detained and tortured or face any other significant harm while being detained in relation to charges relating to his illegal departure from Sri Lanka.

34. The Tribunal did not accept the Applicant’s claim to have come from an impoverished, downtrodden family who would not be able to arrange bail for him. The Tribunal noted that the Applicant agreed at the hearing that his brother operated a construction company which obtained government contracts and had good contacts with local officials. The Tribunal did not accept that, if the Applicant were to receive inadequate medical care, it would be as a result of an act or omission intentionally committed and therefore would not amount to significant harm.

35. After considering the Applicant’s claims, the Tribunal noted that it had requested from the Applicant a medical opinion on the nature and cause of his injuries, in order to have a clear understanding of the nature of these injuries and why his doctor believed that they were the result of being sexually assaulted. The Tribunal stated that it did not request this evidence to substantiate the Applicant’s claim that he had been sexually assaulted. The Tribunal also indicated that at no stage had it offered to arrange for the Applicant to be examined by the Commonwealth Medical Officer, so that the Applicant could obtain evidence to support his case. Instead, the Tribunal indicated that if the Applicant continued to state he was unfit to attend a Tribunal hearing, that the Tribunal might arrange for him to be assessed to determine whether this was correct. The Tribunal noted that the doctor’s certificate provided by the Applicant stated only that he was unfit for full-time work, which did not suggest that he would be incapable of attending a Tribunal hearing.

36. The Tribunal concluded that in the circumstances it was not satisfied that the Applicant was a person in respect of whom Australia has protection obligations under the Refugees Convention. The Tribunal found that the Applicant did not meet the criterion in s.36(2)(a) of the Act. Further, the Tribunal was not satisfied that the Applicant was a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

(Footnotes omitted)

Before the Circuit Court

26    On 18 April 2018, the Appellant filed an amended judicial review application in the Circuit Court (the Amended Application). The Amended Application comprised three grounds of judicial review:

1. The Tribunal fell into jurisdictional error in that it failed to make inquiries or cause investigations to be made as required by law.

2. The Tribunal fell into jurisdictional error in that it acted irrationally or illogically or unreasonably.

3. The Tribunal fell into jurisdictional error in that it failed to consider relevant considerations including claims, or integers of claims, or information required by the Act and the law to be considered.

[Particulars omitted]

27    The Amended Application was dismissed by the Circuit Court on 20 May 2020. For completeness, I note that the Appellant was represented before the Circuit Court and made submissions which closely resemble those raised on appeal to this Court.

Appeal to this Court

28    On 15 June 2020, the Appellant filed a Notice of Appeal in this Court. The Notice of Appeal included three grounds of appeal, which, in substance, are the same as those relied on before the Circuit Court:

1.    The Federal Circuit Court at first instance erred in not finding that the Second Respondent ("the Tribunal") fell into jurisdictional error in that it failed to make inquiries or cause investigations to be made as required by law [Ground One].

Particulars

(a)    Although the physical and mental health of the Appellant was an issue in the review, relevant to the claims that he made and to the assessment of his credibility, and although the Tribunal was asked by the Appellant's representatives to arrange for examination of the Appellant by a medical officer of the Commonwealth, the Tribunal failed to exercise its powers to do so, whether under the power conferred by sections 60 of the Act to require the appellant to visit, and be examined by, a specified person, being a person qualified to determine the appellant's health, physical condition or mental condition, or under section 427(1 )(d) by requiring the Secretary to arrange for the making of an investigation or a medical examination or under the power conferred by section 424 of the Act to get any information that it considers relevant, or under other powers of the Tribunal.

(Court Book at first instance ("CB") p.311, Decision Record [229]-[230])

2.    The Federal Circuit Court at first instance erred in not finding that the Tribunal fell into jurisdictional error in that it acted irrationally or illogically or unreasonably [Ground Two].

Particulars

(a)    The Tribunal was unreasonable in rejecting the credibility of some important parts of the Appellant's claims:

(i)    when it was submitted that he had suffered serious trauma including torture and sexual assault, (CB 55, 76, 107-109, 181, 240-241)

(ii)    when this may have affected his mental and physical health such as to affect not only his ability to work, but also his ability to give a timely and consistent account of his history and claims, (CB 109-110, 138, 149, 181, 19, 240-241 , 268-269)

(iii)    When the Tribunal asked for a medical report regarding the nature of the injuries the Appellant claimed to have suffered as the result of being sexually assaulted, (CB 123)

(iv)    when it was submitted to the Tribunal that the Appellant could not afford the cost of specialist medical assessment and treatment, and therefore could not submit expert reports on his health to the Tribunal, (CB 129 - 131, 147)

(v)    when the Tribunal was asked by the Appellant's representatives to arrange for examination of the Appellant by a medical officer of the Commonwealth, (CB 131, 147)

(vi)    but the Tribunal proceeded to assess and reject the credibility of the Appellant's claims without requiring the appellant to visit, and be examined by, a specified person, being a person qualified to determine the appellant's health, physical condition or mental condition and therefore without having expert reports on which to base its assessment of the Appellant's ability to give a timely and consistent account of his history and claims. (CB 311 , Decision Record [229]-[230])

(b)    The Tribunal was unreasonable in saying that:

" ... even if I were to accept that the applicant was sexually assaulted during the time he was convalescing from injuries to his back (which I do not), I do not accept there is a real chance that he will experience similar harm is he returns to Sri Lanka now…

In reaching this conclusion, I have considered the evidence ... regarding the sexual assault of people held in detention by the security forces in Sri Lanka. While I acknowledge that this kind of abuse occurs, as discussed below, and while I accept that the Applicant will probably be detained for a brief period ... because of his illegal departure, there is nothing in the evidence which suggests that there is a real chance that he will be sexually assaulted while being detained for this reason ."

(CB 306, Decision Record [196]-[197])

3.    The Federal Circuit Court at first instance erred in not finding that the Tribunal fell into jurisdictional error in that it failed to consider relevant considerations [Ground Three].

Particulars

(a)    Despite its noting that the appellant's distress at the hearing was such that at one point he could not continue to speak intelligibly (CB 290-291, Decision Record [85]), and despite considering whether the Appellant's mental and physical health may have affected his ability to give evidence (CB 298-299, [143]-[149]), the Tribunal did not consider whether to get expert information and evidence about this, whether under section 60 of the Act by requiring the appellant to visit, and be examined by, a specified person, being a person qualified to determine the appellant's health, physical condition or mental condition, or under section 427(1)(d) by requiring the Secretary to arrange for the making of an investigation or a medical examination or under section 424 or other powers.

(b)    The Tribunal noted what it perceived as evidence that one of the Appellant's brothers had been abducted and tortured in custody and that this had badly affected the Appellant, but this failed to advert to the fact that the evidence was of the Appellant himself having been abducted and tortured. (CB 166; CB 289, Decision Record [78])

Ground One

29    By Ground One, the Appellant contended that the primary judge erred in not finding that the Tribunal fell into jurisdictional error by failing to make an obvious inquiry about a critical fact – the obvious inquiry being to require the Appellant to visit, and be examined by, a Commonwealth medical officer.

Appellant’s submissions

30    In summary, the Appellant submitted that the Minister was under a duty to require a Commonwealth medical officer to undertake an examination of, and prepare a report in relation to, the Appellant. The Appellant’s position was premised on the following contentions:

(1)    the requirement for medical evidence was raised by the Minister in a letter to the Appellant’s representative dated 8 October 2015, by which time the Minister had notice of the Appellant’s physical and mental injuries;

(2)    the Appellant noted the impossibility of obtaining the medical evidence due to his fraught financial position and the withdrawal of his Medicare card;

(3)    the Tribunal could not, reasonably and lawfully, discharge its function without a further medical report because such evidence was relevant to:

(a)    demonstrating the nexus between the Appellant’s claimed physical and mental injuries and the claimed sexual and physical assaults; and

(b)    the ability of the Appellant to give coherent, clear and reliable evidence (including, potentially, explaining any inconsistencies in his evidence).

31    The Appellant relied on Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 in support of the contention that the Tribunal failed to discharge its statutory duty by not making an obvious inquiry about a critical fact. In particular, the Appellant referred to the following passage in SZIAI at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), where their Honours said:

The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

[Emphasis added. Footnotes omitted]

32    The Appellant submitted that the obligation imposed upon the Tribunal by the Act is a duty to review in appropriate circumstances, and that principle is to be understood holistically. The Appellant further submitted that it is analytically fraught to adopt a strict taxonomy of whether the inquiry was ‘obvious’, ‘about a critical fact’, ‘capable of being easily ascertained’ or supplied ‘a sufficient link to the outcome to constitute a failure to review’.

33    In addition, the Appellant relied upon Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; 241 CLR 594, in which the High Court considered the power of the Tribunal to require a medical examination to be carried out pursuant to its inquisitorial powers under s 427(1)(d) of the Act. In SZGUR, French CJ and Kiefel J said (Heydon and Crennan JJ agreeing):

22.    The question whether s 427(1)(d) imposes a legal duty on the Tribunal to consider whether to exercise its inquisitorial power under that provision was answered in the negative by the Full Court of the Federal Court in WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs. The Court held that absent any legal obligation imposed on the Tribunal to make an inquiry under s 427(1)(d) "[b]y a parity of reasoning … there is no legal obligation to consider whether one should exercise that power". That view is correct. That is not to say that circumstances may not arise in which the Tribunal has a duty to make particular inquiries. That duty does not, when it arises, necessarily require the application of s 427(1)(d).

23.     In Minister for Immigration & Citizenship v SZIAI the Court considered the implications of its designation, in earlier decisions, of Tribunal proceedings as "inquisitorial". As was pointed out in that case, the term "inquisitorial" has been applied to tribunal proceedings to distinguish them from adversarial proceedings and to characterise the Tribunal's statutory functions. As the plurality judgment stated:

"The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error."

It was not necessary in that case to further explore those questions of principle. Nor in our opinion is it necessary in this case.

[Emphasis added. Footnotes omitted]

34    Having regard to these authorities, the Appellant correctly conceded that there is no general duty on the Tribunal to require and/or cause a medical examination to be carried out. Notwithstanding the above concession, the Appellant submitted that a medical examination of the Appellant’s physical and mental health was necessary in the present circumstances because the Appellant’s health was a critical fact relevant to his claims for protection and inquiry about it was obvious.

35    The Appellant submitted that matters concerning the Appellant’s physical and mental health were central to the credibility of his claims and that the credibility of his claims was itself a critical issue before the Tribunal. In particular, the Appellant contended that the medical examination was potentially determinative of his claims in the following ways. First, if an independent Commonwealth medical officer examined the Appellant, such assessment may have explained the purported inconsistencies in the Appellant’s account or difficulties the Appellant had in giving evidence. Second, such an assessment may have been central to the Appellant’s claim that he was the victim of a sexual assault and that claim, if accepted, supported both his credibility and claims for protection.

36    The Appellant also submitted that the issue had been raised in both correspondence with, and evidence available to, the Tribunal. For instance, the Tribunal was asked (directly or indirectly) by the Appellant’s representative to arrange for examination of the Appellant by a Commonwealth medical officer in separate correspondence dated 9 November 2015, 29 January 2016 and 23 February 2016, respectively. The Appellant’s representative also explained that the Appellant was unable to pay for a private assessment having been quoted a fee of $1,500 to obtain a report for submission to the AAT. Therefore, it should have been apparent that the Appellant’s mental and physical health was potentially critical to the review.

37    The Appellant further submitted that the Tribunal could have easily obtained the evidence pursuant to either ss 60, 415 or 427 of the Act, but failed to do so. In this regard, the Appellant submitted that the Tribunal is an inquisitorial body, with a general power to get information under s 424 of the Act. The Appellant also identified the Tribunal has specific powers pursuant to:

(1)    s 60 of the Act, which gives the Minister power to require the appellant to attend for a medical examination;

(2)    s 415 of the Act, which allows the Tribunal to exercise all the powers and discretions that are conferred of the original decision maker; and

(3)    s 427 of the Act, which allows the Tribunal to require the Secretary of the Department to arrange an investigation or medical examination.

Minister’s submissions

38    In response, the Minister submitted that the Tribunal was not under an obligation or duty to obtain a medical report in relation to the Appellant, whether under ss 60, 415 or 427 of the Act. In particular, the Minister submitted that the Tribunal is not under any independent duty to make inquiries. The Minister said that so much is apparent from the observations of the High Court in SZIAI at [1]:

The functions, powers and duties of the Refugee Review Tribunal ("the Tribunal") are set out in Pt 7 of the Migration Act 1958 (Cth) ("the Migration Act"). When the Tribunal receives a valid application for the review of an "RRT-reviewable decision" under the Migration Act, it must review that decision. The class of "RRT-reviewable decisions" includes decisions by delegates of the Minister for Immigration and Citizenship ("the Minister") refusing the grant of protection visas. In the exercise of its review function, the Tribunal may obtain such information as it considers relevant. In this sense it has an inquisitorial function. That does not, however, impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act.

[Emphasis added. Footnotes omitted]

39    Accordingly, the Minister submitted that it is only in rare and exceptional circumstances that a failure to make an obvious inquiry may amount to a jurisdictional error: Minister for Immigration and Citizenship v Le [2007] FCA 1318; 164 FCR 151 at [60] (Kenny J); Aggarwal v Minister for Immigration and Border Protection [2015] FCA 1312 at [57]-[58] (Wigney J).

40    The Minister further submitted that the Appellant had not established the elements necessary to succeed on Ground One, namely:

(1)    that the inquiry the Tribunal failed to make was obvious;

(2)    that the inquiry concerned a critical fact;

(3)    the existence of the critical fact could be easily ascertained; and

(4)    that it supplied a sufficient link to the outcome so as to constitute a failure to review.

41    The above matters clearly emerge from SZIAI at [25] as elements to be considered for the purpose of determining whether further inquiries should be made by the Tribunal. Those matters have been considered and discussed in later cases: see, eg, SZNBX v Minister for Immigration and Citizenship [2009] FCA 1403 at [21] (Bennett J). Given the centrality of this issue to the Appellant’s contentions as to Ground One, I shall set out the Minister’s submissions in relation to each limb in turn. The above matters are not to be regarded as an articulation of the necessary and sufficient integers of a legal test akin to the elements of a cause of action at common law. Rather, the above matters are to be considered collectively, or holistically, in the factual context of the Appellant’s claims.

42    I turn now to the Minister’s submissions in relation to Ground One. First, the Minister submitted that there was no obvious inquiry which arose before the Tribunal. The Appellant had already provided a number of reports regarding his health to the Tribunal, including from his general practitioner and from an accredited mental health social worker. Moreover, the Tribunal accepted that the Appellant “has been depressed and anxious for some time” (at [144]) and “has become more anxious and depressed since the first hearing” (at [146]), taking into account both matters when considering and evaluating the Appellant’s evidence.

43    The Tribunal was also aware that the Appellant claimed to be “severely hampered by his mental state [and] his physical problems” (at [143]). However, the Tribunal did not accept that the Appellant “is or was incapable of providing evidence regarding his case” (at [144]) and did not accept “that all of the serious inconsistencies in some of his claims are the result of his mental state” (at [146]). In that context, the Minister therefore submitted there was no obvious need for a further medical assessment in relation to the Appellant’s mental and physical health.

44    Further, the Minister submitted that the inquiry was not obvious in circumstances where the prospect of a Commonwealth medical officer examining the Appellant was raised by the Tribunal on the predicate of assessing whether the Appellant was fit to give evidence at a hearing. The Minister submitted that the Appellant opportunistically seized upon that possibility to suggest that it was an obvious inquiry for the Tribunal to have obtained a report from a Commonwealth medical officer in relation to the Appellant’s mental and physical health insofar as those matters went to the substance of his claims for protection.

45    According to the Minister, the prospect of a Commonwealth medical officer examining the Appellant was first raised in a letter from the Tribunal dated 11 January 2016 and was ultimately considered unnecessary for the reasons set out in the letter from the Tribunal dated 17 February 2016. I pause to note that I do not accept that submission. Plainly, the Appellant was the first to raise this matter when his representative notified the Tribunal on 9 November 2015 that he was prepared to present before a Commonwealth medical officer for a physical and mental assessment if referred to by the Tribunal free of charge, as he could otherwise afford to obtain the medical reports which the Tribunal requested.

46    Second, the Minister submitted that the provision of a further medical assessment was not a critical fact but rather a matter of opinion. Further, it was merely another medical opinion – additional to those already provided by the Appellant – which the Tribunal could have taken into account in assessing whether the Appellant was entitled to a Protection Visa. In this respect, the Minister submitted that it was a matter for the Tribunal, as the trier of fact, to form a judgment about the Appellant’s credibility based on all the information before it; that is, without having to procure yet another medical opinion: DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33; 260 FCR 260 at [23] (Tracey, Murphy and Kerr JJ).

47    Further, the Minister submitted that the Tribunal’s conclusion that the Appellant was not credible was based on inconsistencies in his claims and other aspects of his evidence which the Tribunal found to be implausible, rather than the absence of an independent medical report. For instance, the Tribunal observed (at [145]) that:

While some of [the Appellant’s] evidence was confused, he was generally able to answer questions in a reasonably coherent and responsive fashion. Furthermore, I note that his responses when questioned about aspects of his evidence…were suggestive of someone attempting to overcome inadequacies in his evidence, not someone who was unable to recall what happened or unable to explain his situation.

48    The Tribunal went on to conclude (at [190]) that:

As I have set out above, I do not find the [Appellant] to be a generally credible witness and found that a number of his claims have been fabricated or embellished.

49    These findings represented a state of non-satisfaction with the Appellant’s claims and did not require the Tribunal to make any findings of fact to support the conclusion. In those circumstances, the Minister submitted the Tribunal was not under any obligation to have the Appellant examined by a Commonwealth medical officer. To the contrary, it was for the Appellant to assemble and produce further evidence if he wanted to substantiate his claims for protection: CBS15 v Minister for Immigration and Border Protection [2018] FCA 1431 at [19]-[21] (Steward J).

50    Third, the Minister initially submitted that the assessment and report of a Commonwealth medical officer is not something which might be easily ascertained. This is because it would require both the expense of retaining a doctor to examine the Appellant as well as the preparation for a report for consideration by the Tribunal. However, during the hearing, counsel for the Minister conceded, sensibly in my view, that the expense of retaining a Commonwealth medical officer (and any delay caused by that approach) would not be regarded as unreasonable or unacceptable.

51    Fourth, the Minister submitted that the failure to arrange a medical assessment was not sufficiently linked with the outcome of the review so as to constitute a jurisdictional error. According to the Minister, the Tribunal had already taken into account the Appellant’s mental state in giving evidence and formed its own view as to the ability of the Appellant to provide evidence. For the reasons explained above, the Minister submitted that view was reasonably open to the Tribunal and the Appellant has not demonstrated how further inquiry would have necessarily assisted the Tribunal: see, eg, SZOVP v Minister for Immigration and Citizenship [2012] FCA 244 at [33] (Collier J).

Consideration of Ground One

52    In my view, the Tribunal did not fail to discharge its function by not making a Commonwealth medical officer available to examine, and prepare a report in relation to, the Appellant’s physical and mental health, including in relation to whether the Appellant’s injuries were the result of a claimed sexual assault.

53    As is apparent from the correspondence extracted in the background to these reasons, the Appellant’s physical and mental health was an issue raised in correspondence to the Tribunal by the Appellant’s representative. In that correspondence, it was claimed that the Appellant was unable to give coherent evidence, and further that the Appellant was in a depressive mental state and suffering from severe back pain.

54    It was in this context, and in response to the matters raised on behalf of the Appellant, in particular the request for an adjournment of five months, that the Tribunal member requested further medical evidence. There may be, as the Minister submitted, a degree of opportunism in the Appellant purporting to embrace the opportunity he had been offered to attend an examination by a Commonwealth medical officer, as indicative of a failure by the Tribunal to have made an obvious inquiry.

55    However, whether the Appellant’s position in relation to this is opportunistic is not the point. Rather, it is the Appellant’s analytical thesis which is not sound. In the circumstances I have described above, it cannot be reasoned that the Tribunal failed to make an obvious inquiry because it did not organise for the Appellant to be examined by a Commonwealth medical officer after earlier requesting a medical report from a suitably qualified practitioner. To accept the Appellant’s contention would be to erroneously equate the Tribunal’s conduct as analogous to an admission of error in its reasoning or approach.

56    I accept the Minister’s contention that the Tribunal referred to an examination by a Commonwealth medical officer in the context of determining whether the Appellant was fit to give evidence. Whether or not it was the case, the Tribunal had a reasonable basis for a concern that the Appellant may have been obfuscating and/or delaying the hearing of his application. It is in the context of the Tribunal taking steps to protect its own process that the offer for the examination by a Commonwealth medical officer should be understood. Ultimately, the Tribunal considered it unnecessary to arrange the examination, as it was entitled to conclude.

57    Further, and in any event, the scope of any examination by a Commonwealth medical officer was never proposed to include an inquiry into the Appellant’s claim that he had been sexually assaulted by a member of the Army. To require the Tribunal to make the further inquiries for which the Appellant contends would be to impermissibly expand the function of the Tribunal under the Act, notwithstanding that it was under no legal duty to arrange a further medical examination. I am guided by the observations of this Court that the Tribunal’s inquisitorial function should be understood as rare and exceptional: see, eg, Aggarwal at [59]. In my view, the Appellant has not demonstrated that there was a legal error on the part of the Tribunal for failing to exercise its inquisitorial powers as so contended. Rather, it was incumbent on the Appellant to provide such objective corroboration of his claims for protection as he thought fit: see, eg, CBS15 at [19]-[21].

58    For the above reasons, I reject Ground One.

Ground Two

59    By Ground Two, the Appellant contended that the primary judge erred in not finding that the Tribunal fell into jurisdictional error by acting irrationality, illogically or unreasonably; namely, by “rejecting the credibility of some important parts of the Appellant’s claims".

60    A claim of legal unreasonableness can only be established if it is demonstrated that the decision-maker formed a view that no rational decision-maker could have arrived at: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]-[131], [135] (Crennan and Bell JJ). As the Full Court of this Court explained in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [60]-[61] (McKerracher, Griffiths and Rangiah JJ) unreasonableness requires “extreme illogicality or irrationality…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”: see also Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [148] (Robertson J).

61    Similarly, in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [11], Allsop CJ explained that a decision may be legally unreasonable if it is “plainly unjust, arbitrary, capricious, or lacking common sense”. Ultimately, these different formulations merely serve to “highlight the fact that the test for unreasonableness is necessarily stringent” and that “courts will not lightly interfere with the exercise of a statutory power involving an area of discretion”: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11] (Kiefel CJ).

62    There are two particulars to the Appellant’s claim that the Tribunal fell into jurisdiction error by making findings without an intelligible basis and, therefore, acted legally unreasonably.

Particular (a) of Ground Two

Appellant’s submissions

63    First, the Appellant submitted that the Tribunal acted unreasonably in rejecting the credibility of the Appellant’s claims without having arranged an examination or report by a Commonwealth medical officer. The Appellant submitted this was illogical or irrational in circumstances where the Tribunal was aware:

(1)    of the Appellant’s claimed mental and physical suffering, lack of financial means and willingness to be examined by a Commonwealth medical officer; and

(2)    that such information may have been critical to the review.

64    The Appellant relied on the following propositions in support of the submission that the Tribunal acted legally unreasonably by failing to arrange a medical examination of the Appellant.

(1)    The Appellant submitted to the Tribunal that he had suffered serious trauma including torture and sexual assault. Accordingly, the Appellant’s mental and physical health was an issue raised obviously and squarely before the Tribunal: see, eg, NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58] (Black CJ, French and Selway JJ).

(2)    These experiences may have affected the Appellant’s mental and physical health such as to affect not only his ability to function, but also his ability to give a timely and consistent account of his personal history and claims for protection.

(3)    The Tribunal itself asked for a medical report regarding the nature of the injuries the Appellant claimed to have suffered as the result of being sexually assaulted in a letter to the Appellant’s representative dated 8 October 2015.

(4)    On multiple occasions, the Appellant’s representative explained to the Tribunal that the Appellant could not afford the cost of a specialist medical assessment and/or treatment, and therefore could not submit the requested medical reports in relation to his health to the Tribunal.

(5)    The Appellant’s representative specifically asked the Tribunal to arrange for examination of the Appellant by a Commonwealth medical officer in the circumstances described above.

(6)    Despite that request, the Tribunal proceeded to assess, and reject, the credibility of the Appellant’s claims without requiring the Appellant to visit, and be examined by, a person qualified to evaluate the Appellant’s mental and physical condition.

65    The essence of the Appellant’s contention was thus that the Tribunal made a finding in relation to the Appellant’s credibility, including thereby the credibility, or veracity, of his claims, without having an expert medical report on which to base its assessment of the Appellant’s ability to give a timely and consistent account of his experiences, and of his claims for protection.

66    The Appellant submitted that was legally unreasonable in circumstances where the state of the Appellant’s mental and physical health was inextricably intertwined with questions of his credibility. Put differently, it was illogical or irrational for the Tribunal to reject the Appellant’s credibility without causing a medical examination to be conducted, especially where the Appellant and his representatives had asked the Tribunal to obtain such evidence and the Tribunal was aware that it had the power to do so.

Minister’s submissions

67    In response, the Minister submitted that it was not unreasonable for the Tribunal not to exercise its discretion to arrange a further medical examination of the Appellant.

68    The Minister submitted that the Tribunal’s assessment of the Appellant’s credibility was based, to a large extent, on the inconsistencies in the way he presented his claims over time. Those inconsistencies related to at least the following matters:

(1)    the circumstances and reasons for which he was first assaulted by the army (at [150]-[159]);

(2)    whether the Appellant had gone into hiding at his aunt’s house and the nature of the Appellant’s injuries at that time (at [160]-[164]);

(3)    the extent to which the Appellant was involved with the Karuna group (at [179]-[181]); and

(4)    the extent to which the Appellant was involved with Tamil National Alliance (at [182]-[183]).

69    The Tribunal took into account the medical reports before it and accepted that the Appellant was anxious, depressed and suffered from chronic back pain. However, the Tribunal did not accept that “all of the serious inconsistencies in some of his claims are the result of his mental state” and did not accept that his “back pain significantly hampered his ability to provide accurate evidence to the Tribunal”.

70    The Minister submitted that the Tribunal’s reasons disclose an evident and intelligible justification for its approach to this issue. That reasoning is not undercut merely because the Tribunal raised the prospect of the Appellant providing further medical reports to the Tribunal. In this regard, the Tribunal relevantly said:

229.     As noted by the [Appellant’s] adviser, without a medical report prepared shortly after someone is sexually assaulted it is probably impossible to obtain evidence which would conclusively prove what had occurred. However, as the [Appellant] claimed that he continued to suffer physically from injuries sustained during this attack and that his doctor was treating him for these injuries I requested a medical opinion on the nature and cause of the injuries in order to have a clear understanding of the nature of these injuries and why his doctor believed that they were the result of being sexually assaulted. At no time did I intend to suggest that I required medical evidence to substantiate the [Appellant’s] claim that he had been sexually assaulted.

230.     At no time did the Tribunal offer to arrange for the [Appellant] to be examined by the Commonwealth Medical Officer so that he could obtain evidence in support of his case. The letter merely pointed out that if he continued to state that he was unfit to give evidence the Tribunal might arrange for him to be assessed to determine whether this was correct. However, the doctor’s certificate provided in support of his final request for postponement stated only that he was unfit for full-time work, which did not suggest that he would be incapable of attending a brief hearing of the Tribunal.

[Emphasis added]

71    The Minister submitted that, read in context, the Tribunal’s reasons and the earlier correspondence with the Appellant’s representative was not concerned with whether the medical evidence was sufficient to make good the Appellant’s claims about credibility. Instead, the Tribunal was concerned with whether the Appellant was able to able to give evidence; that is, to take part in the review hearing altogether. In those circumstances, the Minister submitted that while the Tribunal had a discretion to seek a further medical assessment, it was not legally unreasonable for it not to exercise that discretion.

Consideration of particular (a) of Ground Two

72    In Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; 183 FCR 575 at [35]-[36], Keane CJ (as his Honour then was) observed:

In summary to this point, there is nothing in the text of s 425, or in the statutory context in which it appears, or in the authoritative judicial exegesis of s 425, to suggest that it was the intention of the legislature that the Tribunal should take upon itself the role of ensuring that all possibly arguable lines of argument which might be available to an applicant in any given case are pursued to the applicant’s best advantage.

There was, in my respectful opinion, no foundation for the magistrate’s ultimate conclusion that “the applicant was denied a fair opportunity of having the Tribunal assess whether those defects [in addition to demeanour, memory, and consistency] were attributable to a mental impairment, or to concerns about veracity”. The Tribunal was not obliged to conduct an inquiry to discover whether the respondent’s case might be better put or supported by other evidence. The applicant had the opportunity to adduce such evidence as to his psychological state and its impact on his “demeanour, memory and consistency”, as he wished. There is no suggestion that his capacity to make decisions in his own interests in that regard was impaired by his condition.

[Emphasis added]

73    I respectfully adopt his Honour’s concise analysis, which is apposite in this case. The Tribunal was not obliged to conduct an inquiry to determine whether the Appellant’s physical or mental state may have affected his credibility, given the various medical reports already before it and the many inconsistencies in the Appellant’s account upon which it formed the view that the Appellant was not a “generally credible witness” and “that a number of his claims have been fabricated or embellished” (at [190]).

74    Indeed, it follows as a matter of logic from the views I have expressed in relation to Ground One, that if the Tribunal was not under an obligation to arrange a Commonwealth medical officer to examine the Appellant, it did not act irrationally or illogically by failing to do so. That conclusion is only fortified when understood within the framework of a standard that is necessarily stringent.

75    It follows that particular (a) of Ground Two must be rejected.

Particular (b) of Ground Two

Appellant’s submissions

76    Second, the Appellant contended that the Tribunal acted unreasonably in concluding that there was not a real chance the Appellant would be sexually assaulted if he were to be briefly detained on his return to Sri Lanka as someone who left the country illegally. In particular, the Appellant takes issue with [196]-[197] of the Tribunal’s reasons:

In any event, even if I were to accept that the applicant was sexually assaulted during the time he was convalescing from injuries to his back (which I do not), I do not accept there is a real chance that he will experience similar harm if he returns to Sri Lanka now. During the hearing the applicant and his representative were told that in assessing this claim I would need to consider whether he would be at risk of similar harm on return to Sri Lanka. At the time the applicant simply stated that he was afraid and no further submissions or evidence have been received detailing why the applicant continues [to] face a real chance of being sexually assaulted by the same man or anyone else if he returns to Sri Lanka.

In reaching this conclusion I have considered the evidence provided by the applicant’s representative regarding the sexual assault of people held in detention by the security forces in Sri Lanka. While I acknowledge that this kind of abuse occurs, as discussed below, and while I accept that the Applicant will probably be detained for a brief period when he returns to Sri Lanka because of his illegal departure, there is nothing in the evidence which suggests that there is a real chance that he will be sexually assaulted while being detained for this reason…

77    The Appellant submitted this conclusion was legally unreasonable for two reasons. First, because there was no consideration by the Tribunal of the evidence relevant to this integer of the Appellant’s claim to fear persecution and therefore no evidentiary basis for the Tribunal’s conclusion. In this regard, the Appellant submitted that it is apt to be reminded that a fear of persecution may be well-founded, notwithstanding that there is less than a 50 per cent chance of the harm occurring: see, eg, Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379 at 389 (Mason CJ) and 398 (Dawson J).

78    Second, the Appellant submitted the conclusion was legally unreasonable because the Tribunal’s reasoning involved a non-sequitur. That is, there was no rational foundation for the Tribunal to conclude, on the one hand, that people held in detention by the security forces are sexually assaulted and that the Appellant will likely be detained, yet, on the other hand, adopt the seemingly contradictory view that “there is nothing” to indicate there is a real chance the Appellant will be sexually assaulted while detained by security forces.

79    The Appellant further submitted that the Tribunal acted unreasonably by concluding (at [221]) that reports of failed asylum seekers facing torture or serious harm on return to Sri Lanka only occurred in “isolated cases involving people with links or suspected links to the LTTE”. The Appellant contended there was no logical basis, founded on the material to which the Tribunal was referred, from which that conclusion could be drawn. To the contrary, the Appellant submitted there was evidence before the Tribunal of an entrenched culture of torture of returnees, including sexual torture, which included returnees other than those with links or suspected links to the LTTE.

Minister’s submissions

80    The Minister contended that this ground of review was misconceived as it overlooks the evidentiary basis for the Tribunal’s finding at [196]-[197], which can be found at [141]-[142] and [220]-[222] of its reasons.

81    Under the heading ‘Country Information, the Tribunal noted at [141]-[142]:

Some Tamil living abroad were members or supporters of the LTTE and assisted with funding and political support and some groups continue to call for a separate state for Tamils. However, in 2014 DFAT noted that there are around 1 million Sri Lankan Tamils living outside the country and many return to visit family and for holidays. They also note that thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the UK, the US, Canada and Europe and there have been relatively few allegations of ill-treatment or torture of returnees. According to DFAT high-profile leaders of pro-LTTE diaspora groups may come to the attention of Sri Lankan authorities as a result of their participation in such demonstrations and, depending on their profile, returning Tamils may be monitored.

People who leave Sri Lanka illegally have committed an offence under Sri Lanka’s Immigrants and Emigrants Act. They are likely to be detained and questioned at the airport on return where they may be held up to 24 hours. Following this they are transferred to the nearing [sic] Court where they are charged with an offence under the I & E Act. While the law provides for custodial sentences, ordinary passengers are usually fined a relatively modest amount and then released, but some may be detained in prison for a brief period which [sic] proceedings are finalised. DFAT assesses that returnees are treated according to these standard procedures, regardless of their ethnicity and religion and are not subject to mistreatment during their processing at the airport. Overall, DFAT assesses that ordinary passengers who depart illegally are generally viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling ventures.

82    Further, at [220]-[221], the Tribunal made the following findings:

I have also considered whether there is anything in the treatment which the applicant may face on arrival or while any charges against him are processed which would give rise to a finding that there was a real risk he would face significant harm on return to Sri Lanka.

I am aware of reports of failed asylum seekers facing torture or serious harm on return to Sri Lanka. However, these appear to be isolated cases involving people with links or suspected links to the LTTE, not people such as the applicant who has no real or suspected links to the LTTE. The DFAT report notes that thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries and there have been relatively few allegations of torture or mistreatment and assesses the overall possibility of returnees experiencing torture as low, including in cases involving charges under the I & E Act.

In these circumstances, I do not accept there is a real risk that the applicant would be detained and tortured or face any other significant harm while detained in relation to charges under the I & E Act.

83    Accordingly, the Minister submitted that the Tribunal’s findings at [196]-[197] must be read together with the country information set out at [141]-[142] and the Tribunal’s findings about harm generally while being detained at [220]-[222], to which the Tribunal cross-referenced.

84    Read in this way, the Minister submitted that the Tribunal did not adopt an apparently contradictory proposition. To the contrary, its reasoning was both logical and rational. That is, the Tribunal reasoned that serious abuse of the kind adverted to sometimes occurs, but usually to people with links or suspected links to the LTTE; the Appellant is not such a person and, accordingly, there is no real chance of serious harm to the Appellant upon return to Sri Lanka.

85    The Minister further submitted that the absence of evidence is a rational basis for a conclusion in this instance that the Appellant would not suffer sexual abuse upon returning to Sri Lanka. This is contrary to the Appellant’s submission that there was no evidentiary basis for the Tribunal’s conclusion.

Consideration of particular (b) of Ground Two

86    In my view, it is clear that the Tribunal did not intend for its conclusions in relation to the risk of the Appellant being sexually assaulted during detention if he returns to Sri Lanka (at [196]-[197]) to be read alone. While it acknowledged that sexual assault occurs, the sentence in [197] includes the words “as discussed below”. The discussion which the Tribunal was referring to is found at [220]-[222] of the Tribunal’s reasons, in which the Tribunal explained that it was “aware of reports of failed asylum seekers facing torture or serious harm on return to Sri Lanka”, but that these “appear to be isolated cases involving people with links… to the LTTE, not people such as the applicant who has no real or suspected links to the LTTE”.

87    Further, and relatedly, I do not accept that the Tribunal acted unreasonably by concluding (at [221]) that reports of failed asylum seekers facing torture or serious harm on return to Sri Lanka only occurred in “isolated cases involving people with links or suspected links to the LTTE”. That conclusion was both rational and logically open based on the material before the Tribunal.

88    Thus, once the reasons are properly contextualised and understood as a whole, in my view the conclusion reached by the Tribunal was reasonably open to it on the material available. I do not accept the Appellant’s contention, subsumed within particular (b) to Ground Two, that the Tribunal’s reasoning involved any non-sequitur, or other analytical self-contradiction. In my view, the Appellant’s contention in this respect is not tenable. It is manifestly clear from the Tribunal’s reasons that it drew a rational distinction between the possibility of the relevant harm occurring and the likelihood that harm may be suffered by the Appellant.

89    It is rational, and arguably necessary, that in the proper discharge of its statutory function, the Tribunal should, where the fact in issue is whether there is a real chance of the risk in question causing harm to the Appellant, engage in an evaluation of whether the apprehended risk of harm is likely to materialise. For the purposes of comparison only, I note that such reasoning is analogous to an assessment in the curial context of a breach of duty in the tort of negligence or the question of causation generally: see, eg, March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506, recently cited in Minister for the Environment v Sharma [2022] FCAFC 35 at [305] (Allsop CJ).

90    It is unnecessary to expand upon that analogy, save to make two observations. First, though in the present context the parallel question is asked in advance of the apprehended harm, rather than after the event claimed to have caused harm or loss, analytically it is essentially the same question; namely, whether there is a real chance of the apprehended risk materialising, taking a common sense approach to the evaluation of the harm in question and other potential concurrent contributing causes in the prevailing circumstances. Second, the analytical approach adopted by the Tribunal, which essentially distinguished remote possibilities from real probabilities was neither illogical nor unreasonable. In many ways, that assessment is similar to the analysis in the tort of negligence, which proceeds by reference to an analysis of the likelihood of the risk materialising.

91    In any event, leaving aside any analogy with the common law causes of action, I reject particular (b) of Ground Two because the Appellant has not demonstrated that the Tribunal reached a conclusion that no rational decision-maker could have arrived at in relation to the risk that the Appellant would be sexually assaulted while being detained in Sri Lanka.

Ground Three

92    By ground three, the Appellant submitted that the primary judge erred in not finding that the Tribunal failed to take into account mandatory relevant considerations. As above, there are two particulars to the Appellant’s claim of jurisdictional error by reason of the Tribunal’s purported failure to consider:

(1)    whether to arrange for a Commonwealth medical officer to examine, and prepare a report in relation to, the Appellant; and

(2)    a letter from an ex-Member of the Eastern Provincial Council (the ex-MP) relating directly to the Appellant’s claims for protection, which the Tribunal erroneously understood as relating to the Appellant’s brother.

93    To succeed on this ground, the Appellant must establish that the Tribunal was bound to take into account either, or both, of the above matters in determining whether to grant the Appellant a Protection Visa: see, eg, ENT19 v Minister for Home Affairs [2021] FCAFC 217 at [81] (Katzmann J). It is accepted that such an obligation may be express or implied. Where there is no express requirement, the question whether a particular consideration is, by implication, one the decision-maker is bound to take into account is to be determined by reference to the subject-matter, scope and purpose of the legislation: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40 (Mason J).

Particular (a) of Ground Three

94    Particular (a) of Ground Three concerns the narrow question of whether the Tribunal was required to consider whether to arrange a medical examination of the Appellant in the sense of that being a mandatory relevant consideration.

Appellant’s submissions

95    The Appellant accepted there is no general obligation under the Act to consider whether to refer the Appellant to a Commonwealth medical officer. However, the Appellant submitted that, in the particular circumstances of this case, the Minister was obliged to consider whether to require the Appellant to visit, and be examined by, a person qualified to determine the Appellant’s physical and mental condition.

96    The Appellant submitted that the Tribunal was required to direct its attention to whether to arrange for a medical report to be obtained because of the connection between the claimed sexual assault and the consequent physical and mental injuries, and also to properly evaluate the Appellant’s capacity to give reliable and consistent evidence. The Appellant submitted that the failure to consider whether to obtain that medical report therefore amounted to a jurisdictional error.

97    I pause to note that there is a significant overlap between particular (a) of Ground Three and Ground One / particular (a) of Ground Two. Counsel for the Appellant accepted that, in substance, these grounds all have the same factual and substantive basis, and that the different grounds formulated the error differently to accord with the legal taxonomy having regard to the different duties or powers of the Tribunal that are relied upon in this appeal.

Minister’s submissions

98    The Minister submitted the Appellant’s contention must be dismissed insofar as it is couched in the language of a failure to take into account a mandatory relevant consideration. This is because such a conclusion depends upon construing the Act as impliedly allowing for such an obligation. The Minister submitted that contention is completely foreclosed by the High Court’s decision in SZGUR, which makes it plain that there is no general duty or obligation for the Tribunal to consider obtaining a medical report or examination of a visa applicant under the Act. It follows, therefore, that it cannot be an implied mandatory relevant consideration in the sense that phrase is conventionally understood in the judicial review context.

99    For the avoidance of doubt, the Minister accepted that, in an appropriate case, a failure to consider exercising the power to obtain a medical report may amount to a failure to make an obvious inquiry: see SZGUR at [22] (French CJ and Kiefel J). However, that issue is addressed in Ground One of the appeal, which I have discussed above. It is important not to conflate Ground One with the present ground of appeal under consideration.

Consideration of particular (a) of Ground Three

100    If the Appellant’s contention were accepted, the effect of such construction would be to impose a mandatory requirement that the Minister consider obtaining an assessment from a Commonwealth medical officer in a great many instances. However, such forecasts of dire consequences should rarely, if ever, be the starting point to any analysis of what may be required on the part of the Tribunal to properly discharge its statutory function in the given set of circumstances. Rather, the analysis must proceed from the words of the statute as the paramount authority. If the statute is silent, there may be scope for an inference implied by the statute, but Courts must be astute not to conflate, or obscure, a desirable purposive construction with an assumption that what might appear to be the purpose as apprehended by the judicial eye, thus equating the terms of the statute to the desired purposive construction.

101    Whether I am correct in that analysis or not, it does not matter in the present case because any void in which there might otherwise have been a contestable debate about the implication of a duty, has been flooded by binding authority to the effect that there is no duty imposed by the Act to obtain a medical report: see SZGUR at [22] (French CJ and Kiefel J). Accordingly, as the implied duty for which the Appellant contends fights against that authority, there is further reason to reject any such implication. I therefore agree with the Minister’s submission that absent any legal obligation to cause a medical examination to be conducted, there can be no mandatory requirement to consider whether to exercise that power.

102    Indeed, the Appellant’s contention is based upon a mistaken premise; namely, that the assessment of whether or not the Tribunal was required to take into account a mandatory relevant consideration depends upon an analysis or review of the facts, rather than upon an analysis of the terms in which a statutory discretion or power has been conferred: see SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77 at [14]-[15] (Flick J, with whom Allsop CJ and Bromwich J agreed). It does not. The matters a decision-maker is bound to consider in making a decision are determined by the construction of the statute conferring the discretion: Peko-Wallsend at 39 (Mason J).

103    Thus, for the above reasons, the Tribunal was not under a legal obligation to arrange a medical examination of, or report into, the Appellant’s physical and mental health. It follows also that the Tribunal was not bound to take into account whether to exercise that power and it could not therefore be a mandatory relevant consideration. I reject particular (a) of Ground Three.

Particular (b) of Ground Three

104    At [78] of the Tribunal’s reasons, the Tribunal member stated:

A letter from…a member of the Eastern Provincial Council was also provided on 2 March 2016. It states that [the Appellant’s brother] and his family were lifelong supporters of the Tamil National Alliance and that [the Appellant’s brother] had worked for the party during elections. As a result [the Appellant’s brother] was abducted by an unidentified armed group on 7 August 2010 and tortured while in custody. The letter states that [the Appellant] had been badly physically and mentally affected by this…

105    Both parties accepted that, in actual fact, the letter states that it was the Appellant who had been abducted and tortured, not his brother. It is not apparent whether that error was simply a misstatement by the Tribunal or whether the Tribunal genuinely misread or misunderstood the letter. In any event, the question for consideration in particular (b) of Ground Three is whether that incorrect statement gives rise to a jurisdictional error.

Appellant’s submissions

106    The Appellant submitted that the Tribunal’s misunderstanding of the letter from the ex-MP was a jurisdictional error because, properly understood, the letter may have affected the outcome of the review by the Tribunal: Applicant M190 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1362 at [10]-[11] (Finkelstein J). In particular, the Appellant contended that if the Tribunal had properly read the letter, it would have understood the evidence as providing independent corroboration of the Appellant’s claim that he was assaulted by the army in 2010 or 2011. In addition, it would have affected the Tribunal’s assessment of the Appellant’s credibility more generally.

107    In this regard, the Appellant referred to AMT15 v Minister for Immigration and Border Protection [2018] FCA 366, in which Tracey J said (at [47]):

The Tribunal was not under any obligation to gather evidence or to make a case for AMT15: see Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim (2000) 74 ALJR 1404 at [14] (McHugh J); Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [20] (French CJ and Kiefel J); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] (Black CJ, Sundberg and Bennett JJ); Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [22], [36] (Keane CJ) and [49] (Emmett J). However, in circumstances in which there was no reason to suggest that the letter was not authentic and it contained multiple contact details for the member of the Sri Lankan Parliament whose name was printed on what appeared to be official Sri Lankan Parliamentary letterhead, it would have been relatively easy for the Tribunal to have, directly or indirectly, contacted the member of Parliament and enquired as to whether he had sent the letter to AMT15. Questions might also have been asked about whether AMT15 held the office in the TNA to which the letter referred and whether AMT15 had attended the party meeting to which the agenda related. The failure to make these obvious enquiries which had the potential to have a material bearing on AMT15’s credibility and some of his claims of political involvement, constituted, on the facts of this case, a jurisdictional error. The failure amounted to a constructive failure to exercise jurisdiction: cf Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at [49]-[52] (Nettle J).

[Emphasis added]

108    Relying on AMT15, the Appellant submitted that the Tribunal’s misunderstanding was material because it affected the manner in which the Tribunal proceeded with the hearing. For example, if the Tribunal had correctly read the letter as referring to the Appellant being abducted and tortured, it may have made further inquiries of the Appellant or the author of the letter. This may have included ascertaining whether the author of the letter, purportedly an ex-MP, had first-hand knowledge of the events or was simply repeating matters of which he had purportedly been made aware.

Minister’s submissions

109    In response, the Minister relied on the well-established principle that an erroneous finding of fact (which is not a jurisdictional fact) will generally not suffice, of itself, to vitiate a discretionary administrative decision on account of jurisdictional error: see, eg, Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-36 (Brennan J) and Abebe v Commonwealth [1999] HCA 14, 197 CLR 510 at 560 (Gummow and Hayne JJ), cited in NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9] (Heerey, RD Nicholson and Selway JJ).

110    The Minister referred specifically to CRU18 v Minister for Home Affairs [2020] FCAFC 129; 277 FCR 493 at [31], in which the Full Court of this Court (Wigney, Jackson and Snaden JJ) stated that “[a] discretionary administrative decision that is materially premised upon an error of fact will rarely be beyond the jurisdictional authority of its maker simply because of that error. More needs to be established.” The Full Court also observed it is not desirable to attempt an “exhaustive statement” of what “more” needs to be established, but provided examples of errors that might lead to a decision being set aside, including errors of fact that:

(1)    give rise to the consideration of irrelevant material;

(2)    involve a failure to take account of a mandatory consideration;

(3)    involve unreasonableness, irrationality or illogicality; or

(4)    reveal an impermissible denial of procedural fairness.

111    The Minister submitted that, in this instance, the erroneous statement by the Tribunal does not have any special feature to it. Rather, it falls comfortably within a class of factual errors which fall within the authority of a decision maker, without vitiating the decision. More specifically, the Minister submitted that in this instance the Tribunal:

(1)    comprehended and considered the Appellant’s underlying claim to have been assaulted in 2010 or 2011;

(2)    considered the police reports and medical material provided by the Appellant that indicated he was assaulted in August 2010; and

(3)    concluded that there were significant differences between the Appellant’s original account of events and injuries, and the account of events and injuries recorded in the police and medical documents provided at the first hearing (at [150]-[159]).

112    The Minister also disputed the characterisation of the letter as “independent corroboration”, noting that the source of the information in the letter was a police report made by the Appellant and thus had the potential to be self-serving. Further, even if it may be accepted that the letter may have provided independent support for the Appellant’s claim to have been assaulted in 2010 or 2011, that does not overcome the difficulty raised by the Tribunal that there were many versions of the Appellant’s claim, and that lack of consistency was crucial to the Tribunal’s findings that the Appellant had not provided an “honest and accurate” account to it.

113    Accordingly, the Minister submitted that the misstatement or misunderstanding did not cause the Tribunal to fail to take into account the Applicant’s claims, to consider irrelevant matters or to reason illogically.

Consideration of particular (b) of Ground Three

114    I do not accept that the Tribunal’s misunderstanding of the letter from the ex-MP was a jurisdictional error. As McHugh J (sitting as a first instance judge) explained in Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; 75 ALJR 542 at [35]-[36]:

Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.

115    In this instance, the Tribunal’s findings were predicated on a view that the Appellant was not credible and had fabricated aspects of his claims. That impression was based on a series of inconsistencies and discrepancies in the Appellant’s claims for protection, many of which were unexplained or unrelated to the letter from the ex-MP.

116    Further, if the Tribunal had properly understood that the letter was referring to the Appellant, rather than his brother, that would not necessarily have had the effect of independently corroborating his claims. To the contrary, the letter raises more questions than it answers. For instance, there was no evidence about the provenance of the letter or the means by which it came into the Appellant’s possession, those being matters relevant to whether it may be inferred that the letter was from a genuine, reliable and accurate source.

117    In any event, it is unnecessary, as the Appellant urges, to speculate about what further inquiries the Tribunal might have made about the letter if it had understood it was referring to the Appellant, not his brother. The Tribunal would not have been required to make such hypothetical inquiries in this instance given that it had rejected the Appellant’s credibility for the other articulated reasons.

118    I therefore reject particular (b) of Ground Three.

Disposition

119    For the above reasons, the appeal should be dismissed with costs.

Associate:

Dated:    4 April 2022