CONSIDERATION
22 The Court's inquiry in the case of an allegation that the Tribunal failed to consider material relevant to a factual finding is set out in Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 per Katzmann, Banks-Smith and Rofe JJ at [69]-[70]:
Of course, ignoring material relevant only to fact-finding does not of itself give rise to jurisdictional error: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [97]. As we have already observed, it was not necessary for the Tribunal to refer to every piece of evidence. Moreover, there is a distinction between a failure by the Tribunal to advert to evidence which, if accepted, might have caused it to come to a different finding of fact and a failure by the Tribunal to address a contention which, if accepted, might establish the elements of a statutory claim: WAEE at [44]-[46].
In determining whether it is a jurisdictional error to fail to consider certain evidence, "the fundamental question must be the importance of the [evidence] to the exercise of the Tribunal's function and thus the seriousness of any error": SZRKT at [111] (Robertson J), endorsed by the Full Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [70] (Kenny, Griffiths and Mortimer JJ). Moreover, "it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error": SZRTK at [111].
23 Further, as stated by the Full Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 256 FCR 593 per French, Sackville and Hely J at 604 [46] about the then Refugee Review Tribunal:
The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
24 The above statement has been quoted with approval by the Full Court in the context of an appeal from a decision of the Administrative Appeal Tribunal in Pearson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 22 per Perry, Downes and McElwaine JJ at [41].
25 A review of the Tribunal's Reasons at [73]-[76] discloses that the Tribunal addressed the appellant's claim that he had not experienced problems in Sri Lanka in the past as an intersex person because he had been constantly accompanied by either his mother or wife. Therefore, contrary to the appellant's submissions, this is not a case about whether the Tribunal failed to perform its statutory task by failing to consider the appellant's claim: cf Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 per Kenny, Griffiths and Mortimer JJ at 448-449, [57]. The question for the primary judge was whether, in undertaking its statutory task, the Tribunal had failed to consider the appellant's wife's evidence.
26 As to this question, the primary judge was correct to approach the question of whether the Tribunal considered the appellant's wife's evidence by considering what inferences can be drawn from its Reasons.
27 The primary judge at Primary Decision [60] found that it was inherently improbable that the Tribunal had overlooked the appellant's wife's evidence. The primary judge found that such a conclusion was undermined by the reference to the appellant's wife in the Tribunal's Reasons at [1], [6], [34], [38]-[39], [42], [70], [74]-[76], [99], [115], [118], [120], [124]-[126] and [142]. In these circumstances, the primary judge was not prepared to infer that the appellant's wife's evidence was overlooked or that the Tribunal failed to engage in an active intellectual way with the wife's evidence as given at the hearing.
28 Whilst the Tribunal's Reasons at [75] did not expressly refer to the wife's evidence, the Tribunal's Reasons at [81] did refer to the wife's evidence, noting that the wife "always goes out with him in Sri Lanka". This reference appears only six paragraphs after the Tribunal's Reasons at [75] rejecting the appellant's claim that he was always accompanied by his wife or mother. Given this reference to the appellant's wife's evidence, I consider it improbable that the Tribunal did not consider that evidence in reaching its conclusion at [75].
29 I do not accept the appellant's submission that the Tribunal was required to give separate reasons for dismissing the appellant's wife's evidence, and that a lack of such reasons indicates that the evidence was overlooked. This Court has previously stated that an obligation to give reasons does not require a "line-by-line refutation" of evidence that is contrary to findings of material fact made by the Tribunal. The Tribunal must give reasons for its decision. It is not required to specify the sub-set of reasons why it accepted or rejected individual pieces of evidence: Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at 333 [48].
30 The appellant's wife's evidence must be understood in context. The Tribunal's concern, as expressed at [72]-[73] of its Reasons, was that the appellant's claim to fear harm on the basis of his intersex status was inconsistent with his education and employment history in Sri Lanka, and the fact that he had not been arrested or been without employment or in education other than for a two week period despite living in Sri Lanka for extended periods of time. The appellant attributed this to being constantly accompanied by his mother or his wife.
31 The primary judge was correct to consider whether the appellant's wife's evidence assisted this claim. Three observations can be made about the appellant's wife's evidence. First, his wife could not give any direct evidence of whether the appellant was always accompanied by his mother; his wife could only give direct evidence about whether she constantly accompanied the appellant. No evidence was provided by the appellant's mother in support of his claim. Secondly, a review of the transcript of the wife's evidence and the answers given by his wife at answers 56, 78 and 86 demonstrate that his wife's evidence was vague, general and imprecise. Thirdly, the appellant's wife's response at answer 106 was, at best, unclear - she stated that "most of the time we are with him" and "sometimes mother is always with him". Overall, the appellant's evidence was not capable of addressing the Tribunal's concern about whether the appellant was accompanied by either his wife or mother at all times.
32 I detect no error in the primary judge's approach in reviewing the whole of the transcript of the wife's evidence before the Tribunal and concluding that it lacked cogency and did not inform in a material way the question whether the appellant was consistently accompanied by his wife at all times in public, at work or university.
33 I also detect no error in the primary judge's consideration of the appellant's wife's evidence at the Tribunal hearing and the primary judge's finding that it did not support the appellant's claim that he had been constantly accompanied by either his mother or wife in Sri Lanka.
34 I accept the Minister's submission that the Tribunal's rejection of the wife's evidence that she always accompanied him was wrapped up in the rejection, in the Tribunal's Reasons at [75], of the appellant's claim that he was constantly accompanied at all times by his wife as being "unrealistic".
35 Finally, I accept the Minister's submission that, if (contrary to my conclusion), the Tribunal failed to consider the appellant's wife evidence that she always accompanied him, its failure to do so was not material; that is, there is no realistic possibility the outcome could have been different had the Tribunal taken the evidence into account: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 per Bell, Gageler and Keane JJ at [45]. The appellant's wife's evidence, as the primary judge found at Primary Decision [60], was so imprecise and general that it could not have made any difference to the finding in the Tribunal's Reasons at [75].