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[2021] FCA 111
Federal Court of Australia
2021-02-17
Mr J, Vasta J, Greenwood J
Original judgment source is linked above.
GREENWOOD J: 1 These proceedings are concerned with an appeal from orders of the Federal Circuit Court of Australia (constituted by Vasta J, the "primary judge") dismissing the appellant's application before that Court for the grant of the constitutional writs in relation to a decision of the Immigration Assessment Authority (the "IAA") affirming a decision of the Minister's delegate not to grant the appellant a protection visa under the provisions of the Migration Act 1958 (Cth) (the "Act"). 2 The appellant applied for a Safe Haven Enterprise (Subclass 790) visa (the "Safe Haven visa") on 5 December 2015 on the footing that he feared persecution should he return to Sri Lanka, by reason of his Tamil ethnicity; a perception on the part of former paramilitary groups that he is, or has been, associated with the "Tamil Tigers" (which was said to encompass one or more of the following: the Liberation Tigers of Tamil Eelam ("LTTE")), the Peoples' Liberation Organisation of Tamil Eelam ("PLOTE"), the Tamil Eelam Liberation Organisation ("TELO") and/or the Eelam Peoples Democratic Party ("EPDP"); the circumstance that he would be returning to Sri Lanka as a failed Tamil asylum seeker having left Sri Lanka illegally; that he would be subject to particular scrutiny due to his family history; and that he would be subject to harassment and extortion claims from persons associated with PLOTE or TELO or the EPDP or all three. 3 These claims were said to give rise to protection obligations owed to the appellant by Australia under s 36(2)(a) and s 36(2)(aa) of the Act. 4 The particular contextual circumstances giving rise to these claims are examined later in these reasons when examining the challenges to the reasoning of the IAA before the primary judge and before this Court on appeal, said to give rise to jurisdictional error on the part of the IAA. 5 The Minister's delegate decided not to grant the appellant's application for a visa on either of the alternative grounds. That decision, which was a "fast track reviewable decision" under the Act, was referred to the IAA under s 473CA of the Act for review. Under s 473CC of the Act, the IAA "must review" the decision. In ABT17 v Minister for Immigration and Border Protection (2020) 383 ALR 407 ("ABT17"), the plurality, Kiefel CJ, Bell, Gageler and Keane JJ observed at [5] that the nature of the jurisdiction exercised by the IAA in conducting a review of a fast track reviewable decision is well settled (particularly having regard to Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 ("Plaintiff M174/2016") at 226) and observed that when conducting a review, the IAA is not concerned with the correction of error but is engaged in a "de novo consideration of the merits of the decision that has been referred to it", imposing an obligation on the IAA to consider the matter "afresh" and determine the application for the grant of the visa "for itself". It should be noted that in ABT17, Nettle J at [59] observed that for the purposes of assessing whether it was "legally unreasonable" for the IAA to depart from credibility findings made by the Minister's delegate pursuant to subdivs AB and AC of Div 3 of Part 2 of the Act, the task of the IAA is more "closely analogous" to an appeal by way of rehearing, engaging the correction of error principle. Their Honours, Gordon J and Edelman J, each in separate reasons in ABT17, emphasise that care needs to be taken with expressions like "hearing de novo" as the precise character of the review obligation by the relevant body is ultimately always a function of the statutory context. 6 For present purposes, having regard to the statutory context, Plaintiff M174/2016 and the observations of the plurality in ABT17, the IAA is obliged to bring fresh eyes to the review of the referred decision and decide the matter afresh unburdened by impressions, findings or expressions of opinion by the delegate on any aspect of the decision referred to it for review, although, of course, the IAA will have proper regard to the reasoning of the delegate. However, the statutory review obligation conferred on the IAA is not one of assessing where the delegate may have "gone wrong". 7 The decision of the primary judge engaged the resolution of two primary questions. 8 The first concerned an application by the appellant for an adjournment of the hearing. That application was refused. 9 The second concerned the resolution of the substantive application for the grant of the constitutional writs. That application was heard immediately after the dismissal of the adjournment application. 10 In the appeal, counsel for the Minister contends that the appellant is seeking, in effect, to re-agitate the merits of the adjournment application and is, in effect, seeking to run a de facto appeal from the dismissal of that application. 11 The matter that was central to the adjournment application and which has become relevant to the conduct of the appeal (as it is the subject of an application for the introduction of fresh evidence in support of the grounds of appeal), is the availability of, and access to, a transcript of an interview (otherwise described as the "SHEV interview") between the appellant and a departmental interviewing officer described as "PB" (with the appellant assisted by an interpreter) conducted on 15 February 2016. The appellant arrived in Australia as an "Unauthorised Maritime Arrival" and was interviewed by an officer of the Department with the assistance of an interpreter on 22 January 2013. This interview is otherwise described as the "arrival interview". A transcript of that interview was available to counsel for the appellant in the period leading up to the hearing of the proceeding before the primary judge on 12 March 2018. However, a transcript of the SHEV interview was not available to counsel. 12 The application for the adjournment of the substantive hearing arose in these circumstances. 13 On 31 March 2017, the appellant filed the application before the Federal Circuit Court of Australia seeking the grant of the constitutional writs in relation to the IAA's decision. The only ground identified was a (conclusionary) contention that "the decision of the [IAA] was affected by legal error". 14 That contention was devoid of any content. 15 On 3 October 2017, various procedural orders were made by Registrar Belcher which required the Minister to file and serve a bundle of documents relevant to the principal proceeding in electronic form by 23 October 2017. The appellant was required to file and serve any amended application identifying each ground of review by 27 November 2017. The proceeding was set down for hearing at 2.15pm on 12 March 2018. Written submissions from the appellant and the Minister were to be filed 14 days and seven days respectively before the hearing. No amended application nor any submissions were filed by the appellant, but for submissions in support of an adjournment sent to the primary judge about 40 minutes before the commencement of the hearing. 16 The short point agitated before the primary judge was this. 17 Mr Boccabella of counsel had been briefed to appear to seek an adjournment of the hearing, although Mr Boccabella immediately appeared on the hearing of the substantive application after the adjournment application was dismissed. Mr Boccabella made submissions that he had been retained informally on a pro bono basis to review the material and when he "went to review it in the last couple of weeks" (T p 3, lns 37-38) he found that he had the transcript of the arrival interview but not a transcript of the SHEV interview. Mr Boccabella assumed that there must have been another document relevant to the proceeding in the form of a transcript of the SHEV interview relied upon by the IAA which he did not have available to him. Mr Boccabella noted that the delegate and the IAA had referred to the SHEV interview. The primary judge drew Mr Boccabella's attention to references in the IAA's decision to the decision-maker having listened to the audio-recording of the SHEV interview: IAA at [27] (all references to the IAA's reasons are references to paragraphs of those reasons). 18 When Mr Boccabella realised that he did not have either a transcript or a copy of the audio-recording of the SHEV interview, he sought a copy of the audio-recording from the Minister's solicitors. That request occurred on either Wednesday, 7 March 2018 or Friday, 9 March 2018. Mr Boccabella received the audio-recording on the afternoon of 9 March 2018 as a "USB drive". However, the USB drive was encrypted or was otherwise unable to be opened. Nor could it be opened over the weekend prior to the hearing at 2.15pm on the following Monday. Nor could Mr Boccabella's assistants open or access the audio-recording over the weekend prior to the hearing. A request on the following Monday morning was made of the Minister's solicitors for another copy of the audio-recording, which was made available that morning, 12 March 2018. 19 At 13:39pm on the day of the hearing, Mr Boccabella sent submissions to the primary judge in support of an application for an adjournment. Mr Boccabella made oral submissions that the audio-recording is "nearly four hours long" and the "end result is I'm left with a situation where I don't have an important part of the record on which to conduct this matter": T, p 6, lns 17; 34-36. Mr Boccabella observed at T, p 8, lns 15-16 that he had only realised in the preceding week that he did not have the SHEV interview although he thought it was among the papers made available to him. Mr Boccabella observed that all he had received was the arrival interview: T, p 15, ln 20. Mr Boccabella contended that "human error" had probably caused the problem: T, p 18, ln 1-2. The human error was that counsel assumed that he had the relevant transcript "but it turns out I didn't": T, p 15, lns 37-38. 20 The point put to the primary judge concerning access to the transcript of the audio-recording of the SHEV interview, was that the IAA at [45] observed that the appellant had not claimed that he would be setting up his "own garage" or other business should he return to Sri Lanka. The circumstance that the appellant would, or was planning to, establish his own garage business upon return to Sri Lanka was the circumstance which was said to attract extortion claims made against the appellant by persons associated with PLOTE, TELO or the EPDP as one of the factual factors going to the appellant's protection claims. Mr Boccabella contended before the primary judge that the transcript of the SHEV interview may show that indeed the appellant did intend to establish his own garage business undertaking, a matter said to be "quite pivotal" to his claims for a protection visa: T, p 14, lns 18-19. 21 The primary judge was understandably very irritated by the last minute urging of a need for an adjournment. That irritation arose because the audio-recording of the SHEV interview had been provided to the appellant on 6 December 2016 as a result of a request made on 5 December 2016. 22 By Wednesday, 7 March 2018 or Friday, 9 March 2018, when Mr Boccabella asked the Minister's solicitors to provide another copy of the audio-recording, the appellant had been in possession of an earlier copy of the recording for approximately 14 months. As well, the primary judge noted that the Court Book had been available to the appellant's advisers since December 2017 which contained emails demonstrating that the audio file had been provided to the appellant. Also, no attempt had been made to amend the application before that Court to identify grounds upon which it could sensibly be contended that the IAA had engaged in jurisdictional error. The contended content of the "legal error" only emerged in oral submissions after the dismissal of the adjournment application. 23 Apart from these matters, the chronology as found by the primary judge ought to be noted. 24 The Minister's solicitors filed and served the relevant documents on 23 October 2017. Nothing was heard from the applicant (appellant) until 12 December 2017 when an electronic copy of the Court Book was sought. An electronic copy was provided by a "web-link" that day. On 15 February 2018, as nothing further had been heard from the appellant's advisers, the Minister's solicitors sought confirmation that Mr Boccabella was acting in the matter and would be appearing for the appellant at the hearing. There was no response. A further email was sent on 26 February 2018. There was no response. On 5 March 2018, the Minister's solicitors filed submissions in relation to the principal application. On 7 March 2018, Mr Boccabella sought a copy of the audio file and advised the Minister's solicitors that he was not sure if he would be acting for the appellant on the substantive application: primary judge at [22]-[27], BJU17 v Minister for Immigration and Anor [2018] FCCA 816. 25 The purpose of mentioning these matters in some detail is not to re-litigate the adjournment application (which is not the subject of an application for leave to appeal and cannot be: ss 24(1)(d), 24(1AA)(b)(ii), Federal Court of Australia Act 1976 (Cth); Wickramasinghe v Minister for Immigration and Border Protection [2016] FCA 593, Moshinsky J at [5]) but rather to put in context the circumstances that are relevant to the application made by the appellant to now rely upon a transcript of the audio-recording of the SHEV interview made by "BTS Transcript Services" in support of some of the grounds of appeal. 26 To do so, the appellant filed an application for leave to adduce fresh evidence in support of the grounds of appeal. The appellant seeks to rely on excerpts of the transcript which reveals, he contends, a misunderstanding on the part of the IAA decision-maker of one of the appellant's claims critical to his claim to hold a well-founded fear of persecution or in the alternative, his claim that he would face a real risk of suffering significant harm should he return to Sri Lanka. The critical factual claim said to have been misunderstood by the decision-maker was that the appellant claimed that he would be setting up his own garage business (and would need to do so to support his family) should he return to Sri Lanka, thus attracting the extortion conduct of the paramilitary groups giving rise to his fears as claimed. 27 There are two factors relevant to the question of whether leave is to be given to the appellant to adduce fresh evidence in support of the grounds of appeal by reliance upon an affidavit annexing a purported transcript of the SHEV interview. 28 First, the appellant must show that with reasonable diligence, he could not have put on an affidavit probative of a transcription of the audio-recording at the hearing of the primary proceeding. 29 Second, an examination of the fresh evidence must reveal that the result would very probably have been different: see the discussion of the different textual approaches to the test discussed in NASB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 24 at [42], Beaumont, Lindgren and Tamberlin JJ. 30 Put simply, the Minister says that, first, as the appellant has had the audio-recording since 6 December 2016, he could, with reasonable diligence, have caused a transcript of the recording to be produced and put in evidence before the primary judge. He simply did not do so. 31 Second, the Minister says that the affidavit of Ms Laura Mandeville filed on 9 July 2018 supplemented by an affidavit of Ms Rebecca Woodrow filed on 13 November 2018 is deficient and does not "prove" that the annexed transcript is a transcription of the audio-recording of the SHEV interview. 32 Third, the Minister says that, in any event, reference to the transcript of the SHEV interview does not demonstrate that the decision appealed from would probably have been different even having regard to the grounds of appeal now sought to be agitated. 33 It will be necessary to determine whether the audio-recording was a "relevant document" for the purposes of Order 1 of the orders made by Registrar Belcher on 3 October 2017 and whether the Minister was obliged to make the decision-maker's notes of the audio-recording available to the appellant. 34 Before determining those preliminary matters and the question of whether leave is, or is not, to be given to adduce evidence of a transcript of the SHEV interview, it is necessary to examine the reasoning of the IAA and the role the audio-recording played in that reasoning. In that context, the Court can then examine the transcript and assess the role the transcript might play in understanding whether the challenge to the reasoning of the IAA reflects jurisdictional error, at least to the extent that any one of the grounds of appeal engages with contended jurisdictional error by reference to factors addressed by the transcript. 35 It is also important to note the following matters of principle. 36 It almost goes without saying that the source of federal jurisdiction exercised by the Federal Circuit Court arises as a statutory conferral by s 476 of the Act of what is expressed to be "the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution", that is, a jurisdiction in migration decisions to grant the constitutional writs of mandamus or prohibition or both (and a jurisdiction to grant an injunction). Although s 75(v) does not expressly refer to the constitutional writ of certiorari, the conferral of jurisdiction on the High Court carries with it an "ancillary" or "incidental" authority to grant the writ of certiorari: Re Refugee Review Tribunal and Another; Ex parte AALA (2000) 204 CLR 82, Gaudron and Gummow JJ at [14]. The constitutional writs are the remedial mechanism by which, as an exercise of the judicial power of the Commonwealth, officers of the Commonwealth are subject to supervision so as to ensure that they stay within the limits of the jurisdiction conferred by the relevant Act as the source of the repository's power or authority. Thus, the primary judge was called upon to decide whether, according to the grounds of challenge, the Tribunal had engaged in jurisdictional error. 37 When the Federal Court of Australia exercises its appellate jurisdiction to determine whether the primary judge engaged in error, it does so by way of rehearing under s 24 of the Federal Court of Australia Act 1976 (Cth). 38 An appeal by way of rehearing requires the appellate court, unless it dismisses the appeal or remits the matter for further hearing, to give the judgment which, in its opinion, ought to have been given in the first instance having regard to the contended errors. An appeal by way of rehearing is a procedure for the "correction of error": Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, Gageler J at [30] ("SZVFW"). The appellate court "must decide for itself", within the limits of the Grounds of Appeal, whether the primary judge's conclusion on the relevant matters is "right or wrong": SZVFW, Gageler J at [56]. In order to decide "for itself" whether the decision of the primary judge was "right or wrong" in relation to each of the matters now the subject of the Grounds of Appeal, "the appellate court must reach its own conclusion as to whether the administrative decision was [legally] unreasonable" (SZVFW, Gageler J at [20]) on the basis contended for by the appellant and whether the Tribunal's factual findings were irrational and not logically supported by the available evidence. 39 In doing so, it is, plainly enough, not the role of the Federal Court exercising its appellate jurisdiction (nor the role of the Federal Circuit Court in considering an application for the grant of the constitutional writs) to substitute its own view as to the merits of the decision reached by the administrative decision-maker. 40 Focusing upon the notion of "legal" unreasonableness in the IAA's decision in the exercise of the IAA's statutory review function and whether factual findings (or other material findings/conclusions) were irrational or not supported by the available evidence recognises that the legality of the exercise of the jurisdiction conferred upon the repository of the power is to be tested by reference to principled and demonstrated failings in the exercise of the power (that is, conduct going beyond the limits of decisional authority), not by reference to whether the Court takes its own particular view about the merits of the decision reached by the decision-maker. 41 In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 ("Li"), their Honours affirmed earlier statements of principle in the High Court to the effect that one of the presumptions of statutory construction is that Parliament confers power on a repository on the condition (described by Gaudron J in Abebe v The Commonwealth (1999) 197 CLR 510 at 554 [116] as an "essential condition") that it be exercised reasonably: French CJ at [29]; Hayne, Kiefel and Bell JJ at [63] and Gageler J at [88]. 42 As to the standard of legal unreasonableness, Allsop CJ, Robertson and Mortimer JJ in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 ("Singh") emphasised these matters: 44 In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court's supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ: cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls "an area of decisional freedom": it has the character of a choice that is arbitrary, capricious or without "common sense". See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the Court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking "an evident and intelligible justification". [See the plurality in Li at [76]]. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li at [105]). … … 48 The standard of legal reasonableness will apply across a range of statutory powers, but the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case. As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be fact dependent. That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as "intelligible justification" must involve scrutiny of the factual circumstances in which the power comes to be exercised. [emphasis added] 43 The following observations of Gageler J in SZVFW at [59] ought to be noted (citations omitted): 59 References in Stretton to a conclusion that a decision is legally unreasonable being "evaluative" and to the task being "not definitional, but one of characterisation" were usefully directed to emphasising that determination of whether a purported exercise of a statutory power is so unreasonable that no reasonable repository of the power could have so exercised the power is informed not only by "the terms, scope and policy of the statute" but also by "fundamental values" anchored in the common law tradition. Reasonableness is itself a traditional conception of the common law - a translation of "the human into the legal". Reasonableness is not exhausted by rationality; it is inherently sensitive to context; it cannot be reduced to a formulary. In the discernment of unreasonableness, "[t]here are no talismanic words that can avoid the process of judgment". [emphasis added] 44 As to findings leading to a conclusion as to whether the decision-maker can reach a state of satisfaction (or not) for the purposes of s 36(2) and s 65(1) of the Act, impugned on grounds of illogicality and irrationality, the following principles identified by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611 at [130]-[135] should be noted: 130 In the context of the Tribunal's decision here [which equally applies to the Tribunal's decision in this case], "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact [the relevant state of satisfaction], it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. 131 … [T]he test for illogicality and irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. 132 Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal's conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. … 133 … [T]he correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. … … 135 On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. [emphasis added] 45 As to Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, these observations of Allsop CJ at [8] ought to be kept in mind: The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court's function is a supervisory one as to legality: [see Li (2013) 249 CLR 332 at [30], French CJ; [66], Hayne, Kiefel and Bell JJ; [105], Gageler J]. 46 As to the IAA's decision and the reasoning reflected in the reasons for decision, these matters should be noted. 47 At [11], the IAA accepted that the appellant is a Tamil from the north of Sri Lanka born in Jaffna. He moved with his family several times due to fighting and shelling during the period of the civil war. From 2002 to 2007, he and his family lived in the Vavuniya District. The IAA at [14] notes that in 2006 a total of 14 of his relatives were shot and killed as a result of which the appellant claimed to be living in fear. The appellant claimed that six of his (named) relatives were shot and killed in their home. At [14], the IAA notes aspects of the appellant's evidence supporting these claims and, at [15], the IAA notes country information consistent with the events, as claimed, having occurred. At [16], the IAA observes that "after assessing the evidence", it accepts that members of the appellant's family were killed in 2006 as claimed. The IAA finds at [16] that they were "specifically targeted because of their Tamil ethnicity and their imputed support for the LTTE". 48 At [11], the Tribunal observes that "at the SHEV interview", the appellant had said that he and his family had attempted to flee to India twice in 2007 (no doubt because of the accepted events of 2006). However, they were unable to do so. This is the first mention in the IAA's reasons of any reference to the appellant's SHEV interview. 49 The Tribunal observes that, in 2007, the appellant travelled to Qatar lawfully for work and returned to Sri Lanka in August or September 2010 as the civil war had ended and he thought it safe to return: IAA at [12]. The appellant returned to Qatar from early 2011 to July 2012. 50 At [13], the IAA observes that: I note that the applicant's oral evidence at the SHEV interview was at times confused and disorganised. However I found the applicant to be generally consistent in recounting his and his family's experiences in Sri Lanka throughout the processing of his application. I note that he was born and grew up in a war zone and experienced significant dislocation and loss and I am satisfied that any confusion in the applicant's evidence can be attributed to this and I make no adverse finding regarding the applicant's overall credibility. 51 At [18], the IAA observes that, after assessing all the evidence, the IAA is satisfied that the appellant's sister and brother-in-law were members of the LTTE in 1999 and 2000, as claimed, and that, as civilians, they were injured in fighting that occurred in August 2006 between the LTTE and the Sri Lanka Army ("SLA") in Allaipiddy. The evidence assessed by the IAA included statements made by the appellant at the SHEV interview concerning his sister's and brother-in-law's membership of the LTTE: IAA at [17]. 52 At [19], the IAA accepted the appellant's claim that his brother-in-law was taken by the SLA in the particular circumstances as claimed by the appellant, and has not been "heard of since". The content of the analysis at [19] does not need to be repeated here. Reference is again made to the appellant's SHEV interview. 53 At [21], the IAA notes that country information indicates that paramilitary groups were used by the SLA to identify and kill civilians suspected of supporting the LTTE. 54 At [22], the IAA finds the appellant's oral evidence given at the SHEV interview concerning his brother-in-law's disappearance to be "coherent and plausible" and that "he did not exaggerate or embellish the claim". The IAA accepted that there was a real chance that the appellant's brother-in-law was targeted because of his membership of the LTTE and due to continued support for the LTTE at the time he was taken. 55 At [23], the IAA accepted the appellant's claims that a PLOTE member had harassed the appellant's family (his mother and sister) and had demanded money from them, in the circumstances described at [23] of the IAA's reasons. The IAA observes that those circumstances were not examined in the appellant's SHEV interview. Other claims of an uncle having been kidnapped and killed were accepted by the IAA at [24]. 56 At [25], the IAA refers to the appellant's claim in his entry interview of having been detained in 2006 concerning a "bomb blast". The IAA observes that at the SHEV interview, the appellant had said that someone had "bombed his garage when he was out to lunch". The garage was said to be close to a "checkpoint" (apparently operated by the SLA). All employees were taken and subjected to inquiries. They were later released. After two weeks, the garage was operational again. The IAA notes the appellant's claim that "his employees" would have been assaulted during the interrogation by the SLA and would have been frightened by that conduct. However, the IAA notes at [26] the appellant's view that, for the reasons there mentioned, the bomb blast would not have had "his name attached to it" by the authorities (the SLA). 57 This incident raised the question of the appellant's employment history more generally. 58 The IAA notes at [27] that in the application form for the visa the appellant stated that he was "self-employed" from June/July 2012 to August 2012 only and not at any other time. The IAA notes the appellant's claim that in 2006 he worked as an auto electrician in a garage for an employer in Vavuniya, and that the apparent inconsistency (between self-employment and employment of the appellant by others) was not clarified in the SHEV interview. The IAA at [27] said this: After listening to the recording of the SHEV interview I have formed the view that the applicant was confused as to which incident the delegate was referring to and that this may be attributed to translation issues. I note that the applicant did not exaggerate or embellish the consequences for him as a result of being detained in "round-ups" in 2006, or as a result of any incident that occurred at the garage in 2006. I have made no adverse credibility finding with regards to the applicant as a result of his claims regarding events in which he was involved in 2006 and I accept that he was detained in 2006 in "round-ups". I do not accept that the applicant had his own garage and his own employees in 2006 and I therefore do not accept that the applicant's garage was bombed in 2006 and that his employees were taken and questioned as claimed. [emphasis added] 59 At [30], the IAA accepted the appellant's claims made in his SHEV interview that his aunt and uncle had been killed in a bomb blast. 60 At [31], the IAA accepted the appellant's claim that between August/September 2010 to early 2011, he was detained four or five times by the SLA, but released and never physically harmed. However, the IAA notes at [31] that the appellant claimed that these incidents caused him to be afraid and, at [32], that he claimed that he left Sri Lanka in 2012 because there was no safety for him there. 61 At [33], the IAA notes that the appellant claimed that in 2012 he operated his own garage: see also IAA at [27]. It observes that, in that context, the appellant claimed that in June or July 2012 he was called to a customer to undertake work on a lorry which had broken down. Particular events occurred when 10 or 11 soldiers detained him on return to his workshop. The Tribunal notes the appellant's claim that those events caused him to realise he was not safe in Sri Lanka. He made arrangements to leave for Australia. The IAA accepted the truth of the claims and in doing so accepted at [33] the "general credibility" of the appellant. 62 As to the IAA's acceptance of the general credibility of the appellant, see also [13] and the last sentence of [23] of the IAA's reasons. 63 At [36], the IAA notes the "consistent" claim of the appellant that he is a mechanic that works in a garage and that paramilitary groups kept demanding money from him. Also, the SLA demanded once a month, that the appellant fix vehicles of SLA members for no payment. At [36], the IAA notes the appellant's claim that he was continually harassed in this way. Also at [36], the IAA notes the appellant's claim that the conduct (which must be taken to be the conduct of paramilitary groups and the SLA) "means that he has no income for himself and his family". 64 As to the pressure to accommodate the demands of these groups (or otherwise pay money as demanded), the IAA at [36] notes these claims: Everyone has to pay otherwise there is a big risk of being killed. He referred to many people being killed and dead bodies in the paddy fields. The applicant clarified at the SHEV interview that his father is a labourer and is not targeted in this way; it is people with business who are targeted and he is targeted because he had his own garage and is a business person. The applicant stated that working for another person rather than managing his own business would not bring enough income. The applicant clarified that the extortion he was subjected to was one of the reasons he left Sri Lanka and came to Australia. [emphasis added] 65 At [37], the IAA notes that the delegate had not accepted that the appellant had been subjected to extortion claims or that he would face extortion claims from paramilitary groups should he return to Sri Lanka. The Tribunal notes that the delegate adopted that position having noted that the appellant had operated his own business for approximately one month only between June/July and August 2012 and prior to that period his income in Sri Lanka was primarily derived from employment as a mechanic in garages owned by others. 66 At [38], the IAA again notes that the appellant's family had been subjected to extortion claims and at [39], the IAA notes country information that the conduct of extortion by paramilitary groups is widespread in the Northern Province, including in the period since the end of the war. The IAA notes that particular country information reports (as to which see [40] and [41] of the IAA's reasons) suggest that the EPDP, in collaboration with the army, exert control over Tamil cities such as Jaffna, Vavuniya, Batticaloa and Trincomalee and that the EPDP is effectively controlling the Jaffna Islands and is the de facto power on the ground. The IAA also notes at [39] that sources indicated that the EPDP "still had a paramilitary presence or an armed wing in the [Northern Province]". 67 Having considered all of those matters, the Tribunal made these observations at [42]: I find that the applicant was somewhat exaggerating his status as a business owner; however after assessing all the evidence I accept that he was subjected to extortion demands when he set up his own garage and that his family were subjected to extortion demands from the PLOTE member. I accept that the applicant's concerns about extortion contributed to his departure from Sri Lanka in 2012. … [emphasis added] 68 At [42], the IAA observed that in assessing the chance of the appellant being subjected to extortion from paramilitary groups in the future in Sri Lanka, the country information discussed at [43] and [44] of its reasons needed to be taken into account. 69 At [43], the IAA notes a report of the Australian Department of Foreign Affairs and Trade ("DFAT") of 2015 to the effect that while groups such as the EPDP and the Tamil Makkal Viduthalai Pulika ("TMVP") have reportedly renounced paramilitary activities, DFAT is aware of credible reports that these groups continue to be active in Sri Lanka including engaging in criminal activity. 70 At [44], the IAA notes that crime rates tend to be higher in the Northern Province and the Western Province, citing a DFAT Report of 2017. At [44], the IAA notes that whilst the DFAT Report of 2017 does not specifically mention extortion as a class of criminal conduct, the Report makes reference to "many other serious crimes" that DFAT assesses as having remained steady or having increased slightly and the IAA notes that extortion is a serious crime. 71 At [45], the IAA draws these observations together in a summary in these terms: In summary, the country information indicates that despite having renounced their paramilitary activities, there are credible reports that paramilitary groups continue to be active in Sri Lanka, including in criminal activity. I accept that these groups continue to operate in the applicant's home area. I note that the applicant does not claim that he will be setting up his own garage or other business if he returns to Sri Lanka. It was not clarified in the SHEV interview whether or not his family continue to be subjected to extortion demands by the PLOTE member. However, the applicant did clarify in the SHEV interview that his father, who works as a labourer, is not subject to extortion demands. Whilst extortion is a serious crime I note that neither the applicant nor any member of his family have been kidnapped by extortionists in the past, and while the applicant stated that his family had "tough times" as a result of the extortion by the PLOTE member the applicant does not elaborate on what this involved. He does not claim that he or any member of his family were harmed in any way other than financially and he does not claim that he or any member of his family suffered financial loss to the extent that they could not sustain themselves economically. After assessing the evidence I find that the chance of the applicant facing serious harm from extortionists in the future in Sri Lanka is remote. [emphasis added] 72 As the passages quoted at [64], [67] and [71] of these reasons reveal, the IAA: accepted that although the appellant had somewhat exaggerated his status as a business owner, the appellant was subjected to extortion demands "when he set up his own garage"; accepted that concerns about extortion demands contributed to the appellant's departure from Sri Lanka in 2012; accepted that paramilitary groups continue to be active in Sri Lanka and in the appellant's home area (the Northern Province of Sri Lanka; see [66] and [68]-[70] of these reasons); noted that the appellant had "not claimed" that he would be "setting up his own garage or other business" should he return to Sri Lanka; and concluded that the chance of the appellant facing serious harm from extortionists should he return to Sri Lanka, is remote. 73 Before turning the grounds of appeal and any relevance the transcript of the SHEV interview may have to any of those grounds, these matters arising out of an examination of the IAA's findings should be noted. 74 First, but for one matter at [42] of the IAA's reasons (quoted at [67] of these reasons), the IAA accepted the general credibility of the appellant and the claims he made in support of the visa application, noting the extensive loss of family members in the circumstances described above as accepted by the IAA. 75 Second, the only point of departure from the IAA's assessment of the appellant's creditworthiness and his various factual claims was that he had "somewhat exaggerated" his status as a business owner: IAA at [42]. 76 Third, the question of whether the appellant was or was not a business owner of a garage or would or would not be a business owner of a garage should he return to the Northern Province of Sri Lanka, was a debate taken up by the IAA as an essential element of its assessment of whether the appellant held a well-founded fear of persecution from paramilitary groups by reason of threats of extortion (s 36(2)(a)), or whether there were substantial grounds for believing that he faced a real risk of suffering significant harm by reason of such threats (s 36(2)(aa)). 77 Fourth, the IAA accepted that residual paramilitary groups continue to engage in extortion in the Northern Province of Sri Lanka. 78 Fifth, it seems clear enough by reason of point 3, that if the facts were to be that the appellant planned to open a business garage on return to Sri Lanka, he would be the subject of extortion demands by such paramilitary groups. 79 Sixth, should such demands not be met, the appellant would be at risk of losing his life. Although there is no specific finding to that effect, the IAA at [36] notes the appellant's claims that the demands for money by paramilitary groups meant that he was deprived of income for himself and his family; everyone has to pay "otherwise there is a big risk of being killed"; many people have been killed (as a result of non-payment); the appellant has seen dead bodies in the paddy fields; and, at IAA [42], the appellant was subject to extortion claims in the brief period when he owned his garage. The IAA does not reject the claim that persons who do not pay extortion demands made by the paramilitary groups fear for their lives, nor the appellant's claims, in that context, of people having been killed, nor the appellant's claim of having seen, in that context, dead bodies in the paddy fields. 80 Moreover, the IAA accepted the general creditworthiness of the appellant as to his claims and as mentioned, only engaged in the debate about whether the appellant would, or would not, open a business garage on return because it was that circumstance which was thought to attract the extortion conduct of the paramilitary groups (and the particular demands of the SLA for work to be done on vehicles of the SLA). 81 In the context of all of these factors, the IAA observed at [45] that the appellant "does not claim that he will be setting up his own garage or other business if he returns to Sri Lanka". 82 That observation is challenged by the appellant as a failure to properly understand the claims and evidence of the appellant given at the SHEV interview. Thus the SHEV interview is said to go to grounds 4 and 5 of the grounds of appeal. 83 There are essentially four grounds of appeal (grounds 3 to 6) although ground 6 is in similar terms to the ground relied upon by the appellant in the application before the primary judge and in that sense, ground 6 is merely conclusionary of grounds 3, 4 and 5. It is unnecessary to recite grounds 1 and 2 of the grounds of appeal. Grounds 3 to 6 are these: … 3. The learned Federal Circuit Court judge erred in not finding that the IAA failed to properly interpret and/or apply s 36 and/or ss 5H to 5LA of the Migration Act 1958; 4. The learned Federal Circuit Court judge erred in not finding that the IAA's decision was unreasonable in the sense of a decision which lacks an evident and intelligible justification, has erroneous reasoning or IAA reasoned illogically or irrationally; 5. The learned Federal Circuit Court judge erred in not finding that the IAA failed to properly interpret and/or apply Part 7AA of the Migration Act 1958 in the sense that the IAA failed to conduct a proper review; 6. The learned Federal Circuit Court judge erred in not finding that the IAA's decision was affected by legal error. 84 Before examining matters relating to grounds 3 to 6, it is convenient to deal with the two preliminary matters mentioned earlier. 85 The first is whether the audio-recording of the SHEV interview falls within the scope of the orders of Registrar Belcher made on 3 October 2017. The orders of 3 October 2017 were made by Registrar Belcher in the exercise of delegations conferred upon the Registrar to make orders in proceedings under the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court Rules 2001. The question of whether the audio-recording of the SHEV interview falls within Order 1 of the orders made that day engages a question of construction of the terms of the order in the context of the proceedings. Order 1 is in these terms: 1. By 4:00pm on 23 October 2017 the First Respondent shall file and serve a bundle of relevant documents (green book) in an electronic form and for that purpose, the document shall: (a) be in portable document format (PDF); (b) be capable of being searchable for specified text; (c) have an index and shall be paginated; (d) have each entry in the index bookmarked; and (e) be set so that when opened: (i) it shall display at 100% zoom; and (ii) the bookmarks menu shall be displayed. 86 Seven other orders were made that day by Registrar Belcher. They were all programming orders directed to making the proceeding ready for hearing at 2.15pm on 12 March 2018. 87 The documents falling within the phrase "a bundle of relevant documents" which were to be filed and served by the Minister by 23 October 2017 comprehended those documents relevant to the appellant's claim as formulated in the application. The only ground said to support a claim of jurisdictional error giving rise to a claim for the grant of the constitutional writs was that "the decision of the [IAA] was affected by legal error". That ground was merely conclusionary. It was unparticularised and devoid of any content and did not raise any question going to the IAA having failed to properly understand a matter put to the departmental interviewing officer in the course of the SHEV interview. The audio-recording was not a document relevant to the proceeding as then constituted, for the purposes of procedural orders making the proceeding ready for hearing, as framed. 88 The second preliminary matter concerns the appellant's contention that the Minister was required to make the decision-maker's handwritten notes of the audio-recording available to the appellant. The appellant contends that in order to complete the record, the notes made by the decision-maker of the audio-recording of the SHEV interview ought to be regarded as a document falling within the phrase "a bundle of relevant documents" for the purposes of Order 1. The appellant contends that the Minister could have caused an affidavit to be filed by the decision-maker in the proceeding identifying any notes in relation to the audio-recording and setting out the precise content of the notes. The Minister was under no obligation to cause an affidavit of the decision-maker to be sworn or affirmed and filed and served in the proceeding before the primary judge going to a question concerning any notes the decision-maker may have made as a result of listening to the audio-recording. The statutory obligation of the decision-maker was to conduct a review of the decision referred to the IAA, reach a decision on the material and provide reasons for the decision identifying the relevant findings. The decision-maker was not obliged to expose notes made along the way to reaching a decision. Nor is the Minister obliged to expose the notes (if any) of the decision-maker. 89 There is no lack of procedural fairness in the Minister failing to disclose any notes the decision-maker may have made because the appellant has the decision and the reasons identifying the basis for the decision-maker's decision. Moreover, nothing in the proceeding as constituted before the primary judge called into controversy as a ground of jurisdictional error any question going to the decision-maker having failed to properly understand a matter put to the departmental interviewing officer in the course of the SHEV interview. 90 It should also be noted that the appellant had been provided with the audio-recording on 6 December 2016 and no question had been raised in the proceeding going to a contended failure on the part of the decision-maker in the terms earlier described. 91 How does the fresh evidence engage with the grounds of appeal? 92 The appellant contends that the observations of the IAA at [45] of its reasons (see [71] of these reasons) are the "operative [remarks] for the purpose of this appeal". The central contention is that the observation, otherwise described by the appellant as a "conclusion", that the appellant "does not claim that he will be setting up his own garage or other business if he returns to Sri Lanka" is "definitely … just not the case" having regard to a proper reading of the transcript of the SHEV interview. 93 The appellant contends that the IAA has misunderstood an essential element of the claim thus failing to discharge the statutory obligation to conduct a proper review (aspects of ground 5) and that the IAA reached the conclusion that no claim (as just described) had been made, without any "reasonable factual basis for a conclusion like that" (ground 4). Reaching that conclusion is said to be legally unreasonable in the sense described at [41] to [43] of these reasons and is said to reflect illogicality and irrationality in the reasoning process in the sense described at [44] of these reasons. 94 The appellant also says that in circumstances where the IAA seems to have accepted (as described at [79] of these reasons) that there is a serious risk of being killed if a person fails to comply with the demands of extortionists, the IAA has misapplied the statutory considerations governing whether the appellant holds a well-founded fear of persecution (ss 36(2)(a), 5H(1) and 5J(1)) and whether the appellant faces a real risk of suffering significant harm (ss 36(2)(aa), 36(2A) and 5J(5)), by concluding that by paying the extortionists the money demanded of him, the appellant was only harmed "financially" and not to the extent that "he or any member of his family suffered financial loss to the extent that they could not sustain themselves economically": IAA at [45]. 95 The appellant contends that the Act of paying the demands of the extortionists against the background of a serious risk of being killed if the demands are not met, is the act of persecution going to a well-founded fear and a real risk of suffering significant harm. 96 The appellant says that the notion that he and his family will not suffer harm (other than financial harm) by complying with the demands of the extortionists, fails to properly address the statutory integers relating to the potential serious and real risk of the individual being killed should the financial demands of the extortionists not be met. In this context, the appellant emphasises the general credibility findings favourable to him; the IAA observations about extortion demands previously made of the appellant quoted at [64] of these reasons and the "round-ups" to which the appellant was subject in 2006 quoted at [58] of these reasons. 97 The appellant contends that the matters at [94] to [96] are not dependent upon receiving into evidence the transcript of the SHEV interview. 98 As to the matters at [94] to [96], the contention is that, by concluding that the chance of the appellant facing serious harm from extortionists "is remote" (or that a fear of persecution is remote and thus not well-founded) because the harm to which the appellant had been exposed was financial harm representing something less than financial harm endangering the capacity of the appellant to sustain his family, the IAA failed to conduct a proper review by failing to recognise, for the purposes of the application of the statutory integers, that the life threatening consequences should the affected person not comply with the financial demands of the extortionists (as apparently accepted by the IAA) is the very source of the appellant's well-founded fear of persecution and the source of a real risk of suffering significant harm. 99 As to the transcript of the SHEV interview, extracts of the interview are set out below. 100 In those extracts the number identified below is the line number in the transcript. The reference to "PB" is a reference to the departmental interviewing officer, Mr Peter Blackford and "INT" is the appellant speaking through the interpreter. The interview explores the circumstances which would confront the appellant should he be compelled to return to Sri Lanka and then seek to sustain himself and his family using his skills as a motor mechanic as described by the IAA. The following exchange occurred: Transcript Participant Content 756 PB What if you went back and worked somebody then surely you wouldn't become a target for these people because they would target the business owners and not someone who was an employee. 758 INT Okay in Sri Lanka like yeah it's very difficult to work under like one person like for a long time. The money, the salary I get won't be enough to look after my family so I will have more expenses like yeah to look after my family so I have to do it by myself.
101 The appellant contends that the only reasonable interpretation of the statements of the appellant that it is difficult to work under one person for a long time; that the money or salary the appellant would get would not be enough to look after his family; that he would have more expenses in looking after his family; and that "so I have to do it by myself", is that on return to Sri Lanka the appellant would, and would need to, set up his own business, which in the context of the IAA's discussion otherwise, recognises that the appellant is a motor mechanic who has worked in (and for a short time owned and operated) a garage business. 102 The appellant contends that these statements made in the SHEV interview make it unequivocally clear that he claimed the need to and would, should he be returned to Sri Lanka, set up his own garage to sustain himself and his family. The appellant contends that the IAA's conclusion or observation that the appellant does not claim that he will be setting up his own garage or other business if he returns to Sri Lanka is simply "not justified on the evidence". 103 As to the contextual discussion (following the above exchange quoted at [100] of these reasons) concerning extortion of "Tamil business people" which the appellant contends was the position he would be in should he be returned to Sri Lanka, the following exchange occurred: Transcript Participant Content 1133 PB I just have one more question. Just going back to you telling me about people coming and asking you for money when you owned your business, okay. 1135 PB The targeting of people for money, so extortion essentially, is that done to all people? So are there Singhalese people in that area that have the same problem? 1137 INT Mainly these groups are Tamil members like yeah so they won't know, or won't do, normally they won't go to Singhalese places. Like yeah so they will target only the Tamil business people. 1138 PB So what's the reason why they wouldn't target Singhalese people do you think? 1140 INT So there is a reason for the government to keep these groups because otherwise they could have destroyed them, these groups as well like the way that they did to LTTE. So because they are still in those areas actively functioning for a reason and also because they are with the government, like they won't go to Singhalese.
104 The appellant explained in the transcript aspects of the harassment he had experienced as follows: Transcript Participant Content 579 PB When you say we can't live peacefully, what do you mean? 581 INT Say like yeah I'm a mechanic, yeah I work in the garage so like yeah from the para, like para … 583 INT Yeah TELO, EPDP like yeah I have got the harassment with them, like every month I have to pay 5,000 to one group … 585 INT Okay every month, every month TELO group will visit, visit my garage so I have to pay 5,000 rupees to them. And the other small group … 587 INT Okay so like yeah they are members of that group like yeah sometimes like if they need personal … 589 INT Okay they don't work, they don't work so when they need, as and when they need money like they come and threaten us like to me to the garage to demand for money. 590 PB So you mentioned one group. I mean you mentioned the EPDP to start with but then you also mentioned a different group.
105 After the above exchanges, the appellant and Mr Blackford exchanged a discussion about PLOTE, LTTE, TELO and EPDP. 106 The following further exchange occurred in relation to the scale of the threat and the consequences for the individual should the demands not be met. These references appear to be the source of a number of the observations of the IAA in its reasons as quoted earlier. 107 The further exchanges are these: Transcript Participant Content 606 PB Which, out of those groups, are they all doing the same thing or is there one particular group? 608 INT Okay all three yeah, all three and on top of that Sri Lankan army. So they all bring their vehicles so I have to repair everything and they won't pay any money like yeah. I can't even ask them like yeah they will say like don't you know who we are. 609 PB So aside from people coming once a month to ask for money, are there different groups coming at different times? 611 INT Say yeah like yeah the 5,000 they come and the others, they come like when they need personally, when they need money they just come and harass me. Like and if I say I don't have any money they will give me some time, like yeah within two days like you have to give that money. We will come to collect. 613 INT So I don't get any money like for our own expenses like yeah, so the income, there is no income for me. 614 PB Do they do this to other people? 616 INT Okay so everybody, when they demand for this type of threat, like yeah everybody has to oblige otherwise there is a big risk. 607 PB And what's the risk? 619 INT Okay so they will even kill, they won't hesitate to kill like yeah because they will do that for one person to show, show that to the others in the area like so that next time everybody will give. 620 PB So do you know of instances where that's happened to other people? 622 INT Okay say like yeah that happens all the time like yeah the people, their bodies are everywhere like in the paddy field or on the road like yeah those are the reasons why they kill. 623 PB And so why do you think that there doing, why do you think that they're specifically targeting people that live in that area? 625 INT Okay say for the members of the groups, they don't have any income for them personally. So because of that they have to collect it from other people, like from the business people, individuals like families. 626 PB Does your father have the same problem? 628 INT Okay my Dad he does like labourers job so but for me like my situation is different because I own this garage like yeah I am a business person. 629 PB So does your Dad not get targeted or ask[ed] for money? 631 INT Okay so like yeah they are no that exposed to the community yeah like because they just do their job and go home. Like yeah, and they, Dad does, he goes into homes and do their gardening work and that sort of work so. 632 PB So what other types of people have this problem with these groups? So tell me like which people do they target. 634 INT Okay if they know that people who are like getting money, like more money like businesses, and the rich people.
108 Throughout the transcript there are sections where the transcript simply notes that conversations took place between the appellant and the interpreter (in the appellant's national language) before the transcript records the answer given by the interpreter in English. The various notes throughout the transcript to those discussions between the interpreter and the appellant have not been inserted in the above sequence in the transcript. 109 As can be seen from the transcript and the contentions of the appellant described particularly at [92], [93] and the matters at [99] to [107] of these reasons, the transcript of the audio-recording of the SHEV interview provides the basis for the appellant's contention that the challenged observation at [45] of the IAA's reasons (that the appellant "does not claim that he will be setting up his own garage or other business if he returns to Sri Lanka"), is not a correct understanding of the position adopted by the appellant. The appellant describes that observation as a "conclusion" or "finding" of the IAA that lacks an evident and intelligible justification (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, the plurality at [76]) or that the conclusion or finding suffers from illogicality or irrationality, in the sense described at [44] of these reasons. 110 Reading the reasons of the IAA as a whole taken together with the proffered transcript, I would not regard the challenged observation at [45] of the IAA's reasons as a "finding" or "conclusion". There is no deliberation of matters leading to a weighing of facts ultimately leading to a conclusion or finding. 111 The real point is that the IAA has not embarked upon a deliberative analysis of facts leading to a relevant finding as, so far as the IAA was concerned, the appellant was not making a claim of a matter of particular fact. The IAA was recording that no claim, as described, was being made. That matter was both incorrect and material to the conclusion that the chance of the appellant facing serious harm from extortionists in the future in Sri Lanka was "remote". 112 Accordingly, I admit the affidavit evidence of the transcript of the SHEV interview. 113 I do so having regard to these considerations. 114 I accept that the appellant has had possession of a copy of the audio-recording of the SHEV interview since 6 December 2016. 115 I also accept that, having regard to the hearing date of 12 March 2018, the appellant could reasonably have caused a transcript of the interview to be produced and put before the primary judge. 116 However, the appellant is a Tamil from the Northern Province of Sri Lanka who asserts that he is owed protection obligations by Australia on the grounds already identified. He is a person whose family has suffered the atrocities described and accepted by the IAA. He has suffered harassment as accepted. His claims are generally accepted. He was unrepresented at the time when the audio-recording was sent to him on 6 December 2016 and but for Mr Boccabella providing pro bono services to the appellant shortly before the 12 March 2018 hearing, I am willing to infer that the appellant would not have had the assistance of legal advice and representation at the Federal Circuit Court hearing (unless some other counsel or solicitor had been willing to provide it at the time). 117 The question of whether the transcript is to be admitted engages the exercise of a discretion. The exercise of the discretion takes into account the factors just mentioned but also weighs in the balance the important question of how the interests of justice are best served in the circumstances of the case. It seems to me that the affidavit evidence attaching a copy of the transcript ought to be admitted as the interests of justice are served by enabling the appellant to identify the factual foundation for the contention that the IAA misunderstood the claim he was making and the materiality of that matter to his protection claims. 118 I also recognise that the transcript has been produced by what is described by Ms Woodrow in her affidavit as "a professional transcription company". I accept that proof of the process for producing the transcript and proof of the standing of the "professional transcription company" has not been properly adduced in strict form. Nevertheless, where the question in issue is whether the administrative decision-maker has failed to discharge a statutory duty of reviewing the decision referred to the IAA by reference to claims made by the person asserting a protection obligation owed to him by Australia, any formal lack of strict proof as to the process of transcription and the authority and standing of the company ought not to outweigh, at the balance point, the best interests of justice. 119 It should be noted that there is no suggestion by the Minister that the transcript is not correct. However, that may well be because in order to advance such a submission, the transcript would need to be in evidence and contested by other evidence of an alternative version. Here, the contest is as to the admission of the transcript (as it is put forward) at all. 120 As to the substance of the grounds of appeal, a number of the important factual matters recited in the reasons of the IAA can be seen in the transcript of the audio-recording. As the IAA records in its reasons, the decision-maker has referred to the audio-recording in addressing the various factual matters earlier mentioned in detail. The question raised by the grounds of appeal is not really one of whether a "finding" or "conclusion" suffers from legal unreasonableness as having no evident and intelligible justification or whether a "finding" or "conclusion" is to be characterised as having been reached irrationally or by reason of illogicality in the sense earlier described. Rather, the question is whether the IAA simply failed to recognise that should the appellant return to Sri Lanka he would, and would need to, set up his own garage (undertaking) to support his family financially and so use the skills he has as a mechanic as found. The IAA recognised the relationship between the appellant operating such a garage business and the conduct of paramilitary groups (as earlier described) in seeking to extort payments from him and the risk of the consequences of the appellant failing to make the payments. However, the IAA rendered that risk as "remote" because it understood the position to be that the appellant did not claim that he would be setting up his own garage business (with the result that he would be of no interest to the extortionists). 121 However, he did make that claim and it can be seen directly at [100] and [101] of these reasons and contextually at [103] to [107] of these reasons. 122 It is well accepted that the IAA is only required to address claims that clearly arise on the material. Here, it can be seen that the IAA recognised that the topic (or subject matter) of whether the appellant would or would not be setting up his own garage business on return to Sri Lanka was relevant and material as that matter was expressly addressed. The IAA regarded it as important to expressly note what it regarded as the position on that topic. 123 However, the IAA did not appreciate that the appellant was making a claim that he would, and would need to, set up his own garage business on return to Sri Lanka. As already mentioned, that matter was material to the appellant's protection claims. 124 The appellant's claim in this regard was not obfuscated. It was raised expressly in the interview and the claim was placed in context as the transcript reveals. 125 These matters were not before the primary judge. The primary judge did not fall into error on this ground. The ground as now developed on appeal in the context of the transcript is meritorious. The orders of the primary judge are to be set aside and the matter of the review of the delegate's decision is to be remitted to the IAA for consideration of the appellant's claims of protection obligations owed to him by Australia in the context of the claim that upon his return to the Northern Province of Sri Lanka he would, and would need to, set up his own garage business to support his family. 126 That claim must be considered by the IAA and made the subject of findings. 127 As to the remaining ground emphasised by the appellant and described in summary form at [94] to [97] of these reasons, I accept that if the IAA has accepted, as it seems to me it has, that a failure to meet the demands of the extortionists gives rise to a real risk of life threatening consequences described by the IAA at [36] of its reasons (see [64] of these reasons and the discussion at [74] to [79] of these reasons and particularly at [79]), it is no answer to the question of whether Australia owes protection obligations to the appellant (in the context of the findings favourable to the appellant concerning the extortion conduct and threats of such conduct by paramilitary groups and the SLA) to conclude that the chance of the appellant facing serious harm from these groups is remote because by meeting the demands, paying the money and acting in accordance with the requirements of the extortionists, only financial harm or hardship arises (and not to a degree that the appellant or his family would be reduced to not being able to "sustain themselves economically"). The point is that the very demands are the expression of the persecution, or real chance of significant harm from which protection obligations (on the findings otherwise), arise. 128 The IAA accepts that extortion claims form part of the "criminal activity" of paramilitary groups and elements within the SLA in the Northern Province of Sri Lanka. The IAA must not only consider the appellant's claim as discussed at [120] to [124] of these reasons but also whether the appellant faces a real chance of serious harm should he refuse to comply with the demands of the extortionists rather than whether the harm is of only the character described by the IAA should he comply with those demands. 129 In deciding as it did on this issue, the IAA fell into jurisdictional error. 130 To the extent that the primary judge thought otherwise, the primary judge, in my respectful opinion, fell into error. 131 In effect, there are two central matters relevant to this appeal contained within [45] of the IAA's reasons. The first is the IAA's understanding that the appellant does not claim that he will be setting up his own garage business and second, that, in any event, he does not face a real chance of serious harm because compliance with the demands only brings about financial harm (and not at the level of a threat to being able to economically sustain his family), whereas the fear of harm arises out of the consequences for the appellant in not complying with the demands of the extortionists. It seems to me that there is a degree of inter-relationship between these two contentions. 132 That being so, it is important to recognise that the first limb of these contentions was not agitated before the primary judge with the result that the costs order of the primary judge ought not to be disturbed. 133 However, the Minister will be ordered to pay the appellant's costs of and incidental to the appeal. I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood.
BJU17
Minister for Immigration and Border Protection
(1999) 197 CLR 510
(2020) 383 ALR 407
(2014) 231 FCR 437
(2016) 237 FCR 1
(2018) 264 CLR 541
(2013) 249 CLR 332
(2010) 240 CLR 611
(2018) 264 CLR 217
(2000) 204 CLR 82