Consideration
36 In my view, the appellant's challenges to the Authority's findings are, as the Minister submits, essentially an invitation to engage in a review of the merits of the Authority's decision. It is apparent from the Authority's reasons that it accepted many aspects of the appellant's claims. In particular, the Authority accepted that:
(a) the appellant's brother was forcibly recruited to the LTTE in 2007, was captured after being wounded in 2009, was held in a military prison for approximately 20 months where he was tortured, and was released in 2010: IAA Reasons at [14];
(b) after his release, the appellant's brother was monitored by the Sri Lankan authorities: ibid at [15];
(c) the appellant's family entered a SLA camp in 2009: ibid at [24];
(d) while residing in the SLA camp, the appellant was interrogated and beaten by the CID on two occasions about any links to the LTTE, and his father was similarly beaten: ibid at [25]; and
(e) the appellant's family had to register with the Sri Lankan authorities on return to their home area: ibid at [27].
37 However, the Authority also rejected the specific claims of the appellant:
(a) that, between August 2010 and August 2012, the appellant was regularly questioned, pressured, harassed, beaten or otherwise physically harmed in relation to his knowledge of, or links to, the LTTE or whether he undertook LTTE training: ibid at [30]; and
(b) that the appellant was of any adverse interest to the Sri Lankan authorities as someone with suspected direct links to the LTTE, or because his brother was a former member of the LTTE at the time he fled Sri Lanka, or that he would be of adverse interest to the authorities on return: ibid at [38].
38 In my view, the Authority provided a cogent and logical basis in its reasons for rejecting these claims. In doing so, the Authority relied on the following matters:
(a) after his release from rehabilitation, the appellant's brother remained at home and was not involved in any activities that would attract further attention from the Sri Lankan authorities: IAA Reasons at [17];
(b) the Sri Lankan authorities did not take any additional adverse interest in the appellant's brother after his release from rehabilitation: ibid at [17];
(c) while the appellant was in the SLA camp, he was not specifically questioned about his brother's involvement with the LTTE: ibid at [18];
(d) while the appellant was in the SLA camp, the questioning to which he was subject was similar to the questioning to which all of the boys were subject: ibid at [18];
(e) while the appellant was in the SLA camp, he was not separated from his family and sent to another detention camp: ibid at [18] and [30];
(f) the appellant was not prevented from departing Sri Lanka in 2012, and did not face any difficulties departing Sri Lanka at that time: ibid at [29];
(g) it was not plausible that the Sri Lankan authorities would take a renewed interest in the appellant only six months after releasing him from the Sri Lankan army camp: ibid at [30];
(h) it was not plausible that the Sri Lankan authorities would regularly interrogate and torture the appellant after releasing him from the SLA camp in circumstances where they had shown no additional adverse interest in his brother, who was a known former LTTE member: ibid at [30]; and
(i) the appellant's claim that his brother was of no interest to the Sri Lankan authorities (because he was barely able to function as a person) contradicted the appellant's claim (which the Authority accepted) that the appellant's brother was subject to monitoring after his release: ibid at [30].
39 I reject the appellant's submission that the Authority misunderstood or misapplied the "real chance" test. The assessment of whether a person will face a real chance of serious harm if returned to a country is a "predicative exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past": MZYTS v Minister for Immigration and Citizenship [2013] FCAFC 114 at [33] per Kenny, Griffiths and Mortimer JJ; see also Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 (Guo) at 571-573 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
40 The Authority made findings about what had happened to the appellant in the past. Those findings, and the relevant country information, formed the basis upon which the Authority concluded that the appellant would not face a real chance of serious harm if he returned to Sri Lanka. There is nothing in the reasoning of the Authority to indicate that the Authority misunderstood or misapplied the "real chance" test, nor is there anything in the reasoning of the Authority which is inconsistent with an understanding that a "real chance" may be very small or far less than a 50% chance: Chan at 397-398 per Dawson J and 429 per McHugh J; Guo at 572.
41 More particularly, the applicant contended that, "on closer inspection", the Authority's findings were underpinned by the unsupported assumptions outlined above at [32]. Although the applicant did not identify specific aspects of the IAA Reasons where the Authority employed these erroneous assumptions, a prominent potential example is the following passage in the middle of [30] of the IAA Reasons:
… Had the Sri Lankan authorities had a real suspicion that the applicant had further links to the LTTE, beyond his brother's former membership, I consider the applicant would have been questioned more than twice whilst in the SLA camp and would have been separated from his family and sent to another detention camp as was occurring in the army camps where IDPs during that time. Although he claimed that he avoided further questioning in the SLA camp by claiming that he was studying I am not satisfied that, had the CID had a real suspicion towards the applicant, that his studies would have prevented them from questioning him further. When the delegate asked the applicant if his brother has experienced any harm after his release from detention he claimed that he has to go and sign in and is being monitored. I do not accept, as plausible, that the applicant suffered regular interrogation and torture after he was released from the army camp and yet his brother, who was a known former LTTE member, has not experienced similar harm after his release. …
42 In this passage, the Authority used the appellant's own evidence to draw a distinction between the appellant and his brother, and, by reference to this distinction, ultimately determined that the applicant's evidence about his own treatment by the LTTE was not plausible. In doing so, it is true that the Authority utilised implicit "assumptions", or "presumptions", about human behaviour to make findings of fact. One basic "assumption" in this passage, for instance, is that the greater the degree of known historical connection between a person and the LTTE, the higher the likelihood that the Sri Lankan authorities would seek to detain and question that person. The Authority used this "assumption" to reason that, if the appellant's brother, who was a known former LTTE member, had not experienced regular interrogation and torture after release from a SLA camp, then it was implausible, as claimed by the appellant, that the appellant, who did not have such a strong link with the LTTE, would have experienced such harm.
43 This "assumption" may not have been expressly derived from direct evidence before the Authority such as, for example, formal procedures and policies of the Sri Lankan authorities as to how they would treat particular members of the community suspected of having links with the LTTE. But administrative decision-makers, such as the Authority, are, in the course of exercising their fact-finding functions, regularly required to draw inferences or deductions from the evidence, or engage in other forms of reasoning, using "assumptions" based on logical and general experience. What is most important is that such common assumptions are not employed in a manner inconsistent with the evidence before the decision-maker. To draw an analogy from judicial fact-finding by way of example, a personal judicial opinion based on common knowledge and experience must give way to expert opinion on that matter: Ohlstein bht Ohlstein & 3 Ors v E & T Lloyd trading as Otford Farm Trail Rides [2006] NSWCA 226; (2006) Aust Torts Reports ¶81-866 at [155] per Ipp JA.
44 Notwithstanding this example, there are, of course, fundamental differences between the judicial review of judicial fact-finding and judicial review of administrative fact-finding. This follows from the "long line of authority that treats findings of fact as not involving a question of law or legality": Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 (Pilbara Infrastructure) at [156] per Edelman J. In Pilbara Infrastructure, Edelman J, in the course of considering the authorities in relation to erroneous factual findings, summarised the prevailing Australian position as follows at [159]:
… the question of law is only whether there is any evidence of a fact. Hence, it will be an error of law, and a ground of judicial review, only where an administrative decision maker decides a question of fact when there is no evidence to support that fact. The same is true in relation to inferences of fact. In Australian Broadcasting Tribunal v Bond [[1990] HCA 33; 170 CLR 321], Mason CJ explained that in Australian law there will be no error of law '[s]o long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning' (original emphasis). It is for this reason that it has been said that any want of logic is only relevant if it 'sound[s] a warning note to put one on inquiry whether there was indeed any basis for the inference drawn'.
(Citations omitted.)
45 Edelman J noted, for instance, that these principles stood in contrast to the principles in England "where an 'irrational' factual finding or an 'irrational' drawing of an inference is recognised as a ground of review": Pilbara Infrastructure at [163], citing Begum v Tower Hamlets London Borough Council [2003] UKHL 5; [2003] 2 AC 430 at [99] per Lord Millett.
46 Similarly, in WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139; 240 FCR 261, the Full Court (constituted by Wilcox, Marshall and Jacobson JJ) acknowledged (at [11]-[12]) the accepted principle that "an administrative decision maker makes a jurisdictional error if he or she bases a decision upon a finding of fact which lacks any supporting evidence". However, in a subsequent remark that resonates in the present case, their Honours observed at [12] that "it is difficult to apply [that principle] to a rejection of evidence" (emphasis added).
47 In the present case, the relevant rejection of the appellant's evidence by the Authority was based upon an assumption as to the scope of plausible behaviour on the part of the Sri Lankan authorities. As highlighted above, the Authority relevantly reasoned that, if the appellant's brother, who was a known former LTTE member, had not experienced regular interrogation and torture after release from a SLA camp, then it was implausible that the appellant, who did not have that link with the LTTE, would have experienced such harm. The appellant has not pointed to anything in the evidence before the Authority that contradicts this inference and, in my view, this process of reasoning was open to the Authority. Moreover, in this same regard, I add that the Authority was not required to possess rebutting evidence before holding that a particular factual assertion by the appellant was not made out: see, in relation to the Administrative Appeals Tribunal, CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 (CQG15) at [65] per McKerracher, Griffiths and Rangiah JJ. Ultimately, even assuming, contrary to my personal view, that the Authority's reasoning in this regard was mistaken, it was an error made within the Authority's jurisdiction.
48 The appellant further submits that the Authority's fact-finding was based upon the "unsupported assumption" that the Sri Lankan authorities, in inflicting torture, must always act coherently and consistently, or at least that there was no real chance that they would not do so. The terms of this complaint do not readily distinguish between the Authority's fact-finding in relation to past events, and the Authority's consequent predicative exercise based on that fact-finding. In relation to the Authority's fact-finding as to past events, it is not clear what the appellant is alleging the Authority ought to have alternatively done, or how it ought to have alternatively premised its reasoning. As explained above, the Authority reasoned that the appellant's evidence as to past events was implausible based on what the appellant said had occurred (or not occurred) to his brother. That reasoning process was open to the Authority.
49 As for the Authority's predictive exercise involving speculation as to future circumstances, there is nowhere in the IAA Reasons where the Authority relied on a presumption that Sri Lankan authorities will always, forevermore, operate in a coherent and consistent manner. The IAA Reasons instead recognise, consistent with the relevant statutory task, that the predictive exercise involves an assessment of chance or risk: see IAA Reasons at [12] and [57]. In assessing that chance or risk, occurrences in the past are likely to be the most reliable guide as to what would happen in the future: CDW18 v Minister for Home Affairs [2019] FCA 270 at [15] per Thawley J. Given the Authority disbelieved relevant aspects of the appellant's claims as to past events - in particular that the appellant was regularly questioned, pressured, harassed, beaten or otherwise physically harmed during the relevant period - it is unsurprising that the Authority, in assessing future events, concluded that the appellant did not face a real chance of persecution, or a real risk of significant harm, upon return to Sri Lanka.
50 For these reasons, I also reject the appellant's challenge to the Authority's findings of fact on the ground that they are irrational, illogical or unreasonable. As summarised by the Full Court in CQG15 at [59]-[61], a person who seeks to challenge findings of fact on the ground that they are irrational, illogical or unreasonable must meet a high standard. In my view, the appellant has failed to establish that the relevant findings reached by the Authority are ones that no reasonable decision-maker could have reached based on the material before it.
51 Finally, there is no basis to draw an inference from the outcome of the Authority's decision that the Authority misapplied the relevant statutory test. I do not agree with the appellant's submission that, given the Authority accepted that the appellant's brother was imprisoned and subsequently monitored by the Sri Lankan authorities (IAA Reasons at [14]-[15]), and accepted that there was a prevalence of torture by Sri Lankan authorities against people suspected of being linked to the LTTE (ibid at [38]), then the Authority could not have reached the result it did if it correctly applied the real chance test.
52 The Authority explained its path of reasoning in detail. Although it is true, as the appellant highlights, that the Authority accepted that the appellant's brother was imprisoned and subsequently monitored by the Sri Lankan authorities, the weight of this acceptance was evidently diminished by the fact that the Authority was not satisfied that the brother had a high-level connection with the LTTE (ibid at [16]), and there was no evidence before the Authority to suggest that the brother had subsequently become involved in any pro-LTTE activities, or otherwise done anything to attract further adverse attention from the Sri Lankan authorities (ibid at [17]). It is also true that the Authority accepted the prevalence of torture in Sri Lanka of people linked with LTTE members, but, as explained above, the Authority permissibly reasoned and found that, if the appellant's brother, who was a known former LTTE member, had not experienced regular interrogation and torture after release from a SLA camp, then it was implausible that the appellant, who did not have that link with the LTTE, would have experienced such harm.
53 The appellant may disagree with Authority's reasoning and conclusion, but to further delve into the Authority's process of reasoning would, in my view, impermissibly intrude upon the Authority's exclusive jurisdiction to determine the merits of the appellant's visa application.