FINKELSTEIN J:
18 In 1946, in England, a licensing authority granted a licence to the proprietors of a cinema to open their cinema on Sunday, on condition that "no children under the age of fifteen years shall be permitted to any entertainment, whether accompanied by an adult or not". The condition was imposed to protect the spiritual well-being of the children. The proprietors challenged the decision. They said it was unreasonable. The court did not agree. It upheld the authority. But the court did accept the proposition that if a decision by an authority is so unreasonable that no reasonable authority could ever come to it, the decision will be set aside. That principle is usually referred to by the shorthand expression "Wednesbury unreasonableness" after the name of the case, Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223. It is one of the circumstances in which a court will quash the exercise of an administrative discretion: Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240 at 249.
19 In 1985, Lord Diplock said that the grounds of judicial review could conveniently be classified under three heads - illogicality, irrationality and procedural impropriety: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410. By irrationality, Lord Diplock was referring to "Wednesbury unreasonableness". He said ([1985] AC at 410) that "it applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it." However, the cases show that it is very difficult to establish "Wednesbury unreasonableness". An administrative decision-maker is often guilty of faulty or erroneous reasoning, but it is not easy to prove that he has taken leave of his senses. And this is what is required to establish that ground.
20 To meet this difficulty, the principles of administrative law in England have not stood still since 1948. Irrationality has now developed to the point where it can be said (and Lord Woolf MR has said), that it has two faces: "one is the barely known decision which simply defies comprehension; the other is a decision which can be seen to have proceeded by flawed logic": R v North and East Devon Health Authority; Ex parte Coughlan [2000] 2 WLR 622 at 647. As Lord Woolf MR went on to indicate, a decision may satisfy the first criterion because it is not outrageous, but the courts in England are just as concerned with ensuring that the decision passes the second test.
21 Not every administrative decision involves the exercise of a discretionary power. A decision-maker is often required to make findings of fact, and sometimes findings of a "jurisdictional" fact. Those findings may be of primary facts, or findings by way of inference from primary facts. In either case, the decision-maker may make a wrong finding, or what appears to be a wrong finding. One cause for error may be that the decision-maker has proceeded on a flawed basis, so that the result might be described as illogical. Is an administrative decision that is based on flawed logic reviewable?
22 The basic premise from which any discussion on this topic must begin is that "[t]here is no reviewable error simply in making a wrong finding of fact": Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303 per Dawson, Gaudron, McHugh, Gummow and Kirby JJ, citing Waterford v The Commonwealth (1987) 163 CLR 54 at 77 per Brennan J. That is not to say, however, that every finding of fact (primary or secondary) is immune from review. For example, it is now accepted that a decision that is based on a finding of fact made without evidence to support it, is a decision made without jurisdiction: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. When the disputed fact is a primary fact, often the question that is asked is "Was there any evidence to support the finding?". But where the case concerns a finding by inference, the question must be different. In Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32 at 37-38 Mildren J explained:
"If there are no primary facts upon which a secondary fact could be inferred, and the secondary fact is crucial to the ultimate finding as to whether or not the case fell within the words of the statute, there is an error of law. If there are primary facts upon which a secondary fact might be inferred, there is no error of law. It is not sufficient that this Court would have drawn a different inference from those facts. The question is, whether there were facts upon which the inference might be drawn. In Instrumatic Ltd v Supabrase Ltd [1969] 1 WLR 519 at 521; [1969] 2 All ER 131 at 132, Lord Denning MR, with whom Edmund Davies LJ and Phillimore LJ agreed, said that 'if a tribunal draws an inference which cannot reasonably be drawn, it errs in point of law, and its decision can be reviewed by the courts. That was settled, once and for all, in Edwards (Inspector of Taxes) v Bairstow [1956] AC 14' (emphasis mine). The word 'reasonably' suggests that this Court could interfere if it thought the inference drawn was unreasonable. With respect, I think difficulty of understanding may arise by the use of pejorative words such as 'perverse', 'unreasonable', illogical' and the like expressions which by their nature indicate only that in the opinion of the user, the decision ought not to have been made, and the user holds that opinion rather strongly. It is better not to use such words. In the context of this discussion, if an inference cannot reasonably be drawn, it will be because the inference cannot be drawn from the primary facts. However, if the inference is one about which minds might differ, it being a question of judgment or degree, the inference not only can be drawn but it would not be unreasonable to draw it."
23 What is the position according to the common law when the complaint is that a finding of fact (primary or secondary) is the product of illogical reasoning? I will use the word "illogical" to refer to a situation where the reasoning that led to the finding is unsound. Usually reasoning is used to establish the truth of a proposition. In most proceedings a tribunal is not concerned with ascertaining whether a proposition is true, but only whether it is probable to an appropriate degree. For the purposes of the proceeding before that tribunal the proposition will then be regarded as true. The process of reasoning to establish that a proposition is probable to the appropriate degree is one that is either deductive or inductive.
24 Lord Diplock was of the view that findings or inferences were reviewable for error of law on the ground that they could not be reasonably made from the evidence (primary facts) or could not reasonably be drawn from the primary facts. In R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488, he said that a decision-maker must base his decision:
"[o]n material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant."
In Mahon v Air New Zealand Ltd [1984] AC 808, he said (at 821) that a decision-maker must base his decision on probative evidence and that "[w]hat is required is that the decision to make the finding must be based upon some material that tends to logically show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory." See also the views of Lord Denning in T A Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992 at 995 and Kavanagh v Chief Constable of Devon and Cornwall [1974] 1 QB 624 at 633, which are to the same effect.
25 This approach found favour with both Brennan J and Deane J when they were members of the Federal Court. In Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33, Brennan J said (at 41-42) that a decision-maker can find facts fairly without observing the rules of evidence, yet the findings must be based on logically probative material. On appeal, ((1980) 4 ALD 139), Deane J, with whom Evatt J agreed, said (at 155-156):
"In my view, the Tribunal was bound, as a matter of law, to act on the basis that any conduct alleged against Pochi which was relied upon as a basis for sustaining the deportation order should be established, on the balance of probability, to its satisfaction by some rationally probative evidence and not merely raised before it as a matter of suspicion or speculation or left, on the material before it, in the situation where the Tribunal considered that, while the conduct may have occurred, it was unable to conclude that it was more likely than not that it had. It seems to me that this conclusion follows, as a matter of law, from the authorities referred to and the reasoning advanced by the Tribunal to establish the proposition as a general principle to be observed by it as a matter of administrative practice."
26 However, the Full Court has rejected this view. In Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411, Black CJ, von Doussa and Carr JJ (referring to comments made by Mason CJ in Bond at 356-357) declared that, according to the common law of this country, want of logic in arriving at a decision is not a reviewable error of law. So, in the view of the Full Court, a decision-maker will not fall into legal error when he fails to rationally consider only probative evidence to arrive at a decision.
27 Accordingly, provided a decision is not outrageous, it will be valid notwithstanding that it is based on flawed logic or is arrived at from self-contradictory conclusions. Recognising the import of this conclusion, the Full Court accepted that a decision based on flawed reasoning may well be an indication that the decision-maker had erred in one of the traditional categories. Although Epeabaka was concerned with an attack on findings of fact, the case is regarded as having wider effect. It seems, from the manner in which the Full Court analysed the issue, that it would reject as incorrect the proposition that a discretionary decision could be set aside if it were the product of flawed logic. That is to say, the court in Epeabaka would not accept as a ground of review the second of the "two faces" of irrationality described by Lord Woolf in Ex parte Coughlan.
28 It is not possible to predict whether the common law in Australia will develop any further in this area. It is possible to conclude, however, that, as a matter of construction, an obligation along the lines imposed by the common law in England does exist in relation to a decision made in exercise of a statutory power. It has been held that when a discretionary power is conferred by statute, "the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised": Kruger v Commonwealth of Australia (1997) 190 CLR 1 at 36 per Brennan CJ. What if the power is not discretionary but the decision-maker is authorised to act if certain matters exist or if he or she is satisfied that they exist? In that circumstance the decision-maker should be under a similar constraint. That is the view of Spigelman CJ in Hill v Green (1999) 48 NSWLR 161, a view with which I would readily agree. After referring to the holding in Epeabaka and stating that the common law of Australia does not impose a requirement of logical reasoning, Spigelman CJ said (at 175-176):
"In my opinion, where a statute or regulation makes provision for an administrative decision in terminology which does not confer an unfettered discretion on the decision-maker, the court should approach the construction of the statute or regulation with the presumption that the parliament or the author of the regulation intended the decision-maker to reach a decision by a process of logical reasoning and a contrary interpretation would require a clear and unambiguous words."
On this approach, a decision that is logically flawed, in the sense that the process of reasoning (inductive or deductive) is not logical, whether in the course of finding primary facts or in the process of inferring secondary facts, will be reviewable for error of law.
29 When it is sought to apply these principles to a decision made by the Refugee Review Tribunal under the Migration Act 1958 (Cth), a potential difficulty arises. In the first place, the Migration Act has a code for the review of decisions made by the tribunal. Few grounds of review are available. The grounds are found in s 476. Relevantly s 476(1) provides:
"Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a) …;
(b) that the person who purported to make the decision did not have jurisdiction to make the decision;
(c) that the decision was not authorised by this Act or the regulations;
(d) …;
(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
(f) …;
(g) …."
30 In the second place, the limited grounds of review specified in s 476(1) are subject to restrictions that are found in s 476(2), which provides:
"The following are not grounds upon which an application may be made under subsection (1):
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power."
31 There is little difficulty in fitting into s 476 a decision based on flawed logic that a non-citizen is not a Convention refugee. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, Gummow J explained that a decision whether the Minister is satisfied that a person is a Convention refugee is a decision concerning a "jurisdictional" fact; that is, it is a decision that is a precursor to the exercise by the Minister of his duty to grant or to refuse a protection visa under s 65. If there is error of law in a finding on the existence of a jurisdictional fact, the resultant decision under s 65 would be without jurisdiction (s 476(1)(b)) or would not be authorised by the Migration Act (s 476(1)(c)) or would involve an error of law (s 476(1)(e)).
32 Section 476(2)(a) would not prevent the decision being set aside. The obligation to act logically may be an aspect of the rules of natural justice (Mahon v Air New Zealand [1984] 1 AC 808 at 820), which are rules of the common law: Annetts v McCann (1990) 170 CLR 596. Here, the imposition of an obligation to act logically is implicit in the conferral of the power and is not derived from an obligation to accord procedural fairness.
33 Section 476(2)(b) would not take a case of flawed logic outside s 476(1). Section 476(2)(b) is concerned solely with Wednesbury unreasonableness. The paragraph is a paraphrase of Lord Greene's statement of the relevant principle. Moreover, it is concerned only with discretionary decisions, and decisions made by the tribunal are not of that character. In any event, I would not construe the paragraph as having application to an implicit statutory limitation on the power of the tribunal.
34 I now turn to consider whether the decision of the tribunal in this case is relevantly flawed and should be set aside.
35 The appellant, Mr Gamaethige, was born in and lived in Sri Lanka, a country in which a bloody civil war has been waged between indigenous Tamils, who are mainly Hindu, and Sinhalese who, for the most part, are Buddhist. Since 1977, the civil war has cost over 50,000 lives according to official counts, but the true figure is probably higher. The Tamils seek the establishment of an independent state in the eastern and northern provinces of the island. Initially the Tamil Tigers (as the Tamils fighting for a separate state are known) engaged in sporadic hostilities. But since 1983, the violence has escalated significantly. This has caused a refugee problem, and has resulted in human rights abuses, including disappearances through government abduction and persecution of citizens at the hands of the State.
36 Mr Gamaethige, a Sinhalese, claims to be a victim of this persecution because of his association with two young Tamils. This is the case he put to the tribunal. Mr Gamaethige met two Tamils when he began working at the Ceylon Inn Hotel in Colombo and on 1 August 1994 took up a course in cookery. The Tamils, known to him only by their first names Babu and Ravi, were also enrolled as students in the course. In mid-August, Babu and Ravi came to live at Mr Gamaethige's house, with the consent of Mr Gamaethige's parents. On 30 August the police came to the house and took Mr Gamaethige, Babu and Ravi into custody, it being suspected that they were involved with the Tamil Tigers. After a short period of detention at police headquarters, Mr Gamaethige was taken to an army barracks where he was held for approximately three months. During his detention, Mr Gamaethige was assaulted so badly that some of his teeth were knocked out, and he was unable to walk. Mr Gamaethige was released after assurances by a Buddhist monk and his father that he would report regularly to a local police station. Mr Gamaethige fled from Sri Lanka in March 1995. Thereafter he has lost contact with his family, and for that reason believes they may have been killed.
37 If this evidence were to be accepted, Mr Gamaethige would have a strong claim for refugee status. In the proceeding before the tribunal, Mr Gamaethige did not rely merely on his own testimony. He called evidence which corroborated his account in significant respects. First, he tendered a report from a dentist in Sri Lanka who had treated Mr Gamaethige on 10 December 1994, a few days after he said he had been released from detention. The report was obtained by Mr Gamaethige's solicitor in 1999. The relevant parts of the report read:
"The above named patient was present to me with fracture of 321/123 and mobile posteriors.# mandible maxilla ? Bleeding from nose and smell of a chemical was observed.
He was restless and noted psychological depression. Post traumatic stress disorder? He had wounded and swollen hands reddish eyes and swelling in lips.
O.P.G. revealed no # of mandible and maxilla. Extraction of fractured and loosened 321/123 was performed, and treated with antibiotics and left him on liquid diet. Advised complete rest.
Injuries of this nature could be a result of an assault … ."
38 Mr Gamaethige also tendered a report from a medical practitioner in Australia. The report recorded that Mr Gamaethige had surgery for a right inguinal hernia in April 1999. The report states that "hernias are not a common occurrence at [Mr Gamaethige's] age". It then goes on:
"It is very possible that trauma to the region would have made the abdominal wall weak. It appears that Mr Gamaethige has been hit by the security forces with rifle butts etc. Considering that Mr Gamaethige is otherwise healthy, severe physical trauma such as that suffered by Mr Gamaethige could be the source of his abdominal wall weakness, leading to the development of a right inguinal hernia. I find it hard to attribute it to any cause other than severe trauma, that could have led to the abdominal wall weakness."
39 I pause to mention that during the course of the hearing the tribunal member commented on this injury. She inquired whether Mr Gamaethige had suffered the injury at work. She said that she would make her own inquiries of Mr Gamethige's employer to determine whether that might be so. No mention of this is made in the reasons. This omission suggests that an inquiry had been made and the information elicited did not contradict Mr Gamaethige's claim.
40 Finally Mr Gamaethige produced an independent witness, Mr Kadigamuwa. He gave oral evidence from Melbourne via video link, because the tribunal would not adjourn the hearing to enable Mr Kadigamuwa to attend in Sydney and give direct evidence to the tribunal. The evidence of Mr Kadigamuwa was to the following effect. In 1994 he was a flight engineer with the Sri Lankan Air Force stationed at a base near Fort Army Headquarters. He was approached by a Buddhist priest from a temple near the base and was asked to help secure the release of Mr Gamaethige who was being detained at an army base. The priest told Mr Kadigamuwa that Mr Gamaethige had been arrested for helping Tamils. Mr Kadigamuwa went to his commanding officer and together they ascertained that Mr Gamaethige was being held at Fort Army Headquarters. They were able to secure his release. Mr Kadigamuwa saw Mr Gamaethige at the time of his release, but did not speak with him. Mr Kadigamuwa observed that Mr Gamaethige had been beaten, that his face was swollen and cut, and that he had many teeth missing. Mr Kadigamuwa said that Mr Gamaethige could not walk properly. According to Mr Kadigamuwa he has never spoken with Mr Gamaethige. Mr Kadigamuwa became involved in the proceeding because he was in Melbourne, studying to be a pilot, and a person who knew Mr Gamaethige mentioned that Mr Gamaethige was making application for a protection visa.
41 The tribunal was not satisfied that Mr Gamaethige was a Convention refugee. It rejected his account of events in Sri Lanka because his claims "were exaggerated, far-fetched and implausible and therefore lacking in credibility." In explanation, the tribunal said that Mr Gamaethige's evidence was "far-fetched", "inconsistent with the independent evidence" and that there were some "notable inconsistencies in [Mr Gamaethige's] own evidence", all of which suggested that Mr Gamaethige had fabricated his claims.
42 I will leave to one side for the moment the assertion that Mr Gamaethige's evidence was "far-fetched" and concentrate attention on the remaining two grounds for rejecting his evidence. First, I will deal with what the tribunal described as the independent evidence which "directly contradicted" Mr Gamaethige's central claim that he was persecuted because he provided accommodation to two Tamil youths. The evidence to which the tribunal was referring, is answers by the Country Information Service of the Department of Foreign Affairs and Trade (DFAT) to questions submitted to it by the tribunal. The questions and answers are set out below:
"Q Is it plausible that a householder would rent out a room to a young Tamil from the north or the east?
A It is plausible that a householder would rent out a room to a young Tamil from the north and the east, and in fact there is a lucrative market in doing so. There are a number of 'real estate agents' who find accommodation in Colombo for Tamils from the north and east, at rents which are often higher than the market rate.
Q If they did, would the security forces torture the householder for information on the boarder and LTTE?
A Security forces would not torture the householder for information on the boarder and the LTTE. Householders are obliged to register boarders with the local police station and do so on a regular basis.
Q Is it plausible for the police to automatically impute such a householder with an LTTE profile, particularly if they were Sinhalese?
A It is utterly implausible for the police to automatically impute such a householder with an LTTE profile, particularly if they were Sinhalese.
Q Apart from a Sinhalese collaborating with the LTTE for illegal financial gain, is it plausible that a Sinhalese would support the LTTE?
A Apart from a Sinhalese collaborating with the LTTE for illegal financial gain, it is utterly implausible that a Sinhalese would support the LTTE."
Some time later, the Country Information Service provided further information:
"DFAT acknowledges that whilst there are people of all communities who benefit financially from the war in Sri Lanka, and this would include through payments made by the LTTE, it is not credible that a Sinhalese would 'sympathise' with the LTTE. DFAT advises that whilst there could be Sinhalese intellectuals who believe, theoretically, in the right of the Tamil population to self-determination, and possibly even to a separate Tamil state, it is not credible that a Sinhalese would 'sympathise' with or support the methods/activities of the LTTE."
43 It is difficult to understand why the tribunal came to the conclusion that this "evidence" directly contradicted that given by Mr Gamaethige. A fair reading of the "evidence" shows that it has either no bearing, or only a marginal bearing, on Mr Gamaethige's claim. The questions are designed to illicit information about the possible effect of a "householder" renting a room to a young Tamil. Mr Gamaethige, Babu and Ravi did not merely stand in relation of landlord to tenants. Although Babu and Ravi paid rent for their room, it is likely that the rent was paid to Mr Gamaethige's parents. Further, Babu and Ravi were friends of Mr Gamaethige; as he put it, they were "very close friends". The Country Information Service was not asked to provide information about how the authorities would regard a Sinhalese who was a close friend of Tamil youths. The statement that "it is utterly implausible for the police to automatically impute … a householder with LTTE profile, particularly if they were Sinhalese," must be understood in the context of the question to which this statement is in answer - that question enquires after the position of a Sinhalese whose only association with Tamils is as landlord.
44 As to the alleged inconsistencies in Mr Gamaethige's evidence, the tribunal had in mind a number of matters. First there is a supposed inconsistency concerning where Mr Gamaethige met Babu and Ravi. At one point Mr Gamaethige had informed the Minister that they met "while [he] was doing his cooking course." At another point Mr Gamaethige said that they met at the hotel where he worked. This evidence is not necessarily inconsistent when it is remembered that the cooking class may have been conducted at the hotel.
45 The next inconsistency relates to Mr Gamaethige's claim that Babu and Ravi were his "close friends", yet he was only able to provide vague information about their background, had never met their parents, and could not describe their physical appearance in detail. I need say little about this evidence, and the tribunal's conclusions, save to indicate that some aspects (for example not having met the parents) may easily be explicable.
46 The tribunal regarded as inconsistent evidence as to when Mr Gamaethige became aware that Babu and Ravi were Tamils. The tribunal said that in his written statements Mr Gamaethige was "unequivocal" in making the suggestion that he was aware they were Tamils when they moved into his home. At the hearing, Mr Gamaethige said that he discovered Babu and Ravi were Tamils after he had been taken to police headquarters. For the sake of accuracy I note that, in his written statement to the Minister, Mr Gamaethige said that he discovered that Babu and Ravi were from the northern peninsula when he was taken to police headquarters. More importantly, however, Mr Gamaethige's written statements are open to the interpretation that he was not aware that Babu and Ravi were Tamils when they first met. He did write that he met "Babu and Ravi two Tamil boys" at the cookery course. When this statement was made, however, Mr Gamaethige already knew that Babu and Ravi were Tamils and his statement seems not to be directed to the time when this knowledge was acquired.
47 The tribunal also said that there was inconsistency between Mr Gamaethige's statement that his father was a devout Buddhist and the fact that his father allowed "complete strangers to stay at [his] home on [Mr Gamaethige's] say so." The "inconsistency" is not evident to me.
48 Having dealt with these "inconsistencies" and the "contradictory" independent evidence, the tribunal stated that it was not satisfied that Mr Gamaethige ever had the two Tamil friends, that it was not satisfied that Mr Gamaethige had given them accommodation, and that it was not satisfied that Mr Gamaethige had been arrested for doing so, or was physically mistreated while in detention.
49 The tribunal then turned to the corroborating evidence. As regards the letter from the dentist, the tribunal said it would ignore the observations about Mr Gamaethige's mental condition because the dentist had no training or qualifications to make those comments. And, "in the light of the dentist's ambiguous statement about how any injuries … were sustained," the tribunal could not say that they were sustained for a Convention related reason." With regard to the doctor, the tribunal said that he was "relying on the applicant's assertions as to how the hernia was sustained" and as that evidence was not accepted, the tribunal could not be satisfied that the medical report demonstrated physical mistreatment by the Sri Lankan authorities.
50 What of the eye witness, Mr Kadigamuwa? His evidence was to the effect that he had never met Mr Gamaethige, but helped secure his release from the army barracks because he had been requested to do so, and that Mr Gamaethige was suffering severe injuries at the time of his release, consistent with mistreatment. Did the tribunal believe this witness? We will never know the answer, because the tribunal said nothing about Mr Kadigamuwa, other than to indicate that because it found that Mr Gamaethige "thoroughly lacks credibility and … has misled the tribunal", it gave "no weight to this evidence".
51 Many of the findings made by the tribunal concerning the "inconsistencies" in Mr Gamaethige's evidence and the supposedly "inconsistent" independent evidence are plainly erroneous. If there were a general right of appeal from a decision of the tribunal, these findings would not stand and its decision would be set aside. But there is no right of appeal. There is only judicial review on limited grounds, and the erroneous findings are not impeachable on any of the available grounds.
52 I said I would return to the tribunal's statement that Mr Gamaethige's evidence was "far-fetched". I do not take the tribunal to be saying that it is "far-fetched" that citizens of Sri Lanka are not persecuted at the hands of the State. It is clear that sometimes they are. If the tribunal was of a different opinion it might be shutting its eyes to the realities of the world and hence its decision would be affected by bias. Properly understood, the tribunal is merely emphasising its lack of satisfaction with the evidence given by Mr Gamaethige for the reasons it has given.
53 Although the erroneous findings by the tribunal are not reviewable under s 476(1), the manner in which the tribunal dealt with the corroborative evidence stands on a different footing. As the trial judge (Branson J) said:
"[I]t seems plain … from the tribunal's reasons that the tribunal did not seek to make an assessment of the applicant's credibility having regard to all of the evidence and other material before it. Rather, the tribunal made an adverse assessment of the applicant's credibility and then turned to consider the evidence of Mr Kadigamuwa and the medical and dental reports concerning the applicant."
Later the trial judge said:
"I have grave reservations about the integrity of the fact finding process engaged in by the tribunal in this case."
Later again the trial judge said:
"The significant errors made by the tribunal in this case are open to be seen as errors attributable to lack of competence."
54 Put another way, the tribunal's approach to the task of finding facts was flawed. The tribunal was required to determine whether the facts asserted by Mr Gamaethige were true or probable (note the danger identified by the High Court in Wu Shan Liang v Minister for Immigration and Multicultural Affairs (1996) 185 CLR 259 at 282-283 of stating the requirement in terms of "balance of probabilities"). It was not required to accept his evidence in that regard because that evidence may have been discredited in various ways. For example, if the evidence was inherently improbable, or if it was inconsistent with more reliable evidence, or if it was given in a manner which appeared to suggest that Mr Gamaethige should not be believed, the asserted facts could be discounted. However, in deciding whether or not the asserted facts were true or probable, the tribunal was required to take into account the corroborative evidence because that evidence had a tendency to make it more likely that the asserted facts were true or probable. This is not to say that the tribunal was required to accept the corroborative evidence as true or probable. As with the evidence given by Mr Gamaethige, the corroborative evidence may be impeached. But unless it were impeached, it could not be ignored. Importantly, in the process of reasoning, the tribunal was not entitled to pay no regard to the corroborative evidence in the course of deciding whether the evidence of Mr Gamaethige was true or probable and then use its conclusion on that evidence (that it was untrue) to impeach the corroborative evidence. This is what the tribunal did, to some extent in the case of the two medical reports, and completely in the case of Mr Kadigamuwa.
55 The trial judge would not set aside the decision of the tribunal. She said: "I conclude with some regret that there is no ground upon which this court is able to set aside the decision of the tribunal." There is an important difference between the manner in which Mr Gamaethige put his case at trial and how it was argued on appeal. Before the trial judge Mr Gamaethige did not contend that the decision of the tribunal could be set aside because it was the product of illogical reasoning. If such an argument had been put, and the trial judge had accepted that this was an available ground of review, it is apparent she would have set aside the decision. On appeal this is how the argument was put, and I am of opinion that it is an available ground of review and that it has been made out.
56 Accordingly, I would allow the appeal, set aside the order of the trial judge, and in lieu thereof would order that the decision of the tribunal be set aside, and the matter be remitted to the tribunal for reconsideration according to law. The appellant should have his costs of the appeal and of the hearing below.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.