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[2016] FCA 516
appellant. The appeal be allowed. The orders of the Federal Circuit Court of 26 June 2015 be set aside and in lieu thereof the first respondent's amended application be dismissed with costs. The first...
A Sri Lankan man who lived most of his life in an Indian refugee camp arrived by boat and gave a short answer in his very first interview saying he wanted a better life for his children after 22 years without Indian citizenship. Later he added detailed claims that his father had helped the Tamil Tigers, the family had been targeted by the army, and he feared jail or worse on return. The Tribunal disbelieved him because his story grew over time, contained inconsistencies, and he had not mentioned the Tamil Tigers fear even briefly in the first interview. The first review court said the Tribunal's comment about the first interview was legally unreasonable because the interview was short, he had just arrived by sea, and he reasonably answered about leaving India. The Federal Court disagreed, saying a reasonable decision-maker could still think he would have said something in one sentence about fearing LTTE suspicion, the comment was only a small part of a much larger set of reasons for disbelieving him, and the Tribunal had considered his explanations. The appeal was allowed, the visa refusal stands, and the case confirms that credibility findings based on claim development are hard to overturn on judicial review unless the reasoning is extreme and decisive.
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Mr B, a Sri Lankan national who had lived as a refugee in India for 22 years, arrived in Australia as an unauthorised maritime arrival on 28 June 2012. Upon arrival he was interviewed for approximately 20 minutes and a biodata form was completed. The form contained an introduction encouraging honesty and accuracy and advised that information would need to be re-confirmed later. Question 21 asked "Why? (1 Sentence)" in a very small space. Mr B answered in four sentences: "I was a refugee in India for 22 years. Unable to get citizenship to have a life. I don't want that for my children. I want a better life." He never disputed the accuracy of this record.
In subsequent entry interviews on 2 and 28 August 2012 Mr B was asked why he left Sri Lanka and what would happen if he returned. He referred to the general situation in Sri Lanka, advice from his aunt not to return, a desire for stability and citizenship, and for the first time mentioned that his aunt warned he would be put in "Moosa jail" because authorities would suspect him of LTTE involvement. He expressly denied any personal or family association with any political group. No detailed account was given of his father's alleged assistance to the LTTE in 1989-1990, the Army's search of the family home, the abduction of a cousin, repeated moves to avoid detection, or 2009 Army visits to his aunt's house.
On 13 November 2012 Mr B lodged a protection visa application supported by a five-page statutory declaration that for the first time set out the core claims: his father's assistance to the LTTE, the 1990 Army targeting, the family's flight to India, continued Army interest in 2009, and fears of harm on return as a failed Tamil asylum seeker suspected of LTTE links because of his father's history, his Indian refugee camp residence and his status as a failed asylum seeker. He elaborated further before the delegate, who refused the application in February 2013, accepting the 1990 claims as plausible but finding no well-founded fear.
Before the Refugee Review Tribunal Mr B's claims expanded again. A detailed submission adopted by him and his oral evidence added that his father continued clandestine LTTE support from India, that Mr B himself had been interrogated by Indian authorities about LTTE links, and that he feared abduction by Sri Lankan paramilitary groups to force his father's return. The Tribunal issued a post-hearing letter under s 424A of the Migration Act 1958 (Cth) drawing attention to the failure to mention these matters in the biodata interview, entry interviews or before the delegate, and to various inconsistencies. Mr B's adviser responded that the biodata interview was short, he was unrepresented, only one sentence was requested, and he had given a generalised summary focused on his Indian situation because he had lived there almost his entire life.
The Tribunal affirmed the delegate's decision in a 67-page statement of reasons (including attachments). At [142] it found Mr B had given inconsistent evidence, failed to provide significant claims at earlier opportunities, and developed his claims over time. It rejected his explanations for these matters and concluded he had fabricated his claims relating to events in Sri Lanka and India solely to enhance his visa application and was not a witness of truth. Six specific reasons were given for rejecting the explanations concerning the biodata and entry interviews, one of which (at [151]) was that although only one sentence was requested, the Tribunal "would expect an applicant with [Mr B's] set of particular claims to have identified something more substantial than being a refugee in India for 22 years, not being able to get Indian citizenship or wanting a better life for him and his children". The Tribunal also relied on numerous other inconsistencies (Reasons [154]-[177]) and country information to reject claims of harm as a Tamil, failed asylum seeker or illegal departer (Reasons [182]-[197]).
Mr B sought judicial review in the Federal Circuit Court. Only one ground was pressed: that the Tribunal made a finding so unreasonable or illogical that no reasonable person would have made it, particularised as the [151] finding concerning the biodata interview. The primary judge upheld the ground, characterising the biodata issue as a "foundational element" and "critical" to the adverse credibility findings (Judgment [81], [85]). His Honour held the Tribunal's treatment was "objectively unreasonable" because it offered no explanation how more could have been said in one sentence, made no allowance for the sea voyage, the applicant's reasonable focus on why he left India, the brevity of the interview, the fact that as an unauthorised maritime arrival he could not apply for a visa without Ministerial permission, and proceeded on a factual premise that he had an opportunity to detail protection claims (Judgment [85]-[88]). The primary judge relied on SZRHL v Minister for Immigration and Citizenship (2013) 136 ALD 641 for the proposition that the Tribunal proceeded from an objectively false premise.
The Minister appealed to the Federal Court. Wigney J allowed the appeal, finding that the primary judge both misunderstood the principles of legal unreasonableness and mischaracterised the Tribunal's reasons. The Tribunal's reasoning at [151] was not irrational or illogical, did not rest on a false premise, and in any event was not critical to the ultimate adverse credibility finding which rested on multiple independent bases. The Federal Circuit Court orders were set aside and Mr B's application dismissed with costs.
Wigney J began by identifying two fundamental problems with the primary judge's conclusion. First, the primary judge did not correctly apply the principles governing legal unreasonableness and jurisdictional error. Second, the primary judge oversimplified and mischaracterised the Tribunal's detailed reasons, treating the biodata issue as foundational when it was not.
On the principles, the Court drew on Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 to distinguish between unreasonableness as an outcome (arbitrary, capricious or outside the range of acceptable outcomes) and unreasonableness arising from an underlying jurisdictional error in the decision-making process. The primary judge's reasons did not clearly identify which category was engaged. If outcome-focused, the Tribunal's painstaking consideration of evidence and findings of fact provided an evident and intelligible justification, so the outcome could not be described as arbitrary. If process-focused, the only suggested error was the "treatment of the biodata interview issue". The Court held that illogical or irrational reasoning can constitute jurisdictional error because it breaches the implied statutory requirement to act reasonably, but emphasised that not every lapse in logic does so.
Citing Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 647-648 [130]-[132], the Court stated the test: jurisdictional error on this basis requires that the finding or reasoning "could not have been made" or "could not have been employed" by a reasonable or rational decision-maker. If probative evidence can support different processes of reasoning and reasonable minds might differ, the decision is not illogical simply because one conclusion is preferred. Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148] was cited for the proposition that "extreme" illogicality or irrationality must be shown. The Court rejected the Minister's submission that only the end result could be examined, confirming that irrational reasoning "on the way" to the conclusion can ground error, but only if material.
Applying this to the biodata reasoning, Wigney J held that the primary judge had not asked the correct question. The primary judge simply disagreed with the Tribunal and would have weighed the factors differently. That does not demonstrate extreme illogicality. A rational decision-maker could view the complete absence of any reference to LTTE suspicion or the father's activities—even in one sentence when four sentences were in fact used—as casting doubt on later claims. The Tribunal did not require a "comprehensive statement" or "detail" of all claims; it expected "something more substantial" about the central fear of persecution. This was a matter of degree, impression and empirical judgment on which reasonable minds might differ.
The Court further held that the primary judge's finding of a "false factual premise" misread the Tribunal. The Tribunal knew the interview was brief and administrative; it had regard to Mr B's explanations and submissions that he was unrepresented, afraid, and focused on India (Reasons [142], [144]-[152]). It simply was not persuaded those explanations were adequate. Reliance on SZRHL was misplaced because in that case the Tribunal had made a factually incorrect finding that a claim was never made when it had been included in the application. Here there was no such objective falsity.
Finally, even if the biodata reasoning were irrational, it was not critical. The Tribunal gave six reasons for rejecting Mr B's explanations (Reasons [145]-[152]), only one of which concerned the biodata interview. The adverse credibility finding rested equally on inconsistencies in evidence about the father's activities, when and why Mr B contacted his father, the nature of assistance given, and the implausibility of mentioning the aunt's warning about jail but omitting the underlying events. Additional independent findings on country information disposed of the claims not dependent on the father's LTTE involvement. Because the biodata issue was not a "foundational element", any error in that discrete respect did not infect the overall decision. The Tribunal's decision was therefore not vitiated by jurisdictional error.
Before this judgment the law on legal unreasonableness had been authoritatively restated in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. Li confirmed that unreasonableness can invalidate the exercise of a statutory discretion when the outcome is arbitrary or capricious or outside the range of possible acceptable outcomes. SZMDS established that irrational or illogical reasoning or factual findings on the way to a decision can also amount to jurisdictional error, but only where the reasoning is extreme in the sense that no rational decision-maker could have adopted it. Subsequent cases such as Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 elaborated the two contexts (process and outcome) and Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 emphasised the need for materiality: an irrational finding that is not critical to the ultimate conclusion does not vitiate the decision.
This judgment did not change the law. It applied those principles rigorously to the migration credibility context. It reinforced that credibility findings, while not immune (citing SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] and SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]), attract caution because illogicality claims can mask merits review. It clarified that a Tribunal's expectation that an applicant would mention the central element of a protection claim even in a single-sentence biodata response is not inherently irrational, provided the Tribunal has considered the interview's administrative character and the applicant's explanations. The decision underscored the materiality requirement: even erroneous reasoning on one point among many independent credibility findings will not ground jurisdictional error.
After the judgment the law remained as stated in SZMDS, Li and Singh. The correction table issued on 27 May 2016 substituted "rationality" for "irrationality" in paragraph [52], but this was a typographical matter and did not alter the substance. The decision stands as a clear statement that reviewing courts must not too readily characterise Tribunal reasoning about claim development and early disclosure as legally unreasonable where the reasoning is open to rational minds and is not dispositive.
Paragraph [50] quotes Crennan and Bell JJ in SZMDS: "What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or 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."
Plain-English translation: Just because you or I would have believed the asylum seeker's story does not make the Tribunal's disbelief irrational. If reasonable people looking at the same evidence could reach different views, the Tribunal's view stands.
Paragraph [59]: "When the Tribunal's reasoning concerning the biodata interview is read fairly and in the context of its overall reasoning concerning Mr B's credibility, it is clear that the Tribunal's reasoning was not based on any such proposition [that Mr B had the opportunity to make a comprehensive statement of his claims]. The Tribunal said only that it would have expected Mr B to have 'identified something more substantial' in the biodata interview (Reasons at [151]). That is not to say that the Tribunal expected that Mr B could or should have provided a detailed or comprehensive statement of all his claims at the biodata interview stage. When read fairly, the significant point being made by the Tribunal was that Mr B said absolutely nothing in the biodata interview concerning the Tamil Tigers, or his supposed fear that the Sri Lankan authorities would suspect or believe that he was associated with the Tamil Tigers. He could have done so in one sentence."
Plain-English translation: The Tribunal never said the man should have written his whole life story in a tiny box. It simply noted that he never even hinted at the core fear—being seen as an LTTE supporter—which could have been said in a single sentence. That silence could reasonably make a decision-maker doubt the later detailed story.
Paragraph [55]: "Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result."
Plain-English translation: Even if the Tribunal got one thing wrong in its thinking, the court will not send the case back if that one thing did not actually decide the outcome. Here the biodata point was only one small piece in a large puzzle of inconsistencies.
Paragraph [71]: "In the end result, for the reasons already given, the Tribunal's finding and reasoning concerning the biodata interview was not irrational, illogical or unreasonable. But even if it was, that finding and reasoning played only a minor role in the Tribunal's conclusion and decision that Mr B did not meet the criteria for the grant of protection visa. It was by no means a 'foundational element' or 'critical' to the Tribunal's decision. The Tribunal's other findings were sufficient to sustain its decision."
Plain-English translation: The Tribunal's comment about the first interview was reasonable, but even if it had been unreasonable it would not have mattered because the Tribunal gave many other independent reasons for disbelieving Mr B.
This precedent is triggered in judicial review of Refugee Review Tribunal or Administrative Appeals Tribunal credibility findings in protection visa cases where an applicant challenges an adverse view based on failure to mention significant claims at the earliest opportunity, including in an initial biodata or arrival interview. It applies when the Tribunal has regard to a limited or generalised response to a one-sentence question about reasons for seeking protection and treats the absence of any reference to the central fear (for example, feared persecution arising from a parent's alleged involvement with a proscribed organisation) as casting doubt on later developed claims.
The fact pattern also requires that the Tribunal has given detailed consideration to the applicant's explanations for the omission (short interview, lack of representation, focus on country of last residence, fear of higher security detention) and has provided multiple independent reasons for rejecting those explanations and for the ultimate adverse credibility finding. The precedent is engaged where the judicial review applicant asserts legal unreasonableness on the basis that the Tribunal failed to allow for the administrative nature of the biodata interview, the applicant's recent arrival after a sea voyage, or the legal incapacity of unauthorised maritime arrivals to lodge a visa application without Ministerial permission. It will defeat such a challenge if, on a fair reading, the Tribunal's expectation is simply that "something more substantial" could have been said in one sentence and the biodata issue is but one of several bases for the credibility conclusion.
The decision confirms that country-information-based findings that do not rely on the biodata interview at all (for example, risk to failed Tamil asylum seekers generally) are unaffected by any error in the biodata analysis.
The judgment itself carefully distinguishes SZRHL v Minister for Immigration and Citizenship (2013) 136 ALD 641 on the basis that the factual premise in that case was objectively false—the Tribunal wrongly stated a claim had never been made when it appeared in the application—whereas here the Tribunal made no such factual mistake. It applies SZMDS, Singh, SZRKT, SZOCT and SZVAP without criticism, reinforcing rather than departing from them. The decision cites SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 and SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 for the need for materiality and caution in reviewing credibility findings. It also refers to SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 and ZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 on the point that an irrational finding that is not critical will not vitiate the decision. The correction table issued 27 May 2016 simply fixes a typographical error in [52] and does not alter the reasoning. The judgment has therefore been written to sit squarely within the existing stream of authority and to provide a concrete illustration of the application of the SZMDS test to biodata-interview reasoning.
The judgment leaves open whether a Tribunal statement that an applicant "should have" provided a detailed narrative in a biodata interview would cross the line into irrationality. Wigney J was careful to read the actual statement at Reasons [151] as only expecting "something more substantial" that could be conveyed in one sentence. A stronger formulation might engage the "extreme illogicality" threshold.
It also leaves open the precise weight to be given to the introduction on the biodata form that "this is the first opportunity for you to provide information regarding your circumstances" and "information provided by you will need to be re-confirmed at a later time". The Court accepted the Tribunal had regard to the administrative context but did not decide whether that introduction could rationally be read as inviting early disclosure of protection claims.
The materiality analysis assumes the biodata point was only one of six reasons for rejecting explanations and one aspect of a broader credibility finding. In a case where the biodata issue is the only or overwhelmingly dominant reason for an adverse credibility conclusion, the outcome might differ. The judgment does not set a bright-line test for when a discrete irrational finding becomes "critical".
Finally, the decision does not address whether the same reasoning would apply to entry interviews or interviews conducted after the applicant has obtained legal advice. The Court noted that the Tribunal treated the entry interview omissions as equally significant, but the primary judge's unreasonableness finding was confined to the biodata interview. The limits of permissible Tribunal comment on later interviews therefore remain for future cases.
WIGNEY J: 1 The respondent to this appeal, who will be referred to as Mr B, is a Sri Lankan national who has sought asylum in Australia. His attempts to secure a protection visa from the appellant, the Minister for Immigration and Border Protection, have thus far been unsuccessful. A delegate of the Minister refused Mr B's visa application. The Refugee Review Tribunal affirmed that decision on review. 2 Mr B, however, achieved a measure of success in judicial review proceedings he commenced in the Federal Circuit Court challenging the Tribunal's decision. He successfully argued that the Tribunal's decision was vitiated by jurisdictional error. The Tribunal had found that Mr B had fabricated his claims for protection. The primary judge in the Circuit Court held that a "foundational element" of that finding by the Tribunal was "objectively unreasonable". His Honour found that the Tribunal's decision to affirm the delegate's refusal decision was accordingly legally unreasonable. The Minister appealed that finding. 3 The "foundational element" that the primary judge took exception to related to an answer given by Mr B when he was first interviewed by an officer of the Minister's department. During that first interview, which is referred to as a "biodata" interview, Mr B was asked to explain, in one sentence, why he was seeking Australia's protection. Mr B's response, which included four sentences, not one, did not refer to any of the substantial claims he ultimately advanced in support of his protection visa application. The Tribunal reasoned that it would have expected Mr B to have provided at least some detail of those claims when answering the question in the biodata interview; the fact that he did not was at least one of the reasons the Tribunal gave for ultimately finding that Mr B had fabricated his claims for protection. 4 The issue raised by the Minister's appeal is whether the primary judge erred in finding that the Tribunal's decision was vitiated by legal unreasonableness on the basis of its finding or reasoning concerning the biodata interview.
The facts in brief 5 Mr B arrived in Australia as a so-called "unauthorised maritime arrival" on 28 June 2012. It would appear that the boat he arrived on had departed from India where Mr B had resided as a refugee for many years. Upon his arrival, Mr B was interviewed by an officer of the Minister's department. A form headed "BIODATA" was completed as a record of that interview. In fact, there were two "biodata" forms: one was completed in the Sri Lankan language and one in English. Both forms were signed by Mr B, the interviewer and an interpreter. It would appear that the forms were completed by the interviewer and the interpreter on the basis of answers given by the interviewee, Mr B, during the interview. 6 The biodata form records that the interview took 20 minutes. At the top of the form, the following appears under the heading "Introduction to client": This is the first opportunity for you to provide information regarding your circumstances. We encourage you to be as honest and accurate with the information as you can be. Information provided by you will need to be re-confirmed at a later time. Please also consider what supporting documents or evidence you have (or have access to) that may support the information you provide. 7 It may reasonably be inferred that the interviewer read this introduction to the "client", in this case Mr B. 8 The first 18 questions on the form relate to basic biographical information concerning Mr B, including his name, gender, date of birth, place of birth, citizenship, religion, ethnic group, languages spoken, marital status, most recent address and family and contacts in Australia. Question 19 asked whether Mr B had any supporting documents "to confirm who you are". Question 20 asked whether Mr B was seeking Australia's protection. The answer "yes" is circled. Question 21 asked "Why? (1 Sentence)". There is very limited space in the form for a response. In Mr B's case, the following is written: I was a refugee in India for 22 years. Unable to get citizenship to have a life. I don't want that for my children. I want a better life. 9 Mr B did not at any time suggest that this was not an accurate record of his response to the question. 10 The balance of the form relates to unaccompanied minors. As Mr B was not a minor, this part of the form was not completed in his case. 11 Mr B was next interviewed by departmental officers on 2 and 28 August 2012. That interview (or in Mr B's case, interviews), is called an "entry interview". The interviews were recorded and the information provided by Mr B was again reduced to writing. Much of the interview again concerned basic biographical information relating to Mr B. Importantly, however, Mr B was again asked questions about why he departed from his country of nationality and what he thought would happen to him if he returned to that country. He was also asked about his departure from his country of residence, India. 12 As for why he left Sri Lanka, Mr B gave the following answers: Q: Why didn't you go back to Sri Lanka? A: We didn't return to Sri Lanka because of the country's situation. My aunty (mother's sister), lives in Sri Lanka. When we [spoke] to her she advised us not to go back to Sri Lanka. She tells us that the situation is not good. Q: Where does [your] aunty live in Sri Lanka? A: Koramangalam, Vavuniya. Q: Apart from what you have told me about the difficulties you face getting a job in Tamil Nadu and the problems in Sri Lanka, what else made you come to Australia? A: I wanted to have stability in my life and to give my children a better life, that is why I came here - to get citizenship. Q: Do you have anything else to say? A: That's all. I have nothing more to say. 13 As for what he thought would happen to him if he returned to Sri Lanka, Mr B gave the following answers: I am totally annoyed about Sri Lanka because I did not grow up in that country, and I don't think I can live in Sri Lanka in this situation. It will be totally new for me. I have no idea, even from India, I didn't want to go back to Sri Lanka let alone Australia. Q: What will happen to you if you go back to Sri Lanka? A: If I am returned to Sri Lanka, my aunty told me they will put me in Moosa jail in Sri Lanka. Q: Why will they put you in Moosa jail? A: During the war time, many members of the LTTE went to India, if we go back, they will suspect us of being LTTE. This why they will put me in Moosa jail. 14 This was the first time that Mr B had referred to the LTTE, the acronym for the Liberation Tigers of Tamil Eelam, or Tamil Tigers for short. It may also be noted that Mr B did not claim that he or any members of his family had any actual association with the Tamil Tigers. Indeed, during the entry interview Mr B was asked if he, or any members of his family, had been associated with any political group or organisation. He answered "no". 15 Mr B lodged an application for a protection visa on 13 November 2012. He provided a five page statutory declaration in support of his application which explained, amongst other things, why he and his family left Sri Lanka, what he feared may happen to him if he returned to Sri Lanka, why he thought he may be harmed or mistreated if he returned to Sri Lanka and why he thought the Sri Lankan authorities would not protect him if he was forced to return to Sri Lanka. 16 It is unnecessary to go into any detail in relation to the information Mr B included in his statutory declaration on those topics. In summary, Mr B claimed that in 1989 his father assisted the Tamil Tigers. He said that as a result his father was targeted by the Sri Lankan Army. Mr B claimed that in early 1990 army officers visited his family's home in search of his father. They questioned his second cousin, who was later abducted and remains missing. His family was forced to frequently move between houses to avoid the army until they left for India in August 1990. Mr B said that as recently as 2009 the army had returned to his aunt's house in Sri Lanka and interrogated his cousins about his father's involvement with the Tamil Tigers. His cousins were also arrested and beaten by the army. 17 Mr B claimed that he feared that he would be harmed or mistreated if he returned to Sri Lanka because the Sri Lankan authorities would suspect that he was or had been involved with the Tamil Tigers. The authorities would associate him with the Tamil Tigers because of his father's past involvement or association with that group, because he had been in a refugee camp in India, and because he was a failed Tamil asylum seeker. Mr B also said that he feared that, if forced to return to Sri Lanka, he would be harmed or mistreated by the Sri Lankan police. He claimed that the police would detain and interrogate him upon his return because he was a failed Tamil asylum seeker, because he had illegally departed from Sri Lanka, and because he did not have a passport. 18 Mr B repeated and elaborated on those claims when he was interviewed by the Minister's delegate in relation to his protection visa application. 19 In February 2013, the Minister's delegate refused Mr B's application for a protection visa. The delegate accepted that Mr B's claims concerning his reasons for leaving Sri Lanka in 1990 were plausible, but found nonetheless that Mr B would not be suspected of being involved with the Tamil Tigers if he returned to Sri Lanka. The delegate also found that Mr B's fear of harm based on the fact that he was a Tamil, a failed asylum seeker, and because he had left Sri Lanka illegally and did not have a passport, was not well-founded. The delegate was not satisfied that Australia owed Mr B protection obligations for any of the reasons he had advanced. 20 Mr B applied to the Tribunal for a review of the delegate's decision refusing his protection visa application. His solicitor and migration agent provided a detailed written submission to the Tribunal concerning Mr B's claims. Mr B signed the submission denoting that he adopted it as an accurate presentation of his claims. Mr B also gave sworn evidence at the Tribunal hearing in early December 2013. 21 It is again unnecessary to go into any detail concerning the factual claims made in the written submission and Mr B's evidence before the Tribunal. Suffice it to say that the submission and Mr B's evidence significantly developed, expanded on and added to the factual claims that Mr B relied on in support of his protection visa application. In particular, Mr B provided additional and more detailed information concerning the nature and the extent of his father's association and activities with the Tamil Tigers and the arrest and detention of his cousins. He also provided apparently new information in support of his application. The new information included a claim that his father had engaged in clandestine activities in support of the Tamil Tigers after he had left Sri Lanka and while the family were in India, a claim that he had himself been interrogated by Indian authorities about his involvement or association with the Tamil Tigers, and a claim that he feared being abducted and tortured by Sri Lankan paramilitary groups as a means of getting his father to return to Sri Lanka. Mr B had not specifically referred to these claims at any earlier stage. 22 Shortly following the hearing, the Tribunal wrote to Mr B. In the letter, the Tribunal provided Mr B with details of information that the Tribunal considered could cause it to affirm the delegate's adverse decision. In short terms, the letter referred to a number of factual claims that Mr B had advanced before the Tribunal that he had not mentioned during the biodata interview, the entry interview or the interview by the delegate. In relation to the biodata interview, the letter pointed out that Mr B had not referred during that interview to any of the claims that he had subsequently made relating to his father's association with the Tamil Tigers and the events that flowed from that association. The letter also referred to some apparent inconsistences in the claims that Mr B had advanced during the different stages of the visa application and review process. Mr B was invited to provide any comments he wished to make in relation to the information detailed in the letter. 23 Mr B's advisor provided a detailed response to the Tribunal's letter. In relation to the fact that Mr B had not provided information about his claims for protection based on his father's association with the Tamil Tigers during the biodata interview, the advisor pointed out that the interview was short, that Mr B was unrepresented at the time, and that Mr B was only asked to provide one sentence to explain why he was seeking protection. The response included the following: Pragmatically, it is impossible for the Applicant to detail his complete claims, or even a significant amount of his claims, in that box. Subsequently, the Applicant provided a generalised summary of why he is seeking asylum. Given that the Applicant was living in India prior to departing for Australia it is understandable that the Applicant would summarise that he was departing from the country because of an ability to obtain citizenship there. This is largely consistent with his claimed fear of persecution in India throughout his PV application. Without legal representation, the Applicant was not aware that he was required to detail the reasons for his fear of return to Sri Lanka.
The Tribunal's decision and reasons 24 The Tribunal affirmed the delegate's decision to refuse Mr B's protection visa application. The Tribunal was not satisfied that Australia owed protection obligations to Mr B and therefore was not satisfied that Mr B met the criteria for a protection visa under s 36 of the Migration Act 1958 (Cth). 25 The Tribunal's written reasons for arriving at this conclusion are extremely comprehensive, detailed and lengthy. Together with attachments, which detail the relevant law and policy, as well as so-called "country" information concerning Sri Lanka, the reasons are 67 pages long, single spaced. It is neither necessary nor desirable to attempt to summarise the Tribunal's reasons. 26 Perhaps the most critical finding that the Tribunal made against Mr B was that it did not accept his account of what happened to him and his family in Sri Lanka, and in particular his claims concerning his father's association with the Tamil Tigers and the events that flowed from it. The Tribunal considered that Mr B had given inconsistent evidence, had failed to "provide significant claims" at earlier opportunities and had "developed his claims over the course of the application" (Reasons at [142]). Whilst Mr B had given various explanations for, and had made a number of submissions in relation to, those issues with his evidence, the Tribunal rejected those explanations and submissions. It found that Mr B had fabricated his claims for protection and fears of returning to Sri Lanka and was not a witness of truth (Reasons at [142]). 27 The explanations given by Mr B for the fact that he failed to refer to the key elements of his factual claims in the biodata and entry interviews included that, at the time of those interviews, his father had not told him much about his political ideology or support for the Tamil Tigers in India. He also said that he was initially afraid to disclose his father's association with the Tamil Tigers to the Australian authorities because he thought he might be moved to higher security detention. Mr B's representative submitted that the biodata interview was very brief, only allowed for a small amount of information concerning Mr B's reasons for seeking protection, and was largely administrative. 28 The Tribunal gave six reasons for rejecting those explanations and submissions. 29 First, Mr B referred to his father's connections with the Tamil Tigers in the November 2012 statutory declaration lodged in support of his visa application. By that time, Mr B was no longer in immigration detention. He had no reason to fear being moved to higher security detention. Despite this, Mr B's statutory declaration made no mention of Mr B's reasons for not supplying the information during the biodata and entry interviews. 30 Second, the Tribunal found that Mr B had given inconsistent evidence about the extent of his knowledge of his father's activities with the Tamil Tigers. In his evidence to the Tribunal, Mr B said that he knew about the events in Sri Lanka that had led to his family's departure because his parents had told him about them over time. Somewhat inconsistently, however, he also said that after his interview by the Minister's delegate, he telephoned his father to find out more about his activities with the Tamil Tigers. This supposedly explained why he had given new and additional evidence about those activities before the Tribunal. In response to the Tribunal's post-hearing letter about issues with his evidence, however, Mr B's representative stated that Mr B had contacted his father after the entry interview, not after the delegate's interview. 31 Third, the Tribunal found that Mr B had given inconsistent evidence concerning his reasons for contacting his father. In particular, Mr B said that he had contacted his father because the delegate asked him questions about his father's continuing support for the Tamil Tigers whilst in India. He contacted his father after the interview because he did not know the answer to those questions. The difficulty with that evidence was that in fact the delegate did not specifically ask Mr B about his father's continuing activities with the Tamil Tigers whilst in India. Mr B also claimed to have told his representative about the further information he obtained after contacting his father. The Tribunal reasoned that if that had occurred, one would expect that the representative would have immediately supplied that information to the Tribunal. That did not occur. The Tribunal found in all the circumstances that the applicant had fabricated his evidence concerning the contact with his father. 32 Fourth, the Tribunal found that Mr B had given inconsistent evidence concerning the nature of the assistance his father had given to the Tamil Tigers and when that assistance had ceased. 33 Fifth, the Tribunal reasoned that whilst the biodata interview only provided for a one sentence response to the question about Mr B's reason for seeking protection, "it would expect an applicant with [Mr B's] set of particular claims to have identified something more substantial than being a refugee in India for 22 years, not being able to get Indian citizenship or wanting a better life for him and his children" (Reasons at [151]). Whilst the Tribunal did not say so in terms, the apparent point being made was that Mr B had said nothing at all about the Tamil Tigers or his father's involvement with that organisation during the biodata interview. 34 Sixth, the Tribunal referred to the fact that in the entry interview, Mr B said that his aunt had warned him that he would be imprisoned if he returned to Sri Lanka because he would be suspected of having been with the Tamil Tigers. The Tribunal reasoned that, having referred to that warning, it was implausible that Mr B would not also have referred to the other specific claims concerning his aunt and cousins that featured in his later statutory declaration and evidence before the Tribunal. 35 The Tribunal concluded (Reasons at [153]) that "[t]he inconsistent evidence, implausible evidence, development of his claims and failure to provide significant claims at an earlier opportunity leads the Tribunal to find that the applicant has fabricated his claims for protection relating to claimed events in Sri Lanka and India solely to enhance his application for the visa". 36 That was, however, by no means the entirety of the Tribunal's reasons for rejecting Mr B's evidence concerning the incidents and events that had supposedly occurred to him and his family in Sri Lanka and India. The Tribunal referred to a number of other specific aspects of Mr B's evidence and gave detailed reasons why that evidence was not accepted. The reasons given by the Tribunal included inconsistences in the evidence, the fact that Mr B did not refer to the claims in either the biodata or entry interviews, and that Mr B's attempted explanations for not having earlier referred to those claims were themselves inconsistent, implausible or inadequate (see Reasons at [154]-[177]). 37 The Tribunal also gave detailed reasons for not accepting that Australia had protection obligations arising from Mr B's other claims that did not relate to his father's activities with the Tamil Tigers or his family's reasons for leaving Sri Lanka. Those claims included that Mr B would be suspected of being a Tamil Tigers supporter because he was a young Tamil man from the north of Sri Lanka and that he would in any event suffer persecution because he was a Tamil, because he was a failed asylum seeker, because he departed Sri Lanka illegally as a child and because he would be returning to Sri Lanka without a valid passport (see Reasons at [182]-[197]). The Tribunal's findings that those claims did not give rise to protection obligations were based mainly on country information relating to Sri Lanka. Those findings had nothing at all to do with the biodata interview and were not the subject of any challenge in the Circuit Court.
The Circuit Court judgment 38 Mr B's application for judicial review in the Circuit Court contained three grounds, however only ground one was pressed. It was in the following terms: That the Tribunal made a finding so unreasonable and/or illogical that no reasonable person would have made it. Particulars By holding at paragraph [151] of the decision that the Tribunal "would expect an application with his set of particular claims to have identified something more substantial than being a refugee in India for 22 years, not being able to get Indian citizenship or wanting a better life for him and his children" despite the biodata interview only requesting a one sentence answer, the Tribunal made a finding so unreasonable and/or illogical that no reasonable person would have made it. 39 The primary judge upheld that challenge to the Tribunal's decision. The primary judge reasoned that there was "no doubt" that the Tribunal's decision turned on its "adverse credibility conclusions" and "no doubt" that the adverse credibility conclusions turned "critically" on the Tribunal's view about the way Mr B had "developed his claims over time" (Judgment at [81]). The primary judge found that a "critical element" of the Tribunal's concerns about the development of Mr B's claims was the failure by Mr B to identify his protection visa claims in the biodata interview (Judgment at [81]). 40 The primary judge concluded that the Tribunal's treatment of the biodata interview was "objectively unreasonable" (Judgment at [86]) and that the Tribunal's "decision on credibility was vitiated by legal unreasonableness because of its treatment of the bio data interview issue" (Judgment at [88]). The primary judge's reasons for arriving at those conclusions is to be found mainly at paragraphs 85 to 88 of the Judgment: The Tribunal offered no explanation of how the applicant could have developed his claims more substantially at the bio data interview in a single sentence. Neither did the Tribunal make any allowance for the fact that the applicant had just arrived on a long sea voyage from India, where he had lived almost his entire life, and perfectly reasonably, had addressed the question on the basis of why he had left India. It is true that the Tribunal was also concerned about the way in which the applicant's claims developed over time, both before the delegate and before it but, in my opinion, the issue of the bio data interview was a foundational element of the Tribunal's adverse credibility conclusions and its reasoning in relation to it was inexplicable, apart from its other credibility concerns, which stemmed from the later development of the applicant's claims. In my opinion, on any view of the issue of legal unreasonableness, the Tribunal's treatment of the bio data interview issue was objectively unreasonable. The Tribunal made no allowance for the circumstances in which the interview took place. The Tribunal made no allowance for the fact that the applicant plainly and reasonably interpreted the question as calling for an explanation of why he had left India. That was of course not relevant to the question of why he was seeking protection from Sri Lanka. Whether or not the applicant only had 60 seconds to provide an answer to the question, the time available was brief and the applicant was limited to a single sentence answer to the question. Further, the Tribunal made no allowance for the fact that the bio data interview was not an opportunity for the applicant to make claims in relation to a protection visa (or any other class of visa) because the applicant, being a UMA [unexplained maritime arrival], was unable to apply for any visa without the express permission of the Minister. It was, in my opinion, only when the applicant was given the opportunity to apply for a visa that he could be expected to provide a comprehensive statement of his claims in relation to that visa. Consistently with the decision of the Federal Court in SZRHL the Tribunal proceeded from a factual premise which was either objectively false or at least supported by no evidence and which was inexplicable: namely, that the applicant had an opportunity in the biodata interview to detail his protection claims. It strengthens, rather than detracts from that conclusion, that the falsity of the premise was expressly pointed out to the Tribunal. I conclude that the Tribunal's decision on credibility is vitiated by legal unreasonableness because of its treatment of the bio data interview issue. The applicant should receive the relief he seeks. (Emphasis in original)
Did the primary judge err in finding that the tribunal's decision was vitiated by legal unreasonableness? 41 The sole ground of the Minister's appeal was that the primary judge erred in finding that the Tribunal's decision was vitiated by legal unreasonableness because of its treatment of the biodata interview issue. 42 That ground is upheld. The primary judge erred in finding that the Tribunal's decision was legally unreasonable. The Minister's appeal must be allowed. 43 There are at least two fundamental problems with the primary judge's conclusion that the Tribunal's decision was legally unreasonable. First, the primary judge either misunderstood or misapplied the principles relevant to determining whether a decision is vitiated for jurisdictional error because it is legally unreasonable. Second, the primary judge unfairly oversimplified and mischaracterised the Tribunal's reasons for affirming the delegate's decision to refuse Mr B's visa application. Properly considered, the Tribunal's reasons, insofar as they concerned the biodata interview, were not unreasonable or irrational in the jurisdictional or legal sense. And even if they were, it did not follow that the Tribunal's decision to affirm the delegate's decision was legally unreasonable.
Relevant principles 44 The primary judge's analysis of the principles relating to legal unreasonableness was limited to extracting a number of paragraphs from the judgment of this Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437. In Singh, the Court analysed and elaborated on the reasoning in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 concerning legal unreasonableness. Importantly the Court drew attention to the two different contexts in which the concept of legal unreasonableness is employed. The first is a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision making process. The second is outcome focused: a conclusion reached by a supervising court that the outcome of the exercise of power was arbitrary, capricious or outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law. Both Li and Singh concerned the exercise of statutory discretions that were found to be legally unreasonable in the outcome sense. 45 It is, with respect, somewhat difficult to work out whether the primary judge's conclusion of legal unreasonableness was based on the identification of an underlying jurisdictional error in the decision-making process, or on the outcome of the Tribunal's review. 46 If the latter, it is difficult to see how it could possibly be concluded that the outcome was arbitrary, capricious or outside the range of possible, acceptable outcomes. The Tribunal considered the facts and evidence in painstaking detail and concluded that, on the basis of its findings of fact, Mr B had not satisfied the criteria for the grant of a protection visa. Whilst reasonable minds might have differed concerning some of the Tribunal's findings of fact, there was at the very least an evident and intelligible justification for the decision. The findings of fact effectively compelled the outcome. 47 If the former, what was said to be the underlying jurisdictional error in the decision making process? The only error in the Tribunal's decision making process referred to by the primary judge was the Tribunal's "treatment of the biodata interview issue", which was said to be "critical" or a "foundational element" in the Tribunal's finding that it did not believe much of Mr B's evidence. But why did that "treatment" amount to an underlying jurisdictional error? The primary judge's reasons reveal only that his Honour considered that the "treatment" was "objectively unreasonable" because the Tribunal made "no allowance" for various matters and because Tribunal proceeded on a factual premise which was said to be either false or unsupported by evidence. That false premise was said to be that Mr B had an opportunity to "detail" his claims in the biodata interview. 48 Whilst the primary judge did not say so in terms, it appears that the primary judge found that the Tribunal's findings and the reasoning concerning the biodata interview were irrational or illogical and that this amounted to an underlying jurisdictional error in the decision-making process. 49 There may be circumstances where illogicality or irrationality in the decision-making process may constitute or justify a finding of an underlying jurisdictional error. A Tribunal that employs irrational or illogical reasoning, or makes irrational findings of fact not based on probative material, is likely to be in breach of the implied requirement that it act reasonably in exercising its statutory review powers and jurisdiction. A decision based on, or flowing from, irrational and illogical reasoning or factual findings is likely to be legally unreasonable and beyond power. 50 As was made clear by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 647-648 [130]-[132], however, not every lapse in logic in the decision-making process will result in jurisdictional error. If particular findings or reasoning on the way to the decision-maker's ultimate conclusion and decision are challenged on the basis of illogicality or irrationality, jurisdictional error will not be made out unless it is shown that the findings could not have been made, or the reasoning could not have been employed, by a reasonable or rational decision-maker. At 648 [131] their Honours said: What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or 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. 51 Crennan and Bell JJ found that the impugned finding or reasoning by the Tribunal was not illogical or irrational because on the probative evidence before the Tribunal a logical or rational decision-maker could have come to the same conclusion. Heydon J, who was the other member of the majority in SZMDS, also found that the Tribunal's reasoning was not illogical because it was a matter about which reasonable minds might differ: the "difference was one of degree, impression and empirical judgment" (at 632 [78]). Gummow ACJ and Kiefel J dissented. They found that the Tribunal's reasoning was illogical. Their Honours nevertheless emphasised that the "critical question" whether a determination of the Tribunal is irrational, illogical and not based on findings or inferences of facts supported by logical grounds "should not receive an affirmative answer that is lightly given" (at 625 [40]). 52 As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, "extreme" illogicality or irrationality must be shown, "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions". And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion. 53 The Minister submitted that a decision of the Tribunal can only be overturned on the basis of illogicality or irrationality if it is shown that the end result is one which no logical or rational decision-maker could arrive at. The submission appeared to be that, where a decision is challenged on the basis of illogicality or irrationality, the reviewing court should decide for itself whether the end result was irrational on the materials that were before the decision-maker, as opposed to whether the decision-maker's reasoning was illogical or irrational. This was said to flow from the judgment of Crennan and Bell JJ in SZMDS. 54 The Minister's submission in that regard is rejected. The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings "on the way" to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62]. 55 Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal's decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal's ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67]. 56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal's decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal's decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal's findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
The biodata finding or reasoning was not irrational or illogical 57 The reasoning of the primary judge reveals that his Honour did not apply, or correctly apply, the relevant principles in determining whether the Tribunal's reasoning concerning the biodata interview was irrational, illogical or unreasonable such as to support a finding of jurisdictional error. In particular, his Honour did not ask himself whether the Tribunal's findings or reasoning concerning the biodata interview constituted extreme illogicality or irrationality, in the sense that no logical or rational decision-maker could have made the same finding, or employed the same reasoning, concerning the biodata interview. His Honour did not consider whether reasonable minds might differ as to the significance of Mr B's limited response to the question in the biodata interview concerning his reasons for seeking protection by Australia. The primary judge obviously emphatically disagreed with the Tribunal's findings and reasoning concerning the biodata interview. His Honour plainly would not have made the same finding, or employed the same reasoning. That alone, however, does not support a finding of illogicality, irrationality or unreasonableness. 58 Had the primary judge asked himself the correct question, it is difficult to see how he could have found that the Tribunal's findings and reasoning concerning the biodata interview were irrational or illogical. The facts and circumstances were not such as to support a conclusion that no reasonable or rational decision-maker could have made those findings, or employed that reasoning. At the very worst, the Tribunal's reasoning and findings concerning the biodata interview were matters about which reasonable minds might differ. They were matters of degree, impression and judgment. Different decision-makers may have accepted Mr B's explanations for why he said what he said in answer to the question in the biodata interview and did not refer to any aspect of the claims he later advanced in support of his protection visa application. Different decision-makers may have given no weight, or very limited weight, to the fact that Mr B gave such a limited response to the question in the biodata interview in the circumstances. It was, however, in all the circumstances at the very least open to the Tribunal to find or reason that Mr B's limited response to the relevant question in the biodata interview, together with other matters, cast some doubt on the credibility and reliability of his later evidence concerning his reasons for seeking Australia's protection. 59 The primary judge's finding that the Tribunal's treatment of the biodata interview was "objectively unreasonable" and based on a false factual premise was also flawed. In particular, it was based on an incorrect or unfair reading or characterisation of the Tribunal's reasoning. The primary judge characterised the Tribunal's finding or reasoning as involving the proposition that Mr B had the opportunity at the biodata interview to make a "comprehensive statement" of his claims, or to "detail" his claims. When the Tribunal's reasoning concerning the biodata interview is read fairly and in the context of its overall reasoning concerning Mr B's credibility, it is clear that the Tribunal's reasoning was not based on any such proposition. 60 The Tribunal said only that it would have expected Mr B to have "identified something more substantial" in the biodata interview (Reasons at [151]). That is not to say that the Tribunal expected that Mr B could or should have provided a detailed or comprehensive statement of all his claims at the biodata interview stage. When read fairly, the significant point being made by the Tribunal was that Mr B said absolutely nothing in the biodata interview concerning the Tamil Tigers, or his supposed fear that the Sri Lankan authorities would suspect or believe that he was associated with the Tamil Tigers. Mr B had the opportunity to say, in response to the question about why he was seeking Australia's protection, that he feared that if he returned to Sri Lanka he would be persecuted because he would be suspected of being a Tamil Tigers supporter. He could have done so in one sentence. As it was, the answer he provided extended to four sentences. His answer was simply that he desired a better life for him and his family in Australia. Whilst Mr B gave various explanations for why he gave that limited response, and said nothing about the Tamil Tigers, the Tribunal was not in any sense bound to accept those explanations. 61 In all the circumstances, it was not at all illogical, irrational or unreasonable for the Tribunal to have regard to the fact that Mr B said nothing in the biodata interview concerning the Tamil Tigers in assessing the credibility of his claims as they were later developed. 62 The primary judge's reliance on the decision in SZRHL v Minister for Immigration and Citizenship (2013) 136 ALD 647 was misconceived. In that case, the Tribunal's conclusion that the applicant was not a credible witness was influenced by a specific finding that the applicant made no mention of a particular claim in his protection visa application. That finding turned out to be incorrect. That claim had in fact been referred to in the application. The adverse credibility finding was therefore based on a manifestly false premise. The facts and circumstances considered in SZRHL were plainly distinguishable from the facts and circumstances of Mr B's case. For the reasons already given, there was no false factual premise in the Tribunal's findings or reasoning concerning the biodata interview. The Tribunal did not, as the primary judge found, proceed on the basis that Mr B had the opportunity to "detail" or provide a "comprehensive statement" of his claims in the biodata interview. It simply reasoned that something more substantial might reasonably have been expected. 63 The primary judge's finding that the Tribunal made "no allowance" for various facts in its reasoning concerning the biodata interview is also questionable. A fair reading of the Tribunal's reasons indicates that the Tribunal did make allowance for the matters referred to by the primary judge in that regard: it was just not persuaded that they provided an adequate explanation for why Mr B said nothing about the Tamil Tigers during the biodata interview. For example, contrary to the primary judge's findings, the Tribunal clearly did have regard to the fact that the biodata interview only allowed for a small amount of information concerning Mr B's reasons for seeking protection. The Tribunal also took into account the evidence given, and the submissions advanced, by Mr B concerning the nature of the biodata interview, the circumstances in which it occurred and other explanations for why he did not provide any further information concerning his fears of returning to Sri Lanka during the biodata interview (see in particular Reasons at [142] and [144]). The Tribunal simply was not persuaded that those matters fully explained Mr B's limited answer in the biodata interview.
The biodata finding or reasoning was not critical to the Tribunal's decision 64 It would appear that the primary judge accepted that, to establish jurisdictional error on the part of the Tribunal, it was not sufficient for Mr B to merely establish that the Tribunal made a particular finding, or employed particular reasoning, that was not rational or logical. Rather it was necessary to demonstrate that the illogical or irrational finding or reasoning infected the Tribunal's ultimate conclusion and decision. In that regard, the primary judge found that the Tribunal's reasoning concerning the biodata interview did infect the Tribunal's ultimate conclusion and decision because it was "critical" to, or a "foundational element" in, the Tribunal's adverse credibility finding upon which the Tribunal's decision ultimately turned (Judgment at [81] and [85]). 65 When the Tribunal's findings and reasoning concerning the biodata interview are read fairly and in the context of the Tribunal's findings and reasoning as a whole, however, that finding cannot stand. 66 The Tribunal ultimately found that Mr B was not a witness of truth for two main reasons: first, because he gave inconsistent evidence about various matters; and second, because he had not referred to significant aspects of his claims at the earliest opportunities. Rather, his claims had developed over time. 67 In relation to the first of those two matters, the Tribunal dealt at length with a number of inconsistences in Mr B's evidence. The inconsistences were not related to the biodata interview, other than that some of the inconsistent evidence related to Mr B's attempts to explain why his claims had developed over time. The biodata interview could not be said to have been a critical or foundational element in the Tribunal's findings or reasoning based on the inconsistences in Mr B's evidence. 68 In relation to the second matter, the Tribunal's findings and reasoning concerning the fact that Mr B had not provided details of his claims at the earlies opportunity were not limited to the biodata interview. It was equally important that Mr B had provided no detail concerning his claims based on his father's association with the Tamil Tigers during the entry interview. The Tribunal's findings concerning the development of Mr B's claims and evidence also did not hinge solely or even significantly on the biodata interview. The development of Mr B's claims also occurred between the entry interview and the delegate interview, and between the delegate interview and Mr B's evidence and submissions before the Tribunal. 69 The Tribunal gave detailed consideration to Mr B's evidence and explanations concerning the development of his claims, including why he had said nothing about his fear of being linked to the Tamil Tigers during the biodata interview and entry interview. The Tribunal gave six reasons for not accepting Mr B's explanations (Reasons at [145] to [152]). The reasoning concerning the biodata interview, being the reasoning that the primary judge found to be unreasonable (Reasons at [151]), was only one of the six reasons. The other five reasons did not in any way hinge on any findings concerning the biodata interview. 70 It was, with respect to the primary judge, a significant oversimplification and mischaracterisation of the Tribunal's detailed reasons to say that the findings or reasoning concerning the biodata interview were a critical or foundational element of the Tribunal's findings that Mr B was not a witness of truth. The Tribunal made a number of other significant findings and gave a number of other detailed reasons that provided independent support to its findings concerning the credibility of Mr B and his evidence. 71 In the end result, for the reasons already given, the Tribunal's finding and reasoning concerning the biodata interview was not irrational, illogical or unreasonable. But even if it was, that finding and reasoning played only a minor role in the Tribunal's conclusion and decision that Mr B did not meet the criteria for the grant of protection visa. It was by no means a "foundational element" or "critical" to the Tribunal's decision. The Tribunal's other findings were sufficient to sustain its decision. Accordingly, it could not be concluded that the Tribunal's decision was legally unreasonable and involved jurisdictional error.
Conclusion and disposition 72 The primary judge erred in concluding that the Tribunal's decision was vitiated by jurisdictional error arising from legal unreasonableness. The Minister's appeal is allowed with costs. The orders made by the primary judge should be set aside. In lieu thereof, Mr B's application to the Circuit Court should be dismissed with costs. I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.
Minister for Immigration and Border Protection
SZUXN
(2014) 231 FCR 437
(2013) 249 CLR 332
(2010) 240 CLR 611
(2010) 189 FCR 577
(2013) 212 FCR 99
(2015) 233 FCR 451
(2012) 202 FCR 1
The appeal be allowed. The orders of the Federal Circuit Court of 26 June 2015 be set aside and in lieu thereof the first respondent's amended application be dismissed with costs. The first respondent to pay the appellant's costs of the appeal.