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[2015] FCA 1390
Federal Court of Australia
2015-12-09
Mortimer J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The appellant appeals from the judgment of the Federal Circuit Court dismissing his application for judicial review in relation to a decision of the Refugee Review Tribunal (now a division of the Administrative Appeals Tribunal). The appellant is a young man of Tamil ethnicity, who is, it is accepted, a national of Sri Lanka. His appeal was brought out of time, however orders were made on 10 August 2015, to which the Minister consented, extending the time in which he could bring an appeal from the Federal Circuit Court decision. 2 For the reasons set out below, the appeal must be dismissed.
The Tribunal decision 3 The appellant stated, and the Tribunal accepted, that he lived in a majority Sinhalese area. 4 His claims were summarised by the Tribunal at [29] of its reasons for decision: On 11 March 2013 the Tribunal received submissions from the applicant's representative. The Tribunal has read the submissions and notes the following: a. The applicant fears harm on the basis of his Tamil race, his imputed pro-LTTE political opinion and his membership of the particular social group of 'young Tamil males' and 'failed asylum seekers'. b. The applicant's circumstances should be considered cumulatively and the applicant is at risk due to the following factors: his ethnicity; the fact he is male; the fact he does not have a valid passport; and the fact he has fled to the West and sought asylum. c. The applicant has contravened the Immigrants and Emigrants Act No 31 of 2006 by having illegally departed Sri Lanka. The Sri Lankan authorities have confirmed that persons [who] depart Sri Lanka illegally are arrested and detained for 90 days pre-charge detention and there are substantial grounds for believing that the applicant would be detained for that period. If charges are laid, there is a potential conviction with a further one to five year prison sentence. d. Given the prison conditions in Sri Lanka and consistent and credible reports of torture and other cruel, inhuman or degrading treatment that takes place at the hands of Sri Lankan authorities, there is a real risk that the applicant would face serious harm if returned to Sri Lanka. 5 The Tribunal's reasons then record some of the matters it put to the appellant about those claims, which resulted in submissions from his then migration agent, setting out with more particularity how he feared he would come to harm in Sri Lanka. At [83] the Tribunal stated: On 28 March 2013 the Tribunal received submissions from the applicant's representative, relevantly summarised as follows: a. If the applicant returned to Sri Lanka he would be forced to continue his work as a three wheeler driver and would suffer the same discrimination in finding a parking space and physical harm from Sinhalese people; b. The applicant fears earning less than Sinhalese taxi drivers; c. Country information supported the applicant's claims that the authorities are unable or unwilling to protect Tamils; d. It would be unreasonable for the applicant to relocate due to his youth, lack of family ties, his preference for the Sinhalese language and his illiteracy in Tamil; e. The applicant continues to have problems from people who used to target his brother. 6 It is these particular claims which have relevance to the grounds of appeal. 7 The fear to which the appellant's submissions referred in (a) above was related to an incident in mid-2011 which he claimed was both a trigger for him fleeing Sri Lanka and one of the principal bases for his fear of returning. There had also been an attack in 2008. 8 The appellant's evidence was that since 2009 he had worked as a three wheeler taxi driver. In the parking spot where he was based, all the other drivers were Sinhalese and did not like him parking in that area and would not speak to him. Sometimes they would take his customers away, he claimed, and they warned him not to park there. In July 2011, he was at his three wheeler parking spot when five or six people, who were calling him a Tamil, attacked his three wheeler and him with steel pipes. He was injured and lost consciousness, and was treated in hospital for five days. After this attack he said he did not feel safe leaving the house, fearing he would be attacked again. He did not return to driving a three wheeler after the attack and left Sri Lanka illegally in May 2012. 9 Apart from a series of written submissions made on the appellant's behalf by his solicitor and migration agent, the Tribunal held two hearings with the appellant, taking him through his claims at the first hearing on 15 March 2013 and then focusing at the second hearing on 5 December 2013 on the (then) most recent information about what was occurring to returned Tamil asylum seekers, in terms of charges under the Sri Lankan Immigrants and Emigrants Act, release on bail, the periods for which people were being remanded and the possible penalties under that Act. 10 The Tribunal found the appellant was generally credible, and expressed sympathy with the sadness and hopelessness he exhibited during the Tribunal hearings. However, the Tribunal found the appellant had exaggerated in his evidence about the level of harm he was likely to face on return. The Tribunal accepted the appellant had faced some discrimination and harassment at his school, and in his daily life, although it found he exaggerated the nature and extent of that conduct. 11 The Tribunal accepted that the appellant had been the victim of the two attacks he described in 2008 and 2011. As to the 2008 attack, the Tribunal found it was isolated, drunken behaviour and not Convention-related. As to the second and more serious attack, the Tribunal found it was occasioned by the other drivers' intent to ensure the appellant did not take their business or customers away from them. The Tribunal did not accept the appellant's contention that this attack would not have occurred if he were Sinhalese, and it went on to consider (and reject) the suggestion that he would face further harm if he returned to Sri Lanka, as well as rejecting his contention that he would have to return to the occupation of three wheeler driver and would face further harm if he did so. The relevant parts of its reasons for decision were at [107] to [115], where the Tribunal stated: 107. The applicant has claimed that he has experienced two instances of physical harm in his life which he believes is due to his Tamil ethnicity. He claims that the first incident occurred in 2008 when he was pushed, hit and kicked by some drunk boys while riding his bike on the road. He claims that these boys referred to him as 'the Tamil' when they say him [sic]. The Tribunal accepts that this incident occurred. However, the Tribunal finds that this was an isolated, drunken attack. The applicant has not made claims to have faced any other incidents of harm, apart from an attack approximately three years later which appears to be slinked [sic] to his work as a three wheeler driver, and which will be discussed below. 108. The second incident occurred after the applicant claims his brother bought him a three wheeler. The applicant claims that his brother bought him a three wheeler in 2009 but that no one gave him a parking space because he is Tamil until his brother found one six months later. He claims that he was the only Tamil and that the Sinhalese drivers did not like him parking there and would not speak to him. Sometimes they would take his customers and he was warned not to park there. Shortly after, he was attacked by six people who referred to his Tamil ethnicity. 109. The Tribunal accepts that the applicant had trouble finding a parking space for his three wheeler, that other drivers did not speak with him, took his customers and warned him not to park there. The applicant's evidence in relation to how long he was unable to find a parking spot was inconsistent; his statutory declaration refers to three months whereas he stated that it was six months at hearing. The time when the applicant began driving his three wheeler has also been inconsistent; his written claims indicate it was in 2009 but at the hearing the applicant stated that he started driving in 2010. 110. The Tribunal is willing to accept that the applicant was attacked and beaten by six men and that during this attack, references to his ethnicity were made. However, as put to the applicant at hearing, the Tribunal is of the view that the behaviour of other three wheeler drivers towards the applicant and the attack on him was motivated, essentially and significantly, by economic reasons because other drivers did not want him to take business or customers away from them. While the Tribunal accepts that the applicant was racially abused during the attack, this does not lead to the conclusion that the applicant's race was the essential and significant reason for the attack or any of the behaviour the applicant claimed he was a victim of, as is required by s 91R(1) of the Act. The Tribunal therefore finds that the attack on the applicant was an isolated event and not essentially and significantly motivated by his race or imputed political opinion. The Tribunal does not accept the applicant's assertion that if he were Sinhalese he would not have been attacked. The Tribunal has come to this conclusion having considered the applicant's evidence in relation to his experiences while working as a three wheeler driver, noting that the applicant worked in this position for approximately one year before the attack occurred as well as the applicant's general experience of living in his village, as discussed above. 111. The applicant claimed that the police refused to assist him after the event. However, on the applicant's evidence, the police came and took a statement from him in hospital because it was their duty. The Tribunal does not accept that the fact that the applicant was not questioned again by the police and that the culprits were not found leads to the conclusion that the police did not follow through with the investigation due to the applicant being a Tamil or for any Convention reason. The applicant claims that the police did not question the other drivers in the parking lot but, given that he claimed he did not go out and stayed at home after the attack, it is unclear how he would know this was the case and the Tribunal does not accept the applicant's evidence in this regard. Accordingly, the Tribunal does not accept that the applicant was denied state protection for a Convention reason. The Tribunal also does not accept that the applicant or his family were too scared to follow up on the investigation with the authorities. 112. The Tribunal is willing to accept that after the attack, the applicant's brother heard rumours warning the applicant that he might be attacked again if he went out but finds that these would have been motivated by not wanting the applicant to return to his three wheeler business. The Tribunal has some doubts that the applicant remained in his home the whole time from August 2011 until he left Sri Lanka in May 2012 but accepts that he did not return to his work as a three wheeler driver. The Tribunal does not accept the applicant's evidence that after he left Sri Lanka, people from the car park and village came to his house asking where he was. It is implausible to the Tribunal that the same people who attacked him so that he would not take their business would be inquiring as to his whereabouts. 113. On the basis of the evidence before it, the Tribunal does not accept that the applicant will face a real chance of serious harm due to his Tamil ethnicity or that he will be imputed with a pro-LTTE political opinion. While the Tribunal accepts that applicant has faced discrimination as a Tamil in the past, it finds that this discrimination occurred during the civil conflict with the LTTE. The Tribunal accepts that Tamils continue to suffer some discrimination, for example in the form of disproportionate monitoring by security forces or being regularly requested to provide identity documents at checkpoints. However, the information before the Tribunal does not indicate, and the Tribunal does not accept, that the discrimination faced by Tamils in Sri Lanka amounts to serious harm under s 91R of the Act. Rather, the country information indicates that certain profiles and not simply Tamil ethnicity potentially give rise to a real chance of serious harm. 114. As set out above, the Tribunal finds that the attack against the applicant in 2011 was not for the essential and significant reason of a Convention ground. The Tribunal notes that the departmental decision record, provided to the Tribunal, indicates that the applicant stated that his three wheeler was written off after the attack. Accordingly, the Tribunal finds that the applicant will not return to this type of business or to the parking lot if he returns to Sri Lanka. The Tribunal does not accept the applicant's representative's submission that the applicant would have to return to driving a three wheeler; the applicant has only been in this job for one or two years at best and the Tribunal does not accept that the applicant would not be able to find other employment, noting that his relatives work in varied jobs. As the Tribunal is satisfied that the motivation for this attack was to avoid the applicant taking business away from other three wheeler drivers, the Tribunal finds that the chance that the applicant would face serious harm from the people who previously attacked him is far-fetched and remote. 115. The Tribunal has also considered whether the applicant faces a real risk of significant harm as a Tamil or because he will be perceived to be associated with the LTTE. The Tribunal does not accept that any of the discrimination that the applicant suffered in the past as a Tamil, or that he may suffer in the future constitutes significant harm as defined by s 36(2A). As noted above, the Tribunal accepts that the applicant was attacked in 2011 while operating a three wheeler and that this attack was motivated by other three wheeler drivers not wanting him to take their business. The Tribunal accepts that the attack on the applicant constituted significant harm. However, given its reasoning in paragraph 114 regarding the applicant's future employment if he returns to Sri Lanka, the Tribunal does not accept that as a necessary and foreseeable consequence of being returned to Sri Lanka, there are substantial grounds for believing that the applicant will suffer significant harm related to driving a three wheeler. Accordingly, the Tribunal does not accept that there is a real risk that the applicant would suffer significant harm as a Tamil or perceived LTTE supporter. 12 There were several other sets of findings made in the Tribunal's decision, particularly about the appellant's claims concerning his brother, his claims concerning the prospect of differential treatment under the Sri Lankan Immigrants and Emigrants Act and his claims to fear harm as a failed asylum seeker, which are not material to the grounds of appeal and need not be set out.
The Federal Circuit Court proceeding 13 The appellant was self-represented before the Federal Circuit Court and did not file any written submissions. His grounds were expressed in his judicial review application in general terms. At [25] of its reasons, the Federal Circuit Court noted the appellant's oral submissions were in the following terms: a) he would be killed if he were returned to Sri Lanka as a consequence of the outcome of his case; and b) he had put before the Tribunal everything that happened and he knew that there was enough evidence before the Tribunal and did not understand why the Tribunal had decided he was not a refugee. 14 It is not necessary to set out in detail the terms of the Federal Circuit Court decision. The parties accepted that the grounds now raised on the appeal were not raised before the Federal Circuit Court. The Minister having taken no objection to the grounds now raised, the parties accepted that if an error could be identified in the Federal Circuit Court's orders and decision, it could be no more precisely described than as a failure to conclude that the Tribunal's decision was affected by jurisdictional error. 15 In orders made by the Court after the delivery of judgment, the appellant was ordered to pay the Minister's costs fixed in the sum of $6,646.
The proceeding in this court 16 The Federal Circuit Court decision and orders were made on 25 July 2014. The appellant needed to file his appeal to this Court within 21 days, that is by 15 August 2014: r 36.03 of the Federal Court Rules 2011 (Cth). The appellant did not file his application for an extension of time until 24 April 2015, more than eight months out of time. 17 The appellant was unrepresented at the time of filing that application, but subsequently obtained legal representation in the week before his application was listed for hearing. The parties subsequently advised the Court they had reached a consent position and proposed orders by consent allowing the extension of time, providing for the filing of a notice of appeal (confined to points identified in submissions filed in support of the extension of time application) and preparing the appeal for hearing. I made orders in those terms on 10 August 2015. 18 Pursuant to those orders, the appellant filed a notice of appeal on 20 August 2015 identifying the following three grounds: 1. The Federal Circuit Court erred in failing to find that the decision of the Refugee Review Tribunal (the Tribunal) was affected by jurisdictional error, in that the Tribunal asked itself the wrong question when considering the appellant's claim under s 36(2)(aa) of the Migration Act 1958 (Cth) at [115] of its decision record. 2. The Federal Circuit Court erred in failing to find that the decision of the Tribunal was affected by jurisdictional error, in that the Tribunal had no evidence for its finding that the appellant would not return to driving a "three wheeler" or return to the parking lot if returned to Sri Lanka. 3. The Federal Circuit Court erred in failing to find that the decision of the Tribunal was affected by jurisdictional error, in that the Tribunal failed to afford the appellant procedural fairness in connection with its finding that the appellant would not return to driving a "three wheeler" or return to the parking lot if returned to Sri Lanka. 19 Written submissions were filed on behalf of both parties addressing each of those grounds, and were developed in oral submissions. I refer to the submissions below where necessary.
Resolution 20 At the hearing, counsel for the appellant informed the Court that ground 3 was not pressed. Accordingly, I do not consider that ground any further. 21 It is important to note the structure of the Tribunal's findings. 22 Having set out the applicable law, the course of the appellant's visa application, the decision under review, the review application and the Tribunal hearing (including the articulation of the appellant's claims as I have set out above), the Tribunal then turned to make its findings, and give reasons for those findings, from [96] of its reasons onwards. 23 In this part, the Tribunal first made some general findings, including that it found the appellant's evidence to be "generally consistent and credible". 24 The remainder of the findings and reasons then appear under a series of subheadings, namely: (1) "Claims of past harm as a Tamil and future risk of harm based on ethnicity/imputed pro-LTTE political opinion"; (2) "Claims and future risk of harm related to the applicant's brother"; (3) "Future risk of harm as returnee/failed asylum seeker"; (4) "Future risk of harm for illegal departure"; and (5) "Overall findings on real chance of serious harm and real risk of serious harm". 25 It is the first subheading which in my opinion has some relevance to the first ground of appeal. 26 The second aspect of the structure of the Tribunal's reasons which should be noted is that the Tribunal's consideration of whether the appellant met the complementary protection visa criteria is dealt with at the end of each set of its findings about the Refugees Convention protection visa criteria, appearing under the subheadings I have just outlined. In other words, there is no separate section of the Tribunal's reasons dealing with complementary protection. Rather, the Tribunal has chosen to look at each set of claims made and consider them against both the Convention protection criteria and the complementary protection criteria.
First ground of appeal: whether the Tribunal asked itself the wrong question concerning complementary protection 27 This ground relies in particular on [115] of the Tribunal's reasons for decision, which I have set out at [11] above. The appellant contends the error is apparent from the first and last sentences of this paragraph, where the Tribunal asks whether there was a real risk he would suffer significant harm "as a Tamil or perceived LTTE supporter" if returned to Sri Lanka. That, the appellant contends, is not the correct question for the purposes of s 36(2)(aa) of the Migration Act 1958 (Cth). 28 Recalling the terms of s 36(2), that subsection provides that a criterion for a protection visa is that the applicant is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm … 29 The appellant submits there were at least two matters that, if the Tribunal had asked itself the correct question, it would have addressed in [115], that being the only paragraph in this portion of the Tribunal's reasons which dealt with whether the appellant satisfied the terms of s 36(2)(aa) in respect of his first group of claims. The appellant sought to draw a contrast in how the Tribunal dealt with the s 36(2)(aa) criteria at [138]-[144] of its reasons in relation to the treatment the appellant might receive on return to Sri Lanka as a person who had departed Sri Lanka illegally. 30 The first matter was whether the appellant would suffer significant harm, by way of his alleged inability to earn a living and sustain himself. The Tribunal dealt with this at [105]-[106] (about which I will say more below) in relation to s 36(2)(a) but not, the appellant contended, in relation to s 36(2)(aa). 31 The second matter was that the Tribunal did not examine whether there were substantial grounds for believing the appellant would suffer significant harm if he had to return to the parking area, or parking lot, where he had operated his three wheeler and which was the scene of the attack on him in July 2011. 32 It is correct that the first and last sentences of [115] suggest the Tribunal is still examining the appellant's claims through the prism of the criteria set out in Art 1A of the Refugees Convention and which are relevant to s 36(2)(a). The references to Tamil ethnicity, and to imputed political opinion are obviously references to the Convention attributes upon which the appellant had relied for his s 36(2)(a) claim. 33 It is also correct that the appellant's migration agent had made submissions after the Tribunal hearing about the economic difficulties for the appellant in returning to Sri Lanka, contending it would be very difficult for him to subsist, and to do so safely. However these submissions were clearly directed to the terms of s 91R (as it then was) and the appellant's s 36(2)(a) Convention claim. In this sense they are more relevant to the second ground of appeal, but it is as well to set them out here: A. Whether the Applicant's feared harm (mostly discrimination based) amounted to serious or significant harm 3. At the hearing, the Tribunal accepted the Applicant suffered discrimination as a Tamil in a Sinhalese village. However, the Tribunal stated it would have to further consider whether the discrimination amounted to serious or significant harm. 4. It has been argued: [T]here are many more subtle ways of persecuting people than beating them up. Many refugees would probably rather suffer an occasional beating than face a life of repression, poverty and disadvantage because of their ethnic or religious background. 5. Section 91R of the Migration Act 1958 provides a non-exhaustive list of instances of persecution, including 'significant economic hardship that threatens the person's capacity to subsist'. This has also been explored by the UK Asylum and Immigration Tribunal which held: The harm need not result from violence or loss of liberty. An inability to earn a living or to find anywhere to live can result in destitution and at least potential damage to health and even life. If discrimination against which the state cannot or will not provide protection produces such as result, the Convention can be engaged. 6. In this regard, part of the harm feared by the Applicant includes an inability to earn a living which threatens his capacity to subsist. If the Applicant were returned to Sri Lanka he would be forced to continue his work as a three-wheeler taxi driver as his main occupation. For this to occur, the Applicant would require a parking space in town which is designated for taxi drivers to wait for customers. 7. The Applicant fears he will suffer the same discrimination finding a parking space, as well as the physical harm at the hands of Sinhalese people not wanting him there were he successful in obtaining a parking space. 8. In addition, the Applicant fears earning less than his fellow Sinhalese taxi drivers, as occurred previously, when they would take passengers hires away from him, or block his parking space and tell him to come back the next day. 9. In relation to state protection, country information supports the Applicant's claims the Sri Lankan authorities are unable or unwilling to protect Tamils from ethnic violence: Tensions between the three major ethnic groups (Sinhalese, Tamils, and Muslims) occasionally lead to violence, and the government generally does not take adequate measures to prevent or contain it. (Citations omitted.) 34 For the purposes of s 36(2)(aa), the phrase "significant harm" is defined by s 36(2A), which provides: A non-citizen will suffer significant harm if: (a) the non-citizen will be arbitrarily deprived of his or her life; or (b) the death penalty will be carried out on the non-citizen; or (c) the non-citizen will be subjected to torture; or (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non-citizen will be subjected to degrading treatment or punishment. 35 The term "significant harm" as used in s 36(2)(aa) and defined in s 36(2A) is narrower than the concept of "serious harm" in s 91R (which reflected, at least to some extent, Convention jurisprudence) and did not expressly extend to the capacity to subsist (cf s 91R(2)(d)). 36 Even if the Tribunal had not couched its analysis in the first and last sentences of [115] by reference to Convention attributes, the first matter on which the appellant has relied would not have been germane to the Tribunal's consideration of the criteria in s 36(2)(aa). 37 The second matter - return to the parking lot or parking area - was in my opinion bound up with the appellant's claim about his "forced" return to driving a three wheeler, and needing to operate out of a parking space. That can be seen from the migration agent's submissions at paragraphs 6 and 7, which I have extracted above. The claim was couched in terms of the ongoing discrimination the appellant feared, in trying to find and use a parking space. The Tribunal did deal with this in [115], by referring to its earlier reasoning at [114]. Having decided the appellant need not, and would not, reengage in the three wheeler industry to earn a living, the Tribunal was not satisfied there were substantial grounds for believing he would be attacked again, as it had found the attack occurred because the other drivers were angry about the appellant taking business away from them. The Tribunal did not accept the other drivers attacked the appellant because he was a Tamil. It was the Tribunal's function to make those factual findings, which were open to it on the material before it. 38 The confusion in the expression in [115], especially in the first and last sentence, stems in my opinion from the kind of claims the Tribunal was considering under this subheading. They were self-evidently claims relating to s 36(2)(a) because they revolved around the appellant's Tamil ethnicity and a political opinion (being pro-LTTE) which he claimed would be imputed to him. It is not at all clear why or how the Tribunal considered it needed to examine these claims against s 36(2)(aa). Perhaps the better way to read [115], and this is a generous reading in the Tribunal's favour in the face of reasons which, it must be said, are lacking in clarity, is that it was asking itself two questions. First, whether the discrimination of which the appellant spoke in his evidence met the threshold of s 36(2A), and the Tribunal decided it did not. Second, whether there were substantial grounds to believe the appellant would be attacked again as he was in 2011, and the Tribunal decided it was not satisfied he would be, although it had accepted this attack did meet the threshold in s 36(2A).
Second ground of appeal: the no evidence ground 39 This ground concerns one particular sentence in [114] of the Tribunal reasons: Accordingly, the Tribunal finds that the applicant will not return to this type of business or to the parking lot if he returns to Sri Lanka. 40 As I have noted above, in the agent's submissions made to the Tribunal, it was apparent that the appellant made his claim for protection on the basis he would have to return to driving a three wheeler - that he believed he had no choice but to do so in order to earn a living to survive. That is the way in which the word "forced" is used by the agent's submissions. 41 Although the appellant did not give any evidence to that effect (and appears not to have been squarely asked this question by the Tribunal, although it appeared critical to the Tribunal's resolution of the review) the appellant did give evidence about the period after he was attacked and before he fled from Sri Lanka. He stated that during this period he was too afraid to leave the house, and never went back to driving his three wheeler. The Tribunal accepted that he did not return to working in his three wheeler. 42 The appellant relied on the following passage from R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456, 488: The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon 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. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own view for his. 43 As the appellant submitted, this passage was quoted with approval by Brennan J in Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; 36 FLR 432 at 492. 44 The appellant also relied on FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 310 ALR 1 at [27]-[31], which the appellant submitted was a recent endorsement by the High Court of the need for a decision-maker's findings to be based on material which a court accepts was logically probative of the finding made. 45 Here, the appellant correctly submitted that the Tribunal's finding in [114] was made with a high level of certainty, in the sense that the Tribunal found the appellant "will not return" to the same kind of business. That required the Tribunal to reject, outright, what had been put on behalf of the appellant by his agent, as extracted above. 46 In doing so, the Tribunal relied on three matters: the appellant's evidence that his three wheeler had been written off after the July 2011 attack; the appellant's evidence that he had only been driving the three wheeler for one or two years at the time of the July 2011 attack; and finally, that the appellant would be able to find other employment, noting that his relatives worked in a variety of jobs. These are the matters the Tribunal identified as the matters upon which its finding in the impugned sentence was based. It is the Tribunal's determination on these issues which is important: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 per Gleeson CJ at [5] and [10]. The relevant question for the Court is therefore whether these three matters are logically probative of the Tribunal's finding that the appellant will not return to driving a three wheeler, or to the parking lot. 47 In Mood Music Publishing Co Ltd v De Woolfe Ltd [1976] 1 Ch 119 at 127 Lord Denning considered the phrase "logically probative", in a civil context, to describe material which is "logically relevant in determining the matter which is in issue". This statement was approved by the House of Lords in O'Brien v Chief Constable of South Wales Police [2005] UKHL 26; 2 AC 534. The question is whether the evidence or material is of a kind that is capable of showing the existence or non-existence of facts relevant to the issues to be determined in the review. There is no need for the material to establish beyond argument the facts as found by the Tribunal. Matters of weight, impression and persuasion will mean different decision-makers, acting reasonably and rationally, may reach different factual conclusions, although they are presented with the same material. That is one of the realities of merits review. 48 Applying that understanding of the phrase to the three pieces of evidence on which the Tribunal relied for its finding in [114], it is apparent the finding was supported by evidence which could be seen as logically probative. Each piece of evidence was capable of affecting the probability of the appellant being forced to earn a living as a three wheeler driver. The evidence that there was no three wheeler immediately available to the applicant to use on return was capable of affecting how likely it was he would return to that occupation. The length of time the applicant had been driving a three wheeler prior to the attack was also capable of affecting how likely it was he would feel compelled to return to that occupation. The range of other jobs in which family members worked was also capable of affecting how likely it was the applicant would have no choice but to work as a three wheeler driver. 49 It is critical to emphasise the word "capable" here, for the evaluation of evidence is a function for the Tribunal, not for this Court. It was not, for example, in any sense inevitable that another Tribunal member looking at the same evidence would have used it to support the finding that this Tribunal member made. That, however, is not the test. 50 Similarly, the evidence on which the Tribunal relied was also capable of supporting the finding it made about the appellant not returning to the parking lot. As I have noted above, the migration agent's submissions on behalf of the appellant make it clear that the appellant's fear of going to the parking lot was always bound up with his work there as a three wheeler driver. There was nothing in the appellant's claim or material which required the Tribunal to examine this possible eventuality separately from the appellant having to work as a three wheeler driver.
Conclusion 51 The two grounds of appeal which were pressed should not be upheld and the appeal should be dismissed. There is no basis for anything but the usual order as to costs. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.
MZZZR
Minister for Immigration and Border Protection