Consideration and disposition of the appeal
17 It appears that the appellant's essential complaint relates to the AAT's reasoning in [25] of its reasons for decision (see [8] above), in which it accepted that the 2006 incident occurred, yet it rejected the appellant's claim to be a refugee. As the particulars to the judicial review ground made plain, the appellant contended that, because the AAT accepted that the appellant's mother had paid a bribe in 2006 to prevent him from being detained by corrupt CID officers, this necessarily implied an acceptance that the appellant was suspected as having LTTE connections.
18 The primary judge's reasoning in [26] for rejecting this contention is notably brief. The appellant does not complain, however, that the reasons were inadequate in law (see BKL15 v Minister for Immigration and Border Protection [2016] FCA 802; 241 FCR 450 at [8] - [16] per Flick J, with which I respectfully agree).
19 The fundamental difficulty with the appellant's complaint, as reflected in ground 1 of his judicial review application and in his sole ground of appeal, is that it is predicated on an inaccurate reading of the AAT's reasons. In [24] to [26] of its reasons for decision, the AAT drew a distinction between the particular incident which occurred in 2006, as opposed to the claims of ongoing extortion attempts by the CID officers against the appellant's mother after the 2006 incident. The AAT made a finding of fact in [24] that the mother was not subject to ongoing extortion attempts for any reason, including the reasons advanced by the appellant. In [25], the AAT stated that it was prepared to accept that, on one occasion in 2006, the CID asked the appellant's mother about the whereabouts of her husband and that the mother paid a bribe to ensure that the appellant was not abducted by the corrupt CID officers.
20 The AAT's reasoning in [26] is not a model of clarity. That is for two reasons. First, the first sentence contains a statement that the AAT did not accept that the appellant's father was suspected of being supportive of the LTTE. That finding, if viewed in isolation, is difficult to reconcile with the AAT's acceptance in the previous paragraph that, on one occasion, in 2006 the appellant's mother was asked by the CID about the whereabouts of her husband and the AAT's implicit acceptance that the reason for that questioning was that the father was suspected of having links with the LTTE. Secondly, the third sentence in [26] is also cryptic. In particular, it is unclear why the AAT used the word "if" in that sentence, having regard to its acceptance in [25] that the 2006 incident occurred.
21 Fairly read, however, it appears that, despite its poor expression, the AAT found that the appellant's father was no longer suspected by the CID as being a LTTE supporter in the period leading up to the appellant leaving Sri Lanka in 2012. That is because, if the father was so suspected, the AAT believed that he would have been located by the CID in the six years between 2006 and 2012. Having said that, the AAT then stated that, even if the 2006 incident occurred and the CID officers were searching for the appellant's father because they suspected him of being a LTTE supporter, this was a one-off incident. The AAT was satisfied that the issue must have been finally resolved before the appellant left Sri Lanka in June 2012, presumably because of the AAT's finding that there was no recurrence of the 2006 incident. Rather, it was viewed by the AAT as being an isolated and one-off incident.
22 The primary judge should have explained more fully why he rejected ground 1 of the judicial review application. All the more so given the obscurity of the AAT's reasoning in the relevant paragraphs of its reasons for decision to which that ground related. It is perhaps understandable that the appellant may have had difficulty in understanding why ground 1 was rejected by the primary judge. To state that the case did not turn on whether there was a Convention nexus and that the AAT had "provided cogent and rational reasons for the adverse findings in relation to the applicant's claims", as stated by the primary judge in [26] of his reasons for judgment, did not clearly convey to the appellant why his judicial review ground was rejected. In my respectful view, the AAT's reasoning in [26] could not reasonably be described as "cogent". Nevertheless, although not ideally expressed, the AAT did attempt to explain why the 2006 incident did not provide a Convention nexus. That was because, fairly read, the AAT found that it was a one-off incident and, if the appellant's father was suspected of being a LTTE supporter at that time, that suspicion did not continue. This was because of the AAT's finding that there were no subsequent ongoing extortion attempts either for the reasons claimed or for any reason. This is made clear in the final sentence of [24] of the AAT's reasons for decision.
23 If these matters had been elaborated upon by the primary judge in his reasons for judgment, the appellant may have had a clearer understanding of why his judicial review case failed. The appeal may never have been brought if the primary judge had given more extensive and clearer reasons for rejecting this judicial review ground. However, as noted above on the appeal, the appellant did not claim that the primary judge's reasons were inadequate in law or that there had been a constructive failure to exercise the Court's jurisdiction. To avoid doubt, I do not mean to suggest that either of these grounds would necessarily have succeeded if they had been raised.
24 I am not satisfied that the appellant has identified any appealable error in the primary judge's reasons for rejecting the appellant's sole judicial review ground.
25 I do not accept the Minister's submission that costs should follow the event. For reasons given above, it is not difficult to understand why the appellant brought the appeal having regard to the brevity of the primary judge's reasons for judgment and the difficulty of comprehending why his judicial review ground was rejected. I appreciate that the Minister bears no responsibility for this but I consider that it is appropriate that there be no order as to costs.