Consideration
62 The first part of ground 3 requires the Court to consider the decision of the High Court in NAFF and whether, as the appellant contends, it applies to the present case. In NAFF at the conclusion of the hearing, the tribunal member told the applicant that, given there were inconsistencies in relation to an aspect of the claim made, namely the dates of detention and the number of detentions, she would write to the applicant about that and the applicant would have 21 days to respond to the questions raised and to put any more information he wished to the tribunal. Contrary to that procedure, the tribunal member did not write to the applicant as foreshadowed and instead the tribunal sent the applicant a letter stating that it had considered all of the material relating to the applicant's case, that it had made its decision and that the decision would be handed down on a nominated date.
63 Relevantly, the majority of the High Court said at [30] to [31]:
There are some inferences which may reasonably be drawn from the Tribunal member's final statements when they are set against the background recorded in her reasons for decision. One is that she regarded the appellant's evidence about the detentions as having potential significance in the review. Another is that she had formed the belief that, despite her detailed questioning, the appellant had not done himself justice in circumstances where he had twice said he was confused and where doubts about interpretation had arisen - perhaps because he had not fully understood the questions which she had put to him, perhaps because in the stress of the moment he had not been able fully to communicate appropriate answers to them, perhaps because of the difficulty in assessing the credibility of evidence given through an interpreter. A third inference is that she believed that, as a result, the procedure had not been satisfactory because it had not been wholly fair to the appellant. In consequence, she thought that the process of review - so far as the appellant was to participate in it - should not be brought to a close, and that it was appropriate to hear more from him about the detentions. It can also be inferred that she had decided that a fair technique by which to take the matter forward was for the difficulties arising from the apparent inconsistencies to be explained to the appellant in written questions to be formulated by her, and to be calmly answered by the appellant in less stressful conditions.
The case, then, is an unusual one. In her closing remarks on 5 February 2002, the Tribunal member was herself acknowledging that the purposes of the review had not been completely fulfilled by the documents supplied before 5 February 2002 or by the events of 5 February 2002. She was indicating that she had not yet finished receiving the presentation of arguments by the appellant which he had been invited to make, pursuant to s 425(1) of the Act, by the letter of 13 December 2001. She was saying that procedural fairness required some further steps to be taken, so that the matters indicated could be ironed out one way or the other. It is clear that the Tribunal member was in the best position to judge whether the review process was incomplete. Her conduct is only consistent with the formation of a firm impression that it was.
64 The same situation cannot be said to arise in the present case. At [44] of its decision, the Tribunal said it was not in a position to make findings about whether the appellant was responsible for the death of her husband by poisoning or whether a criminal case was pending as claimed in the Confidential Letter. It said it was not able to contact the author of the Confidential Letter and did not have access to any evidence in relation to the matter. It noted the appellant's comments that her father-in-law had accused her of murder before she left Sri Lanka and went on to say it made no findings in that regard. It does not follow from those comments that the Tribunal acknowledged that its review process was incomplete. Rather, it was stating that the evidence did not allow any finding to be made about the appellant's responsibility or otherwise for the death of her husband or whether there was a criminal case pending in Sri Lanka. It cannot be said that the appellant in the instant case was left with the impression that the review process was incomplete; the Tribunal made no statement about this to the appellant. No inference can be drawn, as the appellant asserts, that the purpose of the review had not been fulfilled.
65 In my view, for the reasons articulated by the primary judge at [43] of his judgment, the inferences drawn by the High Court at [30] in NAFF cannot be drawn here:
(1) the Tribunal did not in fact say it had to take any further steps, in contrast to the position in NAFF. As the primary judge correctly states any inference that a tribunal considered that its review function was not complete should not be drawn lightly;
(2) the Tribunal gave the appellant opportunity to comment on the Confidential Letter as evidenced by the exchange recorded in the transcript in which the Tribunal member put to the appellant the content of the Confidential Letter for comment. The appellant does not contend that there was in that respect a breach of procedural fairness. This is not a case where the Tribunal was of the view that it needed to give the appellant a further opportunity to comment but then proceeded to determine the review without affording her that opportunity. The Tribunal member put to the appellant the matters of fact going to the credibility of the appellant's claims: she asked "So if you are innocent of these claims you have nothing to worry about is that correct" and "But if he was going to make these accusations to the police surely he would have done so already". The Tribunal member also asked whether there was "anything else" the appellant would like to say. The Tribunal member was entitled to be satisfied on that basis that she had taken all the steps necessary and appropriate to discharge her review function;
(3) this was not a case in which the Tribunal considered that it should, but failed to, seek comment from the author of the Confidential Letter. The Tribunal said that it was unable to discuss the content of the Confidential Letter with its author. This is not a case of the Tribunal completing a review function in circumstances where it considered there were reasonably available but undischarged steps which it could take to complete the review.
66 I do not accept the appellant's submission that it was not relevant whether it was possible for the primary judge to reconcile the Tribunal's statement at [44] of its decision with the findings at [49] and [59] of its decision.
67 The primary judge found that the statements at [44] concerned the appellant's responsibility for her husband's death and the pendency of a criminal case (about which no findings could be made) while the statements at [49] and [59] concerned the issue of whether the appellant's father in law would report her. I agree with the primary's judge's findings in this regard. Contrary to the appellant's submission, the conclusions at [49] and [59] did not depend on intermediate factual issues such as whether the appellant's father-in-law "accused her of murder" and whether her father-in-law was a "troublesome character who did not like" the appellant. It follows that I similarly do not accept that there is logically a relationship between whether the appellant was responsible for the death of her husband, whether that had been reported and whether there was a criminal case pending. The Tribunal was able to make the findings it did without the need to make findings on intermediate factual issues.
68 Given the way the appellant put her case before the primary judge and my findings in relation to the first part of ground 3, the appellant cannot succeed on this ground: that is before the primary judge the appellant put her case on the basis that she had to succeed on the first part of ground 3 in this appeal (ground 2 before the primary judge) and either limb of the second part of ground 3 in this appeal (grounds 3 or 4 before the primary judge). While it is not necessary for me to do so, for completeness I consider the second part of ground 3. In this part of ground 3 the appellant contends that the primary judge erred in failing to find that the Tribunal's findings at [49] or [59] of its decision were unsupported by any evidence or illogical. The particular findings complained of are, in relation to [49], that if the appellant is charged with a criminal offence, "this is a law of general application and is not a persecutory law for a Convention reason" and thus the Tribunal did not accept that "the law would be implemented or enforced in a discriminatory manner" and, in relation to [59], that if the appellant "is innocent then the rule of law will apply and she will not suffer any kind of harm".
69 In order to consider this ground it is necessary to consider when a finding of no evidence or illogicality to support a jurisdictional error should be made. In that regard, in Australasian Meat Employees' Union v Fair Work Australia (2012) 203 FCR 389 at [92] Flick J observed that:
Considerable caution needs to be exercised before concluding that an absence of evidence to support a particular factual finding necessarily constitutes jurisdictional error. The starting point is to acknowledge that a mere factual error will ordinarily fall short of jurisdictional error. But where a fact is a critical step in a conclusion which has been reached - and where there is no evidence to support that finding - there may be jurisdictional error…. In Sagar v O'Sullivan Tracey J observed that it "is well-established that a statutory decision-maker may make a jurisdictional error by failing to base a decision on probative evidence".
(citations omitted)
70 In oral submissions by counsel on behalf of the Minister my attention was also drawn to the decision in Australian Postal Corporation v D'Rozario (2014) 222 FCR 303 in which a "no evidence" ground was considered by a Full Court of this Court and is relied on by the Minster to establish that in order to succeed on this ground there must be no evidence or other material to justify the finding. In that regard, Jessup J at [78] of his decision found that:
… In my view, Mr Victory's submission provided a sufficient factual basis, slender though it was, for that finding in a setting in which the question is not whether the finding was wrong or against the weight of evidence but whether there was no evidence at all that could on any view have sustained the finding.
71 Bromberg J also considered the issue and at [118] said:
An insufficiency of evidence or other material does not sustain a "no evidence" finding. The ground will not be made out unless it is established that there was no evidence or other material to justify the finding made: VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 202 at [33]-[37] (Spender, Tamberlin and Kenny JJ); Australian Retailers Assn v Reserve Bank of Australia (2005) 148 FCR 446 at [575] (Weinberg J); and SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 at [31] (Kenny J). The necessary evidence could be either direct or found in material which permitted the decision-maker reasonably to infer that the condition existed: SGLB at [41] (Gummow and Hayne JJ, with whom Gleeson CJ agreed at [1]); Shop, Distributive and Allied Employees Assn v National Retail Assn (No 2) (2012) 205 FCR 227 at [31] (Tracey J).
72 The appellant relies on the decision in SZMDS in which there were differing approaches about what would constitute illogicality amounting to jurisdictional error. At [50] to [53] of their decision Gummow ACJ and Kiefel J, in dissent, refer to an absence of a "logical connection between the evidence and the reasons" of the tribunal. In his decision at [78], Heydon J observed that the "issue" was one on which "minds may differ" and found at [87] that in that matter the tribunal's reasoning was not "illogical". At [130] to [131] Crennan and Bell JJ said:
In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
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.
73 The appellant's counsel in oral submissions contended that the test propounded by Crennan and Bell JJ was based on an analogy with Wednesbury unreasonableness in that it has to be so illogical that no logical decision maker could come to that decision on the same evidence. The appellant's counsel submitted that the test had to be read in light of what the majority said in Li at [68] that:
Lord Greene MR's oft-quoted formulation of unreasonableness in Wednesbury has been criticised for "circularity and vagueness", as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision − which is to say one that is so unreasonable that no reasonable person could have arrived at it - nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation, which was decided less than two years after Wednesbury, at a time when it was the practice of the High Court to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area.
(footnotes omitted)
74 In other words, the appellant submits that it is not correct to say that the principle only applies when the decision is so illogical that no logical decision maker could have come to that decision on the same evidence. This submission goes to the interaction between the principles identified in SZMDS and Li. However, this is not a matter which needs to be resolved here. This case can be determined by an application of the principles identified in SZMDS.
75 In that regard, it cannot be said that there was no evidence to support the findings complained of at [49] and [59] of the Tribunal's decision. In my view, the primary judge was correct to accept, as he did at [53] of his decision, that the findings were supported by the DFAT country assessment which was extracted and included as attachment B to the Tribunal's decision. That included at [82] that "today there are no official laws or policies that discriminate against Sri Lankans (including Tamils) on the basis of ethnicity …" and that "DFAT further assesses that there is no government-sanctioned discrimination in the implementation of laws and policies". The appellant submits that this evidence was qualified in that it went on to say that people in the north may receive fewer opportunities to access education and employment. However, the relevant part of [82] referred to by the appellant in that regard goes on to say that this is due to "the effects of the conflict" and "general economic conditions, and not as a result of discrimination on the basis of ethnicity". Even if the evidence is "qualified" as the appellant asserts, as the primary judge observes at [53], the fact that there may have been evidence before the Tribunal upon which a different conclusion may have been formed does not mean that the Tribunal fell into error. There was no illogicality in the Tribunal's decision in coming to its findings at [49] and [59] of its decision.