IN THE SUPREME COURT OF NAURU
AT YAREN
					               Case No. 25 of 2016

IN THE MATTER OF an appeal against a decision of the Refugee Status Review Tribunal TFN T15/00191, brought pursuant to s 43 of the Refugees Convention Act 2012

BETWEEN
                                                         OPK 023 		Appellant

AND

                   THE REPUBLIC                                     Respondent

Before: 			Freckelton J

Appellant: 			Theresa Baw
Respondent:			Angel Aleksov

Date of Hearing: 		5 December 2017
Date of Judgment: 	    	22 March 2018
CATCHWORDS

Appeal – inconsistencies in evidence – credibility findings – APPEAL DISMISSED.

JUDGMENT

1.	This matter is before the Court pursuant to s 43 of the Refugees Convention Act 2012 (“the Act”) which provides:

(1)	A person who, by a decision of the Tribunal, is not recognised as a refugee may appeal to the Supreme Court against that decision on a point of law.

(2)	The parties to the appeal are the Appellant and the Republic.
...

2.	A refugee is defined by Article 1A(2) of the Convention Relating to the Status of Refugees 1951 (“the Refugees Convention”), as modified by the Protocol Relating to the Status of Refugees 1967 (“the Protocol”) as any person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable to, or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable to or, owing to such fear, is unwilling to return to it …”

3.	Under s 3 of the Act complementary protection means protection for people who are not refugees but who also cannot be returned or expelled to the frontiers or territories where this would breach Nauru’s international obligations.

4.	The determinations open to this Court are defined in s 44 of the Act:

(1) 	In deciding an appeal, the Supreme Court may make either of the following orders: 

(a)  an order affirming the decision of the Tribunal; 
(b)  an order remitting the matter to the Tribunal for reconsideration in accordance with any directions of the Court.

5.	The Refugee Status Review Tribunal (“the Tribunal”) delivered its decision on 5 July 2016 affirming the decision of the Secretary of the Department of Justice and Border Control (“the Secretary”) of 1 February 2015, that the Appellant is not recognised as a refugee under the 1951 Refugees Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Refugees Convention, and is not owed complementary protection under the Act.  

BACKGROUND

6.	The Appellant is a male from the Jaffna district of Northern Sri Lanka of Tamil ethnicity and Hindu religion. He was educated to “O” level in 2011, and was attempting to achieve sufficient scores to commence his “A” levels between 2011 and 2013. His parents and three siblings remain in Sri Lanka. 

7.	The Appellant claims a fear of harm on the basis of an imputed political opinion as a supporter of the Liberation of Tamil Tigers Eelam (“LTTE”), on account of assisting his father who was at relevant times an LTTE member. The Appellant also claims a fear of harm on the basis of his Tamil ethnicity, and his membership of the particular social groups of “Sri Lankan Tamils from Jaffna”, “Sri Lankan Tamils who have applied for asylum in other nations”, “Tamil failed asylum seekers”, “Tamil failed asylum seekers who fled Sri Lanka illegally and/or do not have valid passport”.

8.	The Appellant arrived in Australia after fleeing Sri Lanka in July 2013. In June 2014, the Appellant was transferred to Nauru.

INITIAL APPLICATION FOR REFUGEE STATUS DETERMINATION
9.	The Appellant attended a Refugee Status Determination (“RSD”) Interview on 14 October 2014.  At that interview, the Appellant claimed that his father was a member of the LTTE in the 1990s and was detained by the SLA around September 2009. The Appellant, fearing further harm, went into hiding. Between 2009 and July 2013, the SLA visited the Appellant’s house twice a week to enquire about the whereabouts of his father. 

10.	In August 2011, he said that the SLA visited the Appellant’s house and abused the Appellant’s mother. The Appellant tried to intervene, and as a result was taken to the Puthoor Army Camp and detained for 20 days, during which time he was interrogated about the whereabouts of his father and beaten. On the twentieth day of the Appellant’s detention, the Appellant’s father surrendered to the SLA in exchange for the Appellant’s release. The SLA then detained the Appellant’s father, although he escaped six to seven months later, and went into hiding again.

11.	In July 2012, the Appellant claimed that the SLA visited his house and detained him at the Puthoor army camp for a second time. On the second night of his detention, five soldiers took the Appellant out of the army camp in a white van. After about an hour and a half, the van stopped and the Appellant managed to escape. The soldiers in the van were drunk and this made it easier for the Appellant to get away. The Appellant noticed that he was only about five kilometres from his home and returned home. The Appellant’s mother told him to hide in the jungle, and the Appellant hid in a palm tree. 

12.	After this incident, the Appellant continued to stay at home. The SLA visited his house frequently, but he was able to avoid detention by hiding in the roof or in a cattle shed close to his house. In May 2013, the SLA told the Appellant’s mother that they would take the Appellant away unless her husband surrendered. The Appellant and his family decided it was not safe for him to remain in Sri Lanka. The Appellant kept a low profile between May and July 2013 while arrangements were made for him to leave Sri Lanka.

13.	The Secretary accepted the following elements of the Appellant’s claim:

•	The Appellant is an ethnic Tamil, born and raised in Jaffna City in the Northern Province of Sri Lanka;
•	The Appellant departed Sri Lanka illegally around July 2013; and
•	The Appellant has no association or involvement with the LTTE and has not been involved in any criminal activity in the past.

14.	However, the Secretary did not accept the following elements of the Appellant’s claim:

•	The Appellant’s father was or continues to be of adverse interest to the Sri Lankan authorities;
•	The Appellant was arrested, interrogated and beaten by the SLA on account of his father’s alleged involvement with the LTTE or that he escaped from SLA custody;
•	The SLA had an adverse interest in the Appellant which led to the Appellant remaining in hiding for over a year prior to his departure from Sri Lanka;
•	The Appellant was or is of continued interest to the SLA, Crime Investigation Division (“CID”) or any other person or party in Sri Lanka.

15.	In rejecting these elements of the Appellant’s claim, the Secretary took into account the following matters:

•	The Appellant’s evidence of the period during which the Appellant’s father was allegedly involved with the LTTE was inconsistent;
•	In his RSD application, the Appellant said he was at school when his father was arrested, but inconsistently claimed at the interview that he was at home at the time of the arrest;
•	In his RSD application, the Appellant said the SLA visited his house twice a week between 2009 and 2013, but inconsistently claimed at the Interview that the SLA did not visit between September 2009 and January 2010;
•	At the Interview, the Appellant added an account of being visited and interrogated by the SLA in January 2010 that was not mentioned in his RSD application;
•	The Appellant’s account of the circumstances surrounding his arrest in August 2011 in the RSD application was inconsistent with his account at the RSD Interview;
•	The Appellant’s recount of SLA officers locking him in a bunker at the Puthoor Army Camp before unlocking him, driving him around for several hours, before returning him to the same camp, was implausible;
•	It was difficult to accept that the Appellant’s father would not have surrendered himself to the SLA until his son had been detained for 20 days;
•	The Appellant’s account of his release from the Puthoor Army Camp was vague and implausible;
•	In his RSD application, the Appellant claimed that his father escaped and returned home six or seven months after his arrest, but inconsistently claimed at the Interview that it was not until the Appellant’s arrest in July 2012 that he assumed his father may have escaped;
•	It was implausible that the Appellant was able to escape from five SLA soldiers, and that they would not pursue him after he escaped;
•	The claim that the Appellant was “in hiding” after his escape was implausible given he continued to attend his study classes every day; and
•	The Appellant and his family was able to reside at the same address without any difficulty in the two months between the visit in May 2013 and the Appellant’s departure from Sri Lanka.

16.	As to the Appellant’s claim regarding his Tamil ethnicity, the Secretary did not accept that the Appellant had a well-founded fear of harm on the basis of his Tamil ethnicity in light of country information that the situation for Tamils has improved significantly since the end of the civil war in 2009. The Appellant also had no political profile himself that would bring him to the attention of the authorities, making it further unlikely that he would be identified and put at risk because of his Tamil ethnicity.

17.	As to the Appellant’s claims regarding being a failed asylum-seeker who departed Sri Lanka illegally, the Secretary noted that while returnees are subject to questioning upon arrival, this is necessary to maintain the integrity of Sri Lanka’s borders, and given that the Appellant was not of ongoing interest to the authorities, there was no reason to consider that the Appellant would be subject to anything more than administrative screening upon return.

18.	In light of these findings, the Secretary found that there was no reasonable possibility the Appellant would be harmed upon return to Sri Lanka due to any imputed political opinion, his Tamil ethnicity, being a failed asylum-seeker, and departing Sri Lanka illegally, and the Appellant’s fear of harm was therefore not well-founded. The Appellant did not qualify for refugee status. The Secretary further considered that the Appellant did not qualify for complementary protection, given the finding that there was no reasonable possibility of the Appellant being subject to harm in the reasonably foreseeable future.

REFUGEE STATUS REVIEW TRIBUNAL

19.	On 10 October 2015, the Secretary made a determination that the Appellant was not a refugee and not owed complementary protection. On 22 October 2015, the Appellant applied to the Tribunal for review of that determination. On 15 April 2016, the Tribunal wrote to the Appellant through his representative inviting him to appear before the Tribunal and give evidence on 12 May 2016. The letter advised that, should the Appellant fail to appear, the Tribunal may proceed to make a determination on the Appellant’s claims without any further opportunity to give evidence. 

20.	On 12 May 2016, the Appellant failed to appear before the Tribunal, and the Tribunal made a determination without any further action.  

21.	The Tribunal took a similar approach to that of the Secretary and found that apparent inconsistencies in the Appellant’s evidence, and his failure to attend the hearing and respond to the Tribunal’s questions, resulted in the Tribunal not being satisfied about significant aspects of his claims.

22.	The Tribunal Decision Record reflects its concerns about matters that were also troubling to the Secretary, including the inconsistent evidence given by the Appellant as to his father’s work history, the circumstances surrounding his father’s arrest, the circumstances surrounding his own arrest, his journey to the Puthoor Army Camp with SLA soldiers, and the timing of his father’s escape from detention. Like the Secretary, the Tribunal was also concerned about the credibility of the Appellant’s claim that he escaped from five soldiers while being detained in a van, and then went into hiding, given his consistent claims to have been attending study classes at the time.

23.	As a consequence, the Tribunal was unable to be satisfied that the Appellant’s father was a member or supporter of the LTTE; that the Appellant’s father was detained and went into hiding after his release; that the Sri Lankan authorities regularly visited the Appellant’s home looking for his father; that the Appellant was detained on two occasions as claimed; or that the Appellant was at any point prior to his departure from Sri Lanka of adverse interest to authorities. 

24.	Upon the same basis as the Secretary, the Tribunal further found that there was no reasonable possibility of the Appellant suffering persecution on the basis of his Tamil ethnicity. The Tribunal further set out that the Appellant would not be targeted because of any political opinion imputed to him as a result of his ethnicity, his attempt to seek asylum in Australia, and residence in an area formerly controlled by the LTTE. Like the Secretary, the Tribunal accepted that the Appellant’s status as a failed asylum-seeker may lead to questioning at the airport, but concluded that there is no reasonable possibility of his being subject to harm amounting to persecution on account of this. The Tribunal also accepted that while the Appellant may be charged with offences relating to his illegal departure under the Immigration and Emigrants Act (SL), and may be held in remand for up to several days awaiting a bail hearing, in light of country information that cases of torture or mistreatment are rare, there is no reasonable possibility the Appellant will face torture during questioning at the airport or on remand.

25.	Following on from these findings, the Tribunal concluded:

“Given the Tribunal’s findings above, it does not accept there to be a reasonable possibility that the applicant will be targeted for serious harm by Sri Lankan authorities on the separate or cumulative bases of his Tamil ethnicity, his actual or imputed political opinion or his membership of the particular social groups ‘Sri Lankan Tamils who have applied for asylum in other nations’, ‘Tamil failed asylum seekers’ and ‘Tamil failed asylum seekers who fled from Sri Lanka illegally and/or do not hold a valid passport’. The Tribunal finds that he does not have a well-founded fear of persecution on these bases. The Tribunals finds that the applicant is not a refugee.”

26.	Given that the Tribunal did not accept there to be any reasonable possibility that the Appellant would be subjected to physical harm or mistreatment if returned to Sri Lanka for any the reasons claimed, the Tribunal further concluded that the Appellant was not owed complementary protection.

THE APPEAL

27.	By a Further Amended Notice of Appeal, dated 5 December 2017, the Appellant appealed on the following grounds:

1.	The Tribunal erred on points of laws: by making findings without any evidentiary basis; by failing to consider a claim (or competent integer) or evidence; and/or by making findings that were irrational, illogical or legally unreasonable.

Particulars

The Tribunal accepted that the Appellant would be charged with departing Sri Lanka illegally and would be detained if he were returned, however its subsequent findings concerning the fine, bail, term of imprisonment and prison conditions that the Appellant would face are erroneous.

2.	The Tribunal erred on a point of law by its failure to reschedule the Tribunal hearing or delay its decision on the review, in order to enable the Appellant to appear before it pursuant to s41(2)  of the Act, and thereby breached s40(1) of the Act and denied the Appellant procedural fairness.

Particulars

The Appellant did not appear at the Tribunal hearing. The Tribunal proceeded to determine the review In the absence of any appearance from the Appellant.

3.	The Tribunal erred on a point of law by making adverse credibility findings against the Appellant that were reached without any logical or probative basis; were based upon legal unreasonableness; and/or were based on minor or trivial inconsistencies that could not support the findings.

Particulars

The Appellant did attend the RSD interview. The Appellant’s representatives are in the process of obtaining the RSD interview recording with a view to having it transcribed. Upon receipt of such evidence, the particulars will be provided, with leave of the Court.

28.	At the outset of the hearing counsel for the Appellant indicated that Ground Two was no longer pressed.

GROUND ONE
29.	A variety of vices was asserted by the Appellant in respect of the Tribunal’s reasons. In light of this, it is useful to delineate when an infelicity by a Tribunal will constitute an error of law under s 43.

30.	Counsel for the Appellant emphasised that s 34(3) of the Act requires the Tribunal to set out reasons for its decision. She was right to draw attention to the specific terms of s 34(4) as that constitutes the framework for the obligation to provide reasons. It provides that:

The Tribunal must give the applicant for review and the Secretary a written statement that:

(a)	sets out the decision of the Tribunal on review;
(b)	sets out the reasons for the decision;
(c)	sets out the findings on any material questions of fact; and
(d)	refers to the evidence or other material on which the findings of fact were based.

31.	Section 43(1) of the Act provides that a person who is not recognised by the Tribunal as a refugee may appeal to this Court on a “point of law”. The term “point of law” is treated as synonymously with the term “error of law”.

32.	If the Tribunal makes a decision in the absence of any supporting evidence, this is an error of law. However, if there is any evidence to support the decision, the “no evidence” ground does not lie.

33.	If the Tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself the wrong question, to ignore relevant evidence, to rely upon irrelevant evidence or to make an erroneous finding, this has the potential to constitute an error of law. However, for it to do so, it is necessary for the error thereby committed to relate to evidence that is substantial or consequential in terms of the decision that the Tribunal is charged with making. It is not always an error of law for the Tribunal to ignore “relevant material.” 

34.	Put another way, an error of fact based upon a misunderstanding of evidence in considering an applicant’s claim will not be an error of law if the error does not mean that the Tribunal has failed to consider the claim.

35.	If the Tribunal fails to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the evidence, that can constitute a failure of procedural fairness or a failure to conduct the required review of the Secretary’s decision and thereby be a jurisdictional error.

36.	Similarly, if there is illogicality or irrationality in the Tribunal’s reasoning, that has the potential to amount to an error of law but it must actually affect the decision made by the Tribunal, rather than “merely” anterior findings of fact. The decision itself must be impugned by the illogicality.

37.	Similarly, the Tribunal cannot properly make findings that are “largely speculative”, a “matter of conjecture” or “somewhat inconclusive”. 

38.	The fact that a matter is not referred to in the Tribunal’s reasons does not necessarily mean that it was not considered by the Tribunal.  The reason for this is that the Tribunal may have considered it but not given it weight or not considered it to be material, and therefore not relied on it in arriving at its decisions of material fact. However, where a particular matter or particular evidence has been omitted from the reasons of the Tribunal in some cases “it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were rejected or given little or no weight.” This may be if it is an essential integer of the claim, evidence which was led to consolidate the claim and contradict information raised by the Tribunal at the hearing.

39.	However, when a particular matter or particular fact is not the subject of any reference in the reasons of the Tribunal:

“… the findings and evidence that the tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight”.

40.	The critical issue is the Tribunal’s decision-making process. That process can miscarry if important information is “ignored” in the course of the Tribunal’s decision-making in the sense that it may have been conscious of the information but it ignored it in its decision-making – in which case it did not “deal with” the information.

41.	The essence of the Appellant’s argument was that if he was repatriated to Sri Lanka, he “may be detained or imprisoned because of [his] prior unlawful departure from Sri Lanka”. The Appellant’s representative said “[i]t is our submission that [the Appellant] may experience detention or imprisonment or remand prior or subsequent to such detention, or pending any decision to grant him bail.” This argument was not developed further before the Tribunal as neither the Appellant nor his legal representative appeared before the Tribunal.

42.	The Tribunal did not find there was a reasonable possibility that the Appellant would be subject to persecution on the basis of his Tamil ethnicity or on account of any pro-LTTE or anti-government political opinion arising from his Tamil ethnicity, origins from an area that formerly was controlled by the LTTE, as a failed asylum-seeker who had sought international protection in Australia and Nauru, or as a Tamil from the north who has fled Sri Lanka and resided outside the country since 2013. It also found that there was not a reasonable possibility that the Appellant would be subject to discrimination that would rise to the level of persecution.

43.	The Tribunal accepted that the Appellant may be identified by the Sri Lankan authorities as an unsuccessful asylum-seeker and may face questioning upon his return but did not find that he faced a reasonable possibility of harm, having regard to the fact that he did not have a profile which might precipitate such a risk.

44.	It accepted that there was a reasonable possibility that the Appellant would be charged with offences under Sri Lanka’s Immigrants and Emigrants Act on the basis of his illegal departure from Sri Lanka. Associated with this process he may be held on remand for a period as long as several days while awaiting a bail determination. However, it did not accept that there was a reasonable possibility that he would suffer harm as a result of such charges or their processes. It found that if he were convicted of such offences he would be fined but that he did not face a reasonable possibility of a term of imprisonment.

45.	The Appellant has complained that:

i.	The Tribunal failed to address what the amount of that fine will be;
ii.	The Tribunal failed to address how the Appellant will pay that fine;
iii.	The Tribunal failed to address what will happen to the Appellant if he is unable to pay that fine; and
iv.	If it means he is to stay in the “poor and over-crowded” prison for longer than “several days”, the Tribunal failed to address whether that extended period of imprisonment would amount to cruel inhuman or degrading treatment sufficient to enliven Nauru’s complementary protection obligations pursuant to section 7 of the ICCPR.

46.	The position of the Respondent is that these matters did not arise and the Tribunal was under no obligation itself to articulate such claims and then to rule on them. It is correct. There was no error of law in this respect.

47.	The Appellant also argued that the Tribunal made an assumption “that he will be granted bail” without a proper basis for doing so, in that:

i.	The Tribunal failed to address what the amount of surety for bail will be;
ii.	The Tribunal failed to address how the Appellant will pay that surety;
iii.	The Tribunal failed to address what will happen to the Appellant if he is unable to pay that surety, and the likely inference is that bail will be refused and the Appellant will need to stay in jail; and
iv.	If it means he is to stay in the “poor and over-crowded” prison for longer than several days, the Tribunal failed to address whether that extended period of imprisonment would amount to cruel, inhuman or degrading treatment sufficient to enliven Nauru’s complementary protection obligations pursuant to article 7 of the ICCPR.

48.	Again, the position of the Respondent is that this did not amount to an assumption on the part of the Tribunal but, rather, a finding on the basis of evidence before it. Again, the Respondent is correct. This was a finding, not an assumption, and it was open on the evidence before the Tribunal.

49.	Further, simply because the Tribunal did not examine these issues explicitly does not constitute an error of law unless such a claim was clearly articulated or arose tolerably clearly from the materials. It did not do so.

50.	Finally, there was nothing irrational or illogical in the Tribunal’s findings in this respect – they were conclusions that were open on the material before it.

GROUND THREE

51.	The Appellant argued that the Tribunal fell into error by making adverse credibility findings against the Appellant that were reached without any logical or probative basis; were based upon legal unreasonableness; and/or were based on minor or trivial inconsistencies that could not support the findings.

52.	The Australian authorities provide helpful guidance as to the proper approach of a tribunal when making a credibility finding. This guidance has previously been acknowledged and applied by decisions in this Court.

53.	The Tribunal is expected to exercise its critical faculties; it cannot abrogate its responsibility in this regard or take refuge in incantations or evaluative refrains that lack substance.

54.	The Tribunal errs if it simply makes a finding that a claimed event is “implausible” unless the event is “inherently unlikely” or “inherently improbable” or “so far out of accord with what was likely to occur.” To characterise, without explication, a claim as “implausible” or “highly unusual” has been held not to constitute a finding – “Such expressions are more in the nature of observations or side comments, rather than findings”.

55.	Absent such scenarios, the Tribunal is obliged in its reasoning to point to “basic inconsistencies” in the evidence or “probative material” or independent country information which led the Tribunal to conclude that the claimed event was “implausible”. In W148/00A v Minister for Immigration and Multicultural Affairs, Tamberlin and RD Nicholson JJ held that:

“The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant”.

56.	In addition, credibility findings must be “rationally made and based upon facts having logical and probative weight”. Gordon J in SZLGP v Minister for Immigration and Citizenship stated that “[t]here must be a legitimate articulable basis for the Tribunal’s finding and the Tribunal must offer a specific, cogent reason for any stated disbelief”, that “minor inconsistencies cannot support an adverse credibility finding”; and that “trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible.” 

57.	In this instance, the Appellant contends that the Tribunal made a series of adverse credibility findings, pointing to alleged inconsistencies that are “minor or trivial, lacking in any logical or probative weight and without any evidentiary foundation to support” them:

i.	That the Tribunal inaccurately stated “at the RSD interview [the Appellant] stated that his father had not worked and that the family was able to subsist only through the support of his extended family”;
ii.	That the Tribunal identified a number of inconsistencies in respect of the Appellant’s accounts of his father’s involvement with the LTTE;
iii.	That the Tribunal gave weight to an inconsistency in accounts about how long he was driven around when transported to an army base 350 metres from his house after being detailed – the difference being “hours” as against half an hour;
iv.	That the Tribunal gave weight to unclear inconsistencies in the evidence of the Appellant about his transfer when he was re-detained by Sri Lankan authorities, how long he was re-detained for, and the circumstances of his escape and whether he was pursued.

58.	The position of the Respondent was that factually the criticisms made by the Appellant were not fair. Mr Alexsov for the Respondent instanced the response of the Appellant to a compound question. He argued in respect of paragraphs [21] and [22], where the Tribunal identified a series of inconsistencies, the simple situation was that the Tribunal was unable to reach the requisite level of satisfaction to accept the assertions made by the Appellant. He was correct in this regard.

59.	An important aspect of the findings was the Tribunal’s conclusion that it was “unable to be satisfied” that the Appellant’s father was a member or supporter of the LTTE, nor that he worked for or with the LTTE at any time during the conflict. This was not an adverse finding but, rather, a conclusion by the Tribunal that the state of the evidence did not enable the Tribunal to reach the requisite level of satisfaction about an important aspect of the Appellant’s case. This distinguishes the situation from many of the authorities where reservations have been expressed about adverse findings on the issue of credibility.

60.	The Respondent argued that it would be an excessively assiduous reading, with an eye too readily attuned to the perception of error, to read paragraphs [25] and [27] of the Tribunal’s reasons as adverse findings; rather, he asserted that they were expressions of concern which ultimately found expression in an inability on the part of the Tribunal to be satisfied about certain matters.

61.	Ultimately, the concerns articulated by the Tribunal were on the basis of inconsistencies that it identified with accounts given by the Appellant, which it was unable to resolve with the Appellant because he did not attend the hearing. On this basis, the Tribunal did not arrive at the requisite level of satisfaction in respect of the work done by the Appellant’s father, his father’s association with the LTTE, his father’s detention by the LTTE, and his own detention and re-detention. The outcome was that the Tribunal was “unable to be satisfied the applicant’s claims that either he, his father or his uncle were members of the LTTE, nor that they were perceived as such by the Sri Lankan authorities either during or after the end of the conflict.” The consequence of this was that the Tribunal “was unable to be satisfied that the appellant was of adverse interest to the Sri Lankan authorities at any time prior to his departure from Sri Lanka in July 2013.” This played a role, along with other information, in the Tribunal failing to be satisfied that there was a reasonable possibility of harm amounting to persecution to the Appellant if returned to Sri Lanka.

62.	There was not an unacceptable level of unreasonableness or illogicality in the reasoning engaged in by the Tribunal. It is important that an appellate court not descend excessively far into the minutiae of the evidence before the Tribunal; if it were to do so it would be engaging in an over-zealous review and indulging in an impermissible review on the merits. 

63.	There were matters about which the Tribunal was troubled, and its concerns were not able to be alleviated on the state of the evidence available to it, because the questions it would have raised with the Appellant that bore on the credibility of various aspects of his accounts, were unable to be posed by the Tribunal, and the issues thereby resolved. The outcome was that the Tribunal did not reach the finding about the reasonable possibility of harm amounting to harm amounting to persecution.

64.	Thus no error of law is found in respect of the findings impugned by the Appellant.

65.	Under s 44(1) of the Act, I make an order affirming the decision of the Tribunal. 

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Justice Ian Freckelton
Dated this 22nd day of March 2018