FEDERAL COURT OF AUSTRALIA

SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175

THE COURT ORDERS THAT:

1.    The name of the second respondent be amended to the Administrative Appeals Tribunal.

2.    The appeal be allowed.

3.    Order 2 made by the judge of the Federal Circuit Court of Australia on 19 June 2015 be set aside and in lieu thereof it be ordered:

(i)    the decision of the Tribunal made on 17 June 2013 be quashed;

(ii)    the Tribunal consider the applicant’s application according to law.

4.    The first respondent pay the appellant’s costs of the appeal, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LOGAN J

1    I have had the advantage of reading in draft the reasons for judgement of Robertson and Kerr JJ.

2    I am in general agreement with Robertson and Kerr JJ as to why grounds 1 and 3 of the notice of appeal must fail and ground 2 must succeed and with the orders they propose.

3    As the course of oral submissions on the hearing of the appeal progressed in relation to ground 2, particular attention came to be given to the application and operation of s 65 and s 36 of the Migration Act 1958 (Cth) (the Act) to a protection visa application, an integer of which was membership of a particular social group a member of which was subject to an extortion threat by State actors. The parties sought and the Court granted leave for supplementary written submissions to be furnished on this subject and the alleged illogicality or irrationality of the reasons of the Refugee Review Tribunal (the Tribunal). In deference to the helpful submissions subsequently received from both the appellant and the Minister, summarised by Robertson and Kerr JJ, I wish to add some further reasons as to why I consider that ground 2 must be upheld.

4    By ground 2, the appellant alleges that the Tribunal’s decision was irrational, illogical and not based on findings or inferences of fact supported by logical grounds such that the decision is attended and invalidated by a jurisdictional error. In particular, it is said that:

The Tribunal, at [47] of its decision record (AB 356) made a critical finding of fact that was adverse to the Appellant’s claims, that the CID, despite it being accepted that it had, and would continue, to threaten to abduct the Appellant, had no intention to detain or harm the Appellant. This finding of fact was not open to be made by the Tribunal in that it was contrary to the evidence, and not based upon probative material.

5    A necessary starting point in relation to the illogicality or irrationality alleged in ground 2 is the statutory power to grant or to refuse to grant a protection visa. The Minister’s obligation, created by s 65 of the Act, to grant or to refuse to grant a visa is predicated upon the existence or otherwise of a state of satisfaction with respect to the criteria specified in that section. Because the application was for a protection visa, one of those criteria, made relevant by s 36, was satisfaction that, in respect of the appellant, Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. An alternative criterion, also made relevant by s 36 of the Act, was satisfaction that Australia had protection obligations in respect of the appellant because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to a receiving country, “there is a real risk that the non-citizen will suffer significant harm”.

6    In the first instance, it was for the Minister (or his delegate) to determine whether or not he held the requisite satisfaction. An application for review of the Minister’s delegate’s decision having been duly made by the appellant, the effect of s 415 of the Act at the time was that it fell to the Tribunal to decide for itself afresh whether or not it held the satisfaction ordained by Parliament.

7    “Satisfaction” as to the existence or otherwise of these criteria is a jurisdictional fact. The exercise of the power conferred by s 65 is a matter of obligation dependent upon the existence of that jurisdictional fact. It does not entail the exercise of a discretion.

8    The judicial review jurisdiction exercised by the Federal Circuit Court under s 476(1) of the Act is, in respect of the class of decision to which that section applies, the same as that conferred upon the High Court by s 75(v) of the Constitution. In the exercise of that jurisdiction, the distinctions between whether the decision under review entails the exercise of a discretionary power or the reaching of a state of satisfaction as to a jurisdictional fact and whether or not a fact is “jurisdictional” are not necessarily semantic ones: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [16] and [38]-[39] per Gummow A-CJ and Kiefel J and at [128]-[131] per Crennan and Bell JJ.

9    Although the way in which the particulars of ground 2 have been cast might be thought to suggest otherwise in relation to the distinction between a jurisdictional fact and the finding of a fact within jurisdiction, it is not necessary in this case to delve at any length into these semantics. That is because, in developing his submissions in respect of ground 2, the appellant made it plain, as does the ground proper, that the jurisdictional error is said to repose in the reasoning that led to the decision itself, that is, the decision to affirm the decision under review because of an absence of the requisite “satisfaction”, not in any finding, in isolation from that, of some subsidiary, non-jurisdictional fact. The particulars under ground 2, while not felicitously expressed, were said to be illustrative of an illogical or irrational process of reasoning attending the Tribunal’s ultimate conclusion as to an absence of the requisite satisfaction.

10    Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360 confirmed that a decision under statute by an officer of the Commonwealth as to whether that officer was “satisfied” with respect to a subject specified by the statute was “not unexaminable” in the exercise of judicial power. Insofar as that examination entails an allegation of illogicality or irrationality, “that 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”: SZMDS at [130] per Crennan and Bell JJ. In that same case and on that same subject, Gummow A-CJ and Kiefel J, at [21], referred with approval to the following observations made by Lord Wilberforce in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1047.

… If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, [and] whether the judgment has not been made upon other facts which ought not to have been taken into account.

(Emphasis by Gummow A-CJ and Kiefel J.)

It is by reference to these expositions that the alleged want of logicality or rationality in the Tribunal’s conclusion that it did not hold the requisite satisfaction must be measured.

11    It is evident from the reference, at [68], by Hayne, Kiefel and Bell JJ to Avon Downs in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, a case which concerned a discretionary power rather than a power the exercise of which was conditioned upon a state of “satisfaction”, that there are affinities between the grounds upon which the former and the latter may be judicially reviewed. Even so, as ground 2 is cast and as the appellant’s submissions confirmed, the challenge to the Tribunal’s decision in this case does not entail any need to examine how a satisfaction based decision, though logical and rational, might nonetheless be judicially reviewed on the basis of unreasonableness. What is clear is that mere emphatic disagreement with a satisfaction based decision neither makes it illogical nor irrational.

12    The field in which to apply the expositions of the considerations to take into account in deciding whether the Tribunal’s decision was illogical or irrational is delineated by the reasons given by the Tribunal: SZMDS, at [32]. These reasons must, of course, be read as a whole and not narrowly and with an eye for error. This accepted, in the course of the submissions of each of the parties attention came to focus upon the following passage in the Tribunal’s reasons (at [46]-[55]):

46.    On the basis of the applicant’s evidence I am satisfied that if he returns to Sri Lanka corrupt officers from the CID may continue to visit his mother and extort money from her as they have done for the past six years or so. I am satisfied that they will continue to do this using alleged suspicions about his father’s connection with the LTTE as an excuse.

47.    However, having carefully considered the applicant’s evidence I am not satisfied that, despite their threats, these men intend to detain or harm the applicant. This is primarily because they have shown no interest in him. They have never spoken to or questioned him directly, whether about his own political opinions, his father’s activities or his father’s whereabouts. Instead for a period of six years they have threatened to abduct him if his mother did not tell them the whereabouts of his father. In terms of getting that information that threat has been notably unsuccessful for over six years. If abduction of the applicant were their true intention they could and would have acted on their threat by now.

48.    Further, as noted below the applicant’s father (the witness) was of the opinion that the CID had not yet taken the applicant, for example had not come to his school by the day of the Tribunal hearing even if not his home, because he was “small”. That may once have been a reasonable explanation, but the applicant is now almost 19 years of age and is not a child. I am not persuaded by this explanation. It is far more likely that the corrupt officers’ threats towards the applicant are bluff designed to elicit money from his mother.

49.    That that is probably also the perception of the applicant’s family is borne out to some extent by their own actions. On this point I note that the applicant’s father is sufficiently confident of his own safety to return to the family home in Udappu from time to time, including having visited just one week before the applicant left Sri Lanka. One would also expect that the family would now be greatly concerned about the possible abduction of the applicant’s younger brother in the absence of the applicant, yet the younger brother remains at home.

50.    I have no doubt that the applicant has spent his teenage years in genuine fear of being abducted. However for the reasons I have given I am satisfied that these corrupt officers did not intend to abduct him before he left Sri Lanka.

51.    As to his treatment by them if he returns to Udappu, it is difficult to establish how these officers might react. However, having regard to their past conduct I am satisfied that their overriding aim is simply to extort money from his mother and, in the absence of any claim that she proposes to stop making payments, I consider that situation will continue unchanged despite the applicant no longer being a child. There is not a real chance that the applicant will be abducted or otherwise seriously harmed by these men if he returns to Udappu.

52.    As to his other circumstances on return, I accept that he would be a Tamil who has left Sri Lanka without a passport and who has been returned having failed to be granted asylum. He shares these characteristics with numerous other Tamils who have been returned to Sri Lanka from Australia and other countries, and I have considered the evidence about their treatment and whether the applicant might have a well-founded fear of being persecuted for a reason enumerated in the Refugees Convention arising from any or all of these factors.

53.    As noted above I do not accept that merely being a Tamil gives rise to a well-founded fear of being persecuted for the Convention reason of race in Sri Lanka.

54.    Of returned failed asylum seekers I accept, as UNHCR observes, that some of those returned to Sri Lanka have experienced serious human rights abuses at the hands of the authorities, but am satisfied that these cases involved people suspected of LTTE-links or who were criminal suspects (as is evidenced by a press report submitted by the applicant’s representative after the HEaring [sic] – see “Scarred by Sri Lankan Torture”, The Age, 24 April 2013). The applicant does not claim to be a criminal suspect, and I am not satisfied that he might be imputed with support for the LTTE. That is in part because, whatever suspicions there may have been about his father, the applicant has not been imputed with these views in the past, and in part because he was and is not in fact a supporter of the LTTE. Nor do I accept that the fact of his Tamil ethnicity would increase the risk that he would be harmed as a failed asylum seeker.

55.    However I accept, as is observed by UNHCR, that family members of Tamils suspected of supporting the LTTE may be in need of international protection, depending on the circumstances. I also accept that “family members of Tamils suspected of supporting the LTTE” may be members of a particular social group and in certain circumstances to [sic] need protection for that reason. I do not consider that this applies in the applicant’s case. He has been a family member of a Tamil apparently suspected of supporting the LTTE for many years, yet has not been harmed. As I have noted, this suspicion does not appear to be genuinely held by the CID officers, and the applicant’s own father does not claim to know that he is under any continuing suspicion, relying only on the corrupt officers’ assertions. Further, the applicant does not claim that his brother or sister have been harmed because of that membership. The only harm directed at the applicant’s family has been the extortion of money from his mother. That is not to downplay the fear and concerns his mother might have as a result of being threatened by members of the CID, from whom she plainly has no state protection, nor his father’s fears. However the applicant does not claim that his mother has been seriously harmed by these men, and he himself has been able to continue to go to school and ostensibly to live a normal life in a household whose standard of living is otherwise reasonable.

13    Within this passage of the Tribunal’s reasons, paragraph [51] assumed a particular importance in the appellant’s submissions in support of ground 2. The appellant pointed to the Tribunal’s acceptance that the appellant’s family (him, his mother and father) were indeed subject to extortion by the CID grounded in threats based on alleged involvement by the father with the LTTE and the threat that, if money were not paid to these officers, the appellant would be abducted. The appellant submitted that it was not logical not to be satisfied that the appellant had a well-founded fear of persecution for a “Convention reason” on the basis that he would not suffer harm if he were to return to Sri Lanka, because his mother would continue to pay the CID. Paragraph [51] of the Tribunal’s reasons was particularly relied upon in this regard. The Minister submitted that this paragraph should not be so read but rather was capable of being read disjunctively. I do not find the Minister’s submission persuasive.

14    To reason, as the Tribunal did, at paragraph [51], that there is no real chance of abduction on return because the appellant’s mother will continue to make the payments demanded is, with all respect to the member constituting the Tribunal, perverse. The very essence of extortion, if successful, is that the threat made to the victim will not be carried into effect providing that the demand made is satisfied.

15    Extortion related refugee claims require very particular care in the analysis of the underlying occasion for the claimed extortion. This may reveal that the occasion for the extortion is multi-factorial but nonetheless founded in part in a particular vulnerability to extortion for a Convention-based reason. The present is by no means the first occasion when this Court has highlighted the need for such care. In Rajaratnam v Minister for Immigration and Multicultural Affairs [2000] FCA 1111; 62 ALD 73 at [46] and [48], Finn and Dowsett JJ stated:

As this court has indicated on several occasions, care needs to be taken when considering whether extortion has been practised upon a person for a reason: see, eg, Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 95 FCR 517 [at 521-522]; 57 ALD 8; 166 ALR 641 at 645-6. The need for this is apparent enough. In the usual case of extortion the extorting party will be acting for a self-interested reason (ie to gain an advantage for himself or herself, or for another). In this sense, his or her interest in the person extorted can always be said to be personal. What needs to be recognised, though, is that the reason why the extorting party has that interest may or may not have foundation in a convention reason. The extorted party may have been chosen specifically as the target of extortion for a convention reason, or may have become the subject of extortion because of the known susceptibility of a vulnerable social group to which he or she belongs, that social group being identified by a convention criterion. Or, conversely, the person may have been selected simply because of his or her perceived personal capacity to provide the particular advantage sought and for no other reason or purpose.

…

In a particular setting, then, extortion can be a multi-faceted phenomenon exhibiting elements both of personal interest and of convention-related persecutory conduct. For this reason the correct character to be attributed to extorsive conduct practised upon an applicant for refugee status is not to be determined as of course by the application of the simple dichotomy: “Was the perpetrator’s interest in the extorted personal or was it convention related?” In a given instance the formation of the extorsive relationship and actions taken within it can quite properly be said to be motivated by personal interest on the perpetrator’s part. But they may also be convention-related. Accordingly any inquiry concerning causation arising in an extortion case must allow for the possibility that the extorsive activity has this dual character.

16    In this case, to conclude that the “overriding aim” of the CID officers was “simply to extort money from [the appellant’s] mother” (Tribunal reasons, paragraph [51]) was to fail to grapple with why the mother was a target for extortion at all. Yet that is what the claim as made by the appellant required. Further, elsewhere in its reasons (paragraph [55]), the Tribunal accepted, “that family members of Tamils suspected of supporting the LTTE may be in need of international protection”. The perversity or want of logicality or rationality in the Tribunal’s reasons lies in its discounting of any need for that protection on the basis of its acceptance that the claimed extortion will continue if the appellant returns to Sri Lanka. Had the Tribunal grappled with why the mother had been targeted for extortion, this perversity might have been avoided.

17    To conclude that the reasons given by the Tribunal as to why it was not satisfied that the appellant was a person to whom Australia owed protection obligations were logical and rational would be to render that protection obligation largely ineffectual in cases grounded in claimed extortion for multi-faceted reasons which include being targeted for Convention-based reasons, if not to stand those protections on their head. The type of reasoning evident in paragraph [51] was rejected as fallacious by McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration [2003] HCA 71; 216 CLR 473 at [43]:

… The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many — perhaps the majority of — cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

(Original emphasis.)

This explanation for the rejection of such reasoning has later been applied in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; 79 ALJR 1142 and SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 and, in the United Kingdom, in HJ (Iran) v Secretary of State for the Home Department [2011] AC 596.

18    In the context of refugee claims based on certain types of extortion, this explanation is also evident in the Guidance Note on Refugee Claims Relating to Victims of Organised Gangs, issued by the United Nations High Commissioner for Refugees (UNHCR, Geneva, 2010):

39.    Some applicants claim a fear of persecution as a result of pursuing their occupation, for example, business owners and public transportation staff who have been pressured by gangs to pay “renta” and other extortionate demands. Requiring an applicant to abandon his or her occupation in order to avoid persecution amounts to a violation of the right not to be arbitrarily deprived of the right to work. A particular social group based on the applicant’s occupation may in certain circumstances therefore be recognized where disassociation from the profession is not possible or this would entail a renunciation of basic human rights. This could also include journalists who have investigated crimes committed by gangs or former law enforcement officers who have reported corrupt behaviour on the part of some Stage agents.

(Citations omitted.)

19    There is a like want of rationality or logicality in the Tribunal’s further conclusion that it was not satisfied that there was a real risk that the appellant would suffer significant harm if removed from Australia to Sri Lanka. However, given the error which attends the failure to be satisfied in relation to the appellant being owed a protection obligation, it is unnecessary to elaborate on that like want.

20    These then are additional reasons why I would allow the appeal on the basis of ground 2.

Associate:

Dated:    9 December 2015

REASONS FOR JUDGMENT

ROBERTSON AND KERR JJ

Introduction

21    This appeal is from the judgment and orders of the Federal Circuit Court of Australia given and made on 19 June 2015. The orders of that Court were that the application filed on 10 July 2013 and amended on 24 January 2014 be dismissed.

22    The application to that Court was for judicial review of the decision made by the Refugee Review Tribunal (the Tribunal) on 17 June 2013.

23    The Tribunal affirmed the decision made by a delegate of the Minister to refuse to grant the appellant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

The claims

24    The Tribunal summarised the appellant’s claims as follows. The appellant was a member of Sri Lanka’s minority Tamil community and was 18 years of age. He claimed to be from the fishing village of Udappu. From the age of 12, for six years, both during the civil war between the LTTE and the Government and subsequently, his mother had to pay sums of money to particular officers from the Criminal Investigation Department (CID). She did so because these men threatened to take the appellant in the absence of his father, who in 2006 was sought by the CID on suspicion of being in the LTTE. Because the appellant was becoming a young man and thus more likely to be targeted for kidnapping and harm by government forces, his family decided he should leave the country in 2012.

The findings

25    The findings of the Tribunal were as follows.

26    The Tribunal first addressed the issue of whether there was a real chance the appellant would be persecuted because of his Tamil race. The Tribunal found that the appellant had never been questioned, harassed or harmed by members of the security forces because of his race. The appellant had never been subjected to any serious harm, or indeed any discrimination or harm, because he was a Tamil. The Tribunal was satisfied that the chance of his being persecuted in the reasonably foreseeable future simply because he was a Tamil was remote.

27    The Tribunal then addressed whether there was a real chance the appellant would be persecuted as a result of being imputed with a political opinion through suspected links with the LTTE.

28    The Tribunal found that the appellant’s mother had been subjected to extortion by certain officers from the CID in Udappu.

29    The Tribunal was satisfied that if the appellant returned to Sri Lanka, corrupt officers from the CID may continue to visit his mother and extort money from her as they had done for the past six years or so. The Tribunal was satisfied that those corrupt officers would continue to extort money from the appellant’s mother using alleged suspicions about the appellant’s father’s connection with the LTTE as an excuse.

30    However, the Tribunal was not satisfied that, “despite their threats, these men intend to detain or harm the [appellant]. This is primarily because they have shown no interest in him.”

31    The Tribunal took evidence by telephone from the appellant’s father in Sri Lanka. In answer to the question why the CID had not taken the appellant from his school, for example, by the day of the Tribunal hearing, even if not his home, the appellant’s father said it was because his son was “small”. The Tribunal said that that may once have been a reasonable explanation, but the appellant was now almost 19 years of age and was not a child. The Tribunal said it was not persuaded by this explanation and said: “It is far more likely that the corrupt officers’ threats towards the [appellant] are bluff designed to elicit money from his mother.”

32    The Tribunal was satisfied that the corrupt officers did not intend to abduct the appellant before he left Sri Lanka. The Tribunal said the following, at [51]:

As to his treatment by them if he returns to Udappu, it is difficult to establish how these officers might react. However, having regard to their past conduct I am satisfied that their overriding aim is simply to extort money from his mother and, in the absence of any claim that she proposes to stop making payments, I consider that situation will continue unchanged despite the [appellant] no longer being a child. There is not a real chance that the [appellant] will be abducted or otherwise seriously harmed by these men if he returns to Udappu.

33    The Tribunal considered the complementary protection criteria. The Tribunal accepted that the appellant would be questioned at the airport on return, that he may also be charged with leaving the country illegally, that he could be held in remand for a brief period while awaiting a bail hearing, and that he might be later fined. The Tribunal was not satisfied that this would involve treatment amounting to significant harm in terms of the complementary protection criteria.

34    In this context, relevant to ground 3, the Tribunal said, at [61]-[62]:

I do accept however that under tightened procedures adopted in late 2012, returnees who are believed to have left the country in breach of the Immigration and Emigration Act are, regardless of ethnicity, arrested at the airport and brought before a court to apply for bail. This will plainly apply to the [appellant] as he left Sri Lanka without his passport. Bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety. The evidence indicates that if the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo for a few days until a bail hearing is available. Conditions in remand have been described as dirty, cramped and uncomfortable, although there have been no reports that individuals awaiting bail hearings have been intentionally ill-treated. According to a local lawyer, when the cases come to court they might be fined between Rs. 50,000 and Rs. 100,000. However in the absence of these cases being finalised under the new tightened procedures there is insufficient evidence that the penalty will be applied in a discriminatory way towards the [appellant] for any of the Convention reasons.

Having considered the currently available information I am not satisfied that the treatment afforded returnees for departing Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when they are later dealt with by the courts, can reasonably be seen as constituting ‘serious harm’ to the [appellant], and systematic and discriminatory conduct. It follows that, on the basis of the current available evidence, I am not satisfied there is a real chance that the applicant would suffer Convention-related persecution for his illegal departure if he were to return to Sri Lanka.

(Citations omitted.)

The reasons of the Federal Circuit Court

35    Since the present grounds of appeal were not raised before the Federal Circuit Court, it is not useful or necessary to set out the reasons of the primary judge.

The Amended Notice of Appeal

36    The appellant sought further to amend his grounds of appeal. Proposed grounds 1 and 2 were not raised before the Federal Circuit Court but the Minister did not oppose the appellant’s application for leave to rely on those grounds. Proposed ground 3 was also not raised before the Federal Circuit Court and notice of it was given as recently as 27 October 2015. Ground 3 had not been the subject of written submissions. However, each party indicated that they were in a position to deal with that ground. In that respect, an affidavit was also read on behalf of the Minister exhibiting the transcript of the hearing before the Tribunal.

37    By draft Amended Notice of Appeal dated 27 October 2015 the appellant relied on the following grounds:

1.    The Federal Circuit Court made an error in failing to find that the decision of the Second Respondent was affected by jurisdictional error in that the Tribunal failed to consider a claim advanced by the Appellant.

Particulars

The Tribunal failed to consider the Appellant’s claim that he would be at a greater risk of serious harm, in the form of abduction by the CID in Sri Lanka, than he was before he left Sri Lanka, because of his age.

2.    The Federal Circuit Court made an error in failing to find that the decision of the Second Respondent was affected by jurisdictional error in that the Tribunal’s decision was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

Particulars

The Tribunal, at [47] of its decision record (AB 356) made a critical finding of fact that was adverse to the Appellant’s claims, that the CID, despite it being accepted that it had, and would continue, to threaten to abduct the Appellant, had no intention to detain or harm the Appellant. This finding of fact was not open to be made by the Tribunal in that it was contrary to the evidence, and not based upon probative material.

3.    The Federal Circuit Court made an error in failing to find that the decision of the Second Respondent was affected by jurisdictional error in that the Tribunal failed to comply with s 425 of the Migration Act 1958.

Particulars

The Tribunal found that the Appellant on return to Sri Lanka will be ‘arrested at the airport and brought before a court to apply for bail’: [61].

The Tribunal found that ‘bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety’: [61].

The Tribunal concluded that it was not satisfied that ‘the treatment afforded returnees for departing Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when they are later dealt with by the courts, can reasonably be seen as constituting ‘serious harm’ to the [appellant], and systematic and discriminatory conduct’: [61], thereby implicitly concluding or assuming that the Appellant, or a family member, or someone else, would be able and willing to provide the surety required for the Appellant’s bail. It was on that basis that the Tribunal considered it unnecessary to give consideration to, and make a finding, as to whether the Appellant would suffer serious harm, or significant harm, on remand awaiting a final hearing.

The issues arising in relation to the decision under review therefore included whether the Appellant or his family or someone else would be able and willing to provide the surety required for the Appellant’s bail so as to cause him to be released from prison prior to a final hearing. This issue was not a live issue before the First Respondent’s delegate, and was not raised by the Tribunal at its hearing on 24 April 2013.

The Tribunal’s conclusion or assumption that the Appellant or his family or someone else would be able and willing to provide the surety required for the Appellant’s bail was ‘adverse’ to the Appellant and was ‘not obviously … open on the known material’: SZBEL v Minister for Immigration and Citizenship [2006] HCA 63; (2006) 228 CLR 152, [29], citing Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 591-592.

The Tribunal did not give the Appellant ‘the opportunity of ascertaining’ that issue or the opportunity ‘to be informed of the nature and content of adverse material’ in relation to that issue: SZBEL v Minister for Immigration and Citizenship [2006] HCA 63; (2006) 228 CLR 152, [32].

The issue of whether a family member would provide surety for the Appellant was a ‘crucial link’ in the Tribunal’s chain of reasoning, which the Tribunal had to identify to the Appellant in order to comply with s.425(1): Minister for Immigration v SZTQS [2015] FCA 1069, [60].

38    In addressing these grounds, it is well-settled that the Court should not be “concerned with looseness in the language … nor with unhappy phrasing of the reasons of an administrative decision-maker. The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.” As Brennan CJ, Toohey, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272, these propositions from Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; 43 FCR 280 at 287, recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. Of course, it does not follow that any ambiguity in approach or reasoning has to be resolved in the decision-maker’s favour: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [190]. It was recognised in Wu Shan Liang itself, at 271, that: “The words used by the delegate must be analysed to establish what they say as to the thought process in fact applied by the delegate to the determination of refugee status.” In our opinion, the Court must give the Tribunal’s reasons a fair reading, in context, and attention must be given to the substance of the Tribunal’s reasons for decision.

Ground 1

39    The appellant submitted that the Tribunal failed to consider the appellant’s claim, expressly advanced by him, that he had a well-founded fear of persecution arising from the risk of abduction by the CID that would be a greater risk than that which he faced prior to coming to Australia, because of his age. The appellant submitted that the Tribunal gave no consideration to the question of whether the appellant would be at increased risk of abduction due to his coming of age. The appellant submitted the extent of the Tribunal’s findings in relation to this claim was at [51]: “I consider that situation will continue unchanged despite the [appellant] no longer being a child.” The appellant submitted no reasoning, consideration or intellectual process was apparent from the Tribunal’s brief rejection of this aspect of the appellant’s claim. The appellant submitted there was inconsistency between what the Tribunal said at [51] and what it said at [48] in relation to the evidence of the appellant’s father.

40    The Minister submitted that the appellant’s assertion that his abduction would become more likely as he got older was not a different or distinct claim from the one that he had already made (that he was at risk of abduction) but merely an elaboration on the likelihood that such abduction would occur once he reached a certain age. There was no separate claim to consider. The Tribunal concluded that the appellant had not been, and was unlikely to be, in the reasonably foreseeable future, persecuted on the basis that he was a Tamil. It was implicit in that finding that abduction was not going to be more likely than abduction at some earlier stage given that the appellant was not going to be at risk more generally by reason of his Tamil ethnicity. The Tribunal addressed the claim that the appellant would be at risk on his return to Sri Lanka by reason of his imputed connection to the LTTE or as a member of a related social group. That could only have been a claim that the appellant was at risk of abduction because of such a connection. The Tribunal rejected that claim for a number of reasons, including that the officers did not have the intention to abduct the appellant. The only reason that the appellant could have been at increased risk of harm as he got older was because it was more likely that he would face harm by reason of his being a young Tamil man or someone with a perceived association with the LTTE. Both of those claims, the Minister submitted, were addressed by the Tribunal.

41    In our opinion, the correct analysis is that the appellant submitted to the Tribunal that he was more likely to be abducted once he was no longer a child. This was said by the appellant to be a reason discounting the fact that he had not, during his time in Sri Lanka, been abducted. The Tribunal considered this at [48] and [51]. The Tribunal reasoned that although it may once have been a reasonable explanation for non-abduction that the appellant was small, the appellant was now almost 19 years of age and not a child. The Tribunal’s overall conclusion, on this aspect of the matter, was that although the appellant’s mother had been subjected to extortion by certain officers from the CID, those officers’ threats in relation to the appellant were a bluff designed to elicit money from her. The Tribunal’s reasoning was that, in those circumstances, the situation would continue unchanged and that it was immaterial that the appellant was no longer a child.

42    In our opinion, no jurisdictional error on the part of the Tribunal, in this respect, has been made out and ground 1, considered by itself, fails.

Ground 2

43    The appellant submitted, with reference to WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 at [7] (per Lee J, dissenting in the result), that the Tribunal made a critical adverse finding of fact against the appellant by a course of reasoning that was illogical and contrary to the evidence. That finding of fact was that the CID officers had no intention to detain or harm the appellant. The appellant submitted that the Tribunal’s course of reasoning was illogical and contrary to the evidence because it failed to appreciate the unchallenged evidence of the appellant that his mother was being extorted for money, that the extorters threatened to abduct the appellant and that she paid the extorters because she did not know what they might otherwise do. The appellant submitted that, having regard to the Tribunal’s conclusion at [46] that the CID officers would continue to extort money from the appellant’s mother in relation to the appellant’s father’s alleged LTTE connections, it was not available to the Tribunal to find that the appellant was not actually at risk of abduction because the CID officers did not engage with him personally, did not question him directly and did not take up available opportunities to abduct him. Secondly, the appellant submitted that the Tribunal’s decision was not based on findings of fact supported by logical grounds in that, at [47], the Tribunal relied upon the absence of evidence that the CID officers had questioned the appellant directly, including about his own political opinions, but where the appellant did not claim that he was himself suspected of being an LTTE supporter.

44    In oral submissions, the appellant emphasised that the nature of extortion was that there was an absence of the carrying out of the harm feared because of the fact that protection money was being paid. The Tribunal, the appellant submitted, chose, at [47] and [51] of its reasons, to focus upon whether the act of abduction would occur and it found that the CID officers were not going to abduct the appellant because if they were going to abduct him they would have done it already. The appellant submitted that the CID officers would not have done so because they were extorting money. The finding as to non-abduction in the future was based on the fact that the appellant had not been abducted in the past.

45    The Minister submitted that neither of the matters complained of by the appellant could be said to be irrational in the required sense. As to the claim that it was impermissible for the Tribunal to find that the appellant was not at risk of abduction, the Tribunal found that the extortion did not entail a real chance of abduction because it was satisfied that the threat was a “bluff”. As to the appellant’s second argument, The Minister submitted that it misconstrued the Tribunal’s reasons.

46    In oral submissions, the Minister emphasised that whether or not the appellant’s fear was well-founded was an assessment for the Tribunal to make and, at [50], the Tribunal said it was satisfied that the corrupt officers did not intend to abduct the appellant before he left Sri Lanka. This was a question of fact and assessment for the Tribunal.

47    In supplementary written submissions filed by leave after the hearing of the appeal, the Minister submitted that where a Tribunal finds that extortion has occurred and the visa applicant has a subjective fear of that extortion, it is open to the Tribunal also to find that the fear is not well-founded because, objectively assessed, the underlying basis of the extortion is found not to exist. Put slightly differently, a visa applicant may genuinely believe a threat and genuinely fear that threat but the threat may not be something that, objectively, has a real chance of occurring. Such reasoning, the Minister submitted, was consistent with principle and was not illogical or irrational. The Minister referred to SZTFR v Minister for Immigration and Border Protection [2015] FCA 545, SZJHM v Minister for Immigration [2007] FMCA 1847 and SZATE v Minister for Immigration [2004] FMCA 532. He also referred to Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 for the proposition that a subjective fear must be objectively well-founded, that is, there must be an objective basis for the applicant’s fear. The Minister contended that it was not illogical that a person may genuinely fear harm from a threat (upon which extortion is based) and yet the Tribunal conclude that there is no real chance that the threat will be carried out. This would be rational on at least two bases: the extorters have no intention to carry out the threat if the money is not paid; and the money will continue to be paid (such payment not itself constituting harm to the applicant serious enough to be persecution). In the present case, the Minister submitted, the Tribunal relied upon both of these rational bases for its decision.

48    In the appellant’s supplementary written submissions in response, he submitted that it could not be said that the threat of his abduction by CID officers who, the Tribunal accepted, had asserted would abduct the appellant because of the father’s LTTE connections, was far-fetched, or remote or insubstantial. The threat to the appellant was sufficiently real to cause genuine fear in the appellant, at [50], and to motivate his mother to part with her money and to continue to do so, at [46]. In this case, it was a matter for the Tribunal to assess the likelihood of an abduction occurring in the circumstances advanced by the appellant. Specifically with respect to extortion claims, the appellant submitted, it was not inappropriate for the Tribunal to look to form a view as to the real motivation of the extorters: Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; 190 CLR 225, 284 (per Gummow J); Ram v Minister for Immigration and Ethnic Affairs [1995] FCA 1333; 57 FCR 565, 568 and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559, 574.

49    The appellant submitted that the Tribunal adopted the language of the real chance test in setting out its conclusions, at [51], but for reason of its illogical reasoning as to future events, the appellant submitted that the Tribunal failed to understand and apply properly the test in Chan.

50    The appellant accepted that in principle, and speaking generally, it was open for the Tribunal to accept that a person subjectively fears persecutory harm but also to find that that harm is not well-founded. However, the appellant did not assert illogicality in the abstract or as relating to the approach generally to be taken. Rather, the appellant’s contention was that the Tribunal’s decision was affected by jurisdictional error in light of the reasoning process exposed at [47] of the Tribunal’s reasons where the Tribunal set out why it was satisfied that the corrupt CID officers had no intention to abduct the appellant. The likely future action of the CID officers in question was adjudged on the basis of their “past conduct”. The rejection of the appellant’s claims was based on the Tribunal’s assessment of the likely behaviour of the corrupt officers, and not on the basis of other relevant information such as evidence that suggested that, unbeknownst to the appellant and his family, it was common for CID officers to target vulnerable families for the purposes of extortion, but that abduction seldom occurred; or evidence that the mother had, on one occasion or more, neglected to make the required payments to the CID and yet they did not carry through with their threat; or evidence that suggested that the Sri Lankan government was executing a crackdown on corrupt officers extorting money from people and engaging in illegal conduct.

51    The appellant submitted that cases involving extortion as a basis of the persecution that is feared were different from cases where the feared persecution did not involve extortion. The difference lay in the nature of the risk that a person faced. The authorities that related to extortion refugee cases were applicable and highlighted the error in the approach of the Tribunal in this case. Cases involving extortion formed a special class of case in which the actors whose actions are feared by the victim have a motivation to not engage in the feared conduct so long as money is paid to them. What this required was a consideration by the Tribunal of the particular circumstances surrounding the extortion. The Tribunal failed to address the factors necessarily arising from a scenario of extortion as they related to the risk of harm eventuating, and it was for this reason that the appellant submitted that the Tribunal’s reasoning was illogical or irrational.

52    In addition to the decisions referred to in the Minister’s supplementary submissions, the appellant referred to Perampalam v Minister for Immigration and Multicultural Affairs [1999] FCA 165; 84 FCR 274 and to Rajaratnam v Minister for Immigration and Multicultural Affairs [2000] FCA 1111; 62 ALD 73. The appellant submitted it was impermissible, and amounted to jurisdictional error, for the Tribunal to have rejected the appellant’s claims on the basis of an assessment of the likelihood that the feared abduction would take place, without having proper regard to the circumstances of the extortion. The family was targeted because they were Tamil, the appellant’s fear (which was found to be genuine) arose from the appellant’s membership of a particular social group (which the Tribunal found to exist, at [55]). Put another way, it was not a valid approach for the Tribunal to reject the appellant’s claim as it was of the view that the CID officers were “bluffing”, or were not interested in the appellant, primarily on the basis that the extorters were yet to carry out their threat.

53    The appellant submitted that SZTFR was distinguishable having regard to the fact that the Tribunal in the present matter accepted that the CID officers were taking money from the appellant’s mother, and it was accepted that they had threatened, and would continue to threaten, to abduct the appellant arising from his father’s LTTE connections. The appellant submitted that SZJHM was distinguishable as the claims to fear persecutory harm were rejected on the facts as not amounting to serious harm. SZATE, the appellant submitted, was not relevant as in that case the Tribunal rejected the applicant’s extortion claim on the basis that it was not Convention-related.

54    In our opinion, while we accept that there must be an objective basis for an applicant’s fear, as explained in Chan at 396 (per Dawson J), 406 (per Toohey J), at 412 (per Gaudron J) and 429 (per McHugh J), in the present case the Tribunal’s conclusion as to the lack of objective basis for the appellant’s fear was founded on the conclusion that the corrupt CID officers did not intend to detain or harm the appellant which in turn was founded on those officers having shown no interest in the appellant in the past: see the Tribunal’s reasons at [47].

55    We note that while there is no suggestion their conduct was authorised in that regard, the extortion demands were made by persons holding office as members of the CID in circumstances in which the Tribunal accepted, at [24], that corrupt officials may act with impunity to solicit bribes from persons fearful of drawing themselves to the attention of the security forces.

56    It is, in our view, illogical to found the conclusion that there was not an objective basis for the appellant’s fear on the absence of harm in the past, when the absence of harm was referable to the successful extortion of the payments, the payments being made to prevent the harm in question. The illogicality amounting to legal unreasonableness is that the past period of non-harm or non-interest in the appellant was co-extensive with the period when the appellant’s mother was acceding to the extortion by the payment of money.

57    We accept, of course, as explained by French CJ in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [30], that the requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.

58    Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 concerned the alleged irrationality or illogicality of the Tribunal rejecting corroborative evidence when it was convinced that a principal witness was fabricating a story, which was considered to be inherently implausible: see Gleeson CJ at [12] and McHugh and Gummow JJ at [49]. It was held that the determination by the Tribunal was not irrational or illogical as the appellant contended. Ground 2 of the present appeal does not involve irrationality or illogicality of that kind.

59    In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, the dispute concerned the adverse inferences which the Tribunal drew from its rejection of the account given by SZMDS of his personal history. The Tribunal rejected the claim of SZMDS to membership of a particular social group, being male homosexuals in Pakistan. The Tribunal concluded that SZMDS was not a homosexual and the primary judge held there were defects in the inferential reasoning to that conclusion which constituted jurisdictional error. This conclusion was, by majority, reversed: Heydon, Crennan and Bell JJ constituted the majority and Gummow A-CJ and Kiefel J dissented in the result. The majority held, at [78] and [131], that what was involved was an issue of jurisdictional fact upon which different minds might reach different conclusions. In this respect, Crennan and Bell JJ said, at [130]-[133]:

… 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. …

Was the Tribunal’s fact finding “illogical” or “irrational”?

Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal’s conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. …

However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. …

It is in this sense that we have addressed the question of illogicality and made the finding at [56] above.

60    It is not a matter of that species of reasonableness review which concentrates on the outcome of the exercise of power, but reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power: see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47].

61    We are of the view that while the appellant’s mother was the direct subject of extortion, the harm threatened in the absence of payment was to her son and the actual harm threatened by the corrupt CID officers, if the payments they were extorting were to cease, was that the appellant would be abducted. There is no suggestion that that would not amount to ‘serious harm’ within Article 1A(2) of the Refugees Convention. Nor in our view could it be in dispute that, to the extent it existed, the vulnerability of the appellant and his mother to that extortion arose because of their membership of a social group, that is, it arose because the corrupt CID officers had identified them as family members of a person who was or who had had suspected links to the LTTE. It is on this, factual, basis that we would distinguish the observations of Burchett J, with whom O’Loughlin and RD Nicholson JJ agreed, in Ram at 569G that extortionists are simply extracting money from a suitable victim. In this respect we refer also to Perampalam at [16], per Burchett and Lee JJ as follows:

The Tribunal cited Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565, where Burchett J said (at 569), in a judgment with which O’Loughlin and R D Nicholson JJ agreed:

“Plainly, extortionists are not implementing a policy; they are simply extracting money from a suitable victim. Their forays are disinterestedly individual.”

But this was in the context (as appears from the same judgment at 567) of an express finding by the Tribunal that “the applicant has not satisfied me that the extortion was anything other than a criminal act, or that he was targeted for any reason other than he was known to have money”. Here, the Tribunal’s finding is the opposite: it says “there is no doubt that the LTTE approaches Tamil[s] for funding”. The additional fact that the particular Tamils approached are chosen “because of their perceived wealth” is no more legally relevant than the fact (in Paramananthan) that the security forces targeted, among Tamils, young males from Jaffna who might be thought more likely to be guerillas. Extortion directed at those members of a particular race from whom something might be extorted cannot be excluded from the concept of persecution within the Convention, and Ram does not suggest it can. On the evidence, it was plainly open to the Tribunal to conclude that the fanatical combatants in the LTTE saw it as the obligation of every Tamil to make sacrifices, willingly or by coercion, for Tamil Eelam. No doubt, it was for this reason the finding was made “that the LTTE approaches Tamil[s] for funding”. A motivation of this kind is sufficient for the purposes of the Convention. The words “persecuted for reasons of” look to the motives and attitudes of the persecutors (see Ram at 569), and if the LTTE practices extortion, with violence and threats of violence, against Tamils, the government being unable to provide protection, because the LTTE holds that Tamils must be coerced into supporting it, the terms of the Convention are satisfied.

This passage was also cited with approval by Finn and Dowsett JJ in Rajaratnam at [42], their Honours going on to say, at [46]:

… In the usual case of extortion the extorting party will be acting for a self-interested reason (ie to gain an advantage for himself or herself, or for another). In this sense, his or her interest in the person extorted can always be said to be personal. What needs to be recognised, though, is that the reason why the extorting party has that interest may or may not have foundation in a convention reason. The extorted party may have been chosen specifically as the target of extortion for a convention reason, or may have become the subject of extortion because of the known susceptibility of a vulnerable social group to which he or she belongs, that social group being identified by a convention criterion. Or, conversely, the person may have been selected simply because of his or her perceived personal capacity to provide the particular advantage sought and for no other reason or purpose.

62    In our opinion, this illogicality amounting to legal unreasonableness affects the conclusion of the Tribunal in relation to both the Convention-based claim and the claim for complementary protection.

63    Although the Tribunal expressly held that the corrupt officers’ threats towards the appellant were a bluff designed to elicit money from his mother, that conclusion is infected by the same reasoning process which we have found to be illogical at [56] above. So also, in our opinion, is the Tribunal’s conclusion at [51] that in the absence of any claim that the appellant’s mother proposed to stop making payments, the situation would continue unchanged despite the appellant no longer being a child.

64    For these reasons, in this respect jurisdictional error on the part of the Tribunal is made out and ground 2 succeeds.

Ground 3

65    The appellant submitted that the nub of this ground was a failure to comply with s 425 based on the analysis of that provision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 and on the recent decision in Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069. The appellant submitted that the reasoning of the Tribunal in the present case was almost identical to the reasoning of the Tribunal in SZTQS. In the present case, the other way in which the appellant put his claim was that he would be at risk in returning to Sri Lanka because he would be a failed asylum seeker. This would be a particular social group claim. The relevant passage of the Tribunal’s decision was at [61], which we have set out at [34] above. The appellant focused on the following sentence in [61]:

Bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety.

66    The appellant submitted the Tribunal thereafter did not give any consideration to the prospect or to the chance that the appellant would be confined to prison for a prolonged period if bail was not granted to him. If the Court accepted on principle that the question of whether a family member would be able to provide surety was a dispositive issue, if the point was not squarely raised with the appellant at the Tribunal hearing, then the Court was left in a situation of needing to pick actual findings or available inferences from a decision record where the issue was not a live one. There was no consideration by the Tribunal of financial capacity even on the question of whether the mother would be able to continue to pay the protection money. The appellant submitted that if the issue had been raised and procedural fairness had been afforded, then it was possible that the appellant might have said something about the surety issue. The issue of the family members’ capacity, and also inclination, to provide a surety should have been raised. Because the point was not raised, the Tribunal deprived the appellant of considering another claim, that is, the claim of the prolonged detention in the Sri Lankan prison while awaiting a final hearing: that consideration would have been dealt with had the point been raised. The appellant could not have anticipated this particular point being put against him, that is, that he would get bail and would avoid a prolonged period in detention, because that was not advanced by him as part of his fear of persecution.

67    The Minister submitted that the issue as to the appellant’s fear amounting to a claim for complementary protection for harm from his imprisonment in Negombo Prison was something which he claimed for the first time in the Tribunal, and was not a claim that he made before the delegate. It was a new claim in the Tribunal. SZBEL did not say that a claimant was entitled to assume that all their new claims were going to be accepted. Where a person made a new claim, it was naturally in issue and the claimant should present their full case in relation to any new claims made for the first time in the Tribunal. Here, the Minister submitted, the appellant made a new claim in the Tribunal; he had to put his full case; and SZBEL was not engaged at all. The Minister put, in the alternative, that the Tribunal did put specifically to him the issue as to what was likely to happen upon the appellant’s return in relation to the prison and, although not mentioning bail, did say words to the effect that the appellant would not have a problem on his return and he would be able to go home and that would have been enough to put the fear of harm in Negombo Prison in issue. In the further alternative, the Minister submitted that the information relating to bail was country information covered by s 424A(3)(a) and there was not an obligation to put to the appellant information pertaining to an issue which was already before the Tribunal and not a new issue.

68    In relation to SZBEL, the Minister also submitted that it was decided before s 424AA was enacted. That section provided that if an applicant was appearing before the Tribunal because of an invitation under s 425, the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review and, if the Tribunal did so, the Tribunal must, amongst other things, ensure, as far as was reasonably practicable, that the applicant understood why the information was relevant to the review, and the consequences of the information being relied on in affirming the decision that was under review.

69    The Minister also submitted that the issue of bail was not a crucial plank as it was in SZTQS because the appellant said he would be in detention for some days and that was not disputed. What was disputed was whether or not that would constitute serious harm or significant harm. Whether or not the appellant knew about bail, he did not refer to it. The present case was distinguishable from SZTQS, the Minister submitted, as here the appellant made claims about being “detained for days or more on return to Sri Lanka” and the Tribunal’s approach was to determine whether that amounted to serious harm or significant harm and so, to that extent, the question of bail was not a crucial plank in the reasoning.

70    Under s 424A, the Minister was not obliged to disclose that information and s 425 should not pick up the matters that were exempted from s 424A. In this respect, the Minister referred to Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162; 163 FCR 285 at [87]-[88], as follows:

The applicant submits that the following passage from SZBEL [at [47]] encapsulates his complaint regarding the RRT’s failure to comply with s 425:

But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

The short answer to the applicant’s submission based upon SZBEL is that s 425 does not require the RRT to identify the significance of the questions that it puts to a claimant or the ultimate matter or issue to which those questions go. That is not what is required by SZBEL, and is an attempt to import the requirements of s 424A(1) into s 425.

(Original emphasis. Citations omitted.)

While accepting that the decision was not on all fours with the present case, the Minister submitted that if the Parliament had exempted an area from having to be addressed under s 424A, that exemption should not be undermined by implying some kind of an analogous issue identification process under s 425.

71    The Minister also submitted that a surety meant as a guarantor and it did not mean putting up money.

72    The Minister further submitted that what the Tribunal recounted in [57] of its reasons as to what the Tribunal had put to the appellant was a sufficient particularisation of the issue, the issue being what would happen to the appellant upon his return and whether or not he would be allowed to go home.

73    In reply, the appellant submitted there was some difficulty in expecting an applicant before a Tribunal to anticipate precisely the way that the Tribunal member was going to deal with a particular claim by simply putting the issue in broad terms. In the present case, the Tribunal was addressing a claim that was initially advanced, a risk of harm arising from return to Sri Lanka as a person who had left Sri Lanka illegally, and in not putting to the appellant during the hearing the issue about the bail procedure, an additional claim that arose on the face of the materials was not made apparent to the appellant. The way that the Tribunal dealt with the issue must have caught the appellant by surprise as it was not his claim as such that was the basis of it being rejected. For the first time, on reading the decision record, the appellant would have realised that some procedural issue with the obtaining of bail was raised and an assumption was being made that a family member would provide surety (or be guarantor). The Tribunal needed to turn its mind to whether an extended period of stay in the Sri Lankan prison if bail was not granted might be significant harm. The appellant submitted that SZTQS did not avoid the need for the Court to look carefully at SZBEL and to how issues were raised in the course of the review and then to consider whether there was a dispositive issue and whether the appellant had an opportunity to deal with it.

74    In SZTQS, Griffiths J dismissed an appeal by the Minister from the Federal Circuit Court, which had found jurisdictional error in a case where the Tribunal had concluded that a visa applicant would, on return to Sri Lanka, be granted bail in respect of a charge of illegal emigration, because a member of that applicant’s family would provide surety for him. The jurisdictional error found by the Federal Circuit Court lay in the Tribunal’s failure to identify to the visa applicant the issue as to the likelihood that he would be granted bail on the basis of a surety provided by a family member and to invite him to comment upon that before the Tribunal made its decision.

75    At a general level of abstraction, there is a similarity between SZTQS and the present case, as is revealed by the Tribunal’s finding, at [61] that: “Bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety.” Here, too, the Tribunal did not put to the appellant prior to making its decision an issue as to whether a family member would provide surety in respect of a term of any bail which he might be granted after return to Sri Lanka.

76    In our opinion, however, SZTQS does not stand for a high-level proposition that every reference to a family member being required to provide surety involves a breach of s 425(1) of the Act.

77    SZTQS is but an application, on particular facts, of a feature of the review jurisdiction exercised by the Tribunal under the Act, described in SZBEL. It is not necessary to consider whether or not SZTQS was correctly decided. Rather, the pertinent feature highlighted by SZBEL is that, in each instance, the Tribunal exercises a review jurisdiction in respect of a particular decision in respect of which the Minister (or a delegate) will have given particular reasons. In our opinion, SZTQS was, of necessity, fact specific.

78    In SZTQS, part of the background circumstances was that SZTQS had, before he left Sri Lanka, been taken to the police station and, two days later, to the local courthouse where his mother paid bail money for his release. By reason, in part, of those events and by reason of his ethnicity as a Tamil, SZTQS feared that he would be arrested again. SZTQS had also given a statutory declaration that he had an outstanding hearing for a charge of trying to leave Sri Lanka illegally and without permission.

79    However, on the facts of the present case, we would not accept that it was critical to the Tribunal’s finding, that the appellant could apply for bail and that bail was routinely given, that a family member was required to provide surety and that therefore it was plainly an issue for the Tribunal that the appellant’s family would be able to provide surety for him as a determinative factor in the mind of the Tribunal. It is to be recalled that what is, and what is not, an issue for the purposes of s 425(1) of the Act may be affected by what matters the Tribunal considers may be important to its decision: SZBEL at [47]. There is no such indication in the reasons of the Tribunal.

80    We also note that in SZTQS it appears to have been assumed by the Federal Circuit Court that providing surety involved the payment of money. This may have been because of the earlier history that SZTQS’ mother had paid bail money for his release from a cell in a police station: see [78] above. In our opinion, no such assumption should be made in the present appeal.

81    While the passage complained of in [61] of the Tribunal’s reasons was country information which was not required to be drawn to the attention of the appellant by reason of s 424A(3)(a), that is, it was information not specifically about the appellant or another person and was just about a class of persons of which the appellant or other person was a member, we need not rely upon that provision as a basis for our conclusion in respect of this ground. In the specific facts of this case, the Minister’s delegate, whose decision adverse to the appellant had been the subject of review by the Tribunal, had extensively set out the country information, which the Tribunal summarised at [61], and the delegate’s findings, including that country information, had been responded to by extensive written submissions to the Tribunal on the appellant’s behalf. Whatever the effect of s 424A(3)(a) might be in other circumstances, in this instance we discern no breach of the rules of procedural fairness because the appellant was informed of, and had the opportunity to respond to, that material.

82    For these reasons, we reject ground 3.

Conclusion and orders

83    The appeal should be allowed, with costs, and the application remitted to the Tribunal for determination according to law. Because the grounds argued in this Court were new, the costs order, order 3, made by the Federal Circuit Court on 19 June 2015 should not be disturbed.

84    In conclusion, we note that in the transcript of the hearing in the Tribunal which was tendered by the Minister, the Tribunal member said, in closing the hearing, that if the Tribunal member found that the appellant was not a refugee and was not entitled to complementary protection the member would recommend to the Minister that the appellant be able to stay in Australia anyway, that is, the Tribunal would recommend to the Minister that the appellant be allowed to stay in Australia for other, humanitarian, reasons. We were not told whether such a recommendation was in fact made or what the outcome, if any, of any such recommendation had been.

Associate:

Dated:    9 December 2015