FEDERAL COURT OF AUSTRALIA

SZSRU v Minister for Immigration and Border Protection [2014] FCA 1252

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

1    Under the Migration Act 1958 (Cth) (“the Act”), after considering a valid application for a visa, the Minister must grant the visa if he is satisfied that certain criteria have been met. If he is not, he must refuse to grant the visa (s 65). But an application for a visa is not a valid application under the Act if it is made by an unlawful non-citizen who entered Australia by sea without a visa (s 46A(1)). On the other hand, if the Minister thinks that it is in the public interest to do so, he may determine that s 46A(1) does not apply to an application by a person for a specified class of visa.

2    The appellant is an ethnic Tamil and a Sri Lankan national. He hails from a village in the district of Batticaloa in the Eastern Province of the country. He claims to have fled Sri Lanka in fear of political persecution at the hands of the Tamil People’s Liberation Party (“TMVP”). He arrived at Christmas Island by boat and without a visa or a passport. Three months after his arrival, the appellant was advised that the then Minister had exercised his powers under s 46A(2) to permit him to lodge an application for a protection visa and he did so the same day.

3    The primary criteria for the grant of a protection visa are contained in s 36 of the Act. One criterion is that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (together, “the Convention”). Protection obligations under the Convention are owed to refugees. I shall refer to this criterion as “the refugee criterion”. Article 1A(2) of the Convention relevantly defines a refugee as a person who has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside his country of nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of the country. A person has a well-founded fear of persecution if there is a real chance of persecution; the chance need not be greater than 50 per cent: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (“Chan”) at 389 (Mason CJ), 398 (Dawson J), 429 (McHugh J). Section 91R of the Act, however, excludes the application of art 1A(2) of the Convention in certain circumstances which relevantly include where the persecution does not involve serious harm to the person (as defined in the section) and systematic and discriminatory conduct.

4    An alternative criterion is that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because he has substantial grounds for believing that, as a necessary and foreseeable consequence of his or her removal from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm (defined in s 36(2A)). I shall refer to this criterion as “the complementary protection criterion”.

The appellant’s claims

5    In a statutory declaration attached to his visa application the appellant said that he was afraid to return to Sri Lanka. He gave a lengthy account of his reasons. The following is a necessarily brief summary of that account.

6    The appellant began by saying that his father had been detained and severely beaten by the Sri Lankan police who had suspected him of being involved with the Liberation Tigers of Tamil Eelam (“LTTE”). He said he was “personally affected” because the LTTE had a policy of taking a child from each family. In 2002 he said he moved from his family home to an army-controlled area, as his family feared he would be captured by the LTTE. He continued his studies during this time. In 2008, however, he began part-time tuition at the Sri Lanka Institute of Advanced Technological Education (“SLIATE”) in Manjanthoduwai, which I gather is in or near Batticaloa. He claimed to have been the secretary of the student union there when, in April 2010, during general elections in Batticaloa, he was summoned along with the president and treasurer of the student union by 10 members of the TMVP to engage in propaganda on behalf of the party. The appellant said that, although he did not want to be involved, he agreed to the TMVP request because he thought that if he did not cooperate, “the students would face difficulties”. He also asserted that a similar request was made by another party, the People’s Liberation Organisation of Tamil Eelam (“PLOTE”) and that the students assisted both parties until the police warned them to stop campaigning. But the appellant claimed that he resumed campaigning for the TMVP after he was threatened by members of that group.

7    Neither the TMVP nor the PLOTE won the election. Two days after the results were announced, the appellant alleged that two TMVP men came to his house, put a gun to his head and told him to accompany them to their office. He said he followed their motorbike on his pushbike, but en route, dropped his bike and ran off to a friend’s house. He said he heard from his mother that the men had come back looking for him, forcing their way into the house. He claimed that he then went into hiding but returned to his family home in May 2011. Soon afterwards, however, he said that four TMVP people abducted and assaulted him. He claimed that later the TMVP ordered him to hold a protest against the college in Manjanthoduwai so that the students would move to a TMVP-built college in Arayampathy. After the TMVP ordered him to attend another protest in January 2012, he said he escaped and, when he learned that the TMVP were angry and had come looking for him on or around 20 March 2012, he decided to leave the country.

8    The appellant said that he feared being harmed or killed if he were to return to Sri Lanka and that, if he did return, he would continually be forced to participate in protests or propaganda. He said that he feared the TMVP, other paramilitary groups and the police. He said he feared the authorities because of his forced involvement in propaganda and protests and that he could not seek the protection of the authorities because he was a Tamil.

9    Before the Refugee Review Tribunal (“the tribunal”), the appellant submitted that, as a person who had come to the adverse attention of the TMVP, he would face harm from party members on account of his imputed political opinions in opposition to them. He also claimed that the Sri Lankan government imputes to Tamils and failed asylum seekers a political opinion as supporters of the LTTE and that he was at risk of torture on that account.

10    He provided documentation to support his claims including a letter purportedly from the Academic Coordinator of the Advanced Technological Institute Section of SLIATE in Batticaloa corroborating his claim to have been the secretary of the student union from 2009 to 2011.

The processing of the appellant’s claim

11    A delegate of the Minister decided that the appellant’s claims were implausible and refused his application. The appellant sought a review of that decision in the tribunal but the tribunal affirmed the delegate’s decision. The appellant then applied to the Federal Circuit Court for judicial review but the Circuit Court dismissed his application. This is an appeal from that decision.

The tribunal’s decision

12    The tribunal accepted that the appellant was a Sri Lankan national and an ethnic Tamil and also that he was a student in Batticaloa and a member of the student union. The tribunal also accepted that the appellant may have participated in pro-TMVP protests under pressure, that the TMVP is prepared to use violence to achieve its aims and that its targets are other Tamils whom it perceives to be its opponents. Moreover, the tribunal accepted that he had left Sri Lanka illegally and that there are penalties (including imprisonment for up to five years) under Sri Lankan law for doing so. But the tribunal was not satisfied that he was secretary of his college student union, that he was a target of TMVP violence, pressure or threats after the TMVP lost the election in 2010, or that he had gone into hiding. The tribunal found he was of “no ongoing adverse interest to the TMVP” at the time he left Sri Lanka. It also rejected the appellant’s claim that he would be imputed with a political opinion as an LTTE supporter. It found that the appellant had never been imputed with LTTE links in the past and, indeed, had a record of assisting a party in Batticaloa that targeted ex-supporters of the LTTE.

13    The tribunal accepted the possibility that failed Tamil asylum seekers or single male Tamil failed asylum seekers who left Sri Lanka unlawfully are particular social groups within the meaning of the Convention, but found that there was a remote chance that the appellant would be persecuted by reason of his membership of either of those groups.

14    The tribunal also accepted that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there was a real risk that the appellant would be imprisoned for up to three nights and that the circumstances of his detention would likely be disturbing and very unpleasant. But it was not satisfied that this would amount to significant harm within the meaning of the Act.

15    Accordingly, the tribunal was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under the Refugees Convention or otherwise.

The application in the Federal Circuit Court

16    In the Federal Circuit Court the appellant, who then had legal representation, contended that the tribunal had committed jurisdictional error in four respects:

(1)    by failing to deal with his claim that, as his father had been suspected of LTTE links, there was a risk that links to the LTTE might be imputed to the appellant;

(2)    by failing to consider whether there was a real risk of significant harm in the foreseeable future as a result of his father’s imputed support for the LTTE;

(3)    by applying a balance of probabilities test (rather than a real chance of harm test) to determine his claim to fear harm as a member of “particular social groups”, without properly evaluating the evidence; and

(4)    by failing to consider whether the appellant’s father’s suspected links to the LTTE would be imputed to the appellant and by focussing on the likely outcome of possible detention and interrogation on return to Sri Lanka, rather than on the process of interrogation and the risk the appellant might suffer serious harm.

17    The primary judge rejected each of these contentions.

18    With respect to the first, the primary judge held that, on a fair reading of the appellant’s statutory declaration, he did not claim to fear harm because of his father’s suspected involvement with the LTTE. Nor, his Honour said, was an unarticulated claim to this effect clearly raised by the material before the tribunal. In this context he referred to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (“NABE”) at [57]–[58], [60], [62], [63].

19    As to the second, the primary judge found that the tribunal had made factual findings, in the context of the refugee criterion, rejecting the appellant’s claim that he would be imputed with a political opinion because of his father’s imputed political support for the LTTE. In these circumstances, his Honour held that the tribunal did not fall into error by failing to expressly reconsider, in the context of the complementary protection criterion, the risk of harm to the appellant because of his father’s imputed political support for the LTTE. In this context, the primary judge referred to SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26; [2013] FCAFC 125 (“SZSHK”) at [31]–[33]. Noting that the tribunal had set out the correct test, his Honour held that there was nothing to suggest that the tribunal had misunderstood or misapplied the standard of risk in relation to the complementary protection criteria. The primary judge also rejected the appellant’s submission that the “real risk” test under the complementary protection criterion was different from the “real chance” test under the refugee criterion, referring to Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505.

20    In relation to the third ground, the primary judge held that there was nothing to suggest that the tribunal had applied a balance of probabilities test.

21    Finally, in relation to the fourth ground, the primary judge held that, contrary to the appellant’s claim, the tribunal did address the question of whether the appellant would be suspected of LTTE involvement because of his father’s suspected links with the LTTE.

22    His Honour also considered SZQPA v Minister for Immigration and Citizenship [2012] FMCA 123, upon which the appellant relied, and the unsuccessful appeal: Minister for Immigration and Citizenship v SZQPA (2012) 133 ALD 292; [2012] FCA 1025 (“SZQPA”). In SZQPA, Gilmour J upheld the decision of the Federal Magistrates Court (as the Federal Circuit Court was then known) that, in assessing a claim to fear harm as a returnee to Sri Lanka, the independent merits reviewer erred in focussing on the likely outcome of the appellant’s possible detention and interrogation, rather than considering whether protection obligations could result from the process of detention and interrogation itself.

23    The primary judge distinguished SZQPA on the facts.

24    On its face, the findings in relation to the first and fourth grounds are inconsistent. The reason for the inconsistency seems to be the result of his Honour’s exclusive focus on the appellant’s statutory declaration for the purposes of considering the first ground. This was an error. As I observe below, however, nothing turns on the error.

The issues on the appeal

25    The notice of appeal included three grounds, pleaded as follows (without alteration):

(1)    His Honour committed jurisdictional error when he failed to find that the Tribunal failed to deal with all the claims made by the Appellant.

(2)    His Honour committed jurisdictional error in failing to find that the Tribunal erred in its assessment of findings whether the Appellant would suffer harm owing to his membership of a particular social group when it proceeded to make a finding in applying the wrong test on the balance of probabilities in respect of the evidence.

(3)    His Honour committed a jurisdictional error in distinguishing the authority SZQPA in making his own factual assumption based on the Appellant’s father’s current circumstances in Sri Lanka.

26    With the leave of the Court at the beginning of the hearing of the appeal a fourth ground was added:

(4)    The RRT has applied the wrong test pursuant to section 91R(2)(a) of the Migration Act 1958 (Cth) and or asked itself the wrong question.

Particulars

a)    By undertaking a qualitative assessment of the nature and degree of the harm experienced by the Appellant when being questioned and investigated by the authorities at the airport, the Tribunal failed to apply the test of serious harm pursuant to section 91R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protection & Another [2014] FCA 947 at [30] and [45].

27    The pleading reflects a misunderstanding of the nature of the Court’s jurisdiction in an appeal from the Federal Circuit Court. The appeal is brought under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). The appeal is in the nature of a rehearing, where error must be shown, but the error need not be jurisdictional. It is in the Circuit Court where questions of jurisdictional error arise. That is because that court’s jurisdiction to review a migration decision is limited by the terms of s 476 of the Migration Act to review for jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. In these circumstances the issues arising on the appeal are:

(1)    whether the primary judge was wrong to hold that the tribunal did not fail to deal with all the claims made by the appellant;

(2)    whether the primary judge erred in holding that the tribunal did not apply the wrong standard of proof;

(3)    whether the primary judge made a factual assumption based on the appellant’s father’s current circumstances and thereby erred in distinguishing SZQPA; and

(4)    whether the tribunal applied the wrong test for serious harm under s 91R(2)(a) and thereby fell into jurisdictional error.

Was the primary judge wrong to hold that the tribunal did not fail to deal with all the appellant’s claims?

28    The appellant contended that the tribunal erred by failing to consider in the context of the complementary protection criterion his claim to fear harm as an individual who might be imputed with links to the LTTE because of his father’s imputed LTTE links. He also contended that the tribunal erred by failing to consider his claim that he was at risk of harm as a person who might be imputed with links to the LTTE because of his involvement with the TMVP. Both these contentions must be rejected.

29    As the primary judge observed (at [91]), the tribunal’s obligation was to consider all the appellant’s claims, whether or not expressly articulated, provided they clearly arose from the material before it. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the material. The relevant principles are set out in the Full Court’s decision in NABE at [58]:

The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293–294 (Wilcox and Madgwick JJ) … It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

30    In SZSHK at [37] the Full Court said it was relevant to deciding whether a claim clearly arises from the material before the tribunal that the claimant is represented by professional advisers who have articulated the case which is alleged not to have been dealt with by the tribunal. The Full Court rejected a submission that merely because material is put as giving rise to a claim on Refugees Convention grounds it necessarily follows that that claim is required to be considered as a claim for complementary protection also.

31    In his statutory declaration the appellant referred to his father’s suspected involvement with the LTTE in para 6:

WHY I LEFT THAT COUNTRY, INCLUDING DETAILS OF PRIOR HARM

…

6. My father was detained for being suspected of being involved with the LTTE. He was beaten by the Sri Lankan police so severely that he lost sense in half of his body.

32    This was the only reference in the statutory declaration to the appellant’s father being imputed with links to the LTTE. The appellant did not suggest that he himself might also be imputed with LTTE links, whether because of his father’s imputed political opinion or for any other reason. The statutory declaration focused on the risk of harm to the appellant due to his claimed involvement in political activities for, and subsequently, non-cooperation with, the TMVP.

33    At [48]–[51] of the statutory declaration, the appellant stated:

WHO I THINK WILL HARM / MISTREAT ME IF I WAS FORCED TO RETURN TO THAT COUNTRY

48. I fear the TMVP, other paramilitary groups in Sri Lanka, and the police.

WHY I THINK I WILL BE HARMED / MISTREATED IF I RETURN TO THAT COUNTRY

49. I will be harmed by the TMVP as they have often searched for me and forced me to participate in propaganda and protests for the TMVP and the government. If I do not obey their orders I will be detained and beaten. The TMVP also carry weapons and I am afraid I will be killed.

50. I will also be harmed by the authorities because I am involved with propaganda and protests forced upon me by the TMVP. I will face further persecution because I am a Tamil.

WHY I THINK THE COUNTRY’S AUTHORITIES WILL NOT PROTECT ME IF I AM FORCED TO GO BACK THERE

51. The authorities of Sri Lanka cannot protect me against groups such as the TMVP. I fear the authorities and cannot seek their protection because I am Tamil.

34    The appellant did not claim in his statutory declaration that he would be at risk of harm as a person who would be imputed with LTTE links because his father had been imputed with LTTE links. Nor does it appear from the decision of the Minister’s delegate, that the appellant made an oral claim to this effect at his interview with the delegate.

35    I accept, however, that the appellant claimed before the tribunal that he was at risk of harm as a member of a particular social group (failed Tamil asylum seekers) in part because his father had been imputed as being an LTTE supporter. In written submissions to the tribunal, the appellant’s advisor stated (at [159] and [162]):

159    A search of the Applicant’s records will reveal that he is a young single Tamil from the Eastern province and could also reveal the identity of his father who was previously imputed as being an LTTE supporter. This will lead to an escalation in the severity of his treatment should he be returned to Sri Lanka as a failed asylum seeker.

…

162    The Applicant’s father’s history of being a suspected LTTE member, his profile as a young, single Tamil male who hails from the Eastern Province, the fact that his father was imputed as being an LTTE supporter, and the fact that he has sought asylum abroad, is sufficient to raise issues with the authorities.

36    These submissions were supplemented with country information indicating that there had been instances where Tamils returning to Sri Lanka were imputed with links to the LTTE and subjected to harm.

37    To the extent that the primary judge failed to consider the material in the submissions made to the tribunal for the purposes of applying the principle in NABE, he was in error. It follows that his Honour was in error when he held that the appellant had not made a claim to fear harm because of his father’s suspected involvement with the LTTE, which was the subject of the first ground of review. But, in the circumstances of this case, nothing turns on the error because the tribunal addressed the appellant’s claim at [173] and [175] of its reasons:

173    It has further been argued that the applicant, as a failed asylum seeker, will be imputed with a political opinion as an LTTE supporter … I accept that the applicant will be questioned. However I do not consider that he will be imputed with a political opinion as an LTTE supporter and harmed as a result. Despite his father being suspected of LTTE links many years ago, the applicant has never been suspected of supporting the LTTE or of opposing the government in any way, and indeed has a record of helping a party in Batticaloa that targets ex-supporters of the LTTE …

…

175    It has been argued that the applicant may face persecution because he is a “failed Tamil asylum seeker”. Additional risk factors were that he was a young single Tamil male from a former LTTE stronghold in the eastern province, his father had previously been imputed with support for the LTTE and the applicant had left Sri Lanka unlawfully. I have already found that he will not be imputed with support for the LTTE, and do not consider that a risk factor.

38    It is clear from the tribunal’s reasons that it was not satisfied that the appellant was at risk of being imputed with LTTE links, although his father had been targeted as an LTTE supporter. This finding was open to the tribunal.

39    It is true, as the appellant submitted, that the tribunal did not expressly consider, in the context of complementary protection, the risk that the appellant would be imputed with LTTE links because of his father’s imputed LTTE links. But the appellant did not claim that these circumstances gave rise to a real risk of significant harm. The appellant’s complementary protection claim before the tribunal focused on the potential consequences for him under Sri Lanka’s laws for having left Sri Lanka illegally.

40    In any event, I do not accept that the tribunal was required to consider, in the context of complementary protection, the risk that the appellant would be imputed with LTTE links because of his father’s imputed LTTE links. As the Full Court held in NABE at [55]:

Where the Tribunal fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act.

(Emphasis added.)

41    In this case, the tribunal (at [173] and [175]) had found that the appellant would not be imputed with LTTE links, even though his father had been imputed with such links. Thus, there were no established facts that might support a claim (if any) that the appellant faced a real risk of significant harm as an individual who might be imputed with LTTE links because his father had been imputed with such links. Moreover, a finding for the purposes of the refugee criterion that that a visa applicant has not been, or would not be, harmed may plainly be relevant to a claim for complementary protection based on fear of the same alleged harm: cf. SZSHK at [32]. The finding the tribunal made in considering the refugee claim to the effect that the appellant would not be imputed with a political opinion as an LTTE supporter and harmed as a result is decisive on this question.

42    As for the appellant’s submission that the tribunal did not consider the risk of harm to him as a person who might be imputed with LTTE links because of his past involvement with the TMVP, no such claim was expressly put (either orally or in writing) to either the delegate or the tribunal. Nor did such a claim arise squarely on any of the materials before the tribunal. The appellant’s claims about his past involvement with the TMVP, both before the delegate and the tribunal, focused on the harm that he feared would befall him because he had failed to cooperate with the TMVP.

43    Beyond his claim to fear persecution as a member of the particular social group of failed Tamil asylum seekers (which, as I have observed, was considered by the tribunal) the appellant did not suggest that he feared harm as a person who might be imputed with links to the LTTE, whether because of his father’s imputed political opinion, because of the appellant’s links to the TMVP, or for any other reason. Contrary to the appellant’s submissions, no such claim was expressly put and it does not arise on the materials before the tribunal.

44    The primary judge was therefore correct to conclude that the tribunal did not fail to consider all of the appellant’s claims.

Did the primary judge err in holding that the tribunal did not apply the wrong standard of proof?

45    The appellant submitted that the tribunal applied the balance of probabilities as the standard of proof when assessing the appellant’s claim to fear persecution by reason of his membership of a particular social group of failed Tamil asylum seekers. The submission was based on what the tribunal said at [176] of its decision record:

While it may be that failed Tamil asylum seekers or single male Tamil failed asylum seekers who left Sri Lanka unlawfully are particular social groups in Convention terms, and while I accept with concern the evidence UNHCR (2012) that there is limited or no monitoring of returnees to Sri Lanka after they have returned to their home towns, there is too little reliable evidence that individuals are persecuted because of their membership of either particular social group to enable me to be satisfied that they are. In the present case, the chance is remote that the applicant will be persecuted for reason of his membership of either of the above particular social groups.

(Emphasis added.)

46    The argument was that the tribunal’s statement that it had “too little reliable evidence that individuals are persecuted” demonstrated that it had failed to ask itself the question: “What if I am wrong?”. Asking this question was said to be required by the decisions in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (“Guo”), Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 (“Rajalingam”).

47    The appellant relied on the reasons of Kirby J in Wu Shan Liang at 293:

[T]he decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question: “What if I am wrong”? Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems “likely” or “entitled to greater weight”, the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a “real chance” of persecution.

(Footnotes omitted.)

48    In Rajalingam, Sackville J (with whom North J agreed) held at [63]:

Although the “What if I am wrong?” terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a “well-founded fear of being persecuted” for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute “an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found”.

49    For the following reasons, I reject the appellant’s submission that the tribunal applied the wrong standard of proof at [176] of its reasons.

50    I do not read the tribunal’s statement that “there is too little reliable evidence that individuals are persecuted” as indicating that the tribunal believed that it needed to be satisfied, on the balance of probabilities, that the appellant would be persecuted. It is true that, in making that particular finding, the tribunal did not use the language of chance. But the tribunal’s reasons must be read in context. The reasons “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”: Wu Shan Liang at 272.

51    In Wu Shan Liang the High Court held that the Full Court had erred in deciding that the use by the primary decision-makers of phrases such as “give greater weight to” indicated that the balance of probabilities test had been applied instead of the real chance test. Brennan CJ, Toohey, McHugh and Gummow JJ said at 280 that it was difficult to understand why a statement ascribing weight to particular material concerning the treatment of nationals of the People’s Republic of China (the appellants’ country of nationality) previously returned in similar circumstances necessarily indicated that the delegate was assessing the risk of persecution upon the balance of probabilities. Their Honours continued at 280–2:

Too long a leap is required to conclude that the delegates were, in fact, applying a balance of probabilities criterion when the proper role of a reviewing court is taken into account. This is so for several reasons. First, the correct criterion appears at least twice within each set of reasons. Second, the term “balance of probabilities” nowhere appears within the reasons. Third, the inference which was drawn from the use of the term “give greater weight to” is not valid … Fourth, the attribution of weight to material going towards the determination of refugee status is mandated in the very case from which the test applied by the delegates was derived.

…

When it is remembered that the decisions for the delegates involved a question of “satisfaction” as to refugee status, the term “give greater weight to” appears even more innocuous. When it is a question of personal satisfaction, there can be nothing wrong with the attribution of weight. In that context, the attribution of weight may indicate no more than that some material has assisted the decision-maker more than other material in the ascertainment of whether the requisite satisfaction has been reached … In other words, the material provided by the respondents did not go very far towards satisfying the delegate that there was a real chance of persecution, because it was contradicted by more relevant material.

52    Here, too, the tribunal identified the correct standard of proof at [13]. Here, too, the term “balance of probabilities” does not appear in the reasons. At [176] the tribunal applied the correct test when it found that there was but a “remote chance” that the appellant would be persecuted by reason of his membership of the particular social group of failed Tamil asylum seekers or single male failed Tamil asylum seekers. “Remote” in this context is the antonym of “real”. In reaching the requisite state of satisfaction, the tribunal was entitled, if not bound, to consider whether the material upon which the appellant’s case was based was reliable. Nothing the tribunal said at [176] or, for that matter, anywhere else in its reasons indicates that it applied the wrong test for determining whether there was a real chance that the appellant would be persecuted for a Convention reason.

53    I also reject the proposition that the tribunal erred by failing to ask itself: “What if I am wrong?”. Although the appellant’s submissions in this respect were far from clear, I took him to be saying that there might be alternative explanations for the absence of reliable evidence of persecution – that individuals were not in fact persecuted or that returnees to Sri Lanka were not monitored – and that the tribunal had not asked itself whether the appellant might be persecuted despite the lack of reliable evidence. The problem with such an argument is that the tribunal can only be expected to make a decision on the evidence before it. As the plurality held in Guo at 572:

[N]o fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

54    I do not understand the decisions in Wu Shan Liang or Rajalingam to require a different approach.

55    In this case, the tribunal was not satisfied, on the evidence before it, that there was a real chance that the appellant would be persecuted as a member of the particular social group of failed Tamil asylum seekers or single male failed Tamil asylum seekers. Such a finding was open to the tribunal.

56    The primary judge did not err in concluding that the tribunal applied the correct standard of proof.

Did the primary judge err by making a factual assumption and so wrongly distinguish SZQPA?

57    At [130]–[132] the primary judge said this:

130    The basis of the applicant’s claim is that he will be imputed as an LTTE sympathiser on the basis that his father was suspected of having links to the LTTE, but at the hearing before the Tribunal on 12 December 2012, in respect of which the Tribunal records the following at [85] of its Decision Record:

85    In oral evidence the applicant said that his parents and sister were still living at [address] Batticaloa, the address at which they had been living before he left Sri Lanka. His sister was currently working in Batticaloa. His father had previously worked as a goldsmith but had recently got a job working as a security guard for a non-government organisation. (CB 294)

131    As the applicant’s claim that he was suspected of having links or an association with the LTTE because of his father’s alleged links to that organisation, the evidence given by the applicant in the hearing does not appear to be consistent with this overall claim. His father appears to have obtained a responsible occupation for a non-government organisation which would not appear to be compatible with an allegation that he had links with the LTTE organisation that is being pursued by the Sri (scil.) Lankan authorities.

132    Further, I agree with the submissions made by Mr Pinder that the matter before this Court can be distinguished from the two decisions in SZQPA. Accordingly, this ground cannot be sustained and should be dismissed.

(Emphasis added.)

58    The assumption is said to have been made in the passage emphasised above at [131].

59    In SZQPA, it will be recalled, the independent merits reviewer was found to have erred by failing to consider a claim by the applicant that he would fear persecution because upon his return to Sri Lanka he would be subject to a process of questioning as someone suspected of supporting or having an association with the LTTE. Gilmour J explained in his judgment on the appeal at [39]:

It is plain enough in context that the [applicant] was describing his fear, were he to return to Sri Lanka, of being questioned as someone suspected of supporting or having an association with the LTTE, a fear emanating from the accepted facts of the killing of two of his brothers and the detention and disappearance of another two of his brothers all at the hands of the Sri Lankan Army; his actual assistance given to the LTTE which would be known to the authorities; his coming from an area once under the control of the LTTE; the recent detention and interrogation of his son who was asked as to his whereabouts; and the established practice of torture and ill-treatment of those merely suspected of an involvement with the LTTE.

60    At [60], his Honour expressed his agreement with the Federal Magistrates Court’s reasons at [33]:

That paragraph [[45] of the Reviewer’s reasons] only related to the general process of interviewing returning asylum seekers and stated that those suspected of having involvement with the LTTE would be taken away for further questioning. The applicant had been involved with the LTTE (albeit at a low level although the involvement of the applicant’s four brothers who have been killed or presumed killed by the Sri Lankan authorities would increase the applicant’s risk profile) and could therefore expect to be interrogated by the Sri Lankan police so that the authorities could satisfy themselves that, unlike his four brothers, the applicant did not represent a security risk. The applicant might well be able to persuade the authorities that he did not represent a risk, but the Reviewer needed to consider what might happen prior to that point being reached. [Emphasis added [by Gilmour J].]

61    SZQPA must be understood in its particular factual context. As the Minister submitted, SZQPA does not establish a general proposition that decision-makers are required in every case to determine whether an applicant for a protection visa might be harmed in the process of questioning: cf. WZAQR v Minister for Immigration and Border Protection (2013) 138 ALD 17; [2013] FCAFC 122 at [28]. In SZQPA the relevant factual context was that the applicant had claimed that he would be subjected to persecution during questioning by Sri Lankan authorities on his return. The relevant factual context also included, as Gilmour J noted at [61], that there was no room for doubt, on the facts accepted by the independent merits reviewer, that on arrival in Sri Lanka the applicant would assume a risk profile as a person suspected of having links with the LTTE.

62    In the present case, the factual context is quite different. In contrast with SZQPA, there is real doubt about whether the appellant claimed to fear harm during the process of questioning by Sri Lankan authorities on his return. But assuming that such a claim can be said to have been made, the tribunal (at [173] and [175]) addressed this claim. The tribunal accepted that the appellant would be questioned, but did not consider that he would be imputed with a political opinion as an LTTE supporter and harmed as a result. SZQPA is therefore distinguishable.

63    As for the primary judge’s statement that “[the appellant’s] father appears to have obtained a responsible occupation for a non-government organisation which would not appear to be compatible with an allegation that he had links with the LTTE organisation that is being pursued by the Sri (scil.) Lankan authorities”, I do not accept the appellant’s submission that this was “the basis” upon which the primary judge distinguished SZQPA. In my view, even accepting that it can be characterised as a “factual assumption”, the statement was gratuitous and had no bearing on the ultimate outcome. I therefore reject this ground of appeal.

Did the tribunal apply the wrong test for serious harm under s 91R(2)(a) and thereby fall into jurisdictional error?

64    The appellant relied on WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (“WZAPN”) to support this ground. In WZAPN, North J held (at [30]) that “serious harm in s 91R(1)(b) is constituted by a threat to life or liberty, without reference to the severity of the consequences to life or liberty”. His Honour found (at [45]) that the reviewer had erred in applying s 91R(2)(a) of the Act “[b]y making a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant”.

65    In this case, the appellant contended that the tribunal erred by “undertaking a qualitative assessment of the nature and degree of the harm experienced by the Appellant when being questioned and investigated by the authorities at the airport”. The tribunal was said to have erred in this respect at [177]–[178] of its reasons. The contention is misconceived.

66    Section 91R of the Act relevantly provides:

(1)    For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)    that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)    the persecution involves serious harm to the person; and

(c)    the persecution involves systematic and discriminatory conduct.

(2)    Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)    a significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)    significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(3)    …

(Original emphasis.)

67    At [177]–[178] the tribunal member wrote:

177    I also accept, given the evidence on the department’s file that he arrived in Australia by boat, and without a passport, that he left Sri Lanka illegally. I accept the evidence from DFAT (2012) and Doherty & Hall (2012) that there are official penalties under the Immigration and Emigration Act of 1948 for this.

178    Section 45 A to G of the I&E Act deals with penalties for offences under the Act. A prison sentence from 1 to 5 years and a fine of 50,000 LKR to 200,000 LKR can be applicable for individuals who have left the country illegally. According to DFAT in October 2012, in reality this penalty was seldom enforced. If the authorities consider the person has unknowingly been duped into joining a people smuggling venture, they are not fined or charged. However there is evidence from December 2012 (Doherty & Hall 2012) that some deportees, both Tamil and Sinhalese, who left Sri Lanka illegally were detained for three nights in Negombo prison before being bailed. While I accept that many more have been returned to Sri Lanka without such treatment being reported, on the basis of the December 2012 report I accept the applicant may be detained in cramped and unpleasant circumstances for up to 3 nights before being released on bail. However if the applicant were to be detained for this period and under these circumstances, I am not satisfied that the treatment would involve systematic and discriminatory conduct as required by [s 91R(1)(c)] of the Migration Act. I find it would not constitute persecution for the purposes of the Convention.

    (Emphasis added.)

68    In other words, the tribunal accepted that the appellant might be detained for illegally leaving Sri Lanka, but it was not satisfied that such treatment would involve systematic and discriminatory conduct as required by s 91R(1)(c) of the Act. It was for this reason that the tribunal rejected the appellant’s claim that the prospective detention would amount to persecution. But this finding did not involve a qualitative assessment of the significance of the harm the appellant might suffer for the purpose of determining whether the persecution he feared involved serious harm to the person for the purposes of s 91R(1)(b). The tribunal was addressing a different question: the question raised by s 91R(1)(c). The reasoning in WZAPN was confined to s 91R(1)(b). It follows that WZAPN has no bearing on the present case.

69    The effect of s 91R is that the refugee criterion is not made out unless the decision-maker is satisfied of all the conditions set out in paras (a)–(c) of subs (1). As the tribunal here was not satisfied that the treatment would involve systematic and discriminatory conduct as required by s 91R(1)(c), it was not required to consider whether the treatment would also involve serious harm within the meaning of s 91R(1)(b).

70    I therefore reject this ground of appeal.

Conclusion

71    None of the grounds of appeal has been made out. The appeal must therefore be dismissed. There is no reason why costs should not follow the event. There will be orders accordingly.

Associate:

Dated:    21 November 2014