FEDERAL COURT OF AUSTRALIA

SZTFR v Minister for Immigration and Border Protection [2015] FCA 545

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal in the amount of $10,000.

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

REASONS FOR JUDGMENT

1    The appellant is a citizen of Sri Lanka who arrived in Australia as an irregular maritime arrival on 17 May 2012. He applied for a Protection (Class XA) visa on 27 August 2012. The appellant claims to fear persecution because he left the country illegally and says that, as a young Tamil, he will be suspected by the authorities as a member of the Liberation Tigers of Tamil Eelam (LTTE). He appeals from a decision of the Federal Circuit Court (SZTFR v Minister for Immigration & Anor [2014] FCCA 1897 per Cameron J) to dismiss an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 8 August 2013, which upheld the refusal of a Protection visa by a delegate of the Minister for Immigration and Citizenship (now known as the Minister for Immigration and Border Protection) (the Minister). The Tribunal was not satisfied that the appellant is a person to whom Australia has protection obligations under The Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees done at New York 1967 (Convention) or s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).

The decision of the Federal Circuit Court

2    In the Federal Circuit Court, the appellant pressed two grounds of his application:

1.    (not pressed).

2.    The Tribunal committed jurisdictional error in it assessment of whether the applicant was in need to complementary protection as the Tribunal has failed to consider the complimentary protection of the Applicant and / or in the alternative the Tribunal has conflated the complementary protection assessment and thereby committed jurisdictional error.

                    Particulars

The Tribunal accepted that there had been instances of extortion from the father. The Tribunal refers to standard material at (RRT Decision pp 17 - 18 at [83]-[86]) but fails to specify or give reasons how it reached decision (at RRT decision p15 at [69]).

3.    The Tribunal committed jurisdictional error in its assessment of whether the applicant’s application and the decision is affected by illogicality and / or irrationality or affected by Wednesbury unreasonableness.

                    Particulars

The Tribunal accepted that there had been instances of extortion from the father. The Tribunal erred in its assessment of the real chance of persecution the Applicant’s claim of possibility of being harmed (RRT decision p9 at [42]); the Tribunal erred and in assessment of “well-founded fear” when it rejected the claim as “speculative” even serious claims such as possible murder of the Applicant (such assessment is irrational to the extent the Tribunal such incident to have occurred before the Tribunal could make such an assessment).

(errors in the original)

3    As to ground 2, Cameron J observed (at [10]) that the appellant did not allege in the Tribunal that the factual circumstances, which were the basis of his claim to be entitled to protection under the Convention, also engaged Australia’s complementary protection obligations under s 36(2)(aa) of the Act. Rather, his Honour said (at [13]), the claim to complementary protection obligations concerned the risk of significant harm which the appellant was said to face because of his illegal departure as an asylum seeker.

4    Judge Cameron said that as the appellant was professionally represented in the Tribunal, the Tribunal did not need to consider a claim not made to it and was entitled to assume that the claims that the appellant wished to make were the ones expressly articulated by him and his advisers. Accordingly, his Honour stated (at [17]), as none of the complementary protection claims which the appellant said the Tribunal failed to consider had been articulated to it by him or his advisers, the Tribunal did not err by not considering them.

5    As to ground 3, his Honour recorded the appellant’s submission that the Tribunal’s conclusion, that his claims to face a risk of harm at the hands of the paramilitary groups were speculative, was illogical, irrational and unreasonable. This was said to be because the evidence showed that his family had a profile which made it vulnerable and the Tribunal had assumed that the payment of a bribe would solve any problems he might face, notwithstanding that there was no evidence that he could afford to pay such a bribe.

6    Judge Cameron did not accept the appellant’s characterisation of the Tribunal’s conclusions, as set out at [42] of the Tribunal’s reasons. His Honour also said that a conclusion of speculation was available to the Tribunal where certain events had not happened in the past and there was said to be a likelihood that they would occur in the future.

7    His Honour dismissed the application, finding that the Tribunal decision was not affected by jurisdictional error.

The Tribunal’s reasoning

8    The appellant has attacked the Tribunal’s reasoning. It is therefore necessary to understand that reasoning as set out in the Tribunal’s consideration of the appellant’s claims which, relevantly and in summary, is as follows:

    It has widely been reported that during the civil war in Sri Lanka, the LTTE forcibly recruited young Tamil men in their areas of control, although some were able to pay off the LTTE to avoid this.

    A rival party, Tamil Makkal Viduthalai Puligal (TMVP), took over many of the LTTE’s tax networks and businessmen were forced to pay both militant groups, including for abductions.

    The appellant claimed that by virtue of being a wealthy Tamil businessman, his father had to pay paramilitary groups on five occasions between 2004 and 2012 in order to spare his sons from being forcibly recruited. However, the Tribunal was not satisfied of the truth of this claim for reasons that the Tribunal gave, including the power shifts in the province in which he lived and his different statements as to the party which made the demands.

    Nonetheless, the Tribunal did accept that the appellant’s father may have paid the LTTE in 2004 to avoid his eldest son from being recruited.

    Further, it was likely that as the father was a wealthy businessman, he would have had to pay taxes to the LTTE and later to one or both of the TMVP factions.

    The Tribunal was not satisfied that the paramilitary came to recruit his second brother in 2009, nor himself in June 2011 and March 2012. The appellant said that he did not witness the two incidents and provided no details of what transpired.

    Independent material made no mention of continued forcible recruitment after the end of the civil war in 2009. The Tribunal accepted that one of the groups or a criminal gang may have approached the appellant’s father for money but not that this was trade off or alternative to the appellant’s or his brother’s forced recruitment into a paramilitary group as claimed.

    The Tribunal said that it found it “incongruous” that if paramilitary groups wanted to extract ransom money from the appellant’s father, they would not target vulnerable members of his family. The appellant’s explanation when this was put to him was non responsive and contradicted earlier evidence.

    The Tribunal said that it found it “implausible” that paramilitary groups only came to make threats by night, while the appellant’s father was able to operate the business during the day without problem, and noted that the appellant’s evidence was inconsistent with the independent evidence that the groups operated with the knowledge of security forces and during the day.

    The Tribunal accepted that the appellant’s father may have had to pay money to Tamil paramilitary or criminal groups in 2011 and 2012 but found that this was not linked to attempts by them forcibly to recruit the appellant.

    The Tribunal did not accept that the appellant would be forced to join one of the paramilitary groups because his father cannot afford to pay for him if he returns to Sri Lanka now or in the reasonably foreseeable future.

9    The Tribunal’s conclusion was (at [32]):

In light of the above, I am not satisfied of the truth of significant aspects of the applicant’s circumstances in Sri Lanka prior to his departure. I am not satisfied that the applicant was threatened with or experienced treatment amounting to serious harm as contemplated by sections 91R(1)(b) or 91R(2) of the Act, for a Convention reason, or to significant harm as contemplated by section 36(2A) of the Act, before leaving Sri Lanka for Australia. Nor am I satisfied that his profile in Sri Lanka, before, coming to Australia, gives rise to a real chance of serious harm for a Convention reason in the reasonably foreseeable future.

10    The Tribunal formed the view that, as the appellant said that no one in his family was involved in politics, being a Tamil does not in itself result in a need for protection under the Convention. The Tribunal noted that the appellant did not indicate that he or any of his family members had come to harm in connection with their Tamil ethnicity and that his father had been successful in business. The Tribunal rejected the appellant’s assertion that because he is a young Tamil, it will be presumed that he might join an unspecified “paramilitary”. The Tribunal concluded that the evidence did not support the appellant’s claims to face future harm in connection with his Tamil ethnicity or in connection with being a Tamil from the East of Sri Lanka.

11    The Tribunal also considered and rejected the claim that, because the appellant is a young Tamil by ethnicity, he will be imputed with a political opinion linked to the LTTE and opposed to the Sri Lankan authorities.

12    In considering the particular social group of wealthy Tamils from the East, the Tribunal reiterated its acceptance that as a wealthy Tamil businessman, the appellant’s father may have faced extortion attempts. In this section of the reasons, the Tribunal stated that it had accepted that the appellant’s father faced those attempts in 2011 and 2012 and that these may have taken place with the complicity of the authorities. However, the Tribunal reiterated that it did not accept that the extortion was linked to a threat of forced recruitment of the appellant.

13    The Tribunal then said that it had regard to the submission that the appellant will be at risk of being harmed by armed groups seeking to use him in order to extort money from his wealthy father, which could include forcible recruitment, abduction and the possibility of being killed. The Tribunal considered this speculative and without basis in the appellant’s experience in Sri Lanka before he left that country. The Tribunal accepted that the appellant might have to pay money or taxes to paramilitary groups or criminals if he returned and worked in the family business but said that this does not amount to harm for a Convention reason or significant harm.

14    The Tribunal then turned to the question whether, having departed Sri Lanka illegally and sought asylum in Australia, the appellant faces a real chance of serious harm in Sri Lanka as a member of the particular social group of failed Tamil asylum seekers who are at risk of being seen by the authorities as potential LTTE supporters or “foot soldiers” for the pro-LTTE diaspora. The Tribunal gave detailed consideration to independent information, noting that the appellant did not make any comments of his own when the issue was discussed at the hearing. The Tribunal accepted that the appellant would go through a process of screening and questioning which would bring him into contact with the Sri Lankan authorities. However, the Tribunal said that on balance, on the evidence before it, it was not satisfied that he would be imputed with a political opinion linked to the LTTE or that he would be subject to differential treatment amounting to serious or significant harm, whether at the airport or on return home. Further, the Tribunal was not satisfied on the evidence that there is a real chance that he will face persecution or suffer serious harm because of his unsuccessful application for asylum, either singularly or cumulatively.

15    Finally, the Tribunal considered whether the appellant would face Convention linked serious harm in Sri Lanka in the reasonably foreseeable future in connection with his illegal departure from Sri Lanka. The information recorded by the Tribunal was that returnees are routinely interviewed on their return under standardised procedures, regardless of ethnicity or circumstances. Under recent procedures, returnees believed to have left in breach of laws on immigration and emigration are arrested at the airport and brought before a court to apply for bail, which is routinely given. If the arrival occurs over a weekend or on a public holiday, the returnee is placed in remand where conditions are overcrowded, but there have not been reports that such persons are subjected to torture or other forms of deliberate mistreatment. The Tribunal was not satisfied that Sri Lanka’s laws regarding unlawful departure are applied or enforced in a discriminatory way for a Convention reason, or that returnees who have departed unlawfully face persecution involving serious harm or a real chance of such harm in the reasonably foreseeable future.

16    The Tribunal’s conclusion was that it did not accept that the appellant had a well-founded fear of persecution for reasons of Tamil ethnicity, his actual or imputed political opinion including being a perceived member/sympathiser/supporter of the LTTE, or his membership of the group of failed asylum seekers and/or a family member of a wealthy Tamil businessmen from the East.

The amended notice of appeal

17    I made an order pursuant to r 4.12 Federal Court Rules 2011 (Cth) (the Rules). Subsequently, I granted leave to the appellant to file an amended notice of appeal. The grounds of appeal now pressed are:

1.    The Court below erred in failing to find that the decision of the second respondent (Tribunal) was illogical or irrational, or legally unreasonable, and thereby affected by jurisdictional error.

2.    The Court below erred in failing to find that the Tribunal failed to consider an integer of the Appellant’s “failed Tamil asylum seeker” claim, and thereby fell into jurisdictional error.

PARTICULARS

a.    The Appellant’s “failed Tamil asylum seeker” claim had, as one integer of the claim, that even if the Sri Lankan authorities, on his return, did not impute a pro-LTTE opinion to him, it was still necessary for the Tribunal to consider whether the process of questioning by the authorities the Appellant would undergo on arrival in Sri Lanka would itself expose the Appellant to a real chance of serious harm.

b.    The Tribunal failed to consider this integer of the Appellant’s claim.

3.    The Court below erred in failing to find that the Tribunal misconstrued or misapplied s 91R of the Migration Act 1958 (Cth) or asked itself the wrong question in respect of s 91R, in dealing with the Appellant’s claim concerning his illegal departure from Sri Lanka, and thereby fell into jurisdictional error.

PARTICULARS

a.    The Tribunal misconstrued or misapplied s 91R(1)(b) and s 91R(2)(a):

i.    The Tribunal found, at [57] that returnees, such as the Appellant, who are found to have left Sri Lanka illegally are arrested at the airport before being brought before a court to apply for bail, and that the remand (in detention) following arrest could be for “some days” if the arrest occurs over a weekend or public holiday;

ii.    The Tribunal said that conditions in remand have been described as “overcrowded”, but that there had not been reports that returnees held there awaiting bail hearings were subjected to “torture or other forms of deliberate mistreatment”;

iii.    The Tribunal was not satisfied that the “treatment” faced by returnees on whilst on remand amounted to persecution involving “serious harm”. In making such a finding, the Tribunal failed to apply the correct test for serious harm in s 91R(1)(b), required by s 91R(2)(a), because the Tribunal engaged in a qualitative assessment of the detention, and

b.    The Tribunal’s finding, at [59] that it was not satisfied that the Sri Lankan laws regarding unlawful departure were enforced in a discriminatory way for a Convention reason could not amount to a finding that s 91R(1)(a) and/or s 91R(1)(c) were not satisfied because:

i.    The Tribunal had earlier (at [48]) referred to, and not rejected, country information that the Sri Lankan authorities are alerted to returnees who were failed asylum seekers and they are subjected to “special questioning” on their return; and

ii.    In any event, before the Tribunal could find that s 91R(1)(a) or s 91(1)(c) were not satisfied, it was necessary for the Tribunal to consider whether the non-discriminatory application of a law of general application may result in discriminatory treatment or impact the Appellant in a way that amounted to persecution for a Convention reason, and also whether the law is appropriate and adapted to achieving a legitimate object of the state.

(errors in the original)

18    Grounds 2 and 3 were not raised in the Federal Circuit Court. In that Court, the appellant was not represented. The Minister does not object to the appellant being given leave to rely upon the draft amended notice of appeal. In my view, it is expedient in the interests of justice to grant leave to rely on those grounds (VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [46], per Kiefel, Weinberg and Stone JJ). The grounds warrant consideration and there is no real prejudice to the Minister in permitting them to be argued.

Ground 1: Was the Tribunal decision illogical or irrational, or legally unreasonable?

19    In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, Gummow and Hayne JJ said (at [38]) that a decision will be infected by jurisdictional error if it is ‘irrational, illogical and not based on findings or inferences of fact supported by logical grounds’, even if the decision was made in good faith.

20    In WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74, Lee and Moore JJ said ( at [22]):

A determination based on illogical or irrational findings or inferences of fact will be shown to be a decision not supported by reason and to have no better foundation than an arbitrary selection of a result. It is because it is based upon such findings that the determination is an unreasoned decision. Such findings or inferences of fact become part of, and are not distinguishable from, the decision subject to judicial review. (See: S20/2002 per McHugh, Gummow JJ at [54]; Bond per Mason CJ at 338, 359-360). A review culminating in such a decision would be a process lacking practical fairness or justice and would not be a process conducted according to law.

21    In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ also confirmed that illogicality and irrationality could amount to jurisdictional error. Their Honours said (at [131] and [135]):

[131]    What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

[135]    … Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…

22    Their Honours said (at [130]) that the Court should be ‘slow, although not unwilling, to interfere in an appropriate case’.

23    In SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 at [15], Rares J observed that:

The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error.

24    Justice McKerracher, agreeing with Rares J, stated further that ‘illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision’ (SZOOR at [85]).

25    The appellant summarises the Tribunal reasons relevantly for this ground, as follows:

(a)    The appellant had claimed he had been the target, in 2011 and 2012, of a threat of abduction and ransom demands (as well as forced recruitment) by paramilitary groups if his father did not pay the group a ransom.

(b)    The Tribunal accepted, as “reliable”, country information which supported the proposition that wealthy Tamil businessmen are targeted for extortion, and that country information itself referred to abductions for ransom.

(c)    The Tribunal accepted, on the basis of that country information, that the appellant and his father may have faced “extortion” attempts in 2011 and 2012. I note that, in contrast, the Tribunal did not accept that the paramilitary groups tried to or threatened to forcibly recruit the appellant.

(d)    The Tribunal then rejected the appellant’s claim that he was at risk of being harmed, which could include “abduction”, by armed groups seeking to “extort” money from his father. The basis for that rejection (at [31] of the Tribunal decision) was that such a claim was ‘speculative and without basis in light of the [appellant’s] experience in Sri Lanka before he left that country’.

26    The appellant submits that once the Tribunal accepted that Tamil businessmen were subject to extortion, involving abduction for ransom, and that the appellant and his father may have been subjected to such extortion by paramilitary groups in 2011 and 2012, the Tribunal’s finding that the fear of such harm in the future was speculative and without basis was illogical. The appellant says that the Tribunal gave no reasons why it considered fear of that type of harm in the future to be speculative when it contradicted the findings made by the Tribunal as to his past experience.

27    The appellant submits that because of that contradiction the Tribunal decision was affected by such illogicality or irrationality as to amount to jurisdictional error. He also submits that the Federal Circuit Court Judge mischaracterised the evidence and was of the view that the Tribunal had found that certain events had not happened in the past.

28    The appellant also submits that the same contradiction leads to a finding of legal unreasonableness, in that it lacks an evident and intelligible justification and that it is not possible to comprehend how the decision was arrived at (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68], per Hayne, Kiefel and Bell JJ).

29    The Minister points out that the appellant had submitted to the Tribunal that he would be at risk of harm from armed groups seeking to use him to extort money from his father, which would include forcible recruitment, abduction and the possibility of being killed. The Minister acknowledges that the Tribunal did accept that criminal gangs may have approached the appellant’s father in 2011 and 2012, but also points out that it found that this was not related to forced recruitment of the appellant’s older brother.

30    The Minister contends that the appellant’s asserted chain of reasoning is flawed and ignores the Tribunal’s unambiguous rejection of the evidence that the appellant was ever the subject of attempts to extort money from his father. The Minister emphasises that the Tribunal found that it was the appellant’s father who was at risk of extortion attempts and not the appellant. Accordingly, the Minister submits, the suggestion that the appellant would be harmed by armed groups ‘seeking to use him’ in order to extort money can be rejected as ‘without basis in the appellant’s experience’. The Minister draws the distinction between the Tribunal’s finding that the appellant’s father may be at risk from criminal gangs and a finding that the Tribunal did not make, that the appellant would be at risk by reason of such possible threats. He submits that the Tribunal did not accept the “central narrative” about the appellant’s claimed role in extortion threats.

31    The Minister submits that the Tribunal balanced and distinguished fairly finely drawn intellectual categories in order to accept one claim and reject the other. Further, he says, even if one were to accept the appellant’s characterisation of the reasons, the alleged error only constituted one rational pathway that the Tribunal could have taken.

32    In respect of the appellant’s submission that the Tribunal decision was unreasonable, the Minister says that it was clearly within the Tribunal’s ‘decisional freedom’ (Li per French CJ at [28]), if the reasoning of Li applies to the present case, and that the Tribunal decision does have an intelligible basis.

Consideration

33    It is necessary to characterise the appellant’s claims as made to the Tribunal. The Tribunal summarised the claims under the following headings:

    Paramilitary claims on the appellant’s family under threat of recruitment of the appellant.

    Tamil ethnicity and origins in the Eastern province of Sri Lanka.

    Particular social group - wealthy Tamil from the East.

    Particular social group – failed asylum seeker.

    Illegal departure.

34    There was no separate claim to the consequence of demands from paramilitary organisations without the alternative of recruitment. The description of the appellant’s claims in the Tribunal’s reasons was that he will be forced to join one of the military groups because his father cannot afford to pay for him. This places into context the comments of the Tribunal (at [30] and [31]) as to payment of money by the appellant’s father:

[30]    I have found above that while the applicant’s father may have had to pay money to Tamil paramilitary or criminal groups in 2011 and 2012, this was not linked to attempts by them to forcibly recruit the applicant; and his father was not given the option of paying money or surrendering the applicant to the group. In light of these findings, I do not accept that the applicant will be forced to join one of paramilitary groups because his father cannot afford to pay for him, as claimed, if he returns to Sri Lanka now or in the reasonably foreseeable future.

[31]    I have had regard to the adviser’s submission that the applicant will be at risk of being harmed by armed groups seeking to use him in order to extort money from his wealthy father, which could include facing forcible recruitment, abduction and the possibility of being killed. However, I consider this speculative and without basis in the applicant’s experience in Sri Lanka before he left the country”.

(emphasis added)

35    The Tribunal’s comments were in the context of claims and submissions that linked possible extortion and recruitment. Those claims and the link were rejected. The acceptance of possible payments by the appellant’s father unlinked to the possibility of recruitment of the appellant does not thereby render the Tribunal decision illogical or unreasonable. The Tribunal gave ample reasons for rejecting the claims to possible recruitment in 2011 and 2012, not least because the civil war concluded in 2009.

36    The Tribunal’s conclusions, in rejecting the appellant’s claims, were not illogical or irrational or unreasonable and Cameron J did not err in failing to find that the Tribunal decision was illogical or irrational, or legally unreasonable.

Ground 2: Did the Tribunal fail to consider an integer of the appellant’s ‘failed Tamil asylum seeker” claim?

37    The appellant claimed before the Tribunal that he faced a real chance of persecution if he returned to Sri Lanka by reason of his membership of a particular social group, defined as “failed asylum seekers” or “failed Tamil asylum seekers”. There were two aspects to the appellant’s claim:

    The appellant’s status as a failed Tamil asylum seeker would come to the attention of the Sri Lankan authorities on arrival and he would face a real chance of serious harm, such as detention and torture at the hands of those authorities, as they would impute to him a pro-LTTE opinion.

    Even if the appellant were not imputed with a pro-LTTE opinion and was released after being questioned on arrival, it was still necessary for the Tribunal to consider whether the process of questioning the appellant would undergo on arrival (during which the authorities would determine whether they considered the appellant to be an LTTE supporter) would expose the appellant to a risk of serious harm.

38    It can be accepted that failure to consider an integer of a claim, or to consider and respond to a clearly articulated argument is a constructive failure to exercise jurisdiction and amounts to jurisdictional error (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24], per Gummow and Callinan JJ, with whom Hayne J agreed at [95]). The appellant points to the Tribunal decision at [44]:

I have had regard to the submissions by the applicant’s adviser that, because he departed Sri Lanka illegally and sought asylum in Australia, the applicant faces a real chance of serious harm in Sri Lanka as a member of the particular social group of failed Tamil asylum seekers, who are at risk of being seen by the authorities as potential LTTE supporters or ‘foot soldiers’ for the pro-LTTE diaspora.

39    The appellant says that the Tribunal failed to mention the second integer and that its consideration of the claim based on his status as a failed Tamil asylum seeker is based only on its finding that he would not have a pro-LTTE opinion imputed to him.

40    The Tribunal’s consideration of this claim was primarily in the context of the submissions by the appellant’s advisor that linked his status as a failed asylum seeker with the risk of being seen by the authorities as a potential LTTE supporter or a “foot soldier” for the pro-LTTE diaspora. Notwithstanding the basis of the claim made and the fact that the Tribunal had rejected the underlying premise of a presumed link with the LTTE, the Tribunal also referred (at [46]) to the appellant’s return as a Tamil male who had unsuccessfully sought asylum in Australia. Referring to independent reports, the Tribunal stated ‘[t]he screening process is the same for all persons returning to Sri Lanka – whether voluntary or by escort. The process is not impacted by ethnicity’. It then gave details of further reports concerning this issue, which did not mention and were not, as cited, based on perceptions of affiliation. The Tribunal said (at [51] – [52]):

[51]    While I note the absence of systematic monitoring by the UNHCR of involuntary returnees to Sri Lanka and acknowledge that this places limits on transparency and accountability, I consider it highly speculative that this can be said to support the existence of a real chance of serious harm for a particular reason.

[52]    I accept that the applicant will, as a returnee to Sri Lanka, go through a process of screening and questioning which will bring him into contact with the Sri Lankan authorities. On balance, however, on the evidence before me, I am not satisfied that being a returned Tamil failed asylum seeker would impute him with a political opinion linked to the LTTE, including as a potential LTTE supporter or ‘foot soldiers’ for the pro-LTTE diaspora, or opposed to the Sri Lankan authorities; or give rise to differential treatment amounting to serious or significant harm, either at the airport in Sri Lanka or on the applicant’s return to his home, or at any point in the reasonably foreseeable future in Sri Lanka. This is particularly so for the applicant as the Tribunal has found he had no profile at the time of his departure from Sri Lanka.

41    The Tribunal then considered the consequences of illegal departure and said that, from country information, returnees are treated under standardised procedures which apply to all cases regardless of ethnicity or circumstances in which the person left the country. It considered the appellant’s claim that Tamils were discriminated against and treated differently to Sinhalese and was not satisfied that the laws regarding unlawful departure are applied or enforced in a discriminatory way for a Convention reason, or that the treatment of returnees amounts to persecution involving serious harm, or gives rise to a real chance of such harm in the reasonably foreseeable future.

42    The Tribunal’s reasons and conclusions were not limited to a consideration that included imputation of a pro-LTTE opinion. Rather, the Tribunal engaged with what might happen to the appellant on his return to Sri Lanka, including being interviewed and questioned by the Sri Lankan authorities. The Tribunal directly considered claims that the appellant would suffer harm as a returnee, with and without an imputed connection to the LTTE. This is not the same factual situation or context of claims considered by Gilmour J in Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025, on which the appellant relies.

43    The appellant has not made out ground 2 that Cameron J erred in establishing the Tribunal did not fail to consider an integer of his “failed asylum seeker” claim.

Ground 3: Did the Tribunal misconstrue or misapply s 91R of the Act?

44    Section 91R(1) provides:

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.

45    There are three elements which must be satisfied under s 91R(1) of the Act and they are cumulative. The application of s 91R(1)(b) is the subject of the decision in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (per North J). That case has been the subject of a successful application for special leave in the High Court. The question there raised has also been considered by the Full Court, which found that it was not correctly decided, to the extent that North J said that any deprivation of liberty must constitute serious harm for the purpose of the Convention (SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 at [152] ; SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 at [154] – [155]; BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41 at [149] – [150]). If the application of s 91R(1)(b) were the only matter to be considered under this ground, it may be appropriate to defer these reasons. However, the Minister submits that WZAPN does not determine this ground of appeal, as he submits that the appellant does not satisfy any of the necessary criteria.

46    The finding as to serious harm is the one relied on by the appellant to fall outside s 91R(1)(b) of the Act, for the reasons of North J in WZAPN. I will not consider s 91R(1)(b) and, for the purposes of these reasons, assume that the appellant satisfies that subsection. The question is whether ss 91R(1)(a) and 91R(1)(c) of the Act are also satisfied. The appellant contends that the Tribunal’s findings did not amount to independent findings of non-satisfaction of ss 91R(1)(a) and 91R(1)(c).

47    The appellant points to the following findings by the Tribunal:

    He left Sri Lanka illegally.

    Such returnees are arrested at the airport before being brought to court to apply for bail.

    The remand, in detention, could be for some days if the arrest occurred over the weekend or a public holiday.

    Conditions in remand have been described as “overcrowded” but there had not been reports of torture or other forms of mistreatment.

    Such detention in remand did not amount to serious harm.

    The Sri Lankan laws regarding unlawful departure were not applied or enforced in a discriminatory way for a Convention reason.

48    The Tribunal stated (at [56]) that the procedures in relation to “returnees” who unlawfully departed were ‘standardised procedures which apply to all cases, regardless of a person’s ethnicity or the circumstances in which they left the country’. The appellant submits that “returnees”, in [57] of the Tribunal decision, are “failed asylum seekers” as they are referred to as ‘those returnees believed to have left the country in breach of Sri Lanka’s laws on immigration and emigration’. As such, the appellant argues that the reference, in [56] of the Tribunal decision, to “returnees” was also a reference to failed asylum seekers. That is, the Tribunal was not addressing standardised procedures or laws which were applied to all returnees; rather, the procedures only applied to the appellant’s particular social group, which was known as failed asylum seekers.

49    The appellant says that when the Tribunal referred to information that standardised procedures were applied to all cases, it was again referring to “returnees”, that is, to all failed asylum seekers – a particular social group of which the appellant was a member and not to all people. Similarly, the appellant says, the Tribunal was referring to failed asylum seekers in its statements that the standardised procedures were applied regardless of ethnicity.

50    The appellant then submits that if, contrary to his submissions, the Tribunal’s reasoning can be understood as a conclusion that Sri Lanka’s laws concerning unlawful departure are laws of general application such that ss 91R(1)(a) and/or 91R(1)(c) were not satisfied, the Tribunal failed to ask the correct questions when reaching that conclusion.

51    The appellant submits that the Tribunal did not ask whether Sri Lanka’s laws regarding unlawful departure were applied in a way that resulted in discriminatory treatment. Further, he argues that the Tribunal did not ask whether Sri Lanka’s laws were appropriate and adapted to achieving a legitimate state objective. That is, the appellant submits that if the Tribunal’s reasoning is properly understood as a conclusion that the laws concerning unlawful departure are laws of general application, that conclusion was affected by jurisdictional error. The error is that, in reaching such a conclusion, the Tribunal asked itself the wrong question, by failing to ask the correct questions.

52    The appellant relies on Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387, where Gleeson CJ, Gummow and Kirby JJ explained (at [43]) that there is no general rule that a law of general application can never amount to persecution, and may be implemented or enforced in a discriminatory way. He also points to Erduran v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 150, where Gray J noted (at [28]) that the impact of a law of general application on a person possessing a Convention-related attribute can result in a real chance of persecution for a Convention reason. Further, in order to determine whether a law whose implementation has this result or impact amounts to persecution, it is necessary to determine whether the law is ‘appropriate and adapted to achieving some legitimate object’ (Applicant S at [43]).

53    However as the Tribunal found that the law was not discriminatory, it was unnecessary to consider whether the law was reasonably adapted to some legitimate object of the country in question, for the reasons given by Perram J (with whom Moore J agreed in Minister for Immigration and Citizenship v SZNWC and Another (2010) 190 FCR 23 at [40]). While the Tribunal did not state explicitly that it was considering the law as one of general application, it is apparent from its reasons that it considered it to be so. It is implicit in the Tribunal’s reasoning that it considered that the procedures were directed to all returnees, to enable ‘police and security clearances... [and to] reveal outstanding arrest warrants for prior criminal offences’, (at [56]) as well as to ascertain evidence of involvement in people smuggling.

54    The appellant says that the Tribunal did not ask whether the laws regarding unlawful departure were applied in a way that resulted in discriminatory treatment or whether the laws were appropriate and adapted to achieving a legitimate state objective. The appellant acknowledges that the Tribunal concluded he was subject to potential detention like all returnees and was not the subject of discriminatory treatment. The appellant was not the subject of discriminatory treatment and the law was not applied in a discriminatory manner. I accept the Minister’s submission that it is evident from the Tribunal’s analysis that it considered the law applicable to the appellant to be a law of general application, which applied to all illegal returnees.

55    The Tribunal rejected the claim to an imputed connection with the LTTE and the claim that the appellant would be persecuted because of his membership of a particular social group. Accordingly the appellant did not satisfy ss 91R(1)(a) and 91R(1)(c) of the Act.

56    The Minister submits that, as a valid law of general application was the reason for detention of the appellant, it does not constitute persecution for the purposes of the Act (Applicant S at 402-404).

57    I accept that the Tribunal, in its reasons, does not restrict its reference to “returnees” to a sub-group, namely failed asylum seekers. The Tribunal specifically referred to the information that the screening process was the same for all persons returning to Sri Lanka, including failed asylum seekers. It considered the process that would apply to the appellant ‘as a returnee to Sri Lanka’. The Tribunal considered separately the question of illegal departure from Sri Lanka and again described the processes that apply to returnees, regardless of ethnicity or the circumstances in which they left the country. It then discussed ‘recently tightened procedures’ for those returnees who are believed to have left the country in breach of immigration and emigration laws. Again, the Tribunal made it clear that, having rejected the claim that Tamils were treated differently, it was considering all such returnees.

58    Although the Tribunal did not state that it was considering the criteria in s 91R(1) of the Act, it is not necessary for it to have done so, as long as it addressed its mind to the relevant and correct questions. It is clear that the Tribunal addressed the criteria in ss 91R(1)(a) and 91R(1)(c) and found that they did not apply to the appellant.

59    The appellant has not made out ground 3.

Conclusion

60    Despite the able representation of Ms Patterson who appeared for the appellant pro bono pursuant to r 4.12 of the Rules, the appellant has not established jurisdictional error on the part of the Tribunal or that the orders made by the Federal Circuit Judge were not properly made.

61    The appeal should be dismissed with costs.

Associate:

Dated:    2 June 2015