FEDERAL COURT OF AUSTRALIA

SZTKE v Minister for Immigration and Border Protection [2015] FCA 1002

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    Order 1 made on 13 February 2015 by the Federal Circuit Court of Australia is set aside and, in lieu thereof, there be an order in the nature of certiorari to quash the decision of the second respondent made on 20 September 2013 in case number 1302603.

3.    A writ of mandamus be issued, directed to the second respondent, requiring that it hear and determine according to law, the application of the appellant for review of the decision of a delegate of the first respondent made on 23 January 2013 to refuse to grant the appellant a Protection (Class XA) visa.

4.    The first respondent pay the appellant’s costs of the appeal.

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. On 20 June 2012 he arrived in Australia. On 31 October 2012, he lodged an application for a Protection (Class XA) Visa (Visa). On 23 January 2013, his application was rejected by a delegate (delegate) of the first respondent (Minister). On 20 September 2013 the Refugee Review Tribunal (Tribunal) affirmed the delegate’s decision (Tribunal’s decision). The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. The subject of this appeal is the primary judge’s dismissal of that application on 13 February 2015. The primary judge’s judgment is published as SZTKE v Minister for Immigration & Border Protection [2015] FCCA 103.

2    The primary judge’s task was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) (Migration Act) and Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The task of this Court is to determine whether the primary judge’s judgment is affected by appellable error: SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).

background

3    The appellant claimed that in May 2009, during the final stages of the civil war in Sri Lanka, he was taken by the Sri Lankan army and detained in a detention camp (Camp). He claimed to have been physically abused in the course of interrogation while in the Camp. He claimed that he was released in July 2009 as a consequence of members of his family having paid a bribe to persons they suspected to be with the Criminal Investigation Division (CID). He claimed that for a time thereafter he worked in his brother’s shop, and that during that time persons from the CID came into the shop on two occasions and asked about his whereabouts.

4    He claimed that in August 2009 he applied for and received a Sri Lankan passport with the assistance of an agent, and that in order to facilitate the procurement of that passport his agent paid a bribe to the passport officer. He said that on 31 August 2009 he travelled to India, that he was questioned when passing through security, but that his agent intervened and paid another bribe and he was allowed to leave. He stated that he remained in India until May 2010, whereupon he returned to Sri Lanka having been told by his parents that the situation had improved. On his return, he commenced to work as an electrical assistant and also (again) for his brother. He claimed that after his return to Sri Lanka CID agents came to his brother’s shop a further three times (in June and October 2010 and March 2011) asking about his whereabouts. He said that, commencing in March 2012, Sri Lankan authorities commenced to arrest people who had previously been detained in camps, that he feared for his own safety, and that he commenced making arrangements for his departure. In June 2012 he left Sri Lanka for Australia.

5    The appellant claimed that he feared persecution based on his Tamil race and because of imputed links with the Liberation Tigers of Tamil Elam (LTTE), and because of his membership of a particular social group being returning failed asylum seekers. He claimed a well-founded fear of persecution by the Sri Lankan Army, the CID, and paramilitary groups.

The delegate’s decision

6    The appellant’s first ground of appeal relates to the Tribunal having departed from the delegate’s findings without his having been given adequate notice that the matters the subject of those findings were live issues. Thus, it is necessary to summarise aspects of the delegate’s decision. The delegate accepted that the appellant had been detained in the Camp for two months, accepted that the appellant was able to obtain a genuine passport in 2009 and travel to India with the assistance of his agent and then return to Sri Lanka in 2010. The appellant’s evidence was that the most-recent occasion on which the CID came looking for him was in March 2011. The delegate disbelieved that the CID had come looking for him, and noted that, even if that was accepted, that meant that members of the CID most-recently enquired about the appellant almost two years previously.

7    The delegate noted the appellant’s evidence that in April 2012 the SLA had begun to “round up” Tamil returnees and that he was afraid he would be arrested or questioned, noted country information consistent with the appellant’s evidence of an SLA “search operation” in April 2012, but also noted that the appellant’s evidence was that nobody had approached him or come looking for him at that time, and that the appellant had not claimed that he was an LTTE combatant. Accordingly, the delegate did not accept that anyone from the CID or the Sri Lankan authorities was searching for or interested in the applicant. The delegate also set out evidence that suggested that returned Tamil asylum seekers were not generally treated differently to other returned asylum seekers. The delegate noted an exception, being the case of Tamil returnees from the UK who had perceived links to the LTTE. The delegate did not accept that the appellant fitted that profile, and therefore was unsatisfied that the appellant may be subject to detention or torture by Sri Lankan officials at the airport. The delegate held that the appellant did not have a real chance of serious harm amounting to persecution at that time or in the reasonably foreseeable future.

8    In regard to the complementary protection criterion in s 36(2)(aa) of the Migration Act, the delegate held that the “real risk” test required a higher standard of proof that the “real chance” test that applied for the purposes of s 36(2)(a), and therefore treated a state of dissatisfaction as to the “real chance” test as being dispositive for the purposes of the “real risk” test.

The Tribunal’s decision

9    In broad terms the Tribunal did not accept that the authorities were looking for the appellant with a view to his arrest, did not accept that a passport office official would take a bribe so as to issue a passport to a person on an alert or watch list (and thus held that the appellant had fabricated his claim to be on an alert list), did not accept that if the CID had come to the hospital to arrest him (as the appellant claimed before the Tribunal) they would failed then to arrest him, and thus held that he had fabricated that claim, did not accept that the appellant ceased working for his brother other than when departing Sri Lanka (and thus held that he had fabricated his work history so as to make himself appear to be a person of interest to the authorities), did not accept that he obtained his passport through a bribe, did not accept that the CID looked for him at any time, and did not accept that he had had any difficulty departing from or entering Sri Lanka. Overall, the Tribunal did not consider the appellant to be a credible witness.

10    At paragraph [50], the Tribunal said this:

I have considered how these findings impact on the overall history of the applicant, and whether I can accept as true that he was wounded as claimed and detained in a detention centre. I have carefully considered those matters, and I am prepared to accept as true that he was wounded in a shelling incident and later detained. I do not however accept that he was released through the payment of a bribe or that he was released irregularly. I consider it more reasonable to believe he was knowingly and legally released by the authorities, and subsequently obtained medical treatment at a hospital. The applicant’s accepted history following this of obtaining a legally issued passport without difficulty, travelling in and out of Sri Lanka without difficulty and not being on any watch or alert list, living at home, working for his brother and also for another person and not being of any interest to the CID indicates that the applicant was released by the authorities from detention as he was not consider[ed] to have any connection with or association with the LTTE. I also find that the applicant’s brother was released at the same time, and also find he is of no adverse interest to the authorities. I do not accept he has to report to them on a monthly basis. The applicant has said at interview with the delegate that in April 2012 no one came looking for him at that time. I accept that is true. He has also said he didn’t know anyone who was detained at that time. I also accept that as true. I find that the applicant was not of adverse interest to the authorities at the time he departed from Sri Lanka.

11    The Tribunal further disbelieved that the appellant and his father had undergone training with the LTTE. It accepted that the appellant’s father and cousin had some minor association with Tamil organisations in LTTE-controlled areas, and that his uncle and brother had been detained in a detention camp, but did not accept that those matters would have any consequence for the appellant on his return to Sri Lanka.

12    The Tribunal further did not accept that Tamil Sri Lankans faced serious harm because of their ethnicity, or because of other factors including being from the north or east of Sri Lanka, or being young and male. The Tribunal accepted that the appellant would be detained on his return, but held that the motivation of Sri Lankan authorities for so detaining the appellant would not be for reason of a Convention ground, but instead would be in the implementation of a law of general application relating to illegal departure from Sri Lanka. The Tribunal held that the harm in question was not serious harm. It held (at [61]) that there was no “particular social group of failed asylum seekers as such a group is necessarily in these circumstances defined by the harm they fear.” It held that prosecution was legitimate action in the circumstances and that there was no evidence that the law, any period of detention and fine, or the condition of detention, were being applied in a discriminatory fashion.

13    At [63], the Tribunal said this:—

Further, I do not accept that he has a level of profile that would cause him to be considered as suspect by the authorities for any matter. I do not accept that his having been detained in 2009 and then legally released is of any adverse consequence for him now. At the time tens of thousands of Tamils were detained and then released. Whilst I accept he has a scar from the shrapnel wound I consider the authorities would have been aware of that when they released him in 2009.

14    Overall, the Tribunal held that the appellant’s fear of persecution was not well founded (at [64]), that there was not a real chance he would suffer serious harm amounting to persecution (at [64]), and that he did not have a well-founded fear of persecution for reason of a Convention ground (at [65]). In dealing with s 36(2)(aa), the Tribunal held that appellant did not have a level of adverse profile such that he was of any adverse interest to the authorities in Sri Lanka. It accepted he may be arrested on return and held on remand, and would most likely be fined and questioned, but did not accept that anything other than that would happen. It did not accept that that was “significant harm” within the meaning of s 36(2A).

The primary judge’s judgment

15    Before the Circuit Court, the appellant raised these grounds of appeal by his Further Amended Application:

1.    The Tribunal engaged in jurisdictional error by failing to comply with its obligations under s.425 of the Act.

Particulars

a.    The Tribunal rejected the applicant’s credibility by virtue of the matters set out at CB210[46]-[52]. These matters were not matters that the delegate considered dispositive to the review, yet the Tribunal failed to take steps to identify all of these matters and provide the applicant with an opportunity to give evidence and present arguments in relation to the same.

b.    Further and in the alternative, the Delegate accepted the credibility of the applicant’s account concerning his detention in a detention centre (including his account of being released by virtue of a payment of a bribe) (CB114) and his account of obtaining his passport and departing the country through the payment of a bribe (CB115). The Tribunal, however, rejected the plausibility of the applicant’s account in these respects without informing the applicant that it doubts these aspects of his account and providing him with an opportunity to give evidence and present arguments in relation to the same.

2.    The Tribunal engaged in jurisdictional error by making a finding in the absence of evidence or by misconstruing the applicant’s claims when it found that the applicant “clearly states he had no difficulty in obtaining his passport” (CB210.7).

Particulars

a.    There was no evidence before the Tribunal upon which it could have held that the applicant “clearly states he had no difficulty in obtaining his passport” in his original application. Words to this effect are not found in anything constituting an original application and the evidence before the Tribunal was to the effect that the initial Irregular Maritime Arrival Entry Interview (Entry Interview) was “suspended as client could not communicate effectively via interpreter” (CB14).

b.    The applicant claimed in his Entry Interview that “my family paid money to get us out of the camp and then we went to India, we had to pay for our passport [as] well” (CB26). A fair reading of this is that the applicant claimed to pay a bribe to obtain his passport and it does not support the finding that the applicant “clearly states he had no difficulty in obtaining his passport”.

3.    The Tribunal engaged in jurisdictional error by asking itself the wrong question or by failing to address the applicant’s claims.

Particulars

a.    The applicant claimed that factors personal to him that increased the risk of him being imputed with LTTE cadre profile in the future included his scarring (CB154). The Tribunal did not address this claim but, rather, asked itself an irrelevant question (being whether the Sri Lankan authorities knew that he had a scar when they released him in 2009).

b.    Further and in the alternative, the applicant claimed that he feared persecution by paramilitary groups and the material put before the Tribunal by the applicant was to the effect inter alia (CB156) that paramilitary groups were: (a) involved in assisting government military forces in the assault and murder of civilians; (b) impeding the movement of residents, especially Tamils; (c) assisting government authorities in detaining and torturing individuals alleged to have LTTE connections, (d) frequently harassing Tamil men, and (e) practicing illegal seizure of private land extortion with impunity. The Tribunal did not deal with this claim and its integers but rather, limited its consideration of the applicant’s claims to a consideration of feared persecution at the hands of Sri Lankan authorities only;

d.    Further and in the alternative, the applicant claimed that there was a practice of arbitrarily detaining and seriously mistreating individuals in detention, particularly during the interrogation process. The Tribunal found that the Applicant would be questioned, but failed to ask whether there was a real chance that the questioning process would involve persecution or significant harm.

4.    The Tribunal engaged in jurisdictional error by making a critical finding in the absence of evidence, by failing to take into account a relevant consideration, by asking itself the wrong question or by failing to apply the correct test.

Particulars

a.    The Tribunal concluded at [60] and [70] that the applicant would be arrested and held on remand for a few days while awaiting a court appearance and that he would be fined between 50,000 and 100,000 rupees. This finding was based solely upon a statement made by a Sri Lankan lawyer recorded in a Sydney Morning Herald article dated 8 December 2012 concerning the fate of certain returnees from Australia returned in late November 2012 as to the ‘likely’ outcome of the proceedings.

b.    In this regard, the Tribunal failed to ask itself the correct question because it was obligated to ask itself whether the applicant had a well-founded fear of persecution in the reasonably foreseeable future upon his return to Sri Lanka. Instead of asking this question, the Tribunal considered what the likely outcome of the applicant’s court proceedings would be based on practice prevalent in late November 2012.

c.    Further and in the alternative, the Tribunal’s finding was made in the absence of evidence because the article relied upon by it was only capable of going to the likely penalty to be given to the November 2012 returnees referred to in the article rather than the penalty to which the applicant had a real chance of being exposed to in the reasonably foreseeable future.

d.    Further and in the alternative, the Tribunal’s finding failed to take into account relevant considerations, being:

i.    DFAT’s report to the effect that from late November 2012, all returnees from Australia were charged and remanded for offences regarding their illegal departure and that Sri Lankan authorities were focused on enforcing Sri Lankan law (CB207–208); and

ii.    paragraph 45(1)(b) of the Sri Lankan Immigrants and Emigrants Act, which provided inter alia that there was a mandatory imprisonment period of at last 1 year and not more than 5 years for illegally departing Sri Lanka.

e.    Further and in the alternative, the Tribunal failed to carry out its statutory obligation by failing to resolve the contradictory material before it (which it apparently accepted uncritically) going to the question of the penalty that would likely be imposed.

5.    The Tribunal engaged in jurisdictional error by misunderstanding the applicable law and, as a consequence, constructively failing to exercise its jurisdiction.

Particulars

The Tribunal made an error of law by finding that “failed asylum seekers’ was a group that was incapable of constituting a particular social group for Convention purposes. As a consequence, the Tribunal misconstrued or constructively failed to deal with this claim.

6.    The Tribunal engaged in jurisdictional error by failing to ask itself the right questions when addressing (at [61]) whether Sri Lankan law concerning illegal departure was a law of general application and whether, as such, prosecution pursuant to it could not attract protection under the Refugees Convention.

16    The primary judge rejected ground 1 on the basis that the questions put to the appellant by the Tribunal sufficiently demonstrated that the issues identified in the particulars were in issue. Ground 2 was rejected on the basis that “the Tribunal’s credibility conclusion turn[ed] on the inconsistency in the applicant’s claims, not the temporal question of when the claim changed.” Particular (a) of ground 3 was rejected on the basis that there was a logical connection between the Tribunal’s observation that the appellant’s scars were unproblematic for him in 2009 and its finding that there was no real risk that they would be problematic for him now; particular (b) was rejected on the basis that the Tribunal had understood and dealt with the issue of paramilitary groups; particular (d) was rejected on the basis that the claim had been dealt with by findings of greater generality, namely, that the appellant was not a person with an LTTE profile sufficient to attract adverse attention.

17    Grounds 4 to 6 were dealt with together. The primary judge held (as his Honour was then bound to do) that the Tribunal’s consideration of “serious harm” could not be reconciled with WZAPN v Minister for Immigration and Border Protection (2014) 229 FCR 477. The primary judge nevertheless refused relief on the basis that the harm would arise as a consequence of the non-discriminatory operation of a law of general application. The primary judge allowed that the Tribunal “may have been wrong” to say that there was no particular social group of failed asylum seekers, but said (at [47]):

… the legal correctness of the Tribunal’s reasoning is effectively irrelevant because the Tribunal’s decision is supported by the alternative finding of a lack of a Convention nexus to the harm feared. …

The present appeal

18    Before me, the appellant raised these grounds of appeal (errors and emphasis in original):

GROUND 1

His Honour should have found that the Tribunal committed jurisdictional error by failing to comply with its obligations under s 425 of the Act. His Honour erred in his findings (SZTKE v Minister for Immigration & Anor [2015] FCCA 103 at [13]–[21]).

Particulars

a.    The Tribunal rejected the Appellant’s credibility by virtue of the matters set out at CB210 [46]–[52]. The Tribunal failed to provide the Appellant with an opportunity to give evidence and present arguments in relation to the same.

b.    The Delegate accepted the credibility of the applicant's account concerning his detention in a detention centre (including his account of being released by virtue of a payment of a bribe) (CB 114) and his account of obtaining his passport and departing the country through the payment of a bribe (CB 115). The Tribunal rejected the plausibility of the Appellant's account in these respects without informing the Appellant that it had doubts these aspects of his account and providing him with an opportunity to give evidence and present arguments in relation to the same

GROUND 2

His Honour should have found that the Tribunal engaged in jurisdictional error by making a finding in the absence of evidence or by misconstruing the Appellant's claims when it found that the Appellant "clearly states he had no difficulty in obtaining his passport" (AB210.7).

Particulars

a.    There was no evidence before the Tribunal upon which it could have held that the Appellant "clearly states he had no difficulty in obtaining his passport" in his original application. Words to this effect are not found in anything constituting an original application and the evidence before the Tribunal was to the effect that the initial Irregular Maritime Arrival Entry Interview (Entry Interview) was "suspended as client could not communicate effectively via interpreter" (CB14).

b.    The Appellant claimed in his Entry Interview that "my family paid money to get us out of the camp and then we went to India, we had to pay for our passport [as] well" (CB26). A fair reading of this is that the Appellant claimed to pay a bribe to obtain his passport and it does not support the finding that the Appellant "clearly states he had no difficulty in obtaining his passport".

GROUND 3

His Honour should have found that the Tribunal engaged in jurisdictional error by asking itself the wrong question or by failing to address the Appellant's claim (SZTKE v Minister for Immigration & Anor [2015] FCCA 103 at [27]–[36]).

Particulars

a.    The Appellant claimed that factors personal to him that increased the risk of him being imputed with LTTE cadre profile in the future included his scarring (AB154). The Tribunal did not address this claim but, rather, asked itself an irrelevant question (being whether the Sri Lankan authorities knew that he had a scar when they released him in 2009).

b.    Further and in the alternative, the appellant claimed that he feared persecution by paramilitary groups and the material put before the Tribunal by the Appellant was to the effect inter alia (CB156) that paramilitary groups were: (a) involved in assisting government military forces in the assault and murder of civilians; (b) impeding the movement of residents, especially Tamils; (c) assisting government authorities in detaining and torturing individuals alleged to have LTTE connections, (d) frequently harassing Tamil me, and (e) practicing illegal seizure of private land extortion with impunity. The Tribunal did not deal with this claim and its integers but rather, limited its consideration of the Appellant's claims to a consideration of feared persecution at the hands of Sri Lankan authorities only;

c.    Further and in the alternative, the appellant claimed that there was a practice of arbitrarily detaining and seriously mistreating individuals in detention, particularly during the interrogation process. The Tribunal found that the Appellant would be questioned, but failed to ask whether there was a real chance that the questioning process would involve persecution or significant harm.

GROUND 4

His Honour should have found that the Tribunal committed jurisdictional error by making a critical finding in the absence of evidence, by failing to take into account a relevant consideration, by asking itself the wrong question or by failing to apply the correct test.

Particulars

a.    The Appellant repeats the particulars enumerated in the the Further amended application filed in the proceedings below.

GROUND 5

His Honour should have found that the Tribunal fell into error (SZTKE v Minister for Immigration & Anor [2015] FCCA 103 at [41]–[45]) and had constructively failed to exercise jurisdiction in relation to the claim of a particular social group.

Particulars

a.    His Honour should have found that the Tribunal fell into error in recognising the attributes / characteristics of a particular social group expressly claimed (AB 66; AB 158–164).

b.    The Tribunal fell into error in failing to failing to deal with the claim and committed jurisdictional error.

GROUND 6

His Honour should have found that the Tribunal fell into error (SZTKE v Minister for Immigration & Anor [2015] FCCA 103 at [39]—[41]) when it failed to identify and apply the correct test.

Particulars

a.    The Tribunal applied the same test for Convention protection and complementary protection. His Honour should have found that the Tribunal conflated the findings (RRT decision at [60]–[72]) and the length of the detention / law of general application was irrelevant for the purposes of complementary protection.

19    Grounds 1–5 raise the same issues as were before the primary judge. Ground 6 raises the relevance of the Tribunal’s finding that the Immigrants and Emigrants Act was a law of general application (as before the primary judge) but raises two additional questions being whether the Tribunal erred by applying the same test for s 36(2)(aa) purposes as it did for s 36(2)(a) purposes, and whether the length of the appellant’s detention and the law being of general application were irrelevant. The Minister opposes a grant of leave to raise the new matters on the basis that they have insufficient prospects of success.

Relevant statutory provisions

20    This appeal raises ss 36(2)(a), 36(2)(aa), 36(2A), and 425 of the Migration Act. They provide as follows.

36    Protection visas—criteria provided for by this Act

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or

…

(2A)    A non‑citizen will suffer significant harm if:

(a)    the non‑citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non‑citizen; or

(c)    the non‑citizen will be subjected to torture; or

(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non‑citizen will be subjected to degrading treatment or punishment.

425    Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)    Subsection (1) does not apply if:

(a)    the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)    the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)    subsection 424C(1) or (2) applies to the applicant.

(3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

21    Section 91R of the Migration Act was also relevant to the issues before the primary judge. Item 12 within Part 2 of Schedule 5 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) repealed the section. That item commenced on 18 April 2015. But, pursuant to the transitional provisions in Part 4 of Schedule 5, that repeal does not affect the appellant’s application, as it was made before the relevant date of effect. Section 91R provided as follows:

91R    Persecution

(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)    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)    For the purposes of the application of this Act and the regulations to a particular person:

(a)    in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b)    the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

Ground 1

22    Ground 1 complained that the Tribunal determined certain matters otherwise than in accordance with s 425 of the Migration Act. The respondent’s submissions proceeded on the basis that the ground raised these three claims made by the appellant, which were rejected by the Tribunal:

(1)    his detention and subsequent release from the camp through payment of a bribe;

(2)    his procurement of a passport by payment of a bribe; and

(3)    his departure from Sri Lanka which included payment of a bribe by an agent following the applicant being questioned by CID,

which, for short, I will refer to as the three claims.

Preliminary issues

23    There are three preliminary matters that arise. First, while particular (b) to ground 1 was limited to the three claims, particular (a) was not. Particular (a) raised all of the Tribunal’s findings set out in paragraphs [46]–[52]. So, too, did the appellant’s written submissions (at [10]), and the appellant’s originating application before the primary judge. The appellant made no complaint that the primary judge had failed to deal with particular (a), nor did the appellant’s counsel in oral submissions agitate any findings other than the three claims. Further, in oral submissions the appellant’s counsel, after making submissions in regard to the three claims, said that the appellant was not challenging the other findings about the appellant’s credit. In that light I consider that particular (a) of ground 1 was, in substance, not pressed and I intend to deal only with the three claims.

24    Second, in regard to the first of the three claims, the Tribunal accepted that the appellant had been detained so I read that ground as complaining about only the second half of the issue identified – namely, the Tribunal’s rejection of the appellant’s proposition that he had been released from the camp upon payment of a bribe.

25    Third, both the appellant and the Minister proceeded on the basis that the Minister’s delegate had determined the three claims favourably to the appellant. I am not certain that that is the fact. Certainly the delegate recorded the appellant’s submissions that he had been released on payment of a bribe, that he had procured his passport through payment of a bribe, and that he had departed Sri Lanka on payment of a bribe, but when the delegate made findings she said only these things:

For these reasons I accept the applicant’s claim that he was detained in [the Camp] for two months … in 2009.

…

I accept the applicant was able to obtain a genuine passport in 2009 and travel to India with his agent and then return to Sri Lanka in 2010. I also consider this indicates that there was no court order or arrest warrant issued for the applicant at the time he travelled in and out of Sri Lanka … .

26    When the delegate summarised her findings of fact she said this:

In summary I accept the following as fact:

•    The applicant is a Tamil, born in [his birthplace] and regularly travelled between [particular locations] during his childhood

•    The applicant was detained at [the Camp in 2009]

•    [T]he applicant applied for his passport in approximately August 2009 and travelled to India …

•    The applicant lived and worked in [a town] from May 2010–June 2012

27    While the delegate did not reject the three claims, she did not expressly accept them. Although I harbour some doubt, on balance I think that the better reading of the delegate’s reasons is that she did accept the claims. She referred to them, did not reject them, and accepted other relevant and connected claims (i.e., that the appellant was detained, that the appellant obtained a passport and travelled to India, and that he later returned). I will proceed on the same assumption as the parties, namely, that the delegate determined the three claims in the appellant’s favour.

The law

28    The relevant authority is SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. In that case the appellant was employed as a seaman on a ship of the Islamic Republic of Iran Shipping Line. He jumped ship in Port Kembla and applied for a protection visa. His application was refused and he appealed to the Tribunal, before whom he put a statutory declaration setting out the facts upon which he relied in support of his application. As the Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) said at [3]):

… The Tribunal member then asked the appellant questions that elicited from him the same description of events as he had given in his statutory declaration. At no stage did the Tribunal challenge what the appellant said, express any reaction to what he said, or invite him to amplify any of the three particular aspects of the account he had given in his statutory declaration, and repeated in his evidence, which the Tribunal later found to be “implausible”. Rather, the first that the appellant knew of the suggestion that his account of events was implausible in these three respects was when the Tribunal published its decision.

29    The question was whether the Tribunal had failed to afford procedural fairness. As in the instant case there were three relevant issues. The delegate considered only one of the three, and rejected the appellant’s version of events. The Tribunal, however, disbelieved the appellant in regard to each of the three issues. The Court held that SZBEL had not been afforded procedural fairness. It referred to the proposition in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591–2 that, where procedural fairness is required by statute, the entitlement of a person likely to be affected by the decision-maker’s decision:

… extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. … .

30    In the context of the Migration Act, the Court held (at [35]) as follows (emphasis added):

The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

31    At [36], the Court held that unless the Tribunal told the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application identified the issues that arose in relation to that decision. At [37] the Court gave as a instance that if the Tribunal “invited the applicant to appear, said nothing about any possible doubt about the applicant’s nationality, and then decided the review on the basis that the applicant was not a national of the country claimed,” the applicant would not have been accorded procedural fairness. At [43], the Court said that the Tribunal “did not identify … aspects of his account as important issues,” “did not challenge what the appellant said,” and “did not say anything that would have revealed to him that these were live issues.”

32    Paragraphs [47] and [48] contain important delimitations:

[47]    First, there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

[48]    Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry,

“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”

Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

(citations omitted; emphasis in original)

33    Further guidance may be derived from SZBEL as to what is required to “identify” issues. The facts there were that the Tribunal had elicited the same description of events from SZBEL as he had given in an earlier statutory declaration. Therefore, that an issue is the subject of oral evidence before the Tribunal, or that the appellant’s version of events is elicited, is insufficient by itself to identify an issue.

34    What is required is that the appellant be somehow alerted to the fact that the issue is live. That may be done in a number of different ways including by the Tribunal challenging what the applicant has said and asking the applicant to explain why his or her account should be accepted. But, that does not require the Tribunal to put to the applicant (in so many words) that he or she is lying or embellishing, nor to disclose what it is minded to decide.

35    Counsel for the Minister submitted, “as long as there’s nothing the tribunal member says that gives the appellant the impression his evidence will be accepted then that is sufficient,” and that “nowhere in that passage could it be suggested to the appellant that his claim about offering a bribe to be released from detention was going to be accepted or that the delegate’s finding was going to stand in relation to that point. So there has been no procedural unfairness … .” That was in keeping with the Minister’s submission elsewhere that it was sufficient for the appellant to have been given an opportunity to explain himself in regard to a particular issue.

36    I do not accept those submissions. More is required than that the Tribunal abstain from positively indicating to an appellant that his or her account will be accepted. More is required than that an appellant be merely given an opportunity to explain himself or herself. So much is evident from the fact that in SZBEL the relevant evidence was “elicited” by the Tribunal without further comment and that, notwithstanding that elicitation, it was held that procedural fairness had not been afforded. There must be something that indicates to the appellant that the issue is live.

The facts

37    A transcript of an audio recording of the Tribunal proceedings was before me. As I will set out extracts below, it is important to note that it was explained at the outset of the transcription that italicisation was not to indicate emphasis, but instead to indicate “[a]ny words that have not been understood clearly.” The Minister submitted that the question was whether “the appellant below had been given sufficient opportunity to give evidence and present arguments about those matters on which he ultimately was not believed.” As I have explained, I do not accept that that is an exhaustive statement of what is required by SZBEL. To gainsay the appellant’s proposition of error the Minister pointed to passages from the transcript wherein “sufficient opportunity” had been afforded.

38    In regard to the first claim (that the appellant was released from the Camp through the payment of a bribe), the Minister identified the following passage, which arose in the context of a discussion of whether the appellant’s uncle had been taken from one detention camp to another (errors as in original, bold text added by way of emphasis):

MEMBER: So he was released from [the Camp] and then later detained at [the other camp]?

INTERPRETER: He wasn’t released from [the Camp], okay. He was taken away from [the Camp] straight to [the other camp].

MEMBER: And why was that? Because my understanding is that the only people taken to [the other camp] were people who were known to be LTTE operatives.

INTERPRETER: Because they suspected that they, he make an arrangements for me to get escape and that’s why they suspected I was involved with the LTTE and he had some connection with LTTE and that’s how he managed to arrange, ah arrange my escape. And he was 55 years old and because of that, I think the authorities have took him to [the other camp] and they were very inhumane to him.

MEMBER: I don’t really understand what you just told me, so, what I don’t understand is you said that they thought he was connected to the LTTE and therefore was able to make the arrangements for you to leave the camp. But that doesn’t make sense to me.

INTERPRETER: Yes that’s what I’m saying because we all live together in, like in one tent in the camp. So after I escaped they suspected him. That’s why they took him.

…

MEMBER: And when you use the word “escaped” you mean that some money was paid to the CID and you left the camp?

INTERPRETER: Yes.

39    In regard to the second claim (that the appellant procured a passport by the payment of a bribe) the Minister pointed to the following passage (errors and italicisation as in original, bold text added by way of emphasis):

MEMBER: When … How long before your passport was issued did you apply for it?

…

INTERPRETER: In 2009, I didn’t personally apply for that. I tried to arrange it though an agent. So I obtained it through the agent.

MEMBER: Did you actually attend the passport office in Colombo?

INTERPRETER: Yes, I went along with the agent. I actually gave money to him, paid him money and that’s how I obtained the passport.

MEMBER: In your submission … there’s a reference to the passport official questioning you about your period of detention in [the Camp], and threatening to inform the CID[.] How would he know?

INTERPRETER: The agent who actually prepared all these applications and he … for me and my brother, and he actually gave it to me and asked me to go to the passport office. And he told me that he had made all the arrangement there, so I don’t need to worry about it. Just go and hand over the application and they will give you the passport. So when I went to the passport office, after handing over my application and all the documents, they actually checked it in their computer and they found out that I’m been detained in [the Camp]. And they started asking questions and they threatened me saying that they will call CID. Asked me … forcing me to tell them the truth how I was released from the detention centre. And I was so scared and I just … just walked out, didn’t reply to them anything. And I called my agent, I told him I’m very scared because if they detain me again I don’t have … I can’t come out, so better you approach them and got the passport for us.

MEMBER: So what you’re saying … what you want me to believe is that you approached the passport office, it’s on their computer that you’re actually … you’d been detained at [the Camp]. They threatened to inform the CID, you walk out, and then later on your agent, notwithstanding that, is able to get the passport for you?

INTERPRETER: Yeah, he, the agent, told me to go back to the hotel and the next day he actually delivered the passport to me in the hotel.

40    Finally, in regard to the third claim (that the appellant departed Sri Lanka by payment of a bribe) the Minister pointed to this passage of transcript (errors and italicisation as in original, bold text added by way of emphasis):

MEMBER: Now I’m aware that passport security at airports is fairly tight in Sri Lanka. How were you .. or how do you say that you were able to pass through the international passport on two occasions without being detected if, as you’ve already told me, the authorities are aware of you and on a database?

INTERPRETER: The first time I went with the help of the agency … I went only once. So the first … the, when I … when I try, when I went through the airport the agent help me. He came along with me. When they actually try to enquire me, the agent bribed the officers and he managed to actually … you know, exit the airport .. I was managed the airport.

…

MEMBER: What about when you travelled back. Did you travel back with the agent or by yourself?

INTERPRETER: When I came back I came alone. They enquired me … you know, and but they let me go. And they didn’t want to release me, why they allowed me to go is because they want capture me on the spot so that could be the reason.

MEMBER: Sorry, I don’t understand what you mean.

INTERPRETER: What I am saying is, my family members help me to escape from the camp, so they could actually have allowed me to … allowed me to pass through the airport because they could watch me and they could catch me with other people.

MEMBER: I am aware that when you arrive at [the] airport there’s a whole bank of immigration officials and you just join a line and you end up being seen by one of them. If your name was on some sort of alert, as you’ve told me that it is, I’d find it extremely … difficult to believe that you could have passed through the airport without detection.

INTERPRETER: We are not a criminals. I don’t know like, I’m not an LTTE person, or a terrorist.

MEMBER: But what you want me to believe is that you’re on some sort of alert list such that the airport office knew of you, and they knew without anyone telling them, that you’d actually been detained at [the Camp] and had somehow got out? That’s what you want me to believe?

INTERPRETER: I’m not saying like what to believe or what you shouldn’t believe. What I’m saying is, in my country it’s not often happens systematically. So I’m actually coming back to the country so … they might keep me on the watch list you know. They may not want to take any action at that moment but whenever the necessity happens they will take me.

Discussion

41    Unless the Tribunal “identified” issues other than those that were dispositive for the delegate, the appellant was entitled to assume that the issues that were dispositive for the delegate were the “issues arising in relation to the decision under review.” In my opinion, the issues that were dispositive for the delegate were that (as she found) the CID had not come looking for the appellant in March 2011 and that nobody had approached him or come looking for him in April 2012 when the SLA had begun to “round up” Tamil returnees. It was on the basis of those findings that the delegate found that the appellant was not of interest to the Sri Lankan authorities and thus that he did not have a real chance of serious harm amounting to persecution now or in the reasonably foreseeable future.

The first claim: exit from the Camp

42    With respect to the primary judge, I consider that his Honour was wrong to conclude that the Tribunal “put questions to the applicant that sufficiently demonstrated that the issue was being assessed by the Tribunal” (at [18]). I do not accept that the Tribunal sufficiently identified that whether the appellant had been released from the camp lawfully or instead on payment of a bribe was an “issue arising in relation to the decision under review.” Counsel for the Minister submitted that sufficient identification came from the matter having been “raised at the hearing and discussed in the sense of the tribunal member asking questions in order to clarify the evidence, and then putting to the appellant each of those claims to allow the appellant an opportunity to explain them.” Counsel relied in particular upon the Tribunal having indicated that it did not understand what it was being told and inviting further evidence “about the bribe to leave the camp claim, which the appellant goes on to do.”

43    For two reasons, I do not accept that submission. First, in context, it seems to me that the Tribunal’s statement that it did not understand was not an indication of doubt as to the proposition that had been put, it was an indication of lack of comprehension in regard to what was a fairly convoluted answer. It was seeking clarification, not amplification. That clarification was then given. The clarification was not challenged, doubt was not expressed, and the appellant was not asked to amplify his evidence or expand upon his account or explain why it should be accepted.

44    Second, the Tribunal’s expression of a lack of understanding did not relate to the relevant issue. What was there being discussed was why the appellant’s uncle had been moved from one camp to another. The appellant’s answer (which the Tribunal did not understand) was directed to that question. The only directly-relevant passage is the final question and answer. The Tribunal asked whether by “escaped” the appellant meant on payment of a bribe, the appellant confirmed that he did, and the Tribunal moved on to the next issue. That would not have identified to the appellant that the issue of whether a bribe had been paid was live. It was mere elicitation of evidence.

The second claim: bribery in regard to the passport

45    Counsel for the Minister here emphasised the words, “what you want me to believe,” which (it was submitted) indicated scepticism. Counsel submitted that the appellant had been given the opportunity to give evidence and present arguments. Counsel submitted that “the mere raising of those matters was enough,” and that there was a material distinction between that (raising of matters) and simply saying, “explain to me what your claims are.” That was because (it was submitted) the raising and teasing out of issues indicated to the appellant that his claims would not simply be accepted.

46    I do not accept those submissions and have come to a different conclusion than that reached by the primary judge. In my view, the proposition that merely raising matters is sufficient is irreconcilable with SZBEL. Nor do I think that the words “what you want me to believe,” in context, indicate scepticism. There had gone before those words a series of questions and answers concerning the appellant’s obtaining of a passport, including quite a lengthy answer immediately before the emboldened passage in the Tribunal’s reasons. The emboldened passage, which commences “So what you’re saying,” seems to me to do no more than repeat for the purposes of confirmation what the Tribunal understood the appellant’s evidence to be. Although I accept that the phrase “what you want me to believe” could, in other contexts, indicate that the Tribunal doubted a proposition, I do not think that is the meaning it here conveys. I do not think it expresses doubt, nor asks for amplification, nor invites explanation of why the claim ought be accepted. Indeed, what the question was likely to elicit from the appellant was either an answer in the affirmative (as occurred, with the proffering of additional relevant information), or in the negative so as to indicate that his evidence had been misunderstood. It was not likely to elicit an explanation from the appellant as to why his evidence ought be accepted, and it did not.

The third claim: departure from Sri Lanka including payment of a bribe following questioning

47    There was some disconnection between the finding of which the appellant complained and the passage of transcript to which the Minister pointed. The issue the appellant raised was that the Tribunal disbelieved he had left Sri Lanka in the way he described. The passages the Minister emphasised in his oral submissions mainly addressed the way in which the appellant returned to Sri Lanka. With regard to the appellant leaving, only the first question and answer in the extract above are directly relevant and his answer – that his agent bribed him through – was not directly the subject of any comment or exploration by the Tribunal.

48    If the Tribunal’s comments as to extreme difficulty in disbelieving the appellant’s evidence related more directly to the appellant’s departure from Sri Lanka, I would have said that this was a clear case. Because those comments were of direct relatedness to return and only indirect relatedness to departure I think that this case is less clear. But, in my view, the context determines this issue in favour of the Minister. The Tribunal prefaced its question about the appellant’s departure with information that was prima facie inconsistent with his claims. The Tribunal’s observations in the emboldened passages of the extract – while directly relevant to the appellant’s return – were indirectly relevant to his departure. The Tribunal’s reservations in accepting that it was possible to pass through airport security whilst on a watch list would have indicated that the Tribunal doubted the appellant’s evidence on the whole topic, and that it was a live issue. Indeed it prompted a defensive response and a further explanation as to why his evidence ought be accepted.

49    I conclude that the appellant was afforded procedural fairness with respect to the third claim.

Discretionary considerations

50    The Minister submitted that, if I found that procedural fairness had not been afforded regarding some or all of the three claims, I ought to decline relief because the Tribunal’s operative finding – that the appellant was not of interest to the authorities – was sustainable on other grounds. The appellant submitted that to enter into analysis of whether the Tribunal’s finding was sustainable on grounds unaffected by procedural unfairness would require a problematic process of guesswork and surmising.

51    There is force in the appellant’s submission. In Re Refugee Review Tribunal; ex Parte Aala (2000) 204 CLR 82, McHugh J said as follows (at [104]):

Not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this Court in Stead v State Government Insurance Commission when it said that "not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial". Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because "[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome". …

(citations omitted; emphasis added)

52    Further, in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1, Kirby J said as follows at [84]–[85] (a passage cited in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [81]) (citations omitted, emphasis added):

It is not the function of judicial review to retry the merits or, as such, to re-assess the merits of the case and excuse an established departure from fair procedures because the merits seem strongly one way. If the departure from procedural fairness might have affected the outcome, the function of judicial review is to say so. Subject to the consideration of any residual discretion to deny relief, the courts will set aside the flawed decision. This is because, in the eye of the law, it is not a “decision” as contemplated by law.

Every person, in respect of whom material decisions are made by a repository of public power conferred by the Parliament, is ordinarily entitled to have such power exercised in accordance with law. That includes, relevantly to this case, in accordance with the requirements of procedural fairness. The ultimate outcome of such insistence on fair procedures might eventually be the same. But where the issue is whether additional evidence and submissions might have affected the outcome of the decision-maker’s consideration of the matter, it cannot normally be said with certainty that affording such an opportunity was futile.

53    Relatedly, Kirby J said at [81] (in a passage also cited in VAAD, at [79]):

… decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.

54    This sets a high bar. Especially relevant is that departure from fair procedures ought not be excused only because the merits seem strongly against the appellant. Having found that there was procedural unfairness in the Tribunal proceedings, it is necessary to consider whether this is a case where it can confidently be concluded that the unfairness could have had no bearing on the outcome. The Tribunal considered the appellant’s claims and evidence from [46]–[52] of its decision. The finding that seems to have been dispositive was that the appellant was not of adverse interest to the authorities at the time he departed Sri Lanka (at [50], [54]). There were six steps in the Tribunal’s reasoning:

(1)    It referred to additions to the appellant’s story, which it said were minor though indicated that the appellant had not been fully truthful in his original application or was fabricating evidence.

(2)    It referred to other “additions to or changes in claims” which were not minor and seriously impacted on the appellant’s credibility. They were:

(a)    the inconsistency regarding his claims about obtaining a passport;

(b)    his having altered his evidence about involvement with the LTTE;

(c)    his claim at one time to have known a person that had been taken in April 2012 as against his later claim not to have known anyone who was arrested at that time.

(3)    It said that those issues were not, of themselves, significant enough to result in an adverse credibility finding but, in combination with other matters going to the overall implausibility of his claims, did result in such a finding. The other matters that the Tribunal did not accept were that:

(a)    the authorities were searching for him with a view to his arrest;

(b)    he was on an alert list at the passport office and bribes had to be paid both to that office and also at the airport when he departed for India;

(c)    the CID had come to the hospital looking for him;

(d)    he ceased working full time for his brother because he was concerned that authorities were looking for him.

(4)    The Tribunal then said that those matters went to the core claims, and said this:

(a)    “I do not accept that he is on any watch list.”

(b)    “I do not accept he obtained a passport through a bribe.”

(c)    “I do not accept the CID looked for him at any time.”

(d)    “I do not accept that he had any difficulty departing from or entering Sri Lanka.”

(e)    “Overall, I find that the applicant is not a credible witness.

(5)    At [50], the Tribunal went on to consider how “these findings” impacted other aspects of the appellant’s claims. It held that he had been released from the Camp regularly rather than through payment of a bribe. It based that conclusion upon “the applicant’s accepted history” of obtaining a passport and travelling without difficulty, not being on any alert list, living at home, working for his brother, and not being of any interest to the CID, which it said indicated that the appellant was released “as he was not consider[ed] to have any connection with or association with the LTTE.”

(6)    Finally, and also at [50], the Tribunal accepted that nobody came looking for the appellant in 2012, and that he did not know anyone who was detained at that time. It concluded, “I find that the applicant was not of adverse interest to the authorities at the time he departed from Sri Lanka.”

55    In broad terms, I think that the Tribunal’s reasoning was as follows. It took into account the seven matters listed in points (2) and (3) in arriving at the conclusions in (4). It relied upon some of the findings from (4) and some of the findings from (3) in order to conclude, in (5), that the appellant had been released regularly from camp. For the reasons given in (2), (3), (4), and (5), and the two matters listed in (6), it concluded that the appellant was not of adverse interest to the authorities at the time he departed from Sri Lanka.

56    Within (2) no findings were affected by the procedural unfairness outlined above. Finding (2)(a) appears at first blush to be of that nature, but what the Tribunal is there relying upon is inconsistency between claims, not a disbelief that the appellant had obtained his passport through bribery. Within (3), finding 3(b) is affected. Within (4), only finding (4)(b) is affected by procedural unfairness. Finding (5) itself is affected by procedural unfairness, as are the findings upon which it is predicated, being findings (3)(b) and (4)(b). Given that, ultimately, the fact that the Tribunal regarded the appellant to be of no interest to the Sri Lankan authorities was a weighty consideration, it is significant that as part of finding (5) the Tribunal came to the view that the appellant was not considered by the authorities “to have any connection with or association with the LTTE” at the time he was released from the Camp and that, in coming to that view, the Tribunal relied upon its rejection of the appellant’s first and second claims. Finding (6) appears to be based in part upon finding (5).

57    Most of the Tribunal’s findings were unaffected by procedural unfairness. However, procedural unfairness creeps in at the third step of the Tribunal’s reasoning and that arguably infects all subsequent and resultant findings. As the Court said in VAAD (at [79]):

… an assessment of credibility is not necessarily linear. It is possible that had the Tribunal considered the UNP Letter as part of the file received from the Secretary, it may have accepted it as genuine. If so, it is possible that the Tribunal would have been more likely to accept other aspects of the appellants’ account of their experiences in Sri Lanka. As Gleeson CJ commented in Aala at [4]:

‘… Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive …’

58    I think that, had the Tribunal afforded procedural fairness to the appellant consistently with SZBEL, it would probably still have found that the appellant was not of interest to the authorities. It gave many reasons apart from the two affected claims for disbelieving the appellant’s claims, including some that appear have been quite probative. But I cannot say with confidence that the denial of natural justice could have had no bearing on the outcome. It seems to me not impossible that, if procedural fairness had been afforded to the appellant regarding his claims to have been released from the Camp, and to have obtained a passport by payment of bribes, he might have offered a sufficiently convincing explanation in order to be believed by the Tribunal, as he was by the delegate. Although the Tribunal might have decided against him anyway (as, indeed, did the delegate), I cannot say that that was an inevitability. Thus, I cannot accede to the Minister’s submission that I ought to decline relief.

Ground 2

59    The Tribunal, in saying that the appellant “clearly state[d] he had no difficulty in obtaining his passport,” was referring to question 53 of the appellant’s visa application. Therein, the appellant was asked, “Did you have difficulties obtaining a travel document (such as a passport) in your home country?” The appellant checked the box marked, “No.” I accept, as the appellant submitted, that he had stated in his entry interview, “we had to pay for our passport tas [sic] well.” Earlier in that interview he had stated, “[w]e were there for two months my family paid money to get us out of the camp,” and so, in that light, the reference to payment for a passport “as well” refers to payment by way of a bribe. Thus, I reject the Minister’s submission that the appellant “modified his claim” before the delegate. The appellant had earlier maintained that he paid a bribe for his passport.

60    But, that does not suffice to make good ground 2, which complains of an absence of evidence in support of the statement that the appellant “clearly states he had no difficulty in obtaining his passport.” There was evidence for that proposition, being the appellant’s answer to question 53 of his visa application. What the Tribunal made of that answer was a matter for the Tribunal. In the event, it considered that the answer was inconsistent with other and later statements that a bribe had been paid.

61    Nor did the Tribunal misconstrue the appellant’s claim. The Tribunal’s reasons establish that it was well aware that the appellant claimed that he had paid a bribe to obtain a passport.

62    Ground 2 is not established.

Ground 3

63    This ground raises three issues, being:

(1)    illogicality or irrelevancy in regard to the Tribunal’s reasoning concerning the appellant’s scarring leading to a failure to consider the appellant’s claim;

(2)    failure to deal with the appellant’s claim that he feared persecution at the hands of paramilitary groups;

(3)    failure to consider whether the appellant’s claim of arbitrary detention and serious mistreatment of individuals, particularly during interrogation, amounted to persecution or significant harm.

The appellant’s scarring

64    The impugned passage is at [63] of the Tribunal’s reasons:

Further, I do not accept that he has a level of profile that would cause him to be considered as suspect by the authorities for any matter. I do not accept that his having been detained in 2009 and then legally released is of any adverse consequence for him now. At the time tens of thousands of Tamils were detained and then released. Whilst I accept he has a scar from the shrapnel wound I consider the authorities would have been aware of that when they released him in 2009.

65    I think that the Tribunal was saying this: it was known to authorities in 2009 that the appellant had a shrapnel wound; notwithstanding that knowledge, he was released from detention, which necessitates that the shrapnel wound was not sufficient to result in the appellant having a profile (e.g., as an LTTE cadre or affiliate) such that authorities considered he ought be detained; there is no reason to think that the same scarring would now be sufficient to result in the appellant having that nature of profile; accordingly his scarring does not contradict the proposition in the first sentence of [63], that he does not have a profile that would cause him to be considered suspect by the authorities.

66    That is not illogical nor is it irrelevant, and it was a line of reasoning that was open to the Tribunal and which gave consideration to the claim made.

Paramilitary groups

67    The appellant did not develop this particular in oral submissions. In written submissions it was said that the appellant had submitted to the Tribunal that paramilitary groups were:

(1)    involved in assisting government military forces in the assault and murder of civilians;

(2)    impeding the movement of residents, especially Tamils;

(3)    assisting government authorities in detaining and torturing individuals alleged to have LTTE connections;

(4)    frequently harassing Tamil men; and

(5)    practicing illegal seizure of private land and extortion, with impunity,

and that the Tribunal had not dealt with that claim but instead only with a claim that the appellant feared persecution at the hands of Sri Lankan authorities.

68    The Minister submitted (as before the primary judge) that the Tribunal was aware of the claim and had dealt with it in the course of findings of greater generality. The Minister relied upon Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47], whereat French, Sackville and Hely JJ said this:

The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

69    As the primary judge observed (at [33]), the Tribunal referred to the claim of feared persecution by paramilitaries at [28]. It found that the appellant was not of adverse interest to authorities when he departed Sri Lanka ([50], [54]). It considered whether the appellant was at risk for reason of being a young Tamil male, or more generally a Tamil ([55]). It was not satisfied that Tamils faced serious harm because of their ethnicity, or that other factors including being from the north or east of Sri Lanka, or being young and male, put them at greater risk (at [58]). It rejected that the appellant had an adverse profile ([70]).

70    The primary judge reasoned that findings in regard to paramilitary groups had been subsumed within findings of greater generality. The primary judge further held that the claim rested on a factual premise that had been rejected, namely that the appellant would have an imputed LTTE profile. With respect to the primary judge, I consider that the second of his Honour’s reasons was only partly right. Only the third of the items identified by the appellant concerning paramilitary groups relied upon an imputed LTTE profile. Notably, that one was emphasised by the appellant in his submission to the Tribunal, but I think, in fairness to the appellant, that his claim was broader and did include, for example, that paramilitaries frequently harassed Tamil men. Whether – if accepted – that constituted serious harm may have been in issue, but the claim was made.

71    However, the first of the primary judge’s reasons is (with respect) sound and dispositive. In circumstances where the appellant’s fear of harm at the hands of paramilitaries was expressly mentioned, the Tribunal considered whether Tamils simpliciter were at risk, and held that they were not. That deals with items (2), (4) and (5) of the items listed above. Further, the Tribunal considered whether the appellant was of interest to the authorities and held that he was not. As items (1) and (3) had as a predicate that paramilitaries were “assisting” authorities, the Tribunal’s reasoning appears to have been that if the appellant was not of interest to Sri Lankan authorities he was not at risk of harm from paramilitaries assisting Sri Lankan authorities. I accept the Minister’s submission that findings of greater generality addressed the appellant’s claim.

Arbitrary detention or and serious mistreatment

72    The appellant did not develop this particular in oral submissions. His written submissions did not go much beyond restatement of the ground of appeal. The Minister’s written submissions indicated where the primary judge had dealt with this particular in his reasons for judgment and asserted that there was no error.

73    I accept the Minister’s submission. With respect, I concur with the primary judge that the Tribunal’s finding that the appellant did not have an LTTE profile sufficient to attract adverse attention ([50]), its finding that the appellant was likely to be detained for a few days and fined ([62]), and its finding that that did not constitute serious harm for the purposes of s 91R of the Migration Act, were sufficient to dispose of the appellant’s claim. This particular fails. So, too, does the third ground.

Ground 4

74    In oral submissions, counsel for the appellant clarified that only particulars (d) and (e) of the particulars to the correlate of this ground before the primary judge were pressed. Particular (d) alleged, in terms, that the Tribunal had failed to take into account a DFAT report to the effect that all returnees from Australia were being charged and remanded and that authorities had a focus on enforcing Sri Lankan law, and that it had failed to take into account what was set out in s 45(1)(b) of the Sri Lankan Immigrants and Emigrants Act in regard to a minimum and maximum period of imprisonment. Particular (e) alleged that the Tribunal failed to carry out its statutory obligation to resolve contradictory material going to the question of likely penalty, and accepted some of that evidence uncritically. In oral submissions, counsel for the appellant put that the Tribunal had not referred specifically to the material to which the particulars referred.

75    I reject the appellant’s submissions. The DFAT report is referred to at paragraphs [45] and [60] of the Tribunal’s reasons. The possibility of mandatory imprisonment is referred to at paragraphs [59] and [69] of the Tribunal’s reasons. Cognisant of that evidence, the Tribunal nevertheless held (at [70]) that “[the appellant] may be arrested on return and held on remand awaiting grant of bail. He will most likely be fined. He may be questioned about where he has been however I do not accept that anything other than this will happen.” There is no basis for saying that the Tribunal accepted one or other aspect of the evidence “uncritically.” It made a finding of fact on the basis of the evidence before it, including the evidence to which the particulars refer. While the primary judge dealt with grounds 4 to 6 together and did not, it seems to me, address the questions raised by ground 4, the error asserted by the appellant is not made out and it follows that the primary judge did not err in failing to hold that the Tribunal had committed jurisdictional error.

Ground 5

76    It was alleged in ground 5 that the primary judge should have found that the Tribunal erred and had constructively failed to exercise jurisdiction in relation to the appellant’s claim that he feared harm as a member of a social group. The Tribunal had held (at [61]), “I have considered whether there is any element of membership of a particular social group and cannot identify one. I do not accept there is a particular social group of failed asylum seekers as such a group is necessarily in these circumstances defined by the harm they fear.”

77    Before me, the parties proceeded on the basis that the primary judge held that the Tribunal erred in finding that returned asylum seekers could not be a “particular social group.” I am not convinced that the primary judge did so find. His Honour said (at [41], with emphasis added), “The Tribunal may also have been wrong … to find that there is no particular social group of failed asylum seekers in Sri Lanka” and later his Honour said (at [44], with emphasis added), “This reasoning was probably erroneous … .” At [47], the primary judge said, “However, the legal correctness of the Tribunal’s reasoning is effectively irrelevant … .” His Honour found that the Tribunal’s approach fell foul of WZAPN v Minister for Immigration and Border Protection (2014) 229 FCR 477 and thus said (at [37], with emphasis added), “I accept that the Tribunal made one (and possibly two) errors in dealing with this claim.” The possible second error must be the finding that returned asylum seekers could not be a particular social group. While it seems that his Honour would likely have found that the Tribunal had erred, if he had thought it necessary, the better reading of the primary judge’s reasons is that the primary judge perceived that the appellant’s claim in this regard failed for another reason, and that he did not therefore have to find (and he deliberately refrained from finding) that the Tribunal had erred.

78    I agree with the primary judge. First, I agree that the Tribunal’s finding was probably wrong. It seems to me incorrect to say that the posited “particular social group” of returned asylum seekers is defined by reference to the harm its putative members fear, as that notion was explained by McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 263–4. Second, however, I agree with the primary judge that the answer to that question of law does not matter in this case because the Tribunal’s conclusion is sustainable on another basis. That basis (which the primary judge identified at [40]) is that the harm that the appellant claimed to fear was harm that would arise from the non-discriminatory application of a law of general application.

79    Before the primary judge and before this Court the Minister referred to MZZUO v Minister for Immigration & Border Protection [2014] FCA 1267. There, the Tribunal had made a qualitative assessment of the harm feared by MZZUO and held that it was not serious harm. By the time the matter came before Pagone J, it had been held in WZAPN v Minister for Immigration and Border Protection (2014) 229 FCR 477 that to make such a qualitative assessment was a wrong approach. Pagone J held that, apart from the “serious harm” finding, there was an independent and alternative finding that was dispositive against MZZUO, namely that any detention of MZZUO would be pursuant to a law of general application that would not be applied differently to MZZUO (at [15]). The primary judge could not distinguish MZZUO; nor can I distinguish it. As in MZZUO, the Tribunal here held that “… the motivation of the Sri Lankan authorities in arresting, detaining for a few days and fining people is not for reasons of a Convention ground but the implementation of a law of general application … [and there] is no evidence that the law, any period of detention and fine, or the condition of detention, are being applied in a discriminatory manner.” As was explained by Perram J (with whom Moore J agreed) in Minister for Immigration and Citizenship v SZNWC (2010) 190 FCR 23 at 32 [40]:

In a case where a person applying for a protection visa claims to be a member of a particular social group which is persecuted by the operation of some criminal law, the approach to be taken by those deciding the visa application is well settled. First, the decision-maker must ask whether the particular social group claimed exists. Secondly, if the group exists then the decision-maker must ask whether the nominated criminal law discriminates against that group. This is necessary because unless the criminal law discriminates against the group then there can be no question of the group being persecuted by that criminal law. …

In this case, as in MZZUO, if the appellant passed the first hurdle he would fall at the second.

80    Further, in BZAFM v Minister for Immigration and Border Protection (2015) 321 ALR 117 and SZTEQ v Minister for Immigration and Border Protection (2015) 229 FCR 497 (decided after the primary judge’s judgment but before the hearing of the appeal in this Court) it was held that WZAPN was wrongly decided. In Minister for Immigration and Border Protection v WZAPN [2015] HCA 22 (decided after the hearing of this appeal), WZAPN was overturned. The primary judge was right (at the time of his judgment) in finding that the Tribunal’s paragraph [62] suffered the vice identified in WZAPN, and therefore was right (at the time) in not relying upon that paragraph as another alternative and independent finding dispositive of the appellant’s claims. In light, however, of the subsequent decisions of the Full Court of this Court and of the High Court, paragraph [62] of the Tribunal’s decision is orthodox and the finding contained therein – that the harm likely to be suffered by the appellant was not serious harm for the purposes of s 91R of the Migration Act – is another alternative and independent finding that would be dispositive of the appellant’s claim under s 36(2)(a).

81    Accordingly, irrespective of any error by the Tribunal in regard to its social group finding, this is an appropriate case for the Court to decline to exercise jurisdiction to grant relief.

Ground 6

82    Ground 6, which was not raised in the same terms before the primary judge, alleged that the Tribunal erred by applying the same test for Convention protection and complementary protection. It also alleged that the Tribunal’s findings as to length of detention and whether or not the Immigrants and Emigrants Act was a law of general application were irrelevant for the purposes of complementary protection. The appellant’s written submissions, however, went not to that issue but instead to whether the Tribunal had applied (as the appellant said it must) a “proportionality” analysis to the Immigrants and Emigrants Act. It was the “proportionality” argument that the appellant developed in oral submissions.

83    Really, therefore, the appellant sought to advance three arguments purportedly under the auspices of ground 6. The first and second, contained in the ground itself, were not developed either in oral or written submissions beyond mere restatement. His “proportionality” argument was not articulated in his ground of appeal, nor was it raised before the primary judge (as counsel for the appellant frankly acknowledged). The appellant thus requires leave to advance all of these arguments: the conflation and irrelevancy arguments because they were not advanced before the primary judge, and the “proportionality” argument both because that was not raised before the primary judge and because it was not set out in the notice of appeal.

84    The Minister submitted that the appellant should not have leave to advance the ground articulated in the notice of appeal and said nothing about whether leave should be given to advance the “proportionality” argument. The Minister relied upon what was said in VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [26] (North, Merkel and Weinberg JJ):

It is therefore necessary to consider whether it is expedient in the interests of justice to allow the new ground to be argued and determined. In the present case, the interests of justice require reference to a number of considerations, namely, the appellant’s prospects of success on the appeal on the new argument, the explanation given by the appellant for failing to raise the argument before the primary judge, the prejudice to the respondent in allowing the appellant to raise the new argument, the potentially serious consequences to the appellant if leave to amend is refused, and the integrity of the appellate process.

85    In VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158, the Court (Kiefel, Weinberg and Stone JJ) said this (at [46]–[48]):

In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson  JJ observed, in their joint judgment, at 7:

“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

86    The Minister submitted that while it would not be prejudiced by leave being granted, the proposed grounds did not enjoy sufficient prospects of success to warrant leave being granted. For reasons given below, I accept that submission. Further, no persuasive reason was given as to why the arguments could not have been advanced below: counsel for the appellant submitted only that it was a “fluid area of law.” Although that is true, it does not explain why the grounds could not have been advanced before the primary judge. Further, the “proportionality” argument was not contemplated by ground 6 before me and was advanced only informally, in written and oral submissions. No explanation was given for why that course was adopted. Altogether, I do not consider it is expedient in the interests of justice to permit the appellant to advance the new grounds. That decision rests in part (as noted above) on my view that the grounds enjoy little prospects of success and so I will now explain why that is my view.

The conflation and irrelevancy argument

87    The Tribunal did give separate consideration to s 36(2)(a) and s 36(2)(aa). At [67], the Tribunal set out the complementary protection test. At [68] it set out what was meant by “significant harm,” and referred to s 36(2A). At [69] it referred to the appellant’s submissions that dealt with the issue. At [70], the Tribunal restated previous findings that the appellant lacked an adverse profile and that he was not of interest to the authorities. It made findings as to what was likely to occur to the appellant should he be returned to Sri Lanka. It held that what would occur did not constitute significant harm as defined by s 36(2A). That is an orthodox approach. It was open to the Tribunal to rely on findings made for the purposes of s 36(2)(a) in dealing with s 36(2)(aa) (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56] (Robertson J)). The “conflation” argument seems to me to enjoy very little prospect of success.

88    The second aspect of proposed ground 6 was that “the length of the detention / law of general application [were] irrelevant for the purposes of complementary protection.” Assuming it to be correct, for the purpose of argument, that the general applicability of the Immigrants and Emigrants Act is irrelevant for the purposes of assessment against the complementary protection criterion, the Tribunal did not fall into error because its consideration of s 36(2)(aa) did not turn on that (or even address it); it turned on findings that the harm likely to be suffered by the appellant was not serious harm. As to that, the assertion that the length of detention is irrelevant in consideration of the complementary protection criterion cannot stand in the light of BZAFM, SZTEQ, and the High Court’s judgment in WZAPN. In any event, even if the North J’s judgment in WZAPN remained good law, that matter dealt with persecution and serious harm, s 91R, and s 36(2)(a); it did not deal with significant harm, s 36(2A) and s 36(2)(aa). This aspect of the ground, too, has very little prospect of success.

The proportionality argument

89    The appellant submitted as follows:

The Tribunal did not particularly address the Immigrants and Emigrants Act (Sri Lanka) as law of general application [and] it did not go on to find that the detention was lawful. The Tribunal did not address proportionality.

In WZAPN at [51], North J found that the Tribunal was also required to address whether the detention was proportionate to the object. The Tribunal not carried out this task [sic]. North J was not overruled on the issue.

90    It is necessary, for context, to set out paragraph [51] of WZAPN:

[51]    When assessing a law of general application, the essence of the international human rights approach and of the appropriate and adapted test is similar. Both ask whether the detention was lawful, in the sense of being pursuant to a domestic law, but also by reference to the object of that law and whether the detention was proportionate to that object. The human rights approach asks whether the detention, whilst perhaps lawful, was arbitrary, whilst the question of whether the law was applied arbitrarily is implicit in the appropriate and adapted test. If applied arbitrarily, the law may not be appropriate and adapted in the sense of proportionate in the means used to achieve its object: Applicant S at [48]. … .

91    The appellant’s submissions seem to me to be bound to fail. There are a number of reasons:

(1)    the Tribunal found that the kind of harm that would be suffered by the appellant was not “significant harm” (at [70]). That is fatal to a complementary protection claim irrespective of proportionality: s 36(2)(aa) only applies where “there is a real risk that the non-citizen will suffer significant harm.”

(2)    it is not clear that any assistance can be derived from WZAPN, for these reasons: first, unlike in WZAPN, there was no finding of arbitrariness and indeed contradictory findings were made at [61] of the Tribunal’s reasons. As the High Court said in WZAPN (at [77]), “… an inquiry into whether a law or policy is ‘appropriate’ to some legitimate object of the country concerned is relevant only once it is concluded that the law or policy results in discriminatory treatment for a reason specified by the Convention.” Second, and relatedly, in WZAPN North J was addressing “the proper approach to persecution in the circumstance where an applicant is detained pursuant to a law of general application,” but persecution arises in regard to s 91R and s 36(2)(a), not in regard to s 36(2)(aa). Third, alternatively, if WZAPN is not distinguishable on that count it seems distinguishable on the same basis as the cases listed at [20] of SZTBW v Minister for Immigration and Border Protection [2014] FCA 1277 (Perry J), namely that the Tribunal had held that the illegal departure laws were laws of general application and were not discriminatory on their face, nor in their application

(3)    contra the first sentence of the appellant’s submission, the Tribunal in holding (as it did at [61]) that the appellant’s arrest, detention, and fines would be in the “implementation of a law of general application relating to illegal departure from Sri Lanka,” could only have been referring to the Immigrants and Emigrants Act.

92    The proportionality argument seems to me to enjoy very little prospect of success.

Disposition

93    Because I have found that the Tribunal failed to afford the appellant procedural fairness, and that there is no basis for declining to give relief, I will make appropriate orders allowing the appeal and remitting the matter to the Tribunal.

94    The appellant sought an order that the primary judge’s costs order be set aside, and that he be awarded his costs of the appeal and of the proceeding below. While the Minister did not specifically traverse the question of what should happen in relation to the costs below if the appeal was allowed, the parties were agreed that costs ought to follow the event. I think it was fairly clear that the question of costs, as raised during the hearing, extended to the costs of the proceeding below. Since it had been raised by the appellant’s notice of appeal, that was known to be a live issue. I assume that the Minister’s agreement that costs ought to follow the event constituted agreement that, if the appellant was successful, he ought to have his costs below as well.

95    However, it may be that that was not the Minister’s intent in submitting as he did. So, I will not at this time make orders that the primary judge’s order as to costs be set aside or that the appellant have his costs of the proceeding below. However, I indicate that, unless the Minister makes a written submission within seven days after the date of this judgment that a different result ought to obtain, I will make orders to that effect. If the Minister does so submit, the appellant may make responsive written submissions within a further seven days. Unless I otherwise direct, that question will then be dealt with on the papers.

Associate:

Dated:    10 September 2015