FEDERAL COURT OF AUSTRALIA

MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Applicants pay the First Respondent’s costs.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    The three applicants in this matter are Sri Lankan citizens of Tamil ethnicity who arrived at Christmas Island by boat in June 2012, without passports or visas, and applied for Protection (Class XA) visas (“protection visas”). The first and second applicants, now aged 33 and 28, are husband and wife and they sought visas pursuant to s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”) claiming that Australia owed them protection obligations under the 1951 Convention Relating to the Status of Refugees (“the Convention”) and on complementary protection grounds under s 36(2)(aa) of the Act. The third applicant is the first and second applicants’ approximately 10 year-old daughter and she sought a protection visa on the basis that she was a dependent child in the same family unit. Her claim depends upon her parents’ claim as if one or other of her parents is granted protection she will be entitled to a protection visa under s 36(2)(b) of the Act.

2    On 30 June 2013 a delegate of the Minister for Immigration and Border Protection (“the Minister”) refused to grant the protection visas. The applicants appealed to the Refugee Review Tribunal (“Tribunal”) which affirmed the delegate’s decision on 12 September 2013. The applicants sought judicial review in the Federal Circuit Court by application dated 14 October 2013, and on 18 June 2014 the Court handed down judgment dismissing that application (MZZUG & Ors v Minister for Immigration and Border Protection & Anor [2014] FCCA 1588).

3    The applicants seek an extension of time within which to appeal from the judgment of the Federal Circuit Court. If leave is granted, the applicants appeal from that judgment, which dismissed their application for judicial review of the decision of the Refugee Review Tribunal, which affirmed the decision of a delegate of the Minister for Immigration and Citizenship to refuse their application.

4    In the proposed appeal the first and second applicants alleged that the Tribunal erred by:

(a)    failing to consider the various integers of the applicants’ claim cumulatively and whether that cumulative profile meant that there was a real risk that they would be imputed with the political opinion of supporting the Liberation Tigers of Tamil Eelam organisation (“LTTE”) and persecuted as a result; and

(b)    making a finding of fact without evidence.

5    For the reasons I set out below, the application must be dismissed.

THE TRIBUNAL DECISION

6    The following facts are derived from the Tribunal’s decision.

7    The first and second applicants left Sri Lanka in 1990, during the civil war, fleeing to live in South India with their families when they were only nine and three years old respectively. The third applicant, the oldest of their three children, was born in India in 2005. The three applicants came to Australia from India by boat in June 2012, and the first and second applicants’ other two children remain in India.

8    The first applicant is a Tamil Hindu born in Vavuniya, Sri Lanka in 1982. He had only four years of education and worked as a farm hand, labourer and driver. His family fled to India in 1990 when he was nine years old because they feared being killed by the Sri Lankan army because they were Tamil. The army were bombing his village and his family repeatedly sought refuge in the jungle to avoid being targeted. There was an extreme loss of life in their village and all their property was destroyed. Many of his relatives were killed as a result (at [21]), and his uncle was killed by the Sri Lankan Army because of suspected links to the LTTE (at [43]).

9    The second applicant is a Tamil Hindu who was also born in Vavuniya, Sri Lanka, in 1987. She had eight years of education and had not been employed. Her family fled to India in 1990 when she was three years old. In 1990 her father was taken by the Sri Lankan army and presumably killed. The army bombed her village and most of her relatives were killed and it set fire to her house and destroyed all the family’s belongings (at [22]).

10    The Tribunal accepted the first and second applicants’ evidence as consistent and credible and it accepted their claims in regard to the events that caused their families to flee Sri Lanka (at [40]). Notwithstanding this, the Tribunal decided that the applicants were not owed protection obligations and did not face a risk of significant harm if they were returned to Sri Lanka.

11    The Tribunal said that the first and second applicants claimed to fear persecution if they were returned to Sri Lanka because each was from Vavuniya, they left Sri Lanka unlawfully in 1990, they had no family land in Sri Lanka and nowhere to go because they had lost all their family, they would be returning to Sri Lanka as failed asylum seekers and returnees from the West, they had illegally departed Sri Lanka, and they would be branded a LTTE supporter and targeted by the Sri Lankan authorities as a result (at [23]).

12    The Tribunal assessed the applicants’ claims under three headings:

(a)    Tamil and imputed political opinion claims;

(b)    Illegal departure/returnee claims; and

(c)    Cumulative assessment.

For convenience, I will deal with the Tribunal decision under the same headings.

Tamil and imputed political opinion claims

13    The Tribunal accepted that country information indicated that Tamils suspected of certain links with the LTTE faced possible risks of harm (at [43]). However, it did not accept “that the applicants will be suspected by the authorities or any non-state actors of having such links. Neither has claimed to have had any association with the LTTE and they both left Sri Lanka when they were young children.” It accepted that the first applicant’s uncle was killed by the Sri Lankan Army in 1990, that the second applicant’s father was killed at the hands of the Sri Lankan government in the same period, and that the applicants’ families lost property during the conflict, but it did not accept that the applicants faced “a real chance of being suspected of being associated with the LTTE by the authorities or anyone else because of those events”. It found that those “events happened over 20 years ago and are of little or no relevance in the light of the ending of the war and the improved situation for Tamils that is outlined in the country information”.

14    The Tribunal accepted that the first and second applicants were originally from Vavuniya, but it did not accept that meant they would be branded LTTE supporters and targeted on that basis (at [43]). In this regard the Tribunal relied on country information that stated that originating from an area that was previously controlled by the LTTE did not itself indicate a need for protection.

15    The Tribunal accepted that the first and second applicants had no land, property or family contacts in Sri Lanka but, based on the overall weight of country information, it did not accept that they faced a real chance of persecution. It concluded that the financial hardships they may endure upon return to Sri Lanka would not be for reasons of their race or imputed political opinion, but rather because of the effects of the conflict and the general economic situation in Sri Lanka.

16    The Tribunal found that the applicants would be able to establish their Sri Lankan nationality quickly so as to receive identity cards. The Tribunal also considered that any delay in receipt of identity cards would not be as a result of “systemic and discriminatory conduct” constituting persecution for a reason under the Convention (at [44]).

17    The Tribunal concluded (at [45]):

Based on their individual circumstances and the independent country information, I find that they do not face a real chance of persecution on account of their Tamil race, imputed political opinion as LTTE supporters (or membership of particular social groups consisting of “Sri Lankan Tamils” and “Tamils from the North or East of Sri Lanka” or their families”) now or in the reasonably foreseeable future. Based on their individual circumstances and the individual country information, I find that there are not substantial grounds for believing that as at necessary and foreseeable consequence of the applicant [sic] being removed from Australia to Sri Lanka that there is a real risk that they will suffer significant harm.

Illegal departure/returnee claims

18    The Tribunal accepted that the first and second applicants illegally departed Sri Lanka in 1990 and that it is an offence under Sri Lankan law to do so. It accepted that persons returning to Sri Lanka who had previously departed illegally are being charged with that offence. However, the Tribunal noted that both the first and second applicants were young children at the times of their departures and it did not accept that there is “any more than a remote chance” that the applicants will be charged with illegal departure given their very young ages at the time of departure, more than 20 years ago (at [46]). Because the Tribunal did not accept that the applicants were likely to face charges based on their illegal departure when they were young children it did not accept that they would be detained by Sri Lankan authorities until a relative came forward to guarantee them (at [47]).

Cumulative assessment

19    Under the heading “Cumulative assessment” the Tribunal said (at [52]-[53]) that it considered the applicants’ individual circumstances and the country information cumulatively and it concluded that they did not face a real chance of persecution in the reasonably foreseeable future, and there were no substantial grounds for believing that it was a necessary and foreseeable consequence of their being removed to Sri Lanka that they would suffer significant harm.

20    For these reasons the Tribunal concluded that it was not satisfied that the first and second applicants were persons in respect of whom Australia had protection obligations under the Convention and they did not satisfy the criteria for complementary protection. Accordingly, the third applicant did not satisfy the criterion in ss 36(2)(b) or (c) of the Act.

THE APPLICATION TO THE FEDERAL CIRCUIT COURT

21    The application for judicial review to the Federal Circuit Court contained two grounds of review, which were supplemented in written submissions. The applicants were unrepresented at the hearing before the Federal Circuit Court and the learned Federal Circuit Court Judge dismissed each ground of the application. It is unnecessary to recount the judgment of the Federal Circuit Court as the applicants did not contend that her Honour erred in relation to the grounds of appeal advanced. The proposed grounds of appeal before this Court are all fresh.

The APPLICATION FOR EXTENSION OF TIME

22    Judgment was given in the Federal Circuit Court on 18 June 2014, and under r 36.05 of the Federal Court Rules 2011 the applicants had 21 days to file a Notice of Appeal. They did not do so. On 16 July 2014 the applicants filed an application for an extension of time within which to file a Notice of Appeal, which was seven days outside the 21 day period.

23    The considerations relevant in an application for extension of time are well established: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9 (Wilcox J): SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 (Murphy J) at [18]; Singh v Minister for Immigration and Border Protection [2015] FCA 483 (Kenny J) at [20]. Those considerations are not exhaustive and the outcome of an extension of time application depends on the particular circumstances of the case: see Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32]-[38] (Griffiths J; Edmonds J agreeing). In Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211; [2008] FCAFC 59 (“Vu”) at [14], Jessup J said (with whom Gyles and Besanko JJ agreed) that:

…it will often be appropriate for the court to regard the apparent existence of reasonable prospects on the proposed appeal as a necessary, but not as a sufficient, condition for the grant of leave to file a notice of appeal out of time.

24    In the present case the relevant considerations are:

(a)    Whether there is there an acceptable explanation for the delay?

(b)    Whether there is undue prejudice to the respondent if the Court were to extend time?

(c)    Is there sufficient merit in the proposed appeal to justify an extension of time?

25    The second applicant swore an affidavit on 29 April 2015 providing an explanation of the circumstances that led to the late filing of the appeal. The evidence is that the applicants have limited English language skills, they took steps to secure legal representation for the Federal Circuit Court hearing but were unsuccessful in obtaining it, and they did not appreciate that there was a 21 day time limit for initiating an appeal until they consulted with a lawyer shortly after the time period had expired. They provided an acceptable explanation for their modest delay in lodging the appeal.

26    The Minister did not contend that there was any prejudice to his interests if the Court were to extend time. I am satisfied that there is no real prejudice.

27    In relation to the merits of the appeal, in my view the applicants mounted a respectable argument which had reasonable prospects of success although, as I explain, I have found against them. I consider the applicants should be granted an extension of time.

THE APPLICATION TO ADVANCE NEW APPEAL GROUNDS

The proposed Amended Notice of Appeal

28    By application dated 4 May 2015 the applicants sought leave to amend the Notice of Appeal so as to raise grounds of appeal that were not argued before the Federal Circuit Court although they only pressed new grounds three and four in the following terms:

3.    The Refugee Review Tribunal failed to discharge its statutory task by failing to consider the applicants’ claims cumulatively as a whole.

Particulars

a.    The Tribunal dealt with each integer of the applicants’ claims individually and separately.

b.    The Tribunal failed to consider whether the cumulative effect [sic] those integers created a profile of persons with a well-founded fear of persecution on the basis of imputed political opinion, or of person who face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia.

4.    There is no evidence for the Refugee Review Tribunal’s finding that there is only a remote chance that the applicants would be charged with illegal departure as they left Sri Lanka as children.

Particulars

a.    There was no evidence or country information before the Tribunal as to how the Sri Lankan authorities treat those who left with their families as children.

b.    The Tribunal’s finding that there is only a remote chance that the applicants will be charged is speculation.

29    I shall call ground three the “cumulative assessment ground” and ground 4 the “no evidence ground”.

30    It is settled that where it is expedient and in the interests of justice an appellate court may allow a point to be raised for the first time in an appeal. In Water Board v Moustakas (1988) 180 CLR 491 at 497 Mason CJ, Wilson, Brennan and Dawson JJ observed:

More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied: see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 7–8; O’Brien v Komesaroff (1982) 150 CLR 310 at 319.

31    In deciding whether it is expedient and in the interests of justice to grant leave to raise a fresh ground of appeal it is relevant to consider the merits of the proposed ground: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48] (Kiefel, Weinberg and Stone JJ). The Full Court said at [48]:

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.

32    In Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1788 at [22] and [24] (Heerey, Moore and Goldberg JJ) the Full Court said, and I respectfully agree, that the question of whether to grant such leave is particularly sensitive in refugee cases because an adverse decision may have very serious consequences for an applicant. The Court also explained that a full consideration of the proposed new appeal ground should not be undertaken, as to do so would make the requirement for leave meaningless, and it was sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success.

33    In a later case involving an alleged refugee, NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 147 FCR 51; [2005] FCAFC 134 (“NAJT”) at [166] and [167], the Full Court took a similar approach. Madgwick J (with Conti J agreeing) explained that it is enough at the leave stage that the applicant has been able to mount a respectable argument in relation the proposed grounds. His Honour usefully set out an inclusive list of relevant considerations at [166]:

1)    Do the new legal arguments have a reasonable prospect of success?

2)    Is there an acceptable explanation of why they were not raised below?

3)    How much dislocation to the Court and efficient use of judicial sitting time is really involved?

4)    What is at stake in the case for the applicant?

5)    Will the resolution of the issues raised have any importance beyond the case at hand?

6)    Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

7)    If so, can it be justly and practicably cured?

8)    If not, where, in all the circumstances, do the interests of justice lie?

34    I have applied some of these factors in considering whether leave should be granted in the present case.

Is there any real prejudice to the Minister?

35    The Minister did not contend that the two new grounds could have been met by calling evidence before the Federal Circuit Court and he did not assert any prejudice other than that he had incurred costs which he may not have otherwise incurred. The Minister should have his costs of the wasted hearing before the Court below and the absence of any other prejudice militates towards a grant of leave.

Do the new legal arguments have a reasonable prospect of success?

36    The Minister contended that the new appeal grounds were weak. Although I have found against the appeal, in my view the applicants made a respectable argument and the new grounds had a reasonable prospect of success.

Is there an acceptable explanation of why the new grounds were not raised below?

37    In her affidavit of 29 April 2015 the second applicant provided an explanation for the failure to advance the proposed grounds of appeal before the Federal Circuit Court. The evidence is that the applicants have limited English language skills and the application was prepared without the assistance of lawyers. They took steps to secure legal representation for the Federal Circuit Court hearing but were unsuccessful in obtaining it. In my view the real difficulty that refugees sometimes experience in obtaining legal aid or pro bono legal assistance must be taken into account in deciding whether to grant leave. This militates towards a grant of leave in the present case.

How much dislocation to the Court and efficient use of judicial sitting time is really involved?

38    It is plain that the time the learned Federal Circuit Court Judge spent adjudicating on appeal grounds that are no longer pressed was wasted. However, the application to that Court was heard in less than a day and judgment was delivered the same day. I note also that the appeal before me was limited to two grounds and was heard in less than two hours. In my view the waste of judicial time and resources was not such as to outweigh the factors in favour of a grant of leave.

What is at stake in the case for the applicant?

39    If the first and second applicants are unsuccessful in their appeal they will be deported from Australia where they have attempted to build a life for themselves since arriving in 2012. They will be deported to Sri Lanka, which is not a country with which they are familiar because they have spent almost all of their lives in South India. The Tribunal accepted that the applicants gave an honest account of the extreme difficulties which caused their families to flee from Sri Lanka including that their family members were killed by the Sri Lankan authorities in the civil war and their families were dispossessed of their property. It is in those circumstances that the applicants are fearful that they and the rest of their family will suffer significant harm if they return to Sri Lanka and there is plainly a great deal at stake in the appeal for the applicants. As Madgwick J observed in NAJT at [165], and I respectfully agree:

Often, unrepresented applicants who appear to be decent, genuine but impecunious people are reduced to floundering in complete incomprehension of the prevailing system of judicial review or the dangerous partial comprehension of those with a little knowledge of that system. Unsurprisingly, Full Courts have been slower in such cases to assert the primacy of finality of litigation considerations than in many cases where the risk of very serious personal harm is not involved.

40    This militates towards a grant of leave.

41    In my view it is expedient and in the interests of justice to grant leave to the applicants to advance grounds three and four, and I allow the amendment to the Notice of Appeal.

THE APPLICATION TO ADDUCE NEW EVIDENCE

42    The applicants applied for leave to adduce the transcript of the Tribunal, which was not in evidence before the Court below. The Minister did not oppose this course and I grant leave to adduce the transcript.

CONSIDERATION

The cumulative profile ground

43    The applicants contended that the Tribunal treated their claim as having three distinct integers, namely:

(a)    persecution on the basis of Tamil race (or membership of the particular social groups “Sri Lankan Tamils” and “Tamils form the North or East of Sri Lanka”);

(b)    persecution on the basis of imputed political opinion as family members of LTTE supporters; and

(c)    persecution on the basis of having illegally departed or being failed asylum seeker returnees.

44    They argued that they did not rely on these integers as separate and distinct claims and that the essence of their claim was that they faced persecution because of a cumulative profile consisting of various attributes which put them at risk of being imputed with the political opinion of LTTE support. They argued that this common thread ran through each integer of their claim. The thrust of this contention is that the Tribunal should have considered the following integers of their claim separately and together, being that they:

(a)    were of Tamil ethnicity;

(b)    originated from the Vavuniya region;

(c)    had close family members who were formerly LTTE supporters and who had been killed by the Sri Lankan authorities for that reason;

(d)    had fled Sri Lanka illegally;

(e)    had sought asylum in and lived in a Western country; and

(f)    had no land or family in Sri Lanka.

45    The applicants contended that the Tribunal fell into error by failing to consider these integers cumulatively and whether taken together they created a profile of a person who met the Convention criterion or the complementary protection criterion on the basis of imputed political opinion of support for the LTTE.

46    As the applicants contended, the Tribunal’s review function is inquisitorial rather than adversarial. If evidence and material which the Tribunal accepted raised a case that was not articulated, the Tribunal was required to deal with the case raised by the material or evidence before it rather than limit its determination just to the case articulated by the applicants: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58].

47    Further, as the applicants contended, there is no real question that the Tribunal was obliged to assess whether the cumulative effect of each integer of the applicants’ claim was such as to create a profile that satisfied the Convention and complementary protection criteria. In Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 Merkel J said at [7], and I respectfully agree:

While it may be convenient for the tribunal to deal separately with each element of the claim, that does not relieve it of the task of addressing, cumulatively, all of the essential elements of the claim raised by the material or evidence. (Emphasis in original.)

48    However, the difficulty for the applicants is that, under the heading “Cumulative assessment”, the Tribunal said (at [52]-[53]):

Considering the applicants’ individual circumstances and the independent country information cumulatively, I find that they do not face a real chance of persecution in the reasonably foreseeable future. Their fears are not well-founded.

Considering the applicants’ individual circumstances and the independent country information cumulatively, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Sri Lanka that there is a real risk that they will suffer significant harm.

49    The applicants argued that:

(a)    the “cumulative assessment” by the Tribunal was unclear because it stated that it considered the applicants’ individual circumstances and the independent country information cumulatively, which they argued showed that the Tribunal did not consider the applicants’ individual circumstances cumulatively; and

(b)    those paragraphs were merely a “general assertion” of cumulative consideration unsupported by any appropriate analysis. In essence, the applicants contended that the Tribunal used a verbal formula in the relevant paragraphs without actually undertaking a proper analysis.

50    I do not accept these contentions. The reasons for the Tribunal’s decision are not to be construed “minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; [1996] HCA 6 at [30]-[31] (“Wu Shan Liang”) (Brennan CJ, Toohey, McHugh, Gummow JJ). In my view the applicants’ criticism of the Tribunal’s “cumulative assessment” (at [52]-[53]) is overly zealous and they attempt to glean an inadequacy from the relevant passages which is not there.

51    Further, the balance of the Tribunal’s reasons tend to show that it gave cumulative consideration to the various integers of the applicants’ claims. This can be seen in the following parts of the reasons:

(a)    under the heading “Tamil and imputed political opinion claims” the Tribunal expressly noted that there is no longer a presumption of eligibility for protection for Tamils who originated from the north of Sri Lanka, and that originating from an area previously controlled by the LTTE does not in itself result in a need for protection (at [41]). The Tribunal thereby considered the integer of geographical origin in the context of the integer of Tamil ethnicity;

(b)    in the same paragraph the Tribunal stated that “many people living in conflict-affected areas remain economically vulnerable, but this is due to the challenges of post-conflict recovery and lack of opportunities in those regions, and not to discrimination on the basis of ethnicity”. The Tribunal thereby considered the integer that the applicants had no land or family in Sri Lanka (resulting in economic vulnerability) in the context of consideration of the integer of Tamil ethnicity;

(c)    the Tribunal accepted that the first and second applicants were originally from Vavuniya, noted that Tamils suspected of links with the LTTE faced possible risks of harm, and accepted that during the civil war members of the applicants’ families had been killed for suspected links to the LTTE. However, the Tribunal did not accept that those events meant that the applicants faced a real chance of being suspected of being associated with the LTTE by the Sri Lankan authorities, or that the fact that they were originally from Vavuniya would lead to them being branded LTTE supporters and targeted (at [43]). The Tribunal thereby considered the integers of Tamil ethnicity, having close family members who were LTTE supporters who had been killed by authorities for that reason, and being of Vavuniyan origin in the context of their being imputed with the political opinion of LTTE support; and

(d)    under the heading “Illegal departure/returnee claims” the Tribunal stated that while there were some reports of the mistreatment of Tamil returnees provided by the applicants, other information from the Department of Foreign Affairs and Trade (to which it gave greater weight) suggested that those who made an asylum claim abroad were not treated differently to other deportees. It did not accept that as failed asylum seekers the applicants faced a real chance of being imputed with a political opinion as supporters of the LTTE (at [51]). The Tribunal thereby considered the integer of the applicants being returnees from the West and failed Tamil asylum seekers in the context of imputed political opinion of LTTE support.

52    The gist of the applicants’ contention is that, in expressing its “cumulative assessment”, the Tribunal should have expressly described (or re-described) each integer of the applicants’ individual circumstances which might be said to have increased or exacerbated the risk of persecution so as to evidence the requisite cumulative analysis. I do not accept this. Nor do I accept the applicants’ contention that the Tribunal approached the claims in a “piecemeal fashion” as deprecated in MZWPD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1095 (Weinberg J) at [74].

53    I consider that, read in light of the Tribunal’s consideration of the various integers of the applicants’ claims and the country information, paragraphs [52] and [53] of its reasons show that it considered the applicants’ claims cumulatively.

54    In relation to the applicants’ second contention, I accept that paragraphs [52] and [53] of the Tribunal’s reasons have the appearance of standard paragraphs, and that the mere recording of evidence or a statement of the applicant’s objections without analysis or resolution may not amount to “consideration” in the relevant sense: MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032 at [80] (Dodds-Streeton J). However, a decision is not invalidated merely because the reasons employ standard paragraphs or use a routine verbal formula. Of course, invalidity may result when a standard paragraph or formula is used to cloak a decision with the appearance of conformity with the law when proper consideration is not given to the integers of the claim (Wu Shan Liang at 266, [16]) but I am not persuaded that occurred in the present case. I do not accept that the Tribunal failed to cumulatively consider the various integers of the applicants’ claims.

The no evidence ground

55    The Tribunal accepted that under the Sri Lankan Immigration and Emigration Act it is an offence to depart the country without a passport and that persons returning to Sri Lanka who had previously illegally departed the country are being charged under that Act. However, it found that there was no more than a remote chance that the applicants would be charged with having illegal departure, essentially because of their very young ages at the time of departure which was over two decades ago (at [46]).

56    The applicants contended that in making that finding the Tribunal made a factual finding for which there was no evidence. They characterised the impugned finding as an “implicit” or an “implicit intermediate finding of fact” that the Sri Lankan law in respect of illegal departure would be applied differently to those who left as children. They argued that the finding assumed that the Sri Lankan procedures of arrest and interrogation and in the administration of justice operated rationally and in compliance with the rule of law, which was an assumption unsupported by evidence.

57    I do not accept this contention. Section 65 of the Act required the Tribunal to refuse to issue protection visas to the applicants unless it was positively satisfied that the first and second applicants met the Convention or complementary protection criteria. There are many cases which show that a finding of fact is not necessarily required to support a case of non-satisfaction: see SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] (Ryan, Jacobson and Lander JJ); Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 at [73] (Heerey, Conti and Jacobson JJ).

58    In the present case the Tribunal was not satisfied that there was any real likelihood that the first and second applicants would be charged by Sri Lankan authorities for departing the country illegally, when they left more than 20 years ago in the company of their families and when they were only nine and three years old. In my view the Tribunal’s state of non-satisfaction did not necessitate a finding of fact in relation to the procedure of arrest and interrogation and the administration of justice in Sri Lanka.

59    In any event, the contention that there was “no evidence” is untenable as there was some evidence before the Tribunal. As the learned authors Aronson and Groves put it in Judicial Review of Administrative Action (Fifth Edition at 246, [4.600]) the no evidence ground “cuts out when even a skerrick of evidence appears”: see also Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 587 (Weinberg J).

60    The Tribunal referred (at [46]) to country information set out in the delegate’s decision which was put in evidence by the applicants. The delegate’s decision described the relevant country information in more detail, including that 5,000 Sri Lankans had returned from India since the end of the civil war and that “…there is no country information to suggest that returnees are targeted based on their absence from Sri Lanka or their illegal departure”. The Tribunal referred (at [50]) to country information including that while there were “…some reports of the mistreatment of Tamil returnees provided by the applicant’s agents and others… these need to be weighed against other information such as that provided by DFAT that those who make an asylum claim abroad are not treated differently to other deportees and the individual circumstances of the applicants.”

61    In my view there was some evidence, of a negative character, before the Tribunal going to the likelihood of the first and second applicant being charged for illegally departing Sri Lanka.

Conclusion

62    The appeal must be dismissed. The applicants are ordered to pay the Minister’s costs.

Associate:

Dated:    27 October 2015