FEDERAL COURT OF AUSTRALIA

AAH15 v Minister for Immigration and Border Protection [2016] FCA 104

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant 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

THE COURT:

1    The appellant is a young Tamil fisherman from Jaffna in the northern province of Sri Lanka, a former stronghold of the LTTE (the Liberation Tigers of Tamil Eelam). He arrived by boat at the Cocos Islands, an Australian territory to the southwest of Christmas Island, on 1 August 2012. On 11 December 2012 he applied for a protection (class XA) visa, claiming to have fled his homeland as a refugee. On 16 September 2013 his application was refused by a delegate of the Minister and on 2 February 2015 that decision was affirmed by the Refugee Review Tribunal, the functions of which are now performed by the Administrative Appeals Tribunal. The appellant then applied to the Federal Circuit Court for constitutional writs but that application was dismissed. This is an appeal from that judgment.

Eligibility for a protection visa

2    Under s 65 of the Migration Act 1958 (Cth) the Minister is obliged to grant an applicant a visa if he is satisfied that the criteria for the grant of the visa, prescribed by the Act and Regulations, have been made out and, if not, to refuse to do so. At the time of the Tribunal’s decision the principal criteria for the grant of a protection visa appeared in s 36 of the Act. It relevantly provided that

(1A)    An applicant for a protection visa must satisfy:

    (a)    the criterion in subsection (1B); and

    (b)    at least one of the criteria in subsection (2).

(1B)    …

(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 under the Refugees Convention as amended by the Refugees Protocol; 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.

(2B)    However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…

3    The reference to the Refugees Convention is a reference to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The Refugees Protocol is the Protocol relating to the Status of Refugees done at New York on 31 January 1967. See s 5.

4    With the exception of paras (a) and (b) in subs (2A), each of the circumstances constituting “significant harm” is defined in s 5 of the Act.

5    “Torture” means:

an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)    for the purpose of obtaining from the person or from a third person information or a confession; or

(b)    for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)    for the purpose of intimidating or coercing the person or a third person; or

(d)    for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant [the International Covenant on Civil and Political Rights (ICCPR)].

6     “Cruel or inhuman treatment or punishment” means:

an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)    pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant; or

(d)    arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

7     “Degrading treatment or punishment” means:

an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)    that is not inconsistent with Article 7 of the Covenant; or

(b)    that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

8    The first criterion under s 36(2) is often referred to as the “refugee criterion”, the second as the “complementary protection criterion”.

9    Under the Refugees Convention as amended by the Refugees Protocol (together the Convention), Australia has protection obligations towards anyone who is a “refugee”. For the purposes of the Convention, Art 1A(2) states that the term “refugee” relevantly applies to any person who:

(1)    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;

(2)    is outside the country of his nationality; and

(3)    is unable or, owing to such fear, unwilling to avail himself of the protection of that country.

10    The complementary protection criterion is based on Australia’s obligations not to expel or return a refugee to a country where his or her life or freedom would be threatened on any one of the Convention grounds (known as non-refoulement) (see Art 33 of the Convention) and our obligations under the ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The visa application

11    The appellant’s claims were set out in a statutory declaration attached to his application. There, he detailed his background, including the killing of his father and other Tamil fishermen by the Sri Lankan navy when he was approximately two years old and the family’s displacement during the civil war. He said that he was a fisherman, that to work as a fisherman in Sri Lanka it was necessary to have a fisherman’s “ID card”, and that about two or three years before he left some officers in the Sri Lankan army began refusing to give Tamil (but not Sinhalese) fishermen their original ID cards without which fishermen were unable to go out on the water and earn a living.

12    In short, he professed to fear returning to Sri Lanka because his ability to subsist and provide for his family was being seriously threatened. The reasons he gave were that he was an ethnic Tamil, a Tamil fisherman, and that he had sought asylum in Australia. He contended that he would be perceived to be a supporter of the LTTE because of his Tamil ethnicity, his place of origin and his application for asylum. He also claimed that he was in fear for his life at the hands of the Sri Lankan authorities, that he would be detained by them on his return and “in their detention … subjected to torture and/or cruel, inhuman or degrading treatment or punishment”.

The Tribunal proceeding

13    Before the Tribunal the appellant was represented by a migration agent, who is also a solicitor. In written submissions she contended that the appellant had a well-founded fear of being persecuted for reasons of his race (as an ethnic Tamil), imputed political opinion (as a supporter of the LTTE and an opponent of the government), and membership of a particular social group (of failed asylum seekers) and, for those reasons, is unable or, owing to such fear, unwilling to avail himself of the protection of his country of nationality. Consequently, she submitted, the appellant was eligible for a protection visa under s 36(2)(a) of the Act. She also submitted that the appellant had a well-founded fear that, as a necessary and foreseeable consequence of his removal to Sri Lanka, there is a real risk that he will suffer significant harm. Accordingly, she argued, he also satisfied the criterion in s 36(2)(aa). She defined the bases of the claims as follows:

12.    [AAH15] fears harm for reasons of:

a.    His Tamil race:

i.    The Tamil community in Sri Lanka continues to suffer from oppression, violence and intolerance. We submit that the Tribunal should accept that those who seek to harm [AAH15] in Sri Lanka will be motivated to harm him on account of his race.

ii.    There is a close nexus between ethnic and political identities in contemporary Sri Lanka, with [AAH15]’s claim to fear harm because of his race in many respects inseparable from his claim to fear harm because he will be perceived to support the LTTE. Tamils are persecuted in Sri Lanka because, in part, they are perceived as potential supporters of the LTTE; their racial identity gives rise to certain imputed political views in the eyes of the Sri Lankan authorities and its non-state paramilitary allies (such as the TMVP or ‘Pillayan Group’).

iii.    We have provided further information in support of [AAH15]’s claims in this respect below in ‘Appendix 1: Persecution of Tamils in Sri Lanka’

b.    His imputed political opinion:

i.    [AAH15] will be perceived to support the LTTE, and to oppose the government of Sri Lanka, because:

    1.    he is Tamil;

    2.    he is from the Northern Province; and

    3.    he has sought asylum in Australia.

ii.     As noted above, there is a strong link between ethnic and political identities (and, hence, ethnic and political persecution) in contemporary Sri Lanka. The information provided below in ‘Appendix 1: Persecution of Tamils in Sri Lanka’ is hence relevant to both [AAH15]’s fears of ethnic and political persecution.

iii.    We have provided independent information below (as ‘Appendix 2: Persecution of Failed Asylum Seekers in Sri Lanka’) in support of [AAH15]’s claim that he will be persecuted because of the political views with which he will be imputed because he has applied for asylum in Australia.

c.    His membership of a particular social group (failed asylum seekers):

i.    [AAH15] fears that he will be persecuted if he returns to Sri Lanka because he has applied for asylum in Australia.

ii.    It is our submission that ‘failed asylum seekers’ constitute a ‘particular social group’ for the purposes of the Refugee Convention. Applying the test employed by Gleeson CJ, Gummow and Kirby JJ in Applicant S:

1.    [T]he group must be identifiable by a characteristic or attribute common to all members of the group.

a.    All members of the ‘particular social group’ of ‘failed asylum seekers’ must, in order to belong to the group, have attempted to apply for protection abroad, failed in this task, and been returned to Sri Lanka.

2.    [T]he characteristic or attribute common to all members of the group cannot be the shared fear of persecution.

a.    All members of this ‘particular social group’ would share the characteristic of having sought asylum abroad even absent their fear of persecution on account of this characteristic.

3.    [T]he possession of that characteristic or attribute must distinguish the group from society at large.

a.    It is our submission that the experience of having applied for asylum abroad (and having failed in this task) is sufficiently distinctive that failed asylum seekers constitute ‘a group apart’ in Sri Lanka, imputed with particular political views and grouped together by an atypical set of experiences.

iii.    We have provided independent country information below (in ‘Appendix 2: Persecution of Failed Asylum Seekers in Sri Lanka’) in support of [AAH15]’s fears in this regard.

(Citations omitted).

14    After the submission was lodged, the appellant’s migration agent forwarded to the Tribunal a copy of a newspaper article together with a translation of it containing an account of a collision in Jaffna in 2012 between a man on a bicycle and “the bowser of the armed forces” (apparently an army truck), killing the cyclist instantly. According to the covering email from the migration agent, the cyclist was the appellant’s uncle. The appellant claimed that this was an example of the harassment of, and harm visited upon, Tamils in his area.

The Tribunal’s decision

15    The Tribunal considered first whether the appellant satisfied the criterion in s 36(2)(a), that is, whether he met the definition of “refugee” in the Convention.

16    The Tribunal accepted (at [14]) that the appellant’s father was killed by the Sri Lankan army in 1993 along with 70 other Sri Lankan fishermen because they were accused of being involved with the LTTE. It also accepted that the appellant’s uncle had been killed by a truck (sometime between 2000 and 2008). But the Tribunal noted that the appellant had said at the hearing that neither he nor anyone in the family had been involved with the LTTE and that there was no evidence to suggest that the family had been imputed with “a pro-LTTE profile” because of his father. Moreover, it was not satisfied that the father’s or uncle’s death meant that there was a real chance that the appellant would be harmed if he were to return to Sri Lanka now or in the reasonably foreseeable future.

17    While the appellant had initially told the Tribunal at the hearing that his brother had not had any difficulties as a fisherman in Sri Lanka and that no member of the family had had any difficulties since he had left the country, later in the hearing he raised a new claim that his brother had been taken to Colombo in 2013 and interrogated. But the Tribunal noted inconsistencies in the appellant’s evidence on this matter and a number of other difficulties with the later version, with the result that not only was it not persuaded by it but it found that the appellant had fabricated this claim in an attempt to strengthen his visa application.

18    The Tribunal then observed that the ability of the appellant’s brother, uncles and brother-in law to work as fishermen in Jaffna without difficulty supports the view that the Sri Lankan authorities do not deny Tamil fishermen the ability to support themselves as fishermen. The Tribunal also accepted the appellant’s statement given at the hearing that he had never been physically harmed in Sri Lanka, although it contradicted the account he had given at his entry interview.

19    The Tribunal accepted country information suggesting that there was increasing militarisation of the Northern Province and that the Sri Lankan Navy continues to conduct security checks on fishing boats. Nevertheless, it said that there was no evidence to suggest that the navy was preventing Tamils from earning a livelihood as fishermen or was regularly preventing boats from fishing.

20    The Tribunal was not satisfied that there was a real chance of the appellant being harmed as a result of the militarisation of the Northern Province. Nor was the Tribunal satisfied that he would be denied a right to earn income as a fisherman or a Tamil. It accepted that on one occasion the appellant’s ID was withheld when he inadvertently drifted into a prohibited area but did not accept that there were any “ongoing consequences”. In view of the absence of past harm, country information suggesting a reduction in the restrictions of Sri Lankan fishermen, (its conclusions as to) the lack of difficulties faced by the appellant’s family in Sri Lanka who continue to work as fishermen, and the appellant’s inability to provide an adequate explanation as to why he would be denied the right to work as a fisherman if he were return to Jaffna, the Tribunal was not satisfied that he would be denied the right to continue work as a fisherman if he were to return to Sri Lanka now or in the reasonably foreseeable future.

21    The Tribunal acknowledged the appellant’s claim that that he would be perceived to be a supporter of the LTTE because he is a Tamil and also because he is from Jaffna.

22    The Tribunal referred to the large number of reports by government and non-government organisations and the case law submitted on the appellant’s behalf. The general tenor of those reports was that Tamil civilians without a pro-LTTE profile were at low risk of being detained or persecuted, a proposition that the Tribunal put to the appellant and in relation to which he had no comment. The Tribunal observed that the appellant did not claim to have had any actual association with the LTTE and that there was no evidence before it to suggest that the Sri Lankan authorities suspect that he had or has such an association. The Tribunal referred to a claim made by the appellant after the hearing that his brother had been arrested because a boat he owned had been used by the LTTE. But it rejected that claim, for the reasons described above at [17]–[18]. Ultimately, the Tribunal did not accept that “being a Tamil, young, a male and/or from Jaffna would mean that the appellant [would be] imputed with a pro-LTTE profile”, and did not accept that the appellant “had, or has, any political profile (imputed or otherwise) or that there is a real chance he will be harmed because he is a Tamil from the North”.

23    The Tribunal then considered the appellant’s claim that he would be killed or seriously physically harmed by the Sri Lankan army because he would be a failed asylum seeker.

24    The Tribunal accepted that people with particular profiles might be subjected to serious harm if they were returned to Sri Lanka and that people who left the country illegally are likely to be detained, albeit for “a short period” only. But it concluded that there was no credible information to support a finding that failed asylum seekers, including those who are Tamils, Tamil fishermen or Tamil fishermen from Jaffna, are for those reasons alone imputed to hold pro-LTTE opinions or suspected to have been involved, previously or currently, in supporting the LTTE.

25    The Tribunal went on to consider country information regarding the circumstances faced by returned Tamil asylum seekers and, in particular, DFAT advice to the effect that there was no evidence to support allegations of mistreatment of returning Tamils to Sri Lanka. It also referred to advice from the UK Home Office that such allegations as there were lacked substance and that “[t]he principal focus of the authorities continues to be, not Tamils from the north (or east) as such, but persons considered to be LTTE members, fighters or operatives or persons who have played an active role in the international procurement network responsible for financing the LTTE and ensuring it was supplied with arms”.

26    The Tribunal accepted that the appellant was likely to be detained for questioning, to have security and character checks undertaken, and to be remanded and charged with an offence under s 45(1)(b) of the Sri Lankan Immigrants and Emigrants Act for his illegal departure from the country. The Tribunal found that the appellant would be likely to be fined, but that he would not be given a custodial sentence, and that the possibility that he would be detained for a prolonged period of time as a penalty for departure was remote. The Tribunal accepted that conditions on remand might be cramped and uncomfortable, but found that those conditions would apply to persons on remand generally, and not specifically to Tamils, and that the evidence did not establish that returnees in particular are subject to mistreatment whilst on remand. It found that, other than “the consequences of a law of general application applied in a non-discriminatory manner” (presumably s 45(1)(b)), the evidence did not support the conclusion that the appellant faces a real chance of serious harm upon his return to Sri Lanka.

27    The Tribunal concluded its consideration of whether the appellant satisfied the criterion in s 36(2)(a) thus( at [40]):

Having considered the applicant's claims individually and cumulatively … the Tribunal is not satisfied there is a real chance that on return to Sri Lanka the applicant would suffer serious harm amounting to persecution for the Convention reasons of his Tamil race/ethnicity, actual or imputed political opinion or his membership of a particular social group. He does not claim to fear serious harm for any other Convention reason and no other reason is apparent on the face of the information before the Tribunal. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

28    The Tribunal then proceeded to consider the complementary protection criterion in s 36(2)(aa). For the same reasons as it rejected the claims in relation to s 36(2)(a), the Tribunal rejected the appellant’s claim that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm because of his Tamil race, because of any imputation of pro-LTTE or anti-government political opinions, because he is a young Tamil male, or because he sought asylum in Australia. Specifically, it said (at [44]) that it was “not satisfied that there is evidence of mistreatment” of persons in the position in which the appellant was likely to find himself on his return,

such that it amounts to torture, arbitrary deprivation of life, or intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by s.36(2A) …

Nor was the Tribunal satisfied that the evidence supported a finding that the appellant would be subjected to significant harm “during the process of returning to Sri Lanka”, whether at the airport on arrival, during questioning or while on remand.

29    The Tribunal acknowledged the numerous reports of, and high media interest in, involuntary returnees to Sri Lanka, including Tamil males from Australia and those departing Sri Lanka illegally by boat. Despite this, however, the Tribunal said that there had been no reports of such people “suffering torture, arbitrary deprivation of life, or intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission amounting to significant harm as contemplated by s 36(2A) on a regular or systematic basis”. Such isolated reports as there were, it said, related to individuals with “known political profiles, involvement in people smuggling, unspecified profiles or those who were unable to lodge protection visa applications for assessment”.

30    The Tribunal therefore found that the appellant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa).

The application below

31    The appellant contended in the court below that the Tribunal’s decision was affected by jurisdictional error in several respects. Four grounds were pleaded but only three were pressed. They were:

Ground 1

The Tribunal committed jurisdictional error in misdirecting its enquiries, conflated issues, and / or erred making appropriate finding of facts to support its conclusions.

Particulars

(i)    The Tribunal accepted that the Applicant’s father was killed (CB 227;RRT dec at [14]) and also an uncle was killed was accepted;

(ii)    Whether such deaths would be linked to pro-LTTE supporter / opinions or anti-government was key consideration;

(iii)    The Tribunal failed to consider the family relationship between the Applicant’s father / uncle and his family and disregarded the relationship of family members and whether there would imputations of having connections to and / or pro-LTTE opinion / anti-government opinion;

(iv)    The misdirected when it considered whether Tamils generally were not at risk of harm (CB 236 – 8; RRT dec at [33] – [36]);

(v)    The Tribunal erroneously conflated the issue of LTT'E support / anti-Government with the change situation and has not considered a claim;

(vi)    The Tribunal thereby committed jurisdictional error.

Ground 1A

The Tribunal committed jurisdictional error in ignoring considerations and / or misapprehending and / or irrational or illogical the Applicant’s brother’s LTTE connections (CB 232 — 233) or alternatively has been procedurally unfair.

Particulars

(i)    The Tribunal rejected that the Applicant’s brother was arrested (CB 232 -233 at [26]; at 31 (CB 235)) and rejected that the applicant feared harm.

(ii)     The Applicant was much younger during the time of the civil war (CB 52 – DOB 21/10/90);

(iii)    The Applicant was not informed of the brother’s till after the Tribunal hearing (per letter to RRT on 6 January 2015 (CB 209 – 10);

(iv)    The boat the brother had was in the past used by LTTE;

(v)     The use of the boat was in issue;

(vi)     The investigation and the incident arose when the Appellant had already left Sri Lanka in 2012;

(vii)    The Applicant was unaware of the boat owing to his age at the time of the conflict;

(viii)     The Applicant could not have known and highlighted this claim / issue.

(ix)    The Tribunal denied the Applicant procedural fairness in respect of dispositive issue by failing to provide opportunity to address the Tribunal’s concerns.

(x)    Erred in finding “inconsistencies” and fabrication (CB 229.8);

(xi)    The Tribunal thereby committed jurisdictional error.

Ground 2

[not pressed]

Ground 3

The Tribunal committed jurisdictional error (and denied procedural fairness) when it failed to consider the Appellant’s membership of a particular social group a Convention nexus specifically claimed by the Appellant.

Particulars

(i)    The Applicant claimed particular social group with attributes such young Tamil men from Northern Sri Lanka who left illegally. The Tribunal has not made any assessment of a particular social group claim (although it dealt with returnees (RRT decision at [30] – [39]; CB 234 – 40). There were other characteristics of the group (CB 164 – 166) that was not dealt with as social group such as being from LTTE occupied are;

(ii)     The Tribunal committed jurisdictional error when it failed to properly identify, assess and address the risk of harm in respect of the Applicants’ particular social group did not deal with the particular social group advanced by the Applicant.

The reasons of the primary judge

32    The primary judge disposed of the first ground by referring to the Tribunal’s findings at [14]. His Honour observed at [22]–[24]:

22.    This passage makes it clear that, in respect of the father’s death, there were three reasons for which the Tribunal found that there were no ongoing consequences for the applicant. First, the applicant’s family was never in fact involved in the LTTE; secondly, none of the applicant’s family had been imputed with a pro-LTTE profile because of his father; and thirdly, there has been a significant change in circumstances since the end of the civil war. The applicant only addresses the third of these bases. However, contrary to his submission, the change of circumstances since the civil war is relevant to the question of the impact of the father’s death upon the applicant’s future prospects of harm. The applicant was a fisherman in Sri Lanka like his father had been. The fact that circumstances concerning Tamils in the North of Sri Lanka were significantly better than they had been in 1993 when his father was killed, supports the conclusion that it was much less likely now that the applicant might, as a fisherman, be suspected of being involved with the LTTE. That conclusion is fortified by the other two bases for the Tribunal’s finding.

23.    The same reasoning applies to the death of the uncle.

24.    For those reasons, the Tribunal’s findings in connection with the applicant’s father involved no jurisdictional error and the first ground is rejected.

33    The appellant’s contentions concerning ground 1A were based on the proposition that he was not informed of his brother’s death until after the Tribunal hearing and the incident had only occurred following his departure from Sri Lanka in 2012. The primary judge rejected these contentions for the following reasons.

34    First, while his Honour acknowledged that another person might have come to a different conclusion, he said that would be a matter going to the merits of the claim rather than its legality, and it would not amount to jurisdictional error.

35    Secondly, and in any event, his Honour said that a number of the premises for the appellant’s argument could not be accepted because they contradicted statements the appellant had made to the Tribunal. His Honour referred to the appellant’s statements that he had not referred to his brother’s detention earlier because he was “afraid that if news got out about it ... his brother would have difficulties” and the appellant’s initial account at the hearing that his brother had not had any difficulties since the appellant had left Sri Lanka. His Honour said that this evidence provided a rational basis for the Tribunal’s rejection of the late claim that the brother had been called in for interrogation by the authorities for his suspected involvement with the LTTE.

36    As to the allegation that the Tribunal denied the appellant procedural fairness by failing to give him an opportunity to address the Tribunal’s concerns about the evidence relating to his brother, the primary judge said that there was no requirement for the Tribunal to disclose its thought processes but noted that, regardless, the Tribunal told the appellant at the hearing that it was having difficulty accepting his evidence.

37    The final ground pursued below related to the characterisation of the social group to which the appellant claimed to belong.

38    His Honour noted that a failure by the Tribunal to make a finding on “a substantial, clearly articulated argument relying upon established facts” may amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction, referring to the judgment of the High Court in Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24] (Gummow and Callinan JJ), [95] (Hayne J). Nevertheless, the primary judge held that this ground should be rejected for the following reasons.

39    First, it was not made by the appellant before the Tribunal (pointing to the written submissions lodged by the appellant’s migration agent). His Honour pointed out that the position in this case was distinguishable from the position in Dranichnikov where the Tribunal failed to address a claim which was expressly made on a number of occasions in the appellant’s written submissions. His Honour acknowledged that the Tribunal was not entitled to limit its determination to the case articulated by an applicant if the evidence and material it accepts raises a case which was not articulated, but he said that this did not require the Tribunal “to excavate a claim that is otherwise not apparent on the face of the material presented or the submissions made by an applicant”.

40    In any event, his Honour held that the Tribunal had in fact considered the matter in the way that the appellant argued it did not. His Honour said (at [34]):

Secondly, the Tribunal not only rejected the applicant’s claim that he would face harm as a returnee or failed asylum seeker, but also found that he did not face a real chance of persecution for reason of being a Tamil, young, a male and/or from the North of Sri Lanka. In that way, since the Tribunal expressly considered all of his claims individually and on a cumulative basis, any claim based upon a purported group with those characteristics was dealt with by the Tribunal’s findings.

The appeal

41    Four grounds of appeal are pleaded. The first substantially replicates the complaint made in Ground 1 of the application in the Federal Circuit Court, the second replicates the complaint in ground 1A below and the third corresponds to the complaint in Ground 3 below. While the grounds purport to identify where error in the primary judge’s reasons may be found, none of them identifies what error his Honour is alleged to have made. Besides the paragraph references to the judgment, each ground merely adds before the allegations that were made in the application below the words “his Honour should have found that”, or some variation thereof.

42    The fourth ground is new. It complains about the Tribunal’s finding concerning its failure to be satisfied as to the complementary protection criterion. It reads (without alteration):

His Honour found the Tribunal had not committed jurisdictional error in consideration of persecution: AAH15 v Minister for Immigration & Anor [2015] FCCA 2359. The Tribunal erred in consideration of the harm that the Applicant would suffer when it consider complementary protection for consequences of illegal departure and whether harm was intentionally inflicted upon his detention.

Particulars

    (i)    The Appellant repeats particulars of Ground 2 in court below;

(ii)    The Tribunal did not consider whether harm was intentionally inflicted.

43    It will be recalled that Ground 2 of the application in the court below was not pressed.

44    As is apparent from the notice of appeal, the case advanced on the appellant’s behalf was fundamentally flawed in that it failed to come to terms with the nature of the appeal. It was, in effect, a re-run of the judicial review application. But the appeal is not a hearing de novo. The appeal is brought under s 24 of the Federal Court of Australia Act 1976 (Cth). An appeal under that section is in the nature of a rehearing in which error by the primary judge must be shown: see, for example, Branir Pty Ltd v Owston Nominees (No 2) Pty Limited (2001) 117 FCR 424 at [20]—[30] (Allsop J, Drummond and Mansfield JJ agreeing at [1] and [2] respectively); SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129. As Allsop J said in Branir at [30]:

the views and conclusions of the [primary] judge ultimately have to be shown to be wrong. They should not be laid to one side and a simple re-argument of the case take place.

45    Yet, this is precisely what the appellant sought to do here. Save in relation to ground 4, which was not argued below, neither in the notice of appeal nor in submissions did he point to any particular error on the part of the primary judge. Indeed, at no point — whether in writing or orally — did his counsel engage with the primary judge’s reasons. The appeal also raises complaints about the Tribunal’s decision which were not agitated below, although no application for leave to put these matters was made until counsel was prompted by the Court to make one.

Ground 1: Did the Tribunal fail to consider the claim that the appellant would be perceived to be an LTTE supporter because of the attributes (actual or perceived) of his father and uncle?

46    As pleaded, the substance of the allegation is that the Tribunal fell into jurisdictional error, in circumstances where the Tribunal:

(1)    conflated the question of whether Tamils in Sri Lanka generally are at risk of harm with the question of whether the appellant himself was at risk of harm; and

(2)    as a result, failed to consider the appellant’s claim which was that, given the circumstances of the deaths of his father and uncle, the appellant himself would be imputed to be a supporter of the LTTE.

47    At the hearing this developed into an argument that, by focusing on the circumstances of Tamils in Sri Lanka, the Tribunal had failed to consider as an integer of the appellant’s claim the appellant’s own personal circumstances, namely, that because of his relationship to his father and uncle he would be imputed with the pro-LTTE/anti-Government opinions attributed to them.

48    To make a decision without considering the entire claim or all the claims is a failure to complete the exercise of jurisdiction; a failure to consider a claim or its component integers is a failure to take into account a mandatory consideration. If the Tribunal had made such a decision it would have fallen into jurisdictional error. See, for example, Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42] (Allsop J), Spender and Merkel JJ agreeing at [1] and [7] respectively). As Merkel J put it at [7]:

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. In that regard, the Tribunal, in conducting its review of the decision of the delegate under s 414 of the Migration Act 1958 (Cth) (the Act), is under a duty to address or deal with the case (ie the claim) actually raised by the material or evidence: see Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 and Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196, Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294.

(Emphasis in original.)

49    In the present case, however, the argument is without foundation.

50    Contrary to the appellant’s argument, as the primary judge held, the prospect of the appellant being imputed with his father and uncle’s political affiliations was considered by the Tribunal at [14]:

The Tribunal accepts that his father was killed by the Sri Lankan Army in 1993, along with 70 other Tamil fishermen because they were accused of being involved with the LTTE. However, the applicant stated at the hearing that neither he nor anyone in his family has been involved with the LTTE and there is no evidence to suggest that the applicant’s family have been imputed with a pro-LTTE profile because of his father (for example his brother continues to live there without difficulty). The Tribunal considers that the situation for Tamils in Sri Lanka is significantly different now to what it was in 1993 and is not satisfied that his father’s death supports a finding that there is a real chance of the applicant being harmed if he was to return to Sri Lanka now or in the reasonable foreseeable future. Similarly … the Tribunal accepts that the applicant’s uncle was killed by a truck (sometime between 2000 and 2008) but in light of the applicant’s inability to provide any explanation for why his uncle was targeted and in light of the change in the country situation since the end of the civil war in May 2009, the Tribunal is not satisfied that his uncle’s death supports a finding that there is a real chance of the applicant being harmed if he was to return to Sri Lanka now or in the reasonable foreseeable future.

51    As the primary judge observed at [22] of his reasons, in this paragraph of its decision record, the Tribunal dealt squarely with the claim that the political beliefs of the appellant’s father and uncle might be imputed to him. It decided that his father’s beliefs would not be attributed to him based on the evidence that none of his family had been involved with the LTTE and the absence of evidence to suggest that any member of the family had been imputed with “a pro-LTTE profile”. In the case of the uncle, it rejected the contention because of the appellant’s failure to explain why his uncle was a target and the country information revealing a change in the situation since the end of the civil war.

52    The Tribunal did not, as the appellant suggested, conflate the circumstances of Tamils in Sri Lanka generally with those of the group of Tamils who are imputed with pro-LTTE or anti-government affiliations, because the Tribunal has already found that the applicant was not a member of that group. Rather, as the primary judge found at [22], the finding regarding the circumstances of Tamils generally was used by the Tribunal to infer that the appellant’s other circumstances, such as being a Tamil and a fisherman, were unlikely to lead to the applicant being imputed with pro-LTTE affiliations in the same way that his father was.

53    Ground 1 must therefore be dismissed.

Ground 2: Were the Tribunal’s findings concerning the circumstances of the appellant’s brother irrational?

54    Ground 2 relates to the rejection by the Tribunal of the appellant’s claim concerning his brother’s arrest and interrogation. The appellant argued that the Tribunal’s findings in this respect were irrational in view of the fact that the appellant had only recently learned of his brother’s plight. The other bases for impugning the Tribunal’s decision raised in the notice of appeal were not pressed during argument.

55    It may be accepted that a determination which is not based on findings or inferences of fact supported by logical grounds may be set aside for jurisdictional error (see, for example, Minister for Immigration v SZMDS (2010) 240 CLR 611), but this ground is without merit.

56    For the reasons given by the primary judge (at [27]–[28]), there is nothing illogical or irrational about the Tribunal’s conclusion in this respect or its reasoning process. Certainly it could not be said that this was a conclusion which no rational or logical decision maker could reach on the same evidence (see SZMDS at [130] per Crennan and Bell JJ). True it is, as the primary judge also observed, the Tribunal might have come to a different conclusion, but, as Crennan and Bell JJ went on to say in SZMDS at [131]:

If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

57    Although the appellant initially identified [29] of the primary judge’s reasons as a source of error, he did not advance any argument to support the submission that the primary judge erred in concluding, for the reasons given, that the appellant had not been denied procedural fairness by not being given an opportunity to address the Tribunal’s concerns about his evidence. The Minister inferred (correctly in my view) that the submission was not maintained. In any case, there is no substance to it. As the Minister submitted, it is well established that the Tribunal was not required to put to an applicant “each step in its prospective reasoning process” (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18]) or provide a running commentary on its thoughts about the evidence (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]).

58    Ground 2 must be dismissed.

Ground 3: Did the Tribunal err in its characterisation of the social group to which the appellant belonged?

59    This ground concerns the Tribunal’s approach to the appellant’s claim to fear persecution by reason of his membership of a particular social group. As I have already indicated, the social group was defined for the Tribunal by the appellant’s migration agent as “failed asylum seekers” and the Tribunal undoubtedly dealt with this claim. On the appeal, however, the classification of the social group was a moveable feast. At one point in his written submissions, the appellant’s counsel, Mr Kumar described it as “a young wealthy Hindu Sri Lankan of Tamil ethnicity from East” (despite the evidence put before the Tribunal that he was a poor Catholic Tamil from the north of Sri Lanka). Two paragraphs later he described it as a social group consisting of the following attributes: Sri Lankan, young males, from the North/East, of Tamil ethnicity, “likely to be perceived or are suspected of having some allegiance to LTTE or other groups; [and] possibly holding views opposed to their treatment of by the government of Sri Lanka” (sic).

60    In his oral submissions Mr Kumar added the characteristic of failed asylum seeker.

61    Mr Kumar submitted that the Tribunal erred in several respects.

62    First, he argued that the Tribunal failed to clearly identify the social group by focussing only “on the issue of political opinion and imputed political opinion”.

63    This argument must be rejected. It is apparent from the Tribunal’s reasons that it proceeded upon the submissions made by the appellant’s migration agent that the particular social group was that of “failed asylum seekers”.

64    Mr Kumar also submitted that the Tribunal denied the appellant procedural fairness “by identifying and addressing the [a]ppellant’s social group”. It is not entirely clear what is meant by this submission. It was not elaborated upon either in writing or in oral argument. But if it is meant as a submission that the Tribunal denied the appellant an opportunity to be heard on whether the particular social group should be characterised differently from “failed asylum seekers” it must be rejected. The characteristics were those attributed to it by the appellant himself, through his representatives.

65    Mr Kumar also submitted that the Tribunal assessed his case “against general population of people of the region in Sri Lanka rather than the [a]ppellant’s social group” and that it failed “to carry out the cumulative tests with those attributes”. AWS 45

66    Both these submissions should be rejected. As to the first, the Tribunal said (at [30]):

The applicant’s representative correctly makes the distinction between treatment as a failed asylum seeker and as a returnee. The Tribunal agrees that these are separate groups and that not all returnees are failed asylum seekers and not all failed asylum seekers have left the country illegally and would face the same difficulties as the applicant is likely to face. However, in the applicant’s circumstances he will be retuning as a failed asylum seeker who left the country illegally and the Tribunal has considered the country information in light of this.

67    Furthermore, at [31] the Tribunal also considered the claim on the basis that the appellant would be returning to Sri Lanka as a failed asylum seeker as a Tamil, a Tamil fisherman, and a Tamil fisherman from Jaffna. It found that the appellant would not, for those reasons alone, be someone to whom support for the LTTE would be attributed.

68    There can be no doubt that the Tribunal did not assess the appellant’s claim against the general population rather than as a member of a social group with the features he attributed to it.

69    As to the second of these submissions, I accept that the attributes of the relevant social group must be assessed cumulatively or collectively. As Gilmour J observed in Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025 at [42], “[i]t is artificial to attempt to divide up the basis of [an applicant’s] fears as though one was dealing with a pleading point”. But I am not persuaded that this is the approach the Tribunal took. For one thing, twice in its reasons it stated that it had considered the appellant’s claims both individually and cumulatively (at [11] and [40]). The reasons do not indicate, as the appellant effectively submitted, that the Tribunal did not do what it said it had done.

70    Ground 3 should be dismissed.

Ground 4: The additional ground relating to complementary protection

71    This ground involved a challenge to the Tribunal’s reasoning at [44] concerning whether, for the purposes of s 36(2)(aa) of the Act, there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant’s removal from Australia to Sri Lanka there is a real risk that the appellant would suffer significant harm (as defined in sub-s (2A)). It will be recalled that “significant harm” includes torture, cruel or inhuman treatment or punishment and degrading treatment or punishment, and that the definitions of each of those terms include an element of intention. The short point raised in the notice of appeal is that the Tribunal erred by failing to consider whether, as a result of his illegal departure from Sri Lanka, harm would be intentionally inflicted upon him during his consequent detention. But it also revived (by the incorporation of the particulars in support of the abandoned ground 2 below) the allegation that the Tribunal erred by making a qualitative assessment of the appellant’s likely detention, the very allegation rejected by the High Court in Minister for Immigration and Border Protection v WZAPN (2015) 320 ALR 467; [2015] HCA 22.

72    It is common ground that the issue raised by this ground was not agitated below and that leave is required to do so now. Ordinarily, leave will only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46].

73    Where there is no adequate explanation for the failure to take the point below and the point appears to be of doubtful merit, the Full Court held in VUAX at [48] that leave should generally be refused. In H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43; [2000] FCA 1348 at [8] Branson and Katz JJ observed:

In our view, the readiness with which appeal courts have in the past been satisfied that it is expedient in the interests of justice to allow a fresh point to be argued and determined on appeal is unlikely to continue into the future. The volume and complexity of the cases presently required to be heard and determined by the intermediate appellate courts of Australia is such that it is increasingly important that such courts are able to devote their time to the genuine review of first instance decisions. It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge. The interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration.

74    At the hearing the appellant’s counsel, Mr Kumar, who also appeared for the appellant in the Federal Circuit Court, explained that ground 2 in the court below had not been pressed because the point it raised had been rejected by the High Court in WZAPN. He then stated:

And the reason we decided to put this ground 4 in is detention is still an issue, in my submission.

75    To the extent that this ground seeks to revive the point rejected in WZAPN leave should not be granted as the point is hopeless. To the extent that this ground seeks to advance a point not made below I am not satisfied that it is expedient and in the interests of justice to do so.

76    Mr Kumar accepted that he had made a forensic decision before the primary judge not to run a case that there was jurisdictional error in the Tribunal’s consideration of the complementary protection claim and yet now wished to do so. He also accepted that the present complaint was one which was open to him to make below. The only reason propounded in favour of granting the appellant leave to run the new point was that the Full Court is reserved in an appeal from the judgment in SZTAL v Minister for Immigration and Border Protection [2015] FCCA 64 where the same point had been argued and rejected. Yet, Mr Kumar did not indicate the basis of the appeal, let alone propound either a formal or a reasoned argument to the effect that SZTAL had been wrongly decided in this respect.

77    In any event, it seems to me that the allegation that the Tribunal failed to consider whether, upon his likely detention, the appellant would be intentionally mistreated is unsustainable in the face of the Tribunal’s conclusion at [44] that it was not satisfied that there was evidence of “intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by s.36(2A) …”.

78    Yet, the appellant submitted that the absence of express findings as to whether or not gaolers who lock prisoners in cells know that because of the conditions in the cell “pain or suffering may result” shows that the Tribunal committed jurisdictional error, presumably because the Tribunal might infer intention to cause pain or suffering from knowledge that pain or suffering might ensue. But mere pain or suffering would not have been enough to satisfy the definition of significant harm in any event. Each of the circumstances listed in s 36(2A) which would satisfy the definition of significant harm requires more. For an act or omission to constitute torture, for example, there must be “an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted” for one or other of a number of specific purposes. “Cruel or inhuman treatment or punishment” also denotes “an act or omission by which … severe pain or suffering … is intentionally inflicted …” unless “the act or omission could reasonably be regarded as cruel or inhuman in nature”, in which case the pain or suffering need not be severe. “Degrading treatment or punishment” requires “extreme humiliation”. It is evident from the Tribunal’s reasons that it was not satisfied that there was a real prospect that any of these consequences would ensue from the appellant’s detention on remand.

79    The appellant also submitted that the primary judge erred in his consideration of s 499(2A) and Ministerial Direction 56, although (as this point was not argued below) presumably he meant the Tribunal.

80    Section 499(1) provides that the Minister may give written directions to a person or body with functions or powers under the Act about the performance of those functions or the exercise of those powers. The effect of s 499(2A) is that if such directions are given, the person or body is bound to comply with them. Ministerial Direction No 56 is such a direction. As the Tribunal acknowledged in an attachment to the reasons entitled “Relevant Law”, this requires the Tribunal to take into account policy guidelines entitled “PAM3: Refugee and humanitarian — Protection visas — Complementary Protection Guidelines”.

81    This submission was not developed orally but in the written submissions Mr Kumar argued that “Guideline 18 clearly requires consideration to be given to ‘intention’ as in circumstances that inference is ought to have been considered from all the circumstances”.

82    Guideline 18, which appears in the section of the Guidelines on torture reads:

18    Intentionally inflicted pain or suffering

To meet the definition of torture, an act or omission must be intended to inflict severe pain or suffering. An act or omission which is not intended to cause pain or suffering but inadvertently did so, would not fall within the definition.

In certain circumstances, it may be appropriate to infer an intention to inflict severe pain or suffering if it is evident that such pain or suffering was or may be knowingly inflicted.

(Emphasis added.)

83    Having regard to the Tribunal’s conclusions in [44], I have great difficulty in accepting that there is any sound basis to argue that the Tribunal failed to give consideration to these matters. Moreover, I also have difficulty with the underlying premise of the submission that there was an obligation on the Tribunal in the circumstances of this case to consider whether an intention to inflict severe pain or suffering should be inferred.

84    Consequently, leave to argue the new ground should be refused.

Conclusion

85    For the foregoing reasons, the appeal should be dismissed with costs. There will be orders accordingly.

Associate:

Dated:    18 February 2016