FEDERAL COURT OF AUSTRALIA

SZVHC v Minister for Immigration and Border Protection [2016] FCA 1324

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

BARKER J:

1    The appellant, a male citizen of Sri Lanka of Tamil ethnicity, appeals from a decision of the Federal Circuit Court of Australia dismissing his application for judicial review of a decision of the former Refugee Review Tribunal affirming the decision of a delegate of the Minister for Immigration and Border Protection refusing to grant a protection (class XA) visa.

2    The appellant arrived in Australia at Christmas Island by boat from Sri Lanka on 17 May 2012 without a visa.

3    The appellant applied for a protection visa on 27 August 2012. In his application, the appellant claimed he left Sri Lanka because he was fearful for his life. He said his difficulties began in 2003, when Criminal Investigation Department (CID) officers came looking for him at his house and detained him for 14 days for questioning about his previous work in Mullaitivu. The appellant further claimed that he was beaten by the Sri Lankan Army in 2009 while driving a truck and that, prior to 2012, CID officers came to his family’s house on more than five to six separate occasions.

4    The appellant said the incident that prompted his departure from Sri Lanka was when the CID came looking for him and his father on 28 February 2012. He speculated that the CID could be looking for them because his father was involved in the opposition party and other political activities, in which the appellant was also sometimes involved. The appellant said he was at risk of being taken away if the CID could not find his father because he was the only son.

5    The appellant further claimed that, as a fisherman, he would be discriminated against by the navy and Singhalese fisherman if returned to Sri Lanka, and that he was threatened by the Singhalese captain of the boat that he came on to Australia.

6    As a result, the appellant claimed the reasons he feared persecution included his Tamil ethnicity; an actual or perceived opinion in support of the Liberation Tigers of Tamil Eelam (LTTE); membership of several particular social groups, including young or middle-aged Tamil males, young Tamil men from Udappu, Tamil fishermen from an area with a history of LTTE presence and/or recruitment (being his hometown of Udappu), family members of active supporters of opposition parties, and failed asylum seekers who departed Sri Lanka illegally. If returned to Sri Lanka, he claimed to fear that the authorities would detain, torture and/or kill him.

7    His application was refused by a delegate of the Minister on 26 March 2013. A week later, the appellant made an application to the Tribunal for review of the delegate’s decision. On 17 September 2014, the Tribunal affirmed the delegate’s decision to refuse the appellant’s application for a protection visa.

8    The appellant then applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. On 10 June 2016, the Court held the Tribunal’s decision was not affected by jurisdictional error. See SZVHC v Minister for Immigration & Anor [2016] FCCA 1674.

9    The appellant now appeals from the Federal Circuit Court’s decision by a notice of appeal filed 22 June 2016, alleging the primary judge erred in failing to find the Tribunal committed jurisdictional error in failing to consider whether the appellant possibly being placed in prison on remand for several days upon his return to Sri Lanka would constitute “cruel or inhumane treatment or punishment” intentionally inflicted on him in circumstances where the Sri Lankan authorities know about the “overcrowded and unpleasant” conditions in these prisons.

Delegate’s decision

10    The delegate accepted that the appellant’s father was a member or supporter of the opposition party, that the appellant had attended two of those party meetings, and that he illegally departed Sri Lanka in 2012. While the delegate also accepted the appellant had been detained for 14 days, she considered that the appellant was released without charge because he was of no interest to the authorities. The delegate did not accept the appellant’s claims regarding the events of 28 February 2012.

11    In the circumstances, the delegate found that, for the purposes of s 91R(1)(a) of the Migration Act 1958 (Cth), the Convention grounds of race, political opinion, membership of the particular social group of “young Tamil males”, and religion were the essential and significant reasons for the harm feared. The delegate was further satisfied that the harm feared, being arbitrary detention in Sri Lankan prisons, torture or being killed, was serious harm and systematic and discriminatory conduct as required by s 91R(1)(b) and (c) of the Act. Consequently, the delegate was satisfied that the harm feared amounted to persecution.

12    However, the delegate was not satisfied that the appellant’s fear of persecution was well-founded. As a result, the delegate was not satisfied that Australia owed protection obligations to the appellant under the Convention, and so the appellant did not meet the criteria for the grant of a protection visa under s 36(2)(a) of the Act.

13    The delegate further held that the appellant did not satisfy the criteria for complementary protection because there were not 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 the appellant would suffer significant harm.

14    Consequently, the delegate was also not satisfied that Australia owed protection obligations under s 36(2)(aa) of the Act to the appellant, and so the appellant did not satisfy the criteria for a complementary protection visa.

15    The appellant then sought merits review of the delegate’s decision in the Tribunal.

Tribunal’s decision

16    On 26 September 2013, the appellant attended a Tribunal hearing that his representative was connected to by telephone link. The hearing was conducted with the assistance of an interpreter in the Tamil and English languages.

17    At the hearing, the Tribunal gave the appellant an opportunity to provide further information in support of his application and to respond to apparent inconsistencies in his claims.

18    On 27 September 2013, in order to comply with s 424A of the Act, the Tribunal sent a letter to the appellant containing information that would, subject to his comment or response, form the reason, or a part of the reason, for affirming the delegate’s decision. The Tribunal stated that if it found the appellant had given vague or inconsistent evidence, developed his claims over the course of the application or failed to provide significant claims at an earlier opportunity, this may lead to a finding that he was not a person of interest to the Sri Lankan authorities or their paramilitary groups, and that his claims had been fabricated to enhance his visa application.

19    The appellant responded to the Tribunal’s letter under s 424A by letter dated 11 October 2013.

20    On 21 November 2013, the Tribunal received a further written submission from the appellant containing additional documentation in support of his claims.

21    On 5 December 2013, the Tribunal received a record of a phone interview between the appellant and his representative containing further information about the appellant’s claims.

22    The appellant, together with his representative, then appeared again before the Tribunal on 9 September 2014, which was again conducted with the assistance of an interpreter in the Tamil and English languages. At the hearing, the Tribunal gave the appellant an opportunity to explain the significance of the documents provided since the first hearing, and respond to any apparent inconsistencies in his claims.

23    The Minister’s written submissions provide what I consider to be an accurate summary of the Tribunal’s lengthy reasons for its decision, as follows:

4.    The Tribunal accepted that the appellant was a Tamil who was born in Udappu in North West Sri Lanka. It also accepted that he lived there until April 2012 save for a period of almost 2 years when he moved for work. However, it found that the appellant had otherwise fabricated his claims for protection and was not a credible witness (at AB tab 3 253 [229]).

5.    The Tribunal rejected the appellant’s claims that he had been detained in Udappu and Negombo for 14 days on suspicion of smuggling weapons and that there had been a court process in relation to the charges. The Tribunal found that the appellant gave inconsistent evidence, failed to raise significant claims at the earliest opportunity and developed his claims over time (at AB tab 3 253-254 [231-237]). For example, the appellant did not claim that there were allegations that he was transporting weapons in his interview before the delegate. Nor did he mention the payment of bail money or further court proceedings at any time before his first submission to the Tribunal (at AB tab 3 254 [234] and [236]).

6.    The Tribunal also found that the appellant gave ‘vague and inconsistent’ evidence in relation to his and his father’s claimed political activities. For example, the appellant did not claim he was involved in politics at his entry interview. Whilst he initially claimed that his father had shifted political parties, he later claimed his father had always supported the opposition party. It was not until the second hearing that the appellant claimed that his father was ‘the trusted lieutenant and number two to the ... chairman ‘of the opposition (at AB tab 3 254 [240]).

7.    The Tribunal did not accept the appellant’s explanations that the inconsistencies were minor, the result of miscommunications and that he had trouble remembering (at AB tab 3 255 [242-244]).

8.    The Tribunal also rejected the appellant’s claim that he was subject to a reporting condition after the court case in 2003 that an arrest warrant was issued for his arrest in February 2011 and that CID officers had come to his house at that time. Again, the Tribunal found the appellant had given inconsistent evidence and had failed to provide significant claims at the earliest opportunity.

9.    The Tribunal found it implausible that the appellant would have been able to remain in the same house without the CID finding him if they were interested in him. It also relied on country sources which indicated that people wanted by the authorities were frequently arrested and kidnapped. Nor did it find it plausible that the appellant would have forgotten about these ‘significant’ claims (at AB tab 3 256 257 [246-252]).

10.    The Tribunal rejected the appellant’s claim that he was beaten by the army in 2009 while driving a truck because he did not refer to this incident in his application or written submissions lodged with the delegate or the Tribunal. It did not accept the appellant’s explanation that he was unsure how to present his claims (at AB tab 3 257-258 [253-254]). The Tribunal found that the documents provided by the appellant after the first hearing were fabricated. It found that the documents were inconsistent with the appellant’s evidence and that he tailored his evidence when the Tribunal put his concerns to him (at AB tab 3 258 [254]).

11.    The Tribunal also drew adverse inferences from the appellant stating in his biodata interview that he was seeking protection because of ‘financial difficulties ‘. It rejected that this was because he was stressed, confused or was threatened by the captain on his boat to Australia (at AB tab 3 258 [255-256]).

12.    The Tribunal noted that the appellant and his family had no actual involvement with the LTTE (at AB tab 3 259 [259]). Nor did it accept, relying upon country information, that he would be imputed with an anti-government political opinion because he was Tamil or because he was a fisherman from Udappu. In any event, it noted that the appellant claimed to have only worked as a fisherman for a brief time in 2000 after leaving school. Given that, the Tribunal also rejected the appellant’s claims that he was targeted or discriminated against because he was a fisherman (at AB tab 3 259 [260-261]). It also noted that the appellant’s family are living in Udappu and have not been harassed (at AB tab 3 260 [262]).

13.    The Tribunal rejected the appellant’s claims that he found out a couple of days before the second Tribunal hearing that his friend had been abducted and killed. It found his evidence was ‘vague and evasive’ and considered it to be another example of the appellant developing his claims over time (at AB tab 3 260 [263]).

14.    Accordingly, the Tribunal was not satisfied that there was a real chance that the appellant will be suspected of having links with the LTTE or being anti-government if he returns to Sri Lanka (at AB tab 3 259 [258] and 260 [264]).

15.    The Tribunal relied upon country information and found that the appellant did not face a real chance of serious harm because of his ethnicity. It noted that prior to the end of the war in May 2009, Tamils (particularly in the north and east of the country) faced persecution. However, it found that in 2014 the security situation had stabilised and the country information indicated Tamils were not targeted because of their race (at AB tab 3 260-261 [266-267]).

16.    The Tribunal did not accept that the appellant had been threatened on the boat to Australia because the appellant did not advance that claim in his application, during the delegate’s interview or in submissions made after the delegate’s interview (at AB tab 3 261-262 [268-270]). The Tribunal also considered the country information and found that as the appellant would not be regarded as having a link to the LTTE, he was not at risk of harm as a result of being a failed asylum seeker: AB262 at [271] [273].

17.    The Tribunal accepted that the appellant departed Sri Lanka illegally (at AB tab 3 263 [274)). It also accepted that, based on county information, the appellant would be interviewed at the airport upon return and a criminal background check would be run. However, it was satisfied that the appellant did not have an adverse profile and was also satisfied that the procedures were standardised for all persons who left the country regardless of ethnicity (at AB tab 3 263 [275]). The Tribunal accepted that the appellant may be arrested and imprisoned for a few days and fined for his illegal departure. However, it was satisfied that the laws in relation to illegal departure were laws of general application and therefore did not amount to persecution (at AB tab 3 264 [277-278]). Accordingly, it found that the appellant did not face a real chance of serious harm as a failed asylum seeker (at AB tab 3 264 [279]).

18.    The Tribunal relied upon its earlier findings that the appellant had fabricated all of his claims (at AB tab 3 265-266 [283],[286] and [287]). It also found that while the appellant may be remanded in prison for a few days, the country information indicated that he would be subject to a fine and not a custodial sentence. It noted the lack of country information about returnees being exposed to significant harm and found being in ‘overcrowded, dark, unclean and cramped conditions’ for a few days would not amount to significant harm (at AB tab 3 265-266 [284]). In the circumstances the Tribunal was not satisfied the appellant was owed complementary protection obligations.

19.    Accordingly the Tribunal affirmed the delegate’s decision.

24    The appellant then sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia.

Judicial review in the federal circuit court

25    The appellant’s amended judicial review application was discussed by the primary judge. As all grounds of review are repeated as grounds of appeal before this Court, I will deal with the primary judge’s reasoning below.

Appeal in this Court

26    In his notice of appeal filed 22 June 2016, the appellant raises the following grounds of appeal:

1. The Federal Circuit Court failed to find that the RRT erred in law and declined its jurisdiction on the basis of grounds and particulars stated in my Court application filed with the Court on 16 October 2014 and the Amended Application filed with the Court.

2. When the AAT deciding that cruel or inhumane treatment or punishment would not be intentionally inflicted upon me if I was placed in prison on remand for several days on my return to my home country, because the AA T has accepted that the prison is subject to overcrowding, poor conditions and unpleasant conditions. The AAT has not considered whether the fact of possible placement of me in the overcrowded jail which has unpleasant conditions by the Sri Lankan authorities would be intentionally inflicted in circumstances where the Sri Lankan authorities have known of the existence of the overcrowded and unpleasant jails.

27    The appellant did not file any written submissions prior to the hearing but appeared, as a self-represented party, at the hearing with the assistance of an interpreter and made brief submissions concerning some factual matters.

28    The Minister, through counsel, made submissions both in writing and orally at the hearing.

29    In his amended application for judicial review of the Tribunal’s decision, which was prepared by counsel (the amendments being underlined), the appellant raised the following four grounds:

Ground 1

The Tribunal erred when assessing complementary protection that short time detention would not amount to ‘significant harm’ (s 36(2A)) or ‘serious harm’ (s 91R(2)) of the Migration Act and thereby committed jurisdictional error and / or failed to apply correct test in respect of Convention nexus and / or consider complementary protection for consequences of illegal departure and / or denied capacity to subsist.

Particulars

(i) The Tribunal stated in its findings: ‘The Tribunal accepts .... that there is real chance that the applicant may be arrested and imprisoned for a few days ... having left the country [Sri Lanka] illegally ... ... Negombo prison may be crowded and poor ... ‘ (CB264, RRT dec p45 at [274]). This constitutes ‘serious harm’ pursuant to (s 91R(2)(a) – (c)) of the Act.

(ii) Short term detention for illegal departure was not considered under Complementary protection nexus (or if so was considered generally). The short term detention constitutes ‘significant harm’ pursuant to (s 36(2A) (a), (d) and (e)) of the Act.

(iii) Fishing as deprivation of livelihood constituted significant harm was not considered.

(iv) The Tribunal stated that in detaining the Applicant (Convention nexus) was non· discriminatory (CB 264 at [277-78]] presumably as a law of general application and fell into error in failing to make findings and deal with the claims such as ‘large scale killings’ (CB 169.1) and failed to deal with the claims (and who was previously detained for 14 days (CB92).

(v) Further fell into error in failing to make findings and address the law was reasonable and proportionate to achieve it objectives.

Ground 2

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 North West of Sri Lanka who left illegally. The Tribunal has not made any assessment of a particular social group claim.

(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 advanced by the Applicant.

Ground 3

The Tribunal denied the Applicant procedural fairness / was unreasonable when it refused the Applicant’s adviser’s request to file further submissions on behalf of the Applicant and thereby committed jurisdictional error.

Particulars

(i) The Tribunal rejected the adviser’s request that the Applicant to be permitted to file further submissions (made at September 2014 hearing).

(ii) The Tribunal thereby denied procedural fairness and / or was legally unreasonable within the meaning of Minister for Immigration & Citizenship v Li [2013] HCA 18; 249 CLR 332.

Ground 4

The Tribunal fell into error when it failed to consider applicant’s claims and I or denied the Applicant procedural fairness and thereby committed jurisdictional error when it failed to put determinative issued to the Applicant to deal with the Applicant’s sur place claims as Convention nexus claim and / or complementary protections claims and constructively failed to to exercise jurisdiction and / or applied the incorrect test in relation to the threat.

Particulars

(i) The delegate did not make determinative findings about the various incidents that were accepted by the delegate.

(ii) The Applicant had claimed that he would suffer harm upon return to Sri Lanka from boat crew identified as Janaka and / or Janaka’s associates in Sri Lanka (CB 151 – 152).

(iii) The Tribunal was aware of the claim (CB230 at [101]).

(iv) The Tribunal did not make any findings on the claims.

(v) The Tribunal committed jurisdictional error by ignoring the claim / integer of claims and keys evidence in relation to this claims.

(vi) Alternatively applied the incorrect test (CB261 - 2 at [269] – [270]) when the Tribunal looked for comparator by reference to country information instead of dealing with the claims at hand and making findings on the claim.

30    At the commencement of the hearing before the primary judge, at which the appellant was not legally represented, the appellant requested an adjournment in order to allow him to seek advice from an individual who was not a lawyer. This request was apparently made due to the appellant’s counsel having ceased to act for the appellant prior to the commencement of the hearing. The primary judge refused this request on the basis that his Honour was not satisfied the appellant intended or would be able to obtain further legal advice if an adjournment were granted.

31    The appellant was assisted at the hearing by a Tamil interpreter. When given an opportunity to elaborate on his grounds of review, the appellant either asserted that those grounds were correct or did not say anything. Effectively, the appellant adopted the same position at the hearing of this appeal.

32    In considering the appellant’s application, the primary judge expressed difficulties understanding the grounds of review raised. In the circumstances, his Honour considered it appropriate to apply “the most liberal view of the grounds” possible. That was a reasonable position for the primary judge to take.

33    With regard to ground 1, the primary judge was satisfied that the Tribunal’s summary at [228] of its reasons was a comprehensive list of the bases for the appellant’s claim to fear persecution. His Honour considered the Tribunal’s key finding to be that the appellant had fabricated his claims and was not a credible witness; something the first ground appeared to overlook when asserting that particular claims were not considered. I agree with the primary judge’s observation.

34    The primary judge went on to note that the concept of serious harm referred to in ground one was not relevant to the assessment of complementary protection complained of under s 91R(2) of the Act. In any event, his Honour dealt with the individual elements raised in the ground and the particulars due to the appellant being a self-represented litigant.

35    To this point there are no proper grounds for complaint by the appellant. What the primary judge stated is unexceptional. No error in reasoning is revealed.

36    With regard to the appellant’s complaint that the Tribunal erred when it found that the appellant being held in remand for a few days on return to Sri Lanka did not amount to “significant harm” (for s 36(2)(aa) purposes) or “serious harm” (for s 91R(2) purposes), the primary judge held that there was no jurisdictional error. The primary judge noted that the Tribunal in its reasons addressed this claim, accepted that was the case and that the Sri Lankan authorities would have knowledge of this on the appellant’s return to Sri Lanka, and referred to relevant country information. It then found that while Sri Lankan prison conditions may be crowded and poor, returnees would not be mistreated, and so being held on remand in those conditions and the subsequent penalty for illegal departure, would not amount to serious harm as defined in s 91R(2) of the Act. The Tribunal then considered the claim in light of the complementary protection criteria and the question of a real risk of significant harm in s 36(2)(aa) of the Act, and found that the appellant would not suffer significant harm for reason of his detention or the imposition of the likely penalty for illegal departure.

37    The primary judge held that these findings of fact were reasonably open on the evidence before the Tribunal and that the Tribunal provided a rational and reasonable explanation for its findings. As such, his Honour considered that the appellant’s complaints could only be seen as a request for the Court to engage in impermissible merits review and did not reveal jurisdictional error.

38    In my view, this is a correct finding. The Tribunal and the primary judge here dealt with the quality or nature of the impugned Sri Lankan sanctions, not the question of intent, subjective or otherwise, in creating or imposing these sanctions or their outcomes.

39    However, for completeness, I accept the Minister’s submission that there would be no error even if the Tribunal had relied on an absence of intention given the Full Court of this Court’s recent decision in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. While this decision is currently subject to a special leave to appeal application in the High Court of Australia, I do not consider it is necessary to await the outcome of that matter given the particular findings made by the Tribunal in this case.

40    The primary judge interpreted the appellant’s complaint in particular (iii), that “[f]ishing as deprivation of livelihood constituted significant harm was not considered”, as possibly meaning that the Tribunal did not address, when it came to complementary protection, whether the appellant would suffer significant harm because of the likelihood that he would be deprived of his livelihood as a fisherman. In this regard, the primary judge noted that the Tribunal rejected the appellant’s claim on this basis because it preferred the evidence given by the appellant himself at the hearing, that he had worked as a fisherman only for a short time many years ago, over the statements in the written submissions prepared by the appellant’s representative.

41    Again this finding was open to the primary judge and no error is evident.

42    The primary judge held that these findings were all reasonably open to the Tribunal on what was before it, and noted that the Tribunal then relied on these in the assessment of the complementary protection criteria. His Honour went on to state that on the evidence before the Court, he could not see that the appellant ever claimed to the Tribunal, or that it arose in the circumstances presented, that the appellant feared significant harm because he would be deprived of his livelihood as a fisherman. At its highest, the primary judge considered, the appellant’s relevant claim was that as a fisherman from Udappu he would be perceived as an LTTE supporter; a claim that the Tribunal dealt with and rejected for reasons open on the material before it.

43    The primary judge therefore did not consider that particular (iii) to ground one revealed jurisdictional error. No error is revealed by the judge so finding.

44    With regard to the complaint in particular (iv), that the Tribunal did not consider the appellant’s claims relating to what were said to be “large scale killings”, the primary judge noted that this was a reference to the appellant’s representative’s written submissions of 24 September 2013, filed in the Tribunal proceeding, in which the representative referred, under the heading of “Complementary Protection”, to country information reports of an incident involving “large scale killings” in a Sri Lankan prison. In context, the primary judge considered the appellant’s claim to be that he would suffer significant harm while held on remand in a Sri Lankan prison and that a part of the country information before the Tribunal referred to a report of killings in a Sri Lankan prison.

45    The primary judge noted the Tribunal’s considerations in this regard, including its consideration of the information provided by the appellant’s representative in relation to prison conditions. The primary judge held that the Tribunal’s subsequent rejection of the appellant’s claim that he would suffer harm for reason of being imprisoned, was reasonably open on the material before it. His Honour considered that the Tribunal giving weight to some country information over other country information, or not being persuaded by a particular piece of country information, did not, in the circumstances, reveal legal error. See NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11].

46    The primary judge stated that the Tribunal did not need to refer to all of the detail provided in the appellant’s submissions. His Honour held that, in rejecting the appellant’s claim to fear harm because of being imprisoned, the Tribunal considered all the claims expressly made or clearly arising from the circumstances presented. See Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263; and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184.

47    Again, I can see no error in the primary judge’s findings in each respect.

48    With regard to what the primary judge considered to be the second complaint in particular (iv), that the appellant had been detained for 14 days in 2003, the primary judge held it was clear, having regard to the Tribunal’s reasons, that the Tribunal did consider this particular of the appellant’s claim. The primary judge further held that the Tribunal’s finding that this did not occur was reasonably open to it. As such, his Honour considered that this particular could only be understood as seeking impermissible merits review.

49    Again, the primary judge’s reasoning reveals no error.

50    With regard to particular (v) to ground one, that the Tribunal failed to consider whether the law relating to illegal departure was reasonable and proportionate to achieve its objective, the primary judge held that once the Tribunal found that the relevant law did not discriminate on a Convention basis, it was not necessary to conduct the analysis that the appellant proposed. See Minister for Immigration and Border Protection v WZAPN and Another; WZARV v Minister for Immigration and Border Protection and Another (2015) 254 CLR 610 at [77] (French CJ, Kiefel, Bell and Keane JJ); [2015] HCA 22. The primary judge cannot be said to have erred in so finding.

51    In the result, the primary judge held that ground one was not made out and no error is revealed in that decision.

52    With regard to ground 2, the primary judge considered that the particular social group of “young Tamil men from the North West of Sri Lanka who left illegally” was not identified to the Tribunal as one to which the appellant belonged. However, his Honour considered that the characteristics of that group were all variously parts of the appellant’s claims that were considered by the Tribunal in finding that he did not face a real chance of serious harm because of any real or imputed political opinion, his Tamil race, or his membership of any particular social group.

53    The primary judge accepted the Minister’s submission that once the Tribunal made that finding, which encompassed all of the appellant’s claims and integers of his claims, it was not necessary for the Tribunal to then also consider whether the social group which was then alleged by the appellant was, in fact, a social group, or that the appellant was a member of such a social group, or that he feared harm for this reason. In reliance on this Court’s decisions in SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [78] and SZUXM v Minister for Immigration and Border Protection [2015] FCA 1514, the primary judge held that ground two was not made out.

54    In my opinion, having regard to the particular facts of this case, the primary judge was correct in so finding.

55    With regard to ground 3, the primary judge stated that the difficulty for the appellant was that, despite having the opportunity to do so, he had not put into evidence any transcript of the Tribunal hearing or, indeed, any evidence of what occurred at the Tribunal hearing. His Honour noted that orders in this regard were made while the appellant was legally represented.

56    The primary judge noted that the Tribunal’s account revealed that the representative made oral submissions at the hearing, and apparently did not seek more time to make further written submissions. In the circumstances, given the absence of any relevant evidence from the appellant, the primary judge held that it was not now open to the Court to speculate as to what may have otherwise occurred at the Tribunal hearing. See NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241.

57    In the result, the primary judge held that ground three was also not made out. I consider no error is revealed by this reasoning.

58    Finally, the primary judge held that ground 4 was also not established in circumstances where the Tribunal made a finding about the appellant’s claim presented in his representative’s written submissions of 24 September 2013 under the heading of “Additional Sur Place”. In this regard, his Honour noted that the Tribunal considered the claim in some length and, in rejecting the claim, gave reasons which were open on the evidence before it.

59    With regard to the final ground, ground 4, in the amended application that the Tribunal “failed to deal with the appellant’s sur place claims”, I accept the Minister’s submission that the particulars refer to the appellant’s claim to fear harm from members of the boat crew, and that this claim was rejected by the Tribunal. The particulars also claim that the Tribunal “looked for comparator by reference to country information” instead of dealing with the claim. The Minister reasonably submits it is unclear what this particular means, and the Tribunal addressed the claim by rejecting it. Consequently, the Minister says the primary judge was correct in also dismissing this ground.

60    To the extent it seeks to repeat, or it overlaps with the s 36(2)(aa) or s 91R(2) issues, it fails for the same reasons those issues failed, as explained above.

61    In the result, the Minister says the appeal should be dismissed with costs.

Conclusion and order

62    The appeal should therefore be dismissed with costs.

63    The Court orders:

(1)    The appeal be dismissed.

(2)    The appellant pay the first respondent’s costs, to be taxed if not agreed.

Associate:

Dated:    8 November 2016