FEDERAL COURT OF AUSTRALIA

AQS15 v Minister for Immigration and Border Protection [2016] FCA 1362

ORDERS

THE COURT ORDERS THAT:

1.    Appeal allowed.

2.    Order 2 of the Federal Circuit Court of Australia dated 12 August 2015 be set aside.

3.    A writ of certiorari issue directed to the second respondent, quashing its decision made on 10 April 2015.

4.    A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine the appellant’s application for review made on 22 August 2013 according to law.

5.    If costs of the appeal cannot be agreed between the parties, each party is to file and serve short written submissions on the issue of costs within 14 days of these orders, and costs will be determined thereafter on the papers.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The appellant is a citizen of Sri Lanka. He left Sri Lanka in 1990 as a young Tamil male due to ethnic conflict and lived in India from 1990 until his departure to Australia in 2012.

2    The appellant appeals from the decision of the Federal Circuit Court of Australia (the Court below) dismissing an application for judicial review of a decision by the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal). By its decision, the Tribunal affirmed the decision of the Minister’s delegate (the delegate) refusing the grant of a Protection (Class XA) visa.

3    By a notice of appeal amended pursuant to leave on 20 June 2016, the appellant raises three grounds of appeal:

(1)    The Tribunal (incorrectly described as the Court below) erred in failing to properly assess an essential element of the appellant’s claims (ground 1).

(2)    There was no evidence to support the finding that the appellant is not viewed by the Sri Lankan authorities as an activist or a person with a significant adverse political profile (ground 2)

(3)    The finding in Ground 2 was not compatible with rational process (ground 3).

4    While generally expressed, ground 1 was ultimately put on the basis that the Tribunal failed to consider a claim by the appellant to fear persecution by reason of his actual or imputed political opinion, namely, that he may be perceived as affiliated with, or supportive of, a separatist or secessionist movement either as a distinct claim or as an integer of a general claim that he may be perceived as anti-government. This claim was said to squarely arise from photographs before the Tribunal of a protest march in which the appellant participated where banners were carried stating among other things that “EELAM BELONGS TO THE TAMILS”.

5    For the reasons below, the appeal must be allowed on ground 1.

1.    PROCEDURAL MATTERS

6    This appeal was first listed for hearing on 17 November 2015. At that hearing the appellant was unrepresented and appeared with the assistance of an interpreter. During the course of the hearing, it became apparent that the appellant was feeling unwell. He also raised a concern that the Tribunal had ignored his claim that he feared persecution by reason of his main role as a photographer in a 68-day, 2600km protest march in India and drew my attention to a photograph before the Tribunal in which a banner was depicted stating that “EELAM BELONGS TO THE TAMILS”. In the circumstances, I reserved judgment but made orders allowing the parties to file and serve further submissions.

7    Following the hearing, the appellant obtained legal representation. After considering the additional submissions filed by the parties, I considered it appropriate to re-list the matter for further oral argument. That occurred on 5 April 2016. At that hearing, I raised several matters of concern with respect to the Tribunal’s decision. By consent, the appeal was re-opened and the hearing was adjourned. The parties filed further written submissions and the appellant sought leave to amend the notice of appeal.

8    At the further hearing on 20 June 2016, I granted leave for the appellant to amend the notice of appeal which was not opposed by the Minister and heard further argument on the amended notice of appeal.

2.    RELEVANT PROVISIONS OF THE MIGRATION ACT

9    The Migration Act 1958 (Cth) (the Act) provides for the circumstances in which a person who is not a citizen of Australia (a non-citizen) may enter and remain in Australia. The Act provides for different classes of visa, one of which is a protection visa under s 36 of the Act. A protection visa may be granted where the criteria in s 36(2)(a) are met, namely, where the Minister is satisfied that the person is a person to whom protection obligations are owed because the person is a refugee as defined in article 1A(2) of the Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137, [1954] ATS 5 (entered into force 22 April 1954) as amended by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267, [1973] ATS 37 (entered into force 4 October 1967) (collectively, the Refugees Convention). Article 1A(2) defines a refugee as a person who:

…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return it.

10    A determination of whether a (subjective) fear is (objectively) “well-founded” requires the Tribunal to assess what will occur in the future. A fear is “well-founded” when there is “a real and substantial basis for it” even though the chance of the fear eventuating is less than 50 per cent (often described as a “real chance”): Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) at 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). Conversely, a fear of persecution is not well-founded “if it is merely assumed or if it is mere speculation”: ibid.

11    Section 36(2)(aa) provides in the alternative for the grant of a protection visa to a non-citizen where the Minister is not satisfied that the person is a refugee but is nonetheless satisfied that the person is entitled to protection under Australia’s international non-refoulement obligations (described as complementary protection), being a person:

…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…

12    A determination of whether there is a real risk for the purposes of s 36(2)(aa) requires a consideration of whether there is a “real chance” that an applicant will suffer “significant harm” (as defined in s 36(2A)) if returned to her or his country of origin: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at 551 [242]-[246] (Lander and Gordon JJ) (with whom Besanko and Jagot JJ at 557-558 [297] and Flick J at 565 [342] relevantly agreed). The level of risk of harm under s 36(2)(aa) is therefore the same as the level of risk required under s 36(2)(a) of the Act.

3.    BACKGROUND

3.1    The appellant’s application for a protection visa and the delegate’s decision

13    It is necessary to set out the way in which the appellant put his claims with some care, given that ground 1 of the appeal raises the question of the proper characterisation of the appellant’s claims.

14    In his Irregular Maritime Arrival Entry Interview in August 2012, the appellant said that he left Sri Lanka when he was 17 because of the war, the army were shooting male youths and his life was in danger. He also said that he left India because “there is a lot of opportunity or possibility to be sent back from India. … There are people being abducted in white vans and cannot be questioned.”

15    The appellant applied for a protection visa in December 2012. In a statutory declaration accompanying his visa application, the appellant claimed that:

(1)    he fled Sri Lanka in 1990 due to ethnic conflict;

(2)    it was not safe for young Tamil males to remain in the North of Sri Lanka as the army was targeting persons like him;

(3)    he believes his parents helped the LTTE as his family’s grocery store was burned by the Sri Lankan army on two occasions prior to his departure in 1990;

(4)    he entered India illegally where he was accepted as a refugee;

(5)    approximately 10 years after his departure, the appellant learned that his brother was conscripted by the LTTE although he is unsure as to how long his brother served in the LTTE;

(6)    the Indian government has been threatening to return Tamil Sri Lankan refugees back to Sri Lanka;

(7)    he believes he would be targeted by the Sri Lankan authorities if returned, including being arrested, detained and subjected to harsh treatment; and

(8)    due to this fear, and the fear that his wife and children would be returned to Sri Lanka, he decided to travel to a safe country.

16    In an interview with the delegate on 11 June 2013, the appellant provided further detail relating to his claims and (as summarised by the delegate) “referred to a rally he attended which he was ‘in the front of’ in January 2012; appealing to the ‘Delhi government’ (in India) regarding ‘Tamil problems’. He was a photographer during the rally and has a USB of these photographs.” He also said that “[e]arlier he had also attended a ‘funeral meeting’ for someone who had committed suicide in India in support of Sri Lankan people.” The appellant claimed that he had offered for SERCO staff to view the USB at times. It was agreed that the appellant’s agent would send the photographs to the delegate together with an explanation of where the appellant was pictured, within a week of the interview although apparently that did not occur.

17    Despite the appellant having lived in India for over two decades, the delegate found that the appellant was not a national of India and did not have an existing legally enforceable right to enter and reside in India. However, the delegate found that he was a national of Sri Lanka.

18    The delegate considered that the information provided by the appellant at his interviews and in his written application “was inconsistent or raised credibility concerns” in relation to a number of considerations including the following:

•    Whether he was the photographer at a rally (in India in January 2012) or whether others took a photo of the applicant at the front of a rally: in his PV interview, the applicant provided inconsistent details in relation to his role at the rally. The applicant first stated that “My photo also in that because they took photos” and later identified his role as the photographer at the rally. The applicant provided vague details of what the rally was about (“because of the Sri Lankan people who are dying there, against that”) and no satisfactory reason about why he became interested in “people dying” in January 2012 (given the recent history of Sri Lanka).

•    The PV interview was also the first time the applicant presented information about attending a rally and a politically related funeral meeting in India. When invited to comment on why the Department had not heard this claim until that late stage, the applicant acknowledged this and responded by stating that he cannot go back to his country. His agent later stated that the applicant apologises for his mistake in excluding it. I consider that after having had an extensive Entry Interview and being asked all the reasons for having come to Australia or fearing harm in Sri Lanka, omitting a whole segment of his claims is not often a reasonable explanation about his failure to mention it earlier. In this case, I am satisfied the applicant would. not have forgotten such an important claim (until the time of PV interview), if true. This is thus another reason that has ultimately satisfied me the applicant was (at least) prepared to embellish his claims if he thought it would enhance his case.

(emphasis added)

19    While the delegate considered that elements of the appellant’s account were inconsistent and could be viewed as embellishments or fabrications, nonetheless the delegate did not reject all of his material claims, finding that:

(1)    the appellant departed Sri Lanka illegally in 1990 and lived in India until he left for Australia in 2012;

(2)    the appellant’s brother was in India with the appellant and was not conscripted by the LTTE nor suspected of being associated with the LTTE;

(3)    the appellant’s parents owned a shop in Sri Lanka which was burnt down in 1990 but not for the reasons claimed by the appellant; and

(4)    the appellant attended a funeral and a protest rally as a photographer or participant while in India in 2012.

20    With respect to the last of these matters, the delegate found that, in weighing the appellant’s role of having attended one funeral and one rally in India against the country information, the delegate did not find the appellant to have a profile of “political activist”. Nor was the delegate satisfied that the authorities ever seriously suspected or would suspect the appellant of having any association with the LTTE or any insurgent or militant force or political group in Sri Lanka, or to have been politically active in Sri Lanka or abroad.

21    On 14 August 2013, the delegate rejected the appellant’s application, having not been satisfied that the appellant was a non-citizen in respect of whom Australia had protection obligations under the Refugees Convention under s 36(2)(a); nor that the complementary protection obligations in s 36(2)(aa) of the Act were engaged.

3.2    The decision of the Tribunal

22    On 22 August 2013 the appellant applied to the Tribunal for review of the delegate’s decision. Through a migration agent, the appellant provided a submission to the Tribunal by email on 27 January 2015. In that submission, the agent confirmed that all of the written and oral claims made previously by the appellant were relied upon. The submission was largely comprised of country information including information relevant to the appellant’s claim to fear persecution by reason of his alleged perceived links with the LTTE and the treatment of returnees to Sri Lanka who have departed illegally. The written submission did not specifically mention or make submissions on the appellant’s claim based upon his participation in the march.

23    The appellant also attended a Tribunal hearing to give evidence and elaborate on his claims on 29 January 2015. At that hearing, the appellant submitted a bundle of photographs of the march which the Tribunal accepted as genuine and as “providing substantiation for the Applicant’s claims to have participated in the event” (Tribunal reasons at [32]). The Tribunal also noted that in some of the photographs the marchers are carrying banners: see further below.

24    The Tribunal summarised the appellant’s claims and evidence presented in his visa application and accompanying statutory declaration at [9]-[15] of its reasons. In so doing, the Tribunal noted at [11] the appellant’s claim at his protection visa interview that he had attended a rally in India in January 2012, taking a prominent part in front, and that he had taken a number of photographs (at [11]). When summarising the appellant’s evidence presented to it, the Tribunal noted (at [17]):

•    He submitted a number of photographs which he said showed the sixty-eight day procession (or march) he had joined in India. This began at the memorial in the village …and made its way eventually to New Delhi. It was organised by the Eelam National Democratic Liberation Front (ENDLF) a Tamil organization based in India, and received support from the government of Tamil Nadu. Its aim was to stop the war and give Sri Lankan Tamils their rights. On arrival in New Delhi the marchers presented a petition to the Indian government. Asked if he was a member of the ENDLF he said he was a supporter but not a member. The procession was the only activity he had been involved in to protest against the actions of the Sri Lanka government. I noted that he had made no mention of it in his entry interview. He agreed this was so and said he had not realised for some time that it could be relevant to his protection visa application.

•    Asked when it was that the CID had shown his mother the photographs of him in the procession he said it was about two months previously. They had also questioned his brother about him. I noted this meant it had taken them three years before they had got around to doing so. He said he did not know about this- they showed them to her two months ago. He did not know where they had obtained the photographs. Asked if they were among those he had submitted he said he did not know. He confirmed that the procession had been publicised in the Indian media at the time and said he was one of about fifteen or sixteen marchers who took photographs of the event.

(emphasis added)

25    At the hearing, the appellant’s advisor submitted that the appellant had a number of characteristics which cumulatively would place him at risk of persecution or serious harm if returned to Sri Lanka, including his involvement in the march. Those characteristics were relevantly described by the Tribunal at [18] as including:

•    His involvement with three hundred and sixty others in the protest in India in 2012, covering sixty eight days and traversing a number of states during which he was photographed a number of times. The authorities in Sri Lanka maintain a sophisticated intelligence network and are aware of activities in India. They very likely know of his involvement in the protest. They are probably unsure if he is an LTTE supporter or sympathiser but they have approached his mother with photographs. There is a real chance he will come to adverse attention and the process of asking him questions, even if it resulted in a conclusion that he was not in LTTE fighter, could amount to persecution.

26    The submission appears to conflate the LTTE and ENDLF claims. However, upon questioning by the Tribunal as to the purpose of the march, the appellant’s advisor is said to have clarified that “the protest was not in support of the LTTE but rather against human rights abuses by the Sri Lanka government” (Tribunal reasons at [19] (emphasis added)).

27    The Tribunal’s findings and reasons start at [20] where it identifies the claims which it infers are made by the appellant as follows:

Although the Applicant has not clearly articulated a Convention basis for his claimed fear of persecution in Sri Lanka I accept it can be inferred that he claims it arises from:

•    An imputed political opinion supportive of the LTTE and adverse to the government.

•    His Tamil race or ethnicity.

•    His membership of the particular social groups consisting of ‘failed asylum seekers’ and ‘returnees who left Sri Lanka unlawfully.’

28    In considering the appellant’s claims, first, the Tribunal was not satisfied that the appellant had been imputed with an opinion supportive of the LTTE. The Tribunal found that the appellant’s claims regarding his family’s grocery store were inconsistent. The Tribunal found that there was nothing in the information provided by the appellant to suggest that the Sri Lankan army had ever targeted him or why they would do so, particularly given the support he was providing to the Indian Peace Keeping Force against the LTTE.

29    Secondly, the Tribunal was not satisfied that the alleged conscription of his brother into the LTTE explained why the Sri Lankan authorities would ascribe a pro-LTTE political opinion to the appellant. Despite some concerns regarding the appellant’s evidence on this issue, the Tribunal was prepared to accept his claims regarding his brother’s conscription and service in the LTTE over a number of years. However, the Tribunal was not willing to accept that such a tenuous link with a family member, given their time apart with no contact until late 2011, would be sufficient to raise suspicions that the appellant held a pro-LTTE political opinion.

30    Thirdly, the critical part of the Tribunal’s reasons dealing with the claims relating to the appellant’s participation in the march and photographs are found at [31]-[39]. The Tribunal starts by making a finding in general terms at [31], namely that:

… I am not satisfied that the Applicant’s political activities in India could plausibly have led the Sri Lanka authorities to see him as holding an adverse political opinion at a level which would motivate them to take any action against him.

(emphasis added)

31    The Tribunal characterised the appellant’s claim at this point as “to have taken part in an ENDLF march to protest against the treatment of Sri Lanka’s Tamil minority.” (at [32]). The Tribunal member refers to having had the opportunity to view the photographs, and found that they were genuine and provide substantiation for the appellant’s claims to having participated in the march as earlier mentioned. In this regard the Tribunal noted also that “in some of the photographs the marchers are shown as carrying banners calling for the removal of Sinhalese settlers from Tamil areas and for an end to community violence. The marchers are uniformed and display the insignia of the ENDLF” (at [32] (emphasis added)). At [33] of its reasons, the Tribunal stated that information available to the Tribunal indicates that the ENDLF:

…is a small India-based political party formed in 1987, under Indian tutelage, from a number of Tamil militant groups. It was backed by the Research and Analysis Wing (RAW), the Indian government intelligence agency, and participated in elections in Sri Lanka in 1988 and 1990 during the period of IPKF operations. It withdrew to India with the IPKF in 1990. In 2004, following his defection from the LTTE, Karuna became the ENDLF President and the organization adopted a strongly anti—LTTE position. Karuna later left the ENDLF but it remained opposed to the LTTE. In August 2011 it was reported that the party was to be deregistered but it was also reported to have staged a march from Chennai to New Delhi in the period [sic] December 2012 – January 2012.

32    The Tribunal considered the appellant’s claims in the following passages of its reasons:

34.     On the basis of the country information and the evidence the Applicant has submitted I accept that he did participate in a protest demonstration in India calling for the recognition of the rights of Tamils in Sri Lanka. I accept that photographs of this event were taken showing the Applicant among other marchers and that it can be reasonably assumed that some publicity was given to it in the Indian media at the time. I also accept that in these circumstances there is some possibility - although perhaps not a very large one- that the Sri Lanka government could have learned of the Applicant’s participation in the event. Against this, however, I note that he did not play any kind of leadership role in the event and was there only as one of the marchers (said to number about three hundred and sixty in total). Although he claimed in his protection visa interview to have been given the role of photographer, his evidence at the Tribunal hearing was that he was only one of a number of people who were given this responsibility. He said he was a supporter of the ENDLF but that he was not a member. He does not claim to have taken part in any other form of political activity during the many years he lived in India, whether or not in conjunction with the ENDLF, although I note that at the protection visa interview he said, without elaboration, that he had attended a funeral of someone who had committed suicide in support of Sri Lanka people.

35.     The Applicant claimed at the hearing that the Sri Lankan authorities have recently been making enquiries as to his whereabouts and that in the last two or three months the CID had approached his mother with photographs of him in the ENDLF march. He claimed that three other participants in the march who had returned to Sri Lanka had been abducted by the CID in a white van and have not been heard of since. He was able to offer no explanation as to why this alleged approach to his mother by the CID had not taken place until three years after the march itself.

36.     Having considered the Applicant's evidence and country information on this issue I accept there is some possibility that the Sri Lankan authorities became aware that he participated in a demonstration in India calling for recognition of the rights of the Tamil minority. However, I am not satisfied it is plausible this has led them to view him as an activist opposed to them or a person with a significant adverse political profile. Nor, given the ENDLF's strong opposition to the LTTE, am I satisfied that he has been imputed with a pro-LTTE political opinion as a result of his joining in the march. I find it generally implausible, and I do not accept, that participation at this level, without more, would have motivated the authorities to approach his mother about him three years later, at a point when he had been absent from Sri Lanka for a period of twenty-six years. Further, in the absence of any substantiation for his evidence about the fate of other marchers who returned to Sri Lanka I am not satisfied that this claim, which was raised for the first time at the Tribunal hearing, is credible.

37.     Taking these matters together I am not satisfied that the Applicant has ever been imputed with a political opinion in favour of the LTTE as a result of support given to the LTTE by his family, his brother's conscription by the LTTE or his own participation in a protest march in India. Nor am I satisfied that his single episode of political involvement in the many years in which he lived in India, even if it extended over a period of some two months, led the Sri Lanka government to view him as a political adversary or motivated them to target him by making enquiries at his home. I am not satisfied that a political opinion supportive of the LTTE and adverse to the government would be imputed to him if he were to return to Sri Lanka.

33    Fourthly, the Tribunal considered the appellant’s claims to fear persecution by reason of his Tamil race or ethnicity, including consideration of the country information on the issue, but was not satisfied that Tamils face a real chance of serious harm simply because of their ethnicity. While the Tribunal accepted there has been a history of discrimination against the Tamil population, the Tribunal was not satisfied that this could reasonably be seen as rising to the level of serious or significant harm.

34    Finally, the Tribunal considered the appellant’s claim to fear persecution due to his status as a failed asylum seeker and by reason of his membership of a particular social group of “returnees who left Sri Lanka unlawfully” but did not find that these claims were well founded. No complaint is made as to the Tribunal’s findings on these claims.

35    For these reasons, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Refugees Convention reason should he return to Sri Lanka and therefore that he met the criteria for a protection visa in s 36(2)(a) of the Act. Nor was the Tribunal satisfied that he would suffer serious harm on return to Sri Lanka because of his Tamil ethnicity, his imputed political opinion or otherwise so as to satisfy the complementary protection requirements in s 36(2)(aa). Accordingly, on 10 April 2015 the Tribunal affirmed the delegate’s decision.

3.3    The decision of the Federal Circuit Court

36    The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court by application filed 4 May 2015 and amended on 28 July 2015. He was unrepresented in the Court below.

37    The appellant’s first ground of review was that “there are major issues which RRRT [sic] did not consider”. That was rejected by the primary judge who found that the Tribunal did consider the appellant’s claims based upon imputed political opinion, his Tamil ethnicity and his membership of particular social groups. The primary judge also found that the Tribunal considered the issue of the appellant’s unlawful departure, including in relation to the appellant’s complementary protection claims. The primary judge held that the adverse findings were open to the Tribunal on the material before it and could not be said to lack a logical foundation.

38    The appellant’s second ground for judicial review was that “the RRT did not give me an opportunity, during the hearing and after the hearing, before this decision was taken, to respond to negative information which was intended to use to refuse my application”. The primary judge referred to s 424A of the Act, which provides that the Tribunal must give the applicant particulars of any information the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review, and invite the applicant to comment or respond to it. The primary judge held that this obligation was not enlivened in the present case, and therefore there was no breach of that provision or of the requirements of natural justice.

39    Accordingly, the appellant’s application for judicial review was dismissed on 12 August 2015.

4.    CONSIDERATION

4.1    Ground 1

1.1.1    Relevant Principles

40    The principles by which it is determined whether, as alleged in ground 1, the Tribunal has failed to deal with a claim or an integer of a claim to fear persecution for a Convention reason were not in issue.

41    It is well established that a decision-maker is required to correctly construe and consider claims (and their component integers) made by an applicant or apparent on the material before the decision-maker: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (Dranichnikov) at 394 [24] (Gummow and Callinan JJ (Hayne J agreeing at 408 [95])). As Allsop J (as his Honour then was) held in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 (Htun) at 152 [42]:

To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding.

42    These principles were considered in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (WAEE). In that case, the Full Court (French, Sackville and Hely JJ) at 604 [45] identified two elements as key to demonstrating whether a Tribunal has failed in the discharge of its duty under s 414 of the Act to conduct a review of the decision, namely:

If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material... (emphasis added)

43    Their Honours emphasised that “[t]his is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.” (at 604 [45]). However, as the Full Court then explained, the Tribunal’s obligation did not require it to address every contention. Rather, in elaborating upon the kinds of considerations to be considered in determining whether or not the Tribunal has failed to discharge that duty, the Full Court held at 604 [46] that:

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

44    Bearing these considerations in mind, the Full Court expanded at 604-605 [47] upon when an inference may be drawn that the Tribunal had failed to consider an issue:

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

45    A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a “substantial, clearly articulated argument” that, if accepted, might establish a well-founded fear of persecution for a Convention reason (Dranichnikov at 394 [24] (Gummow and Callinan JJ (Hayne J agreeing at 408 [95])); Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at 356 [90] (the Court); see also SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 317 ALR 369 at [81]-[82] (Griffiths J).

46    Equally, as the Minister accepted, there will be a constructive failure to exercise jurisdiction if the Tribunal fails to consider a claim which “squarely” arises on the material before the Tribunal in the sense that “it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) at 19 [58] (the Court).

47    As Allsop J (as his Honour then was) explained in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 (NAVK) at [15] (affirmed on appeal in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124):

Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

See also Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287 (SZRMA) at 300 [70].

48    In either case, the constructive failure to exercise jurisdiction may properly be seen as a failure to carry out the review required by s 414 of the Act: NABE at 17 [55]; Htun at 152 [42] (Allsop J with whom Spender J agreed at 137 [1]).

1.1.2    The parties’ submissions on ground 1

49    The appellant’s legal representative explained at the hearing on 20 June 2016 that the allegation in ground 1 was that the Tribunal had failed to assess a distinct claim which squarely arose from the photographs on which the appellant relied. That claim was that the appellant had a well-founded fear of persecution by reason of a political opinion which may be imputed to him by the Sri Lankan authorities by reason of his participation in the march, being support not merely with the ENDLF, but also support for a separatist claim. The latter submission was based upon his attendance at the protest march at which statements of a separatist or secessionist character were made in the banners and placards carried which were depicted in photographs, i.e., for a homeland for the Tamils. As the appellant’s legal representative submitted during the course of the hearing (referring to his written submissions dated 26 April 2016):

MR HODGES: In my submission, the Tribunal failed to identify a claim that my client was a participant in a march. Photographs of him were likely to have been made available to the authorities in Sri Lanka and, in general terms, the march was protesting against the Sri Lankan government.

HER HONOUR: But I think that’s – on one view, exactly how – what the tribunal did. If your claim goes no higher than that, then you might run in – might have difficulties persuading me that there’s a failure to deal with the claim.

MR HODGES: Well, your Honour, it does go further than that, and it takes on the human rights abuses which are dot point 3 [of paragraph [5] of the written submissions, “Stop the secret annihilation”]. It takes on the secessionist stance in dot point 4 and dot point 2 [“Liberation March” and “EELAM BELONGS TO THE TAMILS” respectively]. So it is, in general terms, protesting against the Sri Lankan government, and is particularly addressing human rights abuses and rights of Tamils, including claims to have their own territory, a secessionist claim. And that is expanded and in fact illustrated in paragraph 6 where the tribunal noted that the banners carried by some of the marchers called for an end to community violence and the removal of Sinhalese settlers from Tamil areas.

(emphasis added)

50    As it emerged during the hearing, that claim was, in turn, put in two ways: first, that the political statements made at the rally by reference to the banners informed the suggestion that the appellant would be imputed with an anti-government opinion; and secondly, that there was a distinct claim that the reason why the authorities might be interested in the appellant was because he was perceived to be someone who was politically affiliated with or supported a separatist or secessionist movement. While it was not perhaps clear from the appellant’s submissions in chief that the second of these was put, the Minister very fairly was content to address both propositions upon the appellant confirming that both propositions were put.

51    In this regard, it will be recalled that the Tribunal accepted that the appellant participated in the march, that photographs of this event were taken showing the appellant among the marchers, that some publicity was given to it in the Indian media at the time, and that there is some possibility that the Sri Lankan government may have learned of the appellant’s participation in the event (Tribunal reasons at [34]).

52    The appellant also submitted that the Tribunal erred in not treating the appellant’s involvement in the march as a separate part of the claim but rather treated it as an aspect of the claim to fear persecution by reason of a perceived political opinion in favour of the LTTE.

53    The Minister submitted that the appellant put his claim to be imputed with an adverse political profile by the authorities as a result of his participation in the march which would render him of interest to them in two ways:

(1)    as a part of the LTTE claim; and

(2)    as part of a distinct but general claim that he was perceived as against human rights abuses by the Sri Lankan government and therefore an opponent of the authorities by reason of being a supporter of the ENDLF and his attendance at the march.

54    As to the latter, the Minister’s counsel submitted that:

… on my case, the nature of the claim is a wholly general one. And critically, everything that was provided in support of that claim went to the support of that general claim. And if I can put that slightly differently; what, in my submission, the appellant was claiming was, he attended a march, there were lots of banners saying things against the government. He attended because he was against the government and he might well come to the attention of the authorities.

(emphasis added)

55    Understood in that way, the Minister submitted that the Tribunal in fact dealt with those claims or components of his claims in the manner in which they were advanced by the appellant and that, as a result, no error was demonstrated. In this regard, the Minister submitted that:

If your Honour is satisfied that what was squarely raised on the material was an imputed political claim that he would be treated as if he were making a secessionist claim, then that may well be sufficient to ground a jurisdictional error based on [sic] a NABE. In my submission, when one takes the totality of the material, including the material itself, that claim must fail because, in my submission, it doesn’t arise squarely. That’s the critical difference between the parties.

56    In support of his contention, the Minister took the Court to the various points at which the appellant put his claims which I have earlier summarised.

1.1.3    Is ground 1 established?

57    I accept the Minister’s submissions in line with the principles earlier articulated that each case turns on its own particular circumstances. Further, in submitting that what is crucial “is the correct characterisation both of what the appellant advanced and what the tribunal dealt with”, I do not understand the Minister to take any issue with the fact that a claim that arises squarely on the material must be considered, and not only a “substantial, clearly articulated argument”: see above at [45].

58    Perhaps through the initial confusion evident in the advisor’s submissions at the Tribunal hearing, the claims that the appellant might be perceived to be pro-LTTE and that of actual or imputed political opinion based upon his participation in the ENDLF march appear to have been conflated at some points in the Tribunal’s reasons. Given, however, the Tribunal’s finding that the ENDLF was anti-LTTE (and the advisor’s clarification of the issue explained at [26] above), it is difficult in my view to regard these claims as part of the LTTE claim as suggested by the Minister’s first characterisation of the appellant’s claims. Be that as it may, the ultimate issue turns upon whether the second of the Minister’s characterisations of the appellant’s claims is correct, namely, whether the appellant’s claim with respect to his participation in the march and photographs was merely part of a generalised claim that he would be perceived as holding an anti-government opinion.

59    It is true to say that the Tribunal’s summary of the appellant’s advisor’s submissions suggest that they were put in general terms, namely, that the ENDLF was against human rights abuses by the Sri Lankan government. The same may be said of the appellant’s evidence before the delegate. However, it was also the case that appellant placed significant weight on the photographs of the march from an early stage. The delegate’s reasons which were before the Tribunal stated that the appellant said that he had offered for SERCO staff to view the USB containing the photographs and, while the photographs were not ultimately provided to the delegate for unknown reasons, they were provided to the Tribunal at the hearing. That photographs of the march were central to the appellant’s claim to fear persecution or harm if returned was evident from his claim that the CID had shown photographs of him in the march to his mother about two months before the hearing and that he claimed that he had therefore already come to the attention of the authorities by reason of actual or imputed political opinion. These were matters therefore which were integral to any assessment of the risk of persecution or harm that he might suffer if returned.

60    That being so, what is represented in the photographs cannot be taken merely to support the appellant’s claim to be a supporter of the ENDLF and to have participated in the march which was anti-government in a general sense. Those banners describe what the march was ostensibly concerned with, i.e., what the participants were apparently marching for. As such, the statements in the banners as to the nature of the marchers’ concerns depicted in the photographs form an integral component of the appellant’s claims.

61    So understood, it is at least “tolerably clear” that the photographs, and in particular the photograph prominently displaying marchers holding a banner reading “EELAM BELONGS TO THE TAMILS”, raised a claim to fear persecution by reason of perceived identification with a secessionist movement. The Tribunal was therefore required to consider that either as a distinct claim or as an integral component of his claims to fear persecution by reason of his (imputed) political opinion. Nor, the Tribunal having accepted the photographs as authentic, could it be said that they were not probative of this claim or integer of his claims.

62    However, while the Tribunal made reference to the banners in general terms and as calling for the removal of Sinhalese settlers from Tamil areas and for an end to community violence (see [31] above), the Tribunal does not make any reference to the banners in the photographs proclaiming that the march was a “Liberation March” and, in particular, to the banner that reads “EELAM BELONGS TO THE TAMILS”. Those representations are not adequately encapsulated in the Tribunal’s characterisation of the claim as protesting “against the treatment of Sri Lanka’s Tamil minority” (at [32]), “as calling for recognition of the rights of the Tamil minority” (at [34] and [36]), or simply as “adverse to the government” (at [37]). While often general human rights abuses are associated with secessionist or separatist movements, nonetheless they are not the same. A secessionist or separatist movement is, as the appellant submits, a claim to territory and therefore a threat to a State of a particular nature and quality. As such, this is not a case where a finding on a particular matter can be said to have been subsumed in findings of greater generality (see WAEE at [47] (quoted at [42] above.

63    It also follows that I consider that cases such as NAVK are distinguishable. In that case, the applicant argued that material before the Tribunal (specifically, documents from the Department of Foreign Affairs and Trade which contained formal advice from the Chinese Ministry of Foreign Affairs) raised a claim that the applicant faced sanctions under Chinese law because of the nature of, and the publicity given to, her claims. Justice Allsop (as his Honour then was) did not consider that that way of putting the applicant’s claims arose “tolerably clearly” from the material but was rather an “argument reflecting careful thought having been given, after the fact, to the record” (at [16]): cf also e.g. SZRMA.

64    It follows that the Tribunal failed to consider a claim which arose squarely on the material before the Tribunal. It involved no creative or constructive activity on the part of the Tribunal to read the banners clearly depicted in the small bundle of the photographs on which the appellant relied in support of his claims (see NABE at [58] quoted at [46] above); nor, as a reasonably competent Tribunal, to appreciate that some of those statements might suggest that the appellant supported a secessionist movement (see NAVK at [15] (quoted at [47] above)). There has therefore been a constructive failure to carry out the review required by s 414 of the Act on the basis that ground 1 of the amended notice of appeal has been established.

4.2    Grounds 2 and 3

65    In light of my findings in relation to Ground 1, it is neither appropriate given the matter will be remitted to the Tribunal, nor necessary, to consider the alleged errors raised by Grounds 2 and 3.

1.    CONCLUSION

66    It follows for the reasons set out above that the appeal must be allowed. I note in this regard that the appellant’s amended notice of appeal seeks an order that the matter be remitted to the Court below (i.e. not the Tribunal) for redetermination according to law. This appears to be an error. In any event, having identified jurisdictional error in the Tribunal’s decision, remittal to the Court below is unnecessary. Rather, the orders of the Court below must be set aside and the decision of the Tribunal quashed. The matter should be remitted to the Tribunal for determination according to law.

67    Finally, in circumstances where new arguments were raised on the appeal and subject to hearing from the parties, I consider that the parties should bear their own costs of the appeal and that the costs order made by the Federal Circuit Court in favour of the Minister should not be disturbed.

Associate:

Dated:    17 November 2016