FEDERAL COURT OF AUSTRALIA

ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The decision of the second respondent made on 22 January 2015 is set aside.

3.    The appellant’s application for review of the first respondent’s decision be remitted to the second respondent, differently constituted, for hearing and determination.

4.    The first respondent is to pay the appellant’s costs of and incidental to the appeal, as agreed or assessed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The appellant is a citizen of Sri Lanka. He arrived in Australia on 29 June 2012. Four months later he made an application for a protection visa (Visa) under s 65 of the Migration Act 1958 (Cth) (Act). A delegate of the first respondent (Delegate) refused to grant the Visa. On 22 January 2015 the then-named Refugee Review Tribunal (Tribunal) affirmed the Delegate’s decision. On 26 February 2015 the appellant made an application for judicial review of the Tribunal’s decision to the Federal Circuit Court (FCC). The FCC dismissed the application: ABA15 v Minister for Immigration and Border Protection [2016] FCCA 60. This is an appeal from that judgment.

2    For the reasons given below, the appeal should be allowed.

Legislation

3    A visa may only be granted under the Act if the Minister is satisfied that the prescribed criteria for the grant of the visa are met: s 65 of the Act. A primary applicant for a protection visa must satisfy either the criteria in s 36(2)(a) or the criteria in s 36(2)(aa) of the Act. At the relevant time, s 36(2)(a) provided:

(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; …

4    The Refugee Convention there referred to is the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967: see s 5(1) of the Act. For the purposes of s 36(2)(a) as it then stood, Australia had protection obligations under the Convention to persons described in Article 1A(2) of the Convention, namely:

A person who owing to a 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 to it.

5    Section 36(2)(aa) of the Act, together with ss 36(2A), 36(2B) and 36(2C) were inserted by the Migration Amendment (Complementary Protection) Act 2011 (Cth). Together, these provisions form what is commonly known as the “complementary protection regime”.

6    The provisions forming the complementary protection regime relevantly provide:

36 Protection visas—criteria provided for by this Act

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

…

(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:

…

(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.

7    Section 5 of the Act exhaustively defines the phrases “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” relevantly as follows:

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;

…

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.

(emphasis added)

The appellant’s claims

8    The appellant claims that prior to coming to Australia he lived in a small village in North West Sri Lanka. He left school after completing year 11 to work as a fisherman on a boat owned by another man.

9    The appellant’s village is situated in a predominantly Tamil area. It was not, according to the appellant, under the control of the Liberation Tigers of Tamil Eeelan (LTTE) during the civil war there. The appellant does not claim to have ever been a member of the LTTE or to otherwise have offered supported to the organisation.

10    The appellant claimed that there was a requirement in Sri Lanka that Tamil fishermen have passes permitting them to fish. He claimed that fishermen who were Sinhalese were not required to have passes. He claimed that on 30 May 2012 he and his boss went fishing without first handing their pass to a checkpoint operated by the Sri Lankan Army (SLA), that they were questioned by SLA officers and that his boss had challenged the SLA officers about why fishing passes were not required by Sinhalese fishermen. He claimed that the questions aggravated the officers and that the officers had assaulted his boss who subsequently managed to escape. The appellant further claimed that some days later, the SLA officers chased him and assaulted him, threatening to kill him if he did not reveal where his boss had gone. The appellant claims he was badly injured in this incident. He did not seek medical assistance but went into hiding at the home of a relative. The appellant further claimed that on 10 June 2012, officers of the SLA came to his relative’s house looking for him and asking questions about him.

11    The appellant claimed to have a well-founded fear of persecution by reason of the incidents he recited. More specifically, he claimed to have a well-founded fear that if he did not assist the SLA in finding his boss, he would be killed. He claimed that he could not seek protection from the Sri Lankan authorities because of his Tamil ethnicity.

12    Finally, the appellant claimed that if he was returned to Sri Lanka he would be persecuted by the SLA and by the Sinhalese people because he would be regarded as a failed asylum seeker who had departed Sri Lanka illegally.

The Tribunal’s reasons

13    The Tribunal accepted the appellant’s claim that he was a Tamil from Sri Lanka. It also accepted that many Tamils had been persecuted during the Sri Lankan civil war by reason of their race, that many human rights abuses continued to be perpetrated in Sri Lanka for political and other reasons and that Tamils continued to be affected. It noted, however that the situation had generally improved for Tamils since the end of the civil war in 2009.

14    The Tribunal disbelieved the appellant’s claim to be a person of interest to Sri Lankan authorities. It further rejected his claim that the incident concerning the assault on his boss by SLA officers had occurred at all. In rejecting the appellant’s claims, the Tribunal:

(1)    found that the appellant’s statements were inconsistent, contradictory and vague and that he did not present as a credible witness;

(2)    found areas of the appellant’s evidence difficult to accept;

(3)    found that the appellant “did not present as a credible witness in respect to all aspects of his claims”;

(4)    took into account the fact that the SLA had not sought to search his relative’s house or his mother’s house;

(5)    doubted the inability of the SLA to locate the appellant’s boss, given that he apparently had a registered boat;

(6)    found that the appellant had given inconsistent versions as to whether the SLA knew his name;

(7)    found that the appellant was unable to describe in any detail the system of fishing passes in his village;

(8)    relied upon country information to the effect that the Sri Lankan armed forces had not issued passes since the end of the civil conflict, and that responsibility for regulating fishing licenses now rested with the Department of Fisheries;

(9)    stated that the Tribunal was unable to obtain any country information to the effect that fishing passes were only required by Tamil fisherman and not by the Sinhalese;

(10)    found that that there was no evidence that the appellant’s boss was a person who would be of political interest to the SLA;

(11)    found that if the appellant was returned to Sri Lanka he would be able to obtain a fishing permit and work as a fisherman;

(12)    said that even if the incident in May 2012 had occurred, it did not accept that there was a real chance that the appellant would face persecution in Sri Lanka because of that incident;

(13)    concluded that the appellant’s claimed fear of persecution from the SLA because of that incident was not a well-founded fear; and

(14)    found that the appellant would likely be arrested upon his return to Sri Lanka for departing illegally, but that he would only be incarcerated for a brief period before being granted bail and would not therefore suffer significant harm.

The proceedings before the Federal Circuit Court

15    The FCC has original jurisdiction under s 476 of the Act to hear and determine an application for judicial review of the Tribunal’s decision. The FCC’s jurisdiction is equivalent to that conferred on the High Court under s 75(v) of the Constitution: see s 476(1). Accordingly, in order to succeed on his application for judicial review, it was necessary that the appellant show that the Tribunal committed jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.

16    The grounds of review specified in the originating application filed in the FCC were expressed as follows:

1.    That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error

2.    More details will be provided by the legal representative.

17    As observed in the reasons of the primary judge, the appellant relied on a single ground of review specified in [1] of his application, for which no particulars were given. However, the learned judge did not dismiss the appellant’s application for judicial review for want of any particularity in the stated grounds. Instead, the learned judge considered and determined each of the challenges made by the appellant to the lawfulness of the Tribunal’s decision, all of which appear to have been made orally for the first time at the hearing of the application. Quite apart from the issues complained of by the appellant, the FCC then went on to determine whether there was any jurisdictional error at all affecting the Tribunal’s decision. The learned primary judge held:

32    The Tribunal properly considered and made findings of fact as to whether the applicant was owed protection obligations and found that there was not a real chance of the applicant facing persecution by reason of his ethnicity or membership of a particular social group. It found on the basis of country information and the circumstances of the applicant, that there was no real chance that he would face serious harm for a convention reason as a failed asylum seeker. It properly considered whether complimentary protection obligations were owed to the applicant and was not satisfied that there were substantial grounds for believing that the applicant would face harm of any kind on return to Sri Lanka as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka.

33    Having considered the decision record of the Tribunal, the matters put in evidence before the Tribunal, and the submissions of both parties, I am not able to find that there was a jurisdictional error in the decision of the Tribunal to affirm the decision of the delegate in this matter.

(footnotes omitted)

18    Counsel for the first respondent (Minister) submitted before the FCC that the application for judicial review should be dismissed for want of particulars: FCC reasons [24]. However, as the primary judge summarised (at reasons [25]), the Minister had then gone on to submit that the Tribunal’s decision was not affected by jurisdictional error in any event:

The first respondent submits that all of the findings of fact made by the Tribunal were open to it on the evidence, and that its conclusion was not unreasonable, irrational or illogical. It submits that there was no procedural unfairness in the proceedings and that a proper reading of the Tribunal’s decision shows that it dealt comprehensively with each of the applicant’s claims. It submits that there was no legal error, failure to take into account any relevant matter, or reliance of any relevant matter when considering the applicant’s claims.

19    In effect, the learned primary judge permitted particulars of the grounds for review to be given by way of oral submissions. More than that, his Honour reviewed the Tribunal’s decision for jurisdictional error more generally. That is not surprising, given the Minister’s broad submission extracted above. The primary judge did not err in proceeding to scrutinising that submission by conducting a review of the whole of the Tribunal’s decision, nor is there any suggestion by the Minister on this appeal that the primary judge ought not to have proceeded in that way. In particular, the Minister has not alleged on this appeal that the primary judge erred in failing to dismiss the application for judicial review for want of particulars.

The amended NOTICE OF APPEAL

20    As originally filed, the appellant’s notice of appeal contained a single ground of appeal alleging that the FCC erred in applying the test for determining whether the appellant had a well-founded fear of persecution. On the day before the appeal was to be heard, I made orders by consent vacating the hearing date and granting leave to the appellant to file an amended notice of appeal. The orders were made in circumstances where the appellant had recently obtained legal representation. It is apparent that the Minister had not read any proposed amended notice of appeal at the time that he granted his consent for an amended notice to be filed.

21    There are two grounds alleged in the amended notice of appeal. They are expressed as follows:

1.    The Federal Circuit Court of Australia erred in law by failing to find that the then Refugee Review Tribunal fell into jurisdictional error when making the following findings that were not open on the evidence before the then Refugee Review Tribunal;

a.    that because the Appellant had been able to have a livelihood as a fisherman in Sri Lanka that the Appellant would be able to do so again;

b.    that the Appellant will be able to obtain a fishing permit issued by the [Department of Fisheries] and work as a fisherman if he returns to Sri Lanka in the reasonably foreseeable future;

c.    that if the Appellant returns to Sri Lanka and is arrested for being an unlawful departure then he will be routinely bailed and that he has family that would provide him with surety for such bail;

2.    The Federal Circuit Court of Australia erred in law by failing to find that the then Refugee Review Tribunal fell into jurisdictional error when the then Refugee Review Tribunal failed to comply with s 425(1) of the Migration Act 1958.

22    Each of those grounds raises an issue that was not expressly advanced by the appellant in argument before the learned primary judge. The appellant requires leave to introduce the grounds.

23    In Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 the High Court (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ) said (at ALR 71):

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. …

24    The test there propounded in respect of appeals to the High Court is applicable on an appeal to the Full Court of this Court: Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543; [2002] FCA 480 (Gomez). As I said in Lobban v Minister for Justice [2016] FCAFC 109 at [65], the phrase “exceptional circumstances” indicates that there remains a discretion in this Court to allow the introduction of the new grounds if it be “expedient in the interests of justice” to do so: Gomez at [18] (Hill, O’Loughlin and Tamberlin JJ); VUAX v Minister for Immigration and Multicultural Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ).

25    In SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 (SZKMS) Lander J refused an appellant leave to introduce what were essentially grounds of review of a tribunal’s decision on an appeal from a judgment of a Federal Magistrate. His Honour refused leave in circumstances where the Minister would not have been prejudiced by the grant. His Honour said (at [30]):

… There are good reasons why this Court should not be made de facto the Court of original jurisdiction when sitting on appeal. Otherwise its role as an intermediate Court of Appeal will be undermined. The High Court should not be burdened by applications for leave to appeal from decisions of this Court which have not been reviewed.

26    The need to maintain the distinction between original and appellate jurisdiction is all the more important in circumstances where this Court does not have original jurisdiction to grant remedies on judicial review of the Tribunal’s decision: see s 476A of the Act.

27    There are a number of considerations weighing in favour of the grant of leave for the introduction of the amended grounds of appeal. First, the FCC examined the Tribunal’s decision with a view to determining whether the decision was affected by any jurisdictional error. Second, the appellant is a person who has claimed to be a person to whom Australia owes protection obligations, and is, if the appeal is unsuccessful, liable to be removed to his country of origin. That consideration would, however, be accorded little weight if the proposed grounds of appeal are without merit. Third, the grant of leave is not opposed by the Minister, although I should note that the Minister’s position is said to be “subject to” this Court’s consideration of the substantive merits of the proposed grounds. The Minister’s position is that the proposed grounds are “conspicuously devoid of merit” and that, should leave be granted to introduce the proposed grounds, the appeal should be dismissed in any event. As will be seen, I have rejected the Minister’s submission as to the merits in respect of one of the new grounds of appeal.

28    In granting leave to introduce the new grounds, I have also had regard to the appellant’s status as a self-represented litigant before the FCC, although I have given that consideration lesser weight because the appellant did not avail himself of the opportunity in this Court to file an affidavit stating why he apparently had legal representation in the proceedings before the Tribunal but no legal representation on his application for judicial review. I am nonetheless satisfied that the failure to advance the grounds before the primary judge was neither deliberate nor tactical.

29    I grant leave to introduce the new grounds on appeal notwithstanding the important statement of principle in SZKMS. In doing so, I have accorded considerable weight to the approach taken by the learned primary judge in conducting a general review of the Tribunal’s decision in response to the Minister’s own submission that the decision under review was not affected by any recognisable jurisdictional error. The learned primary judge was entitled to test that submission. The new grounds of review effectively argue that the primary judge made certain errors in accepting the Minister’s submission that the Tribunal’s decision was unaffected by jurisdictional error and, in particular, that the factual findings of the Tribunal were open to it.

ISSUES

30    Two issues arise on the appeal.

31    The first issue concerns the Tribunal’s assessment of the appellant’s credibility. It is alleged that the Tribunal made two factual errors that bore so critically upon the Tribunal’s assessment of the appellant’s credibility that the errors ought properly be regarded as jurisdictional: amended notice of appeal [1(a)] and [1(b)]. Relatedly, it is alleged that the Tribunal erred in failing to comply with an obligation, said to arise under s 425(1) of the Act, to foreshadow the two factual findings and to allow the appellant an opportunity to be heard in respect of them: amended notice of appeal [2].

32    The second issue is whether the Tribunal committed jurisdictional error in determining that if the appellant was returned to Sri Lanka and arrested for unlawfully leaving the country, he would be granted bail after only a brief period in gaol on the assumption that a relative would provide surety on his bail application. Relatedly, as with the first issue, it is also alleged that the Tribunal erred in failing to comply with an obligation under s 425(1) of the Act to foreshadow such a finding to the appellant and to allow him an opportunity to be heard on the factual question of whether a relative would provide surety.

THE FIRST ISSUE

33    The first two impugned factual findings are expressed by the Tribunal at [50] and [65] of its reasons as follows:

50    The applicant has been able to have a livelihood as a fisherman in Sri Lanka and the Tribunal finds he would be able to do that again.

…

65    The tribunal finds the applicant will be able to obtain a fishing permit issued by the [Department of Fisheries] and work as a fisherman if he returns to Sri Lankan [sic] in the reasonably foreseeable future.

34    As the Full Court said in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 (SFGB) at [19] – [20] (Mansfield, Selway and Bennett JJ):

19    … If the tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constituted a jurisdictional error: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355–7… If the decision of the tribunal was ‘Wednesbury’ unreasonableness or if the material on which the tribunal relied was so inadequate that the only inference was that the tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 62, 67, 76, 90–91; 73 ALD 1 at 4, 8–9, 18, 31–3. (S20).

20    On the other hand, if there is sufficient evidence or other information before the tribunal on which it could reach the conclusion it did then it is for the tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a ‘jurisdictional fact’, there is no error of law, let alone a jurisdictional error, in the tribunal making a wrong finding of fact …

35    In the present case, the Tribunal plainly had evidence before it capable of supporting the factual findings expressed at [50] and [65] of its reasons. The findings were supported by the appellant’s own evidence that he had worked as a fisherman in the past and by country information emanating from the Department of Foreign Affairs and Trade.

36    The country information cited in the Tribunal’s reasons was not before this Court on appeal. Counsel for the appellant frankly acknowledged that he had not read the material at all. The appellant’s Counsel did not seek to make any submission before this Court to the effect that the country information to which the Tribunal referred was incorrectly summarised in the Tribunal’s reasons. In the circumstances, it is appropriate to proceed on the assumption that the information is indeed to the effect stated by the Tribunal.

37    The country information stated that although Tamils had been persecuted by reason of their race during the Sri Lankan civil war, the situation for Tamils since the end of the war in 2009 had generally improved. As the Tribunal acknowledged, the country information suggested that there was a perception among Sri Lankan Tamils that reconstruction of the fishing industry after the civil war was primarily benefiting ethnic groups other than Tamils. The Tribunal also acknowledged that country information sources provided inconsistent and often contradictory information regarding the fishing license and permit regime in the relevant region of Sri Lanka. It acknowledged that there was some evidence that Tamils may experience some difficulties obtaining and renewing licenses from the Department of Fisheries and that they may be subject to more security checks than their Sinhalese counterparts. However, the country information did not suggest that fishing passes were only required by Tamil fisherman and not by the Sinhalese, as the appellant had claimed. The Tribunal concluded at [64]:

The tribunal also accepts that during the Sri Lankan civil war the navy issued passes and boats were not allowed to go out to sea without a navy pass. The tribunal accepts that there may have been occasions in the past when the applicant was subject to the Navy pass system. However, the tribunal finds that since the end of the civil conflict in 2009 fishing restrictions have been lifted and ‘Navy passes’ are no longer required in the District Fisheries Office in the Northern, Eastern and Western provinces now issue identity cards to fisherman which frees them from all restrictions previously imposed.

38    The country information to which the Tribunal referred was capable of supporting not only the Tribunal’s finding that the appellant would not be discriminated against in respect of the issuing of fishing passes, but also its finding that the appellant would, if returned to Sri Lanka, be able to obtain a livelihood from fishing, as he had done in the past.

39    The submissions made on behalf of the appellant on the hearing of the appeal focused heavily upon the two alleged errors to which I have referred. It was submitted that the alleged errors so critically affected the Tribunal’s assessment of the appellant’s credibility in relation to all of his factual claims so as to amount to jurisdictional error: see SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] (Flick J); Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [78] (Robertson J).

40    Even if I am wrong in my assessment that the two impugned findings were open to the Tribunal to make, I would in any event reject the submission that the errors bore so critically upon the Tribunal’s assessment of the appellant’s credibility so as to justify the setting aside of the Tribunal’s decision. The contention involves, in my view, a strained interpretation of the Tribunal’s reasons and ignores the myriad of matters permissibly taken into account by the Tribunal in assessing the veracity of the appellant and the inherent plausibility of his claims.

Procedural fairness

41    The further allegation that the appellant was not afforded procedural fairness in relation to the two impugned findings concerning his future life as a fisherman should also be rejected. Section 425(1) of the Act provides:

425 Tribunal must invite applicant to appear

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

42    In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL), the High Court said (at [33] – [35]):

33    The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited ‘to give evidence and present arguments relating to the issues arising in relation to the decision under review’ (s 425(1) (emphasis added). The reference to ‘the issues arising in relation to the decision under review’ is important.

34    Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language ‘arising in relation to the decision under review’ is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all of the powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

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

(emphasis added)

43    In the result, the High Court held (at [44]) that the visa applicant in SZBEL had been denied procedural fairness because the Tribunal had made a critical factual finding that was not foreshadowed as an issue arising on the review, whether in the reasons for the decision under review or in the course of the Tribunal’s proceedings.

44    In contrast to the facts arising in SZBEL the reasons of the Delegate in this case dealt expressly with the factual question of whether the appellant could resume his occupation as a fisherman, including by obtaining a fishing licence. The Delegate said:

Taking into account the country information cited above, I accept that there is some level of discrimination against Tamils. However, I do not accept that in the reasonably foreseeable future the applicant will be denied of a livelihood of any kind that threatens his capacity to subsist or otherwise subjected to serious harm. The applicant’s claims that fishing licences restrict his ability to earn an income runs counter to country information I have cited above. I also note that despite this claim, the applicant was gainfully employed as a fisherman in the year and a half before his departure from Sri Lanka.

I therefore find that in the reasonably foreseeable future the applicant will not face a real chance of serious harm on return to Sri Lanka because of his membership of a PSG young Tamil male, Tamil fisherman or any other variant of these characteristics.

45    The factual issues raised on this appeal were clearly live issues on the review. The Tribunal was under no obligation to raise the issues with the appellant, nor to invite his response in respect of them.

The second issue

The Tribunal’s findings

46    At [79] of the its reasons, the Tribunal said this:

The information before the Tribunal also indicates that under tightened procedures adopted in late 2012, returnees who are believed to have left the country in breach of the law on immigration and emigration (the Immigrants and Emigrants Act) are arrested at the airport and brought before a court to apply for bail. Bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety.

47    In SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 (SZTAP), the Full Court determined (at [80]) that a reference to “surety” in such country information may be taken to be a reference to acting as guarantor, and should not be assumed to refer to the payment of a sum of money. I will proceed on that basis.

48    The appellant submits that the Tribunal’s reasons fairly indicate that the Tribunal found that the appellant would have a family member who could and would provide surety for his bail. That submission should be accepted. It is consistent with a fair reading of the Tribunal’s reasons as a whole.

49    The Tribunal held (at [80] of its reasons) that the appellant “would be subjected to such processes on return”. The Tribunal went on to accept that “there is a possibility the applicant will be held for a limited period in remand whilst awaiting bail, in conditions that can be poor due to overcrowding and in unsanitary conditions”. It held that the appellant “could be placed in remand for a relatively brief period while awaiting a bail hearing” and that the appellant “may spend up to a fortnight in gaol on remand”. It is clear that the Tribunal made assumptions peculiar to the appellant, namely that the appellant would in fact have a family member who would provide surety so as to secure his bail, thus bringing to an end his term of incarceration after only a brief period of time. That conclusion is supported by the absence on the Tribunal’s reasons of any attempt to estimate the period of incarceration in the alternative event that bail was not granted, because no relative could or would provide the surety.

50    The Tribunal’s unstated assumption that a relative would provide surety for bail clearly underpins its factual finding that the appellant would only spend a “relatively brief period” on remand upon his return to Sri Lanka whilst awaiting a hearing on charges concerning his unlawful departure from the country. The Tribunal’s assessment of the period the appellant would spend in prison was crucial to the following conclusion, made at [88] of its reasons:

The Tribunal accepts, on the basis of the country information available to it, that the applicant may be remanded in conditions which are cramped and uncomfortable. However, the Tribunal does not accept that spending up to a fortnight in such conditions amounts to ‘significant harm’ as defined in subsection 36(2A) of the Migration Act. …

(emphasis added)

51    The reference to the conditions being “cramped and uncomfortable” is to be read in the context of the Tribunal earlier finding that the conditions can be poor due to “overcrowding” and that the conditions were “unsanitary”.

52    There is no reference in the reasons of the Tribunal to any fact, matter or circumstance upon which it relied in support of its assumption that the appellant personally had a relative who could and would provide surety for his bail. The Tribunal has, in my opinion, impermissibly reasoned that the general country information concerning the availability of bail in the event of a relative providing surety supported a specific factual finding, personal to the appellant, that surety could and would be given by a relative in his particular case. Whilst it was open to the Tribunal to conclude, on the country information before it, that bail would likely be given upon the provision of surety, that same material was not capable of supporting its finding that the appellant himself would likely be granted bail. There is, in that regard, an error in the Tribunal’s reasoning in that the finding was not logically supported, and not capable of being supported, by the material before the Tribunal. Expressed another way, it was not reasonably open to the Tribunal to find that a relative of the appellant would provide surety for his bail.

53    It remains to be considered whether the Tribunal’s factual error affecting its assessment of the likely period of the appellant’s incarceration was “a critical step in its ultimate conclusion” that the appellant did not satisfy the criteria for a protection visa prescribed in s 36(2)(a) and (aa) of the Act so as to amount to jurisdictional error: see SFGB extracted at [34] above.

Is the factual error jurisdictionally significant?

54    I do not consider the Tribunal’s error to have materially affected its conclusion concerning the application of s 36(2)(a) of the Act. The Tribunal determined that any harm suffered by the appellant upon his return to Sri Lanka would not be inflicted by reason of his being a member of a social group of failed asylum seekers. Any error in assessing the likely period of the appellant’s incarceration could not have influenced that ultimate finding (a finding which was not, I should add, challenged on this appeal).

55    Different considerations arise in relation to the Tribunal’s assessment of whether the appellant satisfied the alternative criteria for a protection visa prescribed in s 36(2)(aa) of the Act. The Tribunal determined (at [90] of its reasons) that any harm suffered by the appellant by reason of the poor conditions in gaol would not constitute harm that was intentionally inflicted. According to the Tribunal, the harm therefore did not satisfy the definition of “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” for the purposes of the definition of “significant harm” prescribed in s 36(2A) of the Act (see [7] above).

56    It is to be borne in mind that the definition of “degrading treatment or punishment” includes not only a positive act, but an omission, albeit an omission that is intended to cause extreme humiliation. The reference in the statutory definitions to “intention” requires that the relevant actor have an actual, subjective intention. It is not sufficient that the relevant act or omission be done with knowledge of a possible or probable result: SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69.

57    The application of the statutory definition to the appellant’s personal circumstances must be assessed by reference to those facts that are capable of bearing on the question of whether the element of “intention” is present in relation to the claimed harm. The likely period of detention is clearly a relevant consideration in making such an assessment: a subjective intention to cause extreme humiliation may be more readily inferred in respect of a lengthy period of incarceration than it might in respect of a relatively brief period. I have found that the Tribunal in the present case proceeded on a factual assumption that was not open to it to make in connection with the likely period of the appellant’s incarceration on remand. In the circumstances, it cannot be safely concluded that the Tribunal would have arrived at the same ultimate conclusion had it applied the statutory criteria to different facts concerning the likely period of incarceration.

58    The erroneous finding of fact was material to the outcome of the review proceedings before the Tribunal so as to amount to jurisdictional error.

59    Before proceeding further I should add that since judgment on this appeal was reserved the High Court has granted special leave to the appellant in SZTAL to appeal the Full Court’s decision in that case. I have determined this appeal on the assumption that SZTAL was correctly decided. Even if SZTAL was incorrectly decided, my conclusion at [57] above would remain unaltered. The appellant requested that I delay delivering judgment on this appeal pending the finalisation of the High Court appeal. I have refused the appellant’s request because I am of the view that the appeal should be allowed for reasons that do not ultimately turn on the correctness of SZTAL. Although the appellant’s request was refused, the Court on this appeal should not be understood as making any determination as to whether it is appropriate for the Tribunal to conclude its own review pending the outcome of the High Court appeal. It is for the Tribunal to consider that issue for itself, depending upon the issues arising before it and the factual findings it may make. Nor should the Court on this appeal be understood as making any finding as to the appropriateness of the first respondent taking any step adverse to the appellant’s interests, where such steps might depend for their validity upon the issue of whether the Full Court’s decision in SZTAL was correctly decided.

Section 425 of the Act and the likely period of remand

60    The appellant contends that the Tribunal was obliged under s 425 of the Act to put him on notice that it may find that he would be granted bail upon a relative providing surety.

61    The question of whether he may suffer significant harm on his return to Sri Lanka by virtue of being a failed asylum seeker was identified as a relevant question by the Delegate. The Delegate was correct to identify the issue as relevant, the appellant having declared on his application for the Visa that he had departed Sri Lanka illegally by boat.

62    The Delegate considered country information concerning the treatment of persons who returned to Sri Lanka having departed the country illegally. After summarising the effect of the country information, the Delegate made the following finding under the heading “IS THE FEAR WELL-FOUNDED?” and the subheading “Persecution owing to the applicant’s membership of a PSG – failed asylum seeker”:

Based on the country information cited in this decision, I find that upon return to Sri Lanka the applicant will be questioned, as any other individual who departed Sri Lanka illegally would be, he may be remanded in custody after being charged for departing the country illegally, but he will not face mistreatment amounting to serious harm. Furthermore, I am satisfied that when the Sri Lankan authorities question, detain, prosecute and penalise people for illegal departure, they are implementing a law of general application that is not being applied in a discriminatory manner.

I therefore find that in the reasonably foreseeable future the applicant will not face a real chance of serious harm on return to Sri Lanka because he is a member of the PSG failed Tamil asylum seekers.

63    As the headings preceding that passage indicate, the Delegate was there dealing specifically with the question of whether the appellant had a well-founded fear of persecution by virtue of the appellant being a member of a particular social group for the purposes of s 36(2)(a) of the Act. The Delegate did not specifically address the issue of bail or the granting of surety in that particular context. More specifically, the Delegate made no finding as to the period of time that the appellant might reasonably be expected to be remanded in custody on charges relating to his illegal departure from the country.

64    The Delegate then turned to consider whether the appellant satisfied the complementary protection criterion prescribed in s 36(2)(aa) of the Act. He noted that the appellant feared being “arbitrarily deprived of his life, being killed or jailed” and being “subjected to cruel or inhuman treatment or punishment, being beaten”. The Delegate made a preliminary finding that the harm claimed by the applicant was “significant harm” for the purposes of s 36(2A) of the Act. The Delegate then made the following findings:

In assessing whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of their [sic] removal from Australia, there is a real risk in the sense of a real chance, the applicant will suffer significant harm, I refer to my analysis above in the discussion of the applicant’s claims in Part B. In view of my finding that the claimed fear is not well-founded, I have relied on the same evidence to find that there are not substantial grounds for believing the applicant will suffer significant harm.

I noted in Part B of this decision that the applicant may be prosecuted under a law of general application for departing the country illegally. I have reviewed the country information cited above and this information does not indicate that the applicant has a real risk, in the sense of a real chance, of facing harm amounting to significant harm if he were to be charged for deporting [sic] Sri Lanka illegally. I find that the application of this law does not support a finding that there are substantial grounds for believing the applicant will suffer significant harm as a result of being charged with the offence of departing Sri Lanka illegally.

65    As can be seen, the question of whether the fact of the appellant’s remand in custody would constitute mistreatment amounting to significant harm was raised in broad terms by the Delegate. The issue arising on this appeal is whether the “decision under review”, expressed as it was in such broad terms, raised with sufficient particularity the more narrow issue of whether the appellant was likely to spend only a short period of time in remand because he would be granted bail upon a family member providing surety.

66    A similar question arose before Griffiths J in Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 (SZTQS). In that case, his Honour dismissed an appeal brought by the Minister against a judgment of the FCC. The primary judge determined that the Tribunal had not complied with the obligation under s 425 of the Act because it had not given the review applicant notice of a finding that a family member would provide surety and that the applicant would therefore be granted bail. That finding was, as affirmed by Griffiths J, a “crucial plank” in the Tribunal’s reasoning toward its conclusion that SZTQS would not suffer “significant harm” if returned to Sri Lanka (at [45]). In SZTQS, the Minister’s delegate had summarised country information concerning the treatment of failed asylum seekers, including persons who had left Sri Lanka illegally. The reasons were summarised by Griffiths J as follows (at [7]):

… The delegate noted that the process of checking relevant information about an individual returnee might take ‘from a few hours up to a few days’. The delegate did not explicitly address the issue of bail or the granting of surety. Having noted the process and investigations applied to returned asylum seekers, the delegate found that the chance of any harm befalling SZTQS on his return to Sri Lanka as a failed asylum seeker was remote, largely because the delegate found that the applicant did not ‘possess and will not be found to possess a real or imputed LTTE profile of any kind’.

67    There, as here, the findings made on the “decision under review” were expressed in terms sufficient to put the review applicant on notice that the broad question of whether he faced significant harm by reason of his illegal departure from Sri Lanka was alive before the Tribunal. Griffiths J nonetheless held that the Tribunal had failed to comply with s 425 of the Act, as construed and considered by the High Court in SZBEL. His Honour said (at [52] and [58]):

52    SZTQS submitted that identifying the issue in the present case as whether he faced harm by reason of his illegal departure from Sri Lanka was akin to identifying the issue in SZBEL as whether SZBEL was in fear of harm because of the Iranian authorities had come to know of his interest in Christianity. I accept that, consistently with SZBEL, it is necessary to identify the issue in the present case with greater particularity. In doing so, it should be recalled that what is, and what is not, an issue for the purposes of s 425(1) of the Act may be affected by what matters the Tribunal considers may be important to its decision (SZBEL at [47]). …

…

58    .. As the primary judge found, the Tribunal made a factual conclusion, which was a necessary link in the Tribunal’s chain of reasoning in rejecting SZTQS’s claim, without any notice to SZTQS that the conclusion might be made or that the factual question was in issue. The factual conclusion was to the effect that the applicant would only be detained for a short period because a member of his family would provide surety and he would be granted bail.

68    There is little to distinguish the facts in SZTQS from those arising on this appeal. Although the Delegate in the present case did refer to the likelihood that the appellant would be remanded in custody, the Delegate made no finding as to the likely period of custody for the purposes of determining whether the period of incarceration would constitute “significant harm” for the purpose of s 36(2)(aa) of the Act. The Delegate did not reason from a premise that the appellant would be granted bail after a brief period of incarceration, and yet the Tribunal did.

69    SZTQS was considered by Robertson and Kerr JJ in SZTAP. Their Honours said (at [77]):

SZTQS is but an application, on particular facts, of a feature of the review jurisdiction exercised by the Tribunal under the Act, described in SZBEL. It is not necessary to consider whether or not SZTQS was correctly decided. Rather, the pertinent feature highlighted by SZBEL is that, in each instance, the Tribunal exercises a review jurisdiction in respect of a particular decision in respect of which the Minister (or a delegate) will have given particular reasons. In our opinion, SZTQS was, of necessity, fact specific.

70    Their Honours observed (at [75]) that on the facts of the case in SZTAP, the Tribunal had made a finding in the same terms as expressed by the Tribunal in SZTQS, namely that “Bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety”. However, the Court held (at [79]) that there was no indication in the reasons of the Tribunal that the issue of a family member providing surety assumed any importance in the formation of the Tribunal’s ultimate conclusion. The contention that the Tribunal in that case had failed to comply with s 425 was rejected for that reason. As the Court stated in SZTAP, each case is fact specific. On the facts affecting this appeal, the Tribunal’s assumption that a relative of the appellant would provide surety for his bail was:

(1)    made without proper evidentiary foundation insofar as it involved an assumption about the appellant’s personal circumstances;

(2)    formed a critical plank in the Tribunal’s ultimate conclusion that the appellant did not satisfy the criteria for the grant of the visa prescribed in s 36(2)(aa) of the Act; and

(3)    was not an issue dipositive of the Delegate’s decision such that the appellant would otherwise have been on notice of the assumption potentially forming a critical plank in the Tribunal’s own reasoning on review of that decision.

71    For the reasons given above, I am satisfied that ground 2 of the amended notice of appeal is established in connection with the factual error alleged in ground 1(c).

COSTS

72    The parties each submitted that it was appropriate that the costs of the appeal follow the event. My order as to costs will give effect to those submissions.

73    I have not, however, heard the parties on the separate question of whether the costs order made against the appellant by the primary judge should be set aside. I will hear submissions as to whether it is appropriate to set that order aside, given that the appellant has succeeded in this Court on a ground he did not advance in the FCC proceedings.

Associate:

Dated:    28 November 2016