FEDERAL COURT OF AUSTRALIA

AWT15 v Minister for Immigration and Border Protection [2017] FCA 512

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, to be assessed if not otherwise agreed.

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

REASONS FOR JUDGMENT

BARKER J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the former Refugee Review Tribunal affirming a decision of a delegate of the former Minister for Immigration and Citizenship not to grant the appellant a protection (class XA) visa.

2    The appellant is a male citizen of Sri Lanka of Tamil ethnicity and Hindu faith. He arrived in Australia in July 2012 without a visa.

3    The appellant applied for a protection (class XA) visa in November 2012. In his application, the appellant said his father was a member of the Tamil National Alliance (TNA) and was elected as a member of parliament in 2001, and that in 2010, his father was again a candidate for the TNA, but was not elected.

4    The appellant claimed that on 6 January 2012, he was stopped by two members of the Sri Lankan Army (SLA), who told him to meet them at the Kaluwanchikudy SLA camp the following morning. The appellant claimed that, after arriving at the camp on 7 January 2012, he was interrogated, threatened and accused of providing food parcels to the Liberation Tigers of Tamil Eelam (LTTE). The appellant said the SLA contacted him two weeks later and demanded money from him if he “wanted to get rid of this problem”. The appellant claimed he gave the SLA 50,000 Sri Lankan rupees and the SLA continued to meet him on each subsequent week until he left Sri Lanka.

5    The appellant further claimed that on 10 March 2012, he was stopped by two members of the Tamil Makkal Viduthalai Pulikal party (TMVP) who threatened him and told him to convince his father to join the TMVP. The appellant said he lodged a complaint at the police station immediately after the incident, but no action was taken.

6    The appellant claimed to fear harm from the TMVP and the SLA on the basis of his Tamil ethnicity; political opinion in opposition to the TMVP; membership of the particular social group of “businessmen”; and status as a failed asylum seeker from Australia. The appellant claimed he would suffer arbitrary arrest and detention, imprisonment, physical assault, torture and possibly death from the SLA or TMVP if he returned to Sri Lanka.

7    The appellant’s application for a protection visa was refused by the delegate on 9 August 2013. On 1 May 2015, the Tribunal affirmed the delegate’s decision under review.

8    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. On 2 September 2016, the primary judge held that the Tribunal’s decision was not affected by jurisdictional error and so dismissed the appellant’s application. See AWT15 v Minister for Immigration & Anor [2016] FCCA 2282.

9    The appellant now appeals from the decision of the Federal Circuit Court by a notice of appeal filed 20 September 2016.

DELEGATE’S DECISION

10    The delegate noted that, at the appellant’s interview for the protection visa application, the appellant stated his brother-in-law was a member of the LTTE and had left Sri Lanka for fear of persecution. The delegate accepted this claim, but did not address the association further as the appellant had not raised his brother-in-law’s involvement with the LTTE in his written claims for protection.

11    The delegate did not accept that the SLA continued to visit the appellant on a weekly basis until he left Sri Lanka in June 2012. The delegate stated this claim was inconsistent with the appellant’s statement at his interview that he was only visited by the SLA twice in a six week period. Although the delegate accepted the appellant was interrogated by members of the SLA and was extorted for 50,000 rupees, the delegate was satisfied that the appellant did not experience any further issues after he paid the SLA the money demanded from him.

12    The delegate accepted the appellant was threatened by the TMVP in March 2012 because the TMVP did not want the appellant’s father to run for the TNA in the upcoming provincial election.

13    In the circumstances, the delegate was satisfied that the essential and significant reasons for the harm feared were the Convention reasons of race, political opinion and membership of the particular social group of “failed asylum seekers”, as required by s 91R(1)(a) of the Migration Act 1958 (Cth). However, the delegate did not accept that “businessmen” constituted a particular social group.

14    The delegate was not satisfied that Australia had protection obligations to the appellant under the Convention, as the appellant did not have a well-founded fear of persecution for a Convention reason. As a result, the appellant did not meet the criteria for a grant of a protection visa under s 36(2)(a) of the Act.

15    The delegate was also not satisfied that Australia had protection obligations to the appellant because there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there was a real risk the appellant would suffer significant harm. Consequently, the appellant did not satisfy the criteria for a grant of a protection visa under s 36(2)(aa) of the Act.

16    Accordingly, the delegate refused to grant the appellant a protection (class XA) visa.

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

TRIBUNAL’S DECISION    

18    The appellant, together with his representative and a Tamil interpreter, attended a Tribunal hearing on 27 January 2015 to give evidence and present arguments.

19    The Tribunal accepted that the appellant’s father was elected to the Sri Lankan Parliament in 2001 and to the Eastern provincial council in 2012 as a representative of the TNA, and that the appellant was questioned and extorted for money by the SLA. However, the Tribunal did not accept the appellant was questioned or extorted by the SLA for the essential and significant reason of his support for the TNA, but rather due to his alleged links to the LTTE. The Tribunal also noted the appellant encountered no further difficulties from the SLA after he agreed to pay money to the SLA.

20    The Tribunal did not consider either instance of the appellant being questioned by the SLA or his being extorted for money to be instances of serious harm under s 91R(2) of the Act. For these reasons, the Tribunal was not satisfied the appellant had a real chance of facing serious harm from the SLA because of his political opinion, now or in the reasonably foreseeable future if he returned to Sri Lanka.

21    At the hearing, the Tribunal expressed concerns about the credibility of the appellant’s evidence in relation to his ownership of an engineering business and the funding of his father’s campaign. The Tribunal did not accept that: the appellant was the owner of the engineering business; the appellant was involved in running that business; or that funds from the business were used to fund his father’s campaign.

22    Furthermore, the Tribunal did not consider the threats the appellant experienced in the past were instances of serious harm.

23    For these reasons, the Tribunal was not satisfied the appellant had a real chance of facing serious harm from supporters of the TMVP or any other political party because of his political opinion in support of the TNA, or his membership of the particular social group of his father’s family, now or in the reasonably foreseeable future if he returned to Sri Lanka.

24    The Tribunal then considered whether the appellant would be harmed by the Sri Lankan authorities on the basis that he is a Tamil, a person suspected of having links with the LTTE or a person opposed to the government by reason of his ethnicity.

25    Having regard to country information, the Tribunal did not consider that the appellant would be imputed with a pro-LTTE or any anti-government political opinion simply because he is a Tamil.

26    The Tribunal accepted the country information that Tamils have faced, and may continue to face, harassment and discrimination giving rise to some harm, on the basis of their ethnicity. However, the Tribunal was not satisfied that such harm amounted to serious harm, as set out in s 91R(2) of the Act.

27    The Tribunal concluded that despite the appellant’s brother-in-law being a member of the LTTE and the appellant’s father giving support to the LTTE during the Sri Lankan civil war, the Sri Lankan authorities did not consider the appellant was a person with such links to the LTTE that he would be targeted for harm. Given the appellant’s personal circumstances and his limited dealings with the LTTE, the Tribunal was not satisfied there was a real chance he would be questioned, arrested, detained, assaulted, abducted or killed, or suffer any form of serious harm by the Sri Lankan authorities for any Convention reason, now or in the reasonably foreseeable future if he returned to Sri Lanka.

28    With respect to the appellant’s claim that he would be harmed as a failed asylum seeker if returned to Sri Lanka, the Tribunal noted two aspects to this claim: the Sri Lankan authorities would impute the appellant with a pro-LTTE or anti-government political opinion because he applied for asylum; and the Sri Lankan authorities would seek to punish him on the assumption that the appellant was critical of them in his asylum claims.

29    After assessing the evidence and the appellant’s circumstances as a whole, the Tribunal found the appellant would not be imputed with an anti-government or pro-LTTE political opinion if he were to return to Sri Lanka as a person who applied for asylum overseas.

30    In reaching that finding, the Tribunal had regard to country information on the return of failed asylum seekers to Sri Lanka. The Tribunal was satisfied that any questioning which the appellant may face from the Sri Lankan authorities as a returnee would not amount to serious harm under s 91R(2) of the Act. Consequently, the Tribunal was not satisfied the appellant had a real chance of serious harm because of an implied political opinion or membership of any particular social group, now or in the reasonably foreseeable future if he returned to Sri Lanka.

31    After considering all the claims of the appellant, the Tribunal found the appellant faced no serious harm in the past and was not satisfied the appellant faced a real chance of serious harm by reason of his race, political opinion, membership of a particular social group, status as a failed asylum seeker or unlawful departure from Sri Lanka. As a result, the Tribunal concluded the appellant did not satisfy the requirements of s 36(2)(a) of the Act.

32    The Tribunal also considered there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there was a real risk the appellant would suffer significant harm. Therefore, the appellant also did not meet the requirements of s 36(2)(aa) of the Act.

33    The Tribunal ultimately affirmed the delegate’s decision not to grant the appellant a protection (class XA) visa.

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

JUDICIAL REVIEW IN THE FEDERAL CIRCUIT COURT

35    In his amended application for judicial review of the Tribunal’s decision filed 14 April 2016, the appellant raised the following grounds (numbered in the amended application as 1 and 3(a) and (d)):

1.    The applicant claimed that he would experience persecution in Sri Lanka because he would be perceived to support the LTTE because he and his family have strong links to the Tamil National Alliance. The Refugee Review Tribunal (‘RRT’) overlooked dealing with this aspect of the applicant’s claims, giving rise to jurisdictional error.

3.    The RRT has failed to apply the correct test pursuant to section 36(2)(aa) of the Migration Act 1958 (Cth).

Particulars

a.    The RRT made an error in paragraph 60 of its decision when, in considering the application of s 36(2)(aa) to the applicant’s claims relating to the Tamil National Alliance, the RRT mis-applied or wrongly applied a finding from an earlier part of its decision which considered the criterion for a protection visa in s 36(2)(a). As a result, the RRT failed to apply the correct test pursuant to s 36(2)(aa).

d.    This finding was ‘bound up’ in the statutory formula pursuant to section 36(2)(a) and is not dispositive of the claim under section 36(2)(aa) of the Act.

36    With regard to the first ground, the primary judge noted the appellant maintained that the Tribunal failed to consider one of his claims for a protection visa.

37    The primary judge said the Tribunal made a general finding, in para [24] of its reasons, that the appellant was not at risk of harm from the SLA because of his TNA links and that the Tribunal was not then required to specifically make a finding that the appellant was not at risk of harm from the SLA because his links to the TNA would see him perceived to be an LTTE supporter. That claim, his Honour said, was subsumed within the general finding made by the Tribunal.

38    His Honour concluded that ground 1 in the appellant’s amended application for judicial review must be rejected.

39    In relation to ground 2, the primary judge did not consider that the Tribunal had misunderstood the difference between the refugee criteria in s 36(2)(a) of the Act and the complementary protection criteria in s 36(2)(aa) of the Act.

40    The primary judge noted that s 36(2)(a) of the Act incorporates the concept of “real chance” of persecution for a Convention reason, while s 36(2)(aa) of the Act contains the concept of “real risk” of suffering significant harm. Referring to paras [62]–[64] of the Tribunal’s reasons, the primary judge said “it is abundantly clear that the Tribunal was well aware of the separate criterion to be applied for ss 36(2)(a) and 36(2)(a)(a)”.

41    The primary judge accepted the submissions made on behalf of the first respondent, the Minister, that the Tribunal focussed on the similarity of the two tests (the refugee criteria and the complementary protection criteria) only in relation to its evaluation of the prospect of the appellant suffering harm. The primary judge did not consider that this was done in an inappropriate or unlawful manner in the circumstances of the case.

42    His Honour further noted the decisions in BZAHO v Minister for Immigration and Citizenship [2014] FCCA 2981, SZTFZ v Minister for Immigration [2014] FCCA 1861 and SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774, and found that the Tribunal had not misapplied the complementary protection test.

43    His Honour concluded that ground 2 of the appellant’s application for judicial review must also fail.

44    For those reasons, the primary judge held that no jurisdictional error had been established, and so ordered that the application be dismissed.

45    The appellant now appeals from the primary judge’s decision.

APPEAL TO THIS COURT

46    A notice of appeal was filed on behalf of the appellant on 20 September 2016 stating three grounds of appeal.

47    On 11 October 2016 the Minister filed a notice of contention relating to ground 3 of the notice of appeal.

48    At the hearing, the appellant principally relied on ground 3.

Ground 3

49    Ground 3 states:

3.    The appellant claimed that he would experience persecution in Sri Lanka because he would be perceived to support the LTTE because his family have strong links to the Tamil National Alliance. The Tribunal overlooked dealing with this aspect of the appellant’s claims, giving rise to jurisdictional error. The Federal Circuit Court found at paragraphs 40 and 42 of its decision that this claim by the appellant was subsumed within certain findings made by the Tribunal and therefore this ground of judicial review must be rejected. The Federal Circuit Court erred in making these findings and not finding that the Tribunal’s decision was infected by jurisdictional error on this basis.

50    In his notice of contention the Minister contends that the Tribunal had no obligation in the first place to consider the TNA- LTTE claim, with the consequence that the primary judge was wrong to so find.

51    The appellant, in his written submissions prepared by a lawyer, submits as follows:

16.    One set of claims by the appellant arose from the fact that he was Tamil and, in January 2012, he had been briefly detained and questioned by the Sri Lankan Army about his links with the LTTE. The appellant's agent, in a written submission dated 22 January 2014, identified the issue for the Tribunal as whether there was a real chance the appellant would suffer persecution in Sri Lanka because of his Tamil race or ‘his imputed political opinion of support for the ... LTTE’. (AB 304.5)

17.    Another set of claims by the appellant arose from the fact that the appellant supported the TNA, in 2012 his father was elected to Eastern Provincial Council as a representative of the TNA, and in the lead up to the election the appellant was threatened by an opposing political party called the TMVP. The appellant's agent, in a written submission dated 22 January 2014, identified the issue for the Tribunal as whether there was a real chance the appellant would suffer persecution in Sri Lanka because of ‘his imputed political opinion of support for ... the TNA’. (AB 304.5)

18.    The appellant's agent then identified a link between these two sets of claims which it put as follows: (AB 304.9)

‘[The appellant] will be perceived ... to support the LITE because ... (b) his family have strong links to the TNA, a party which supports greater autonomy for Sri Lanka's population ...’

Specifically, the appellant (by his agent) expressly claimed that his and his family's strong links to the TNA would cause him to be perceived to support the LTTE, which in turn would cause him to be persecuted by the Sri Lankan Army and authorities (‘the TNA - LTTE Claim’)

19.    The appellant contended in the Federal Circuit Court that the Tribunal did not deal with the TNA - LTTE Claim. This contention requires a consideration of:

a)    whether the TNA-LTTE Claim was sufficiently raised before the Tribunal; and

b)    if so, whether the Tribunal failed to deal with the claim.

52    In reference to NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55], [58] and [63]; [2004] FCAFC 263, the appellant submits the TNA-LTTE claim was sufficiently made in clear and plain English in a written submission dated 22 January 2014 provided by the appellant's agent to the Tribunal under the heading “Claims”. The appellant further submits that the appellant's agent repeated or touched on the claim, with references to relevant evidence, in later parts of the 22 January 2014 submission, for example, at [10] and [16].

53    The appellant notes that the primary judge, at [26], found that the appellant had sufficiently raised the TNA-LTTE Claim before the Tribunal.

I do consider that paragraph 3 of the letter dated 22 January 2014 does sufficiently raise a claim by the applicant that he would experience persecution in Sri Lanka because he would be ‘perceived to ... support the LTTE because ... his family have strong links to the TNA ...’.

54    Referring to Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184, at [47], the appellant submits the Tribunal failed to deal with this claim and submits the primary judge erred in finding to the contrary.

55    The appellant notes that the primary judge, in paras [23], [24] and [40] of his decision, considered that the Tribunal dealt with the TNA-LTTE claim, but challenges this finding for these reasons:

    Paragraphs [23] and [24] of the Tribunal's decision appear in a section of the decision titled “Political opinion – Pro TNA, support for his father” which runs from [21] to [30]. Paragraphs [23] and [24] should be considered in this context. The section is structured as follows:

(1)    In [22], the Tribunal, after stating that “there are several aspects to the applicant’s claims arising from his pro-TNA political opinion”, listed five aspects in sentences commencing “Firstly”, “Secondly” etc. The first aspect was:

Firstly is the claim he was extorted by the army, he claimed part of the reason for that was his support for his father and the TNA. He fears future harm by the army.

(2)    In [23] and [24], the Tribunal dealt with this first aspect:

(i)    In part of [23], the Tribunal considered an event in January 2012 when the appellant was questioned by the SLA, following which the SLA extorted money from him to pay for alcohol at an SLA party. The Tribunal accepted that the event occurred, but noted that the appellant was released by the SLA unharmed, and was not harmed by the SLA after he paid for the alcohol.

(ii)    In the remainder of [23], the Tribunal recorded the appellant’s claims concerning fear of future harm from the SLA and added that, although he did not expressly state at the hearing that he feared future harm from the SLA because of his pro-TNA political opinion, nevertheless the Tribunal considered that part of his claim.

(iii)    In [24], all but the last sentence involved a further consideration by the Tribunal of the event in January 2012 when the appellant was questioned by the SLA, matters relating to the event, for example, “the Tribunal notes that after the applicant agreed to pay money to the army, he encountered no further difficulties from the army for any reason ...”, and findings concerning the event, for example, “the Tribunal does not consider the applicant being questioned by the army or his being extorted money to be instances of serious harm”.

(iv)    The Tribunal then immediately proceeded to make the following finding in the last sentence of [24]:

For those reasons, the Tribunal considers the applicant faces only a remote chance and therefore is not satisfied the applicant has a real chance of facing serious harm from the army because of his political opinion in support of the TNA, now or in the reasonably foreseeable future if he returns to Sri Lanka. (Underlining added.)

56    The appellant notes that the primary judge considered that the [24] finding was:

(a)    “a general finding ... that the applicant was not at risk of harm from the Army because of his TNA links” (see [39]);

(b)    “on the authority of WAEE the Tribunal was not required to specifically make a finding that the applicant was not at risk of harm from the Army because of his links to the TNA: (see [39]); and

(c)    the TNA-LTTE claim “was essentially subsumed within” the [24] finding (see [40]).

57    The appellant submits the primary judge twice stated that the [24] finding was “a general finding”. However, he submits, the mere fact that the Tribunal makes a general or broad finding does not mean that the Tribunal necessarily considered and dealt with all issues which might be encompassed by the general finding. Instead, one must consider the Tribunal’s surrounding reasons for decision (created by the Tribunal pursuant to its statutory obligation under s 430 of the Act) to determine whether the Tribunal considered and dealt with a particular claim. See Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69]; [2001] HCA 30. See also WZAQU v Minister for Immigration and Citizenship (2013) 233 FCR 534; [2013] FCA 327 at [13].

58    In the present case, the appellant submits the [24] finding must be considered in the context of the Tribunal’s reasoning process and express reasons for decision in [23] and [24], and the reasoning process in [23] and [24] indicates that the Tribunal:

(1)    was considering the appellant’s fear of harm from the SLA (in contrast to the TNA-LTTE claim which concerned the appellant’s fear of harm from the Sri Lankan authorities more broadly);

(2)    focused on the event in January 2012 when the appellant was questioned by the SLA and made findings concerning and relating to the event; and

(3)    then immediately proceeded to make the [24] finding.

59    The appellant submits there is no sentence in [23] or [24] which touches on the TNA-LTTE claim, or suggests that the Tribunal considered the TNA-LTTE claim when making the [24] finding. In the circumstances, he says, a court should have concluded on the judicial review application that the Tribunal did not deal with the TNA-LTTE claim in the course of making the [24] finding.

60    The appellant says his claims concerning fear of persecution arising from his and his family’s links to the TNA had a number of separate foundations or bases, one of which was the TNA-LTTE claim, that is, the appellant and his family’s strong links to the TNA would cause him to be perceived to support the LTTE, which in turn would cause him to be persecuted by the SLA and Sri Lankan authorities. He says that although the Tribunal made the [24] finding, which is a general and broad finding, a fair reading of the Tribunal’s reasons for decision in [23] and [24] indicates that the Tribunal did not consider or deal with this basis of the appellant’s claims.

61    The appellant also observes that the primary judge appears to have accepted that the Tribunal failed to expressly deal with the TNA-LTTE claim in its reasons for decision in approaching the question in the way that it did. Nonetheless, the primary judge found that the TNA-LTTE claim was “essentially subsumed within” the [24] finding. One reason this is an error, the appellant contends, is that the [24] finding was limited to the appellant’s fear of harm from the SLA, while the TNA-LTTE claim concerned fear of harm from the Sri Lankan authorities more broadly. A second reason is that, as explained, the Tribunal’s express reasons for decision in [23] and [24] indicate that it did not consider the TNA-LTTE claim in the course of making the [24] finding.

62    The appellant also challenges the primary judge’s finding at [39] that:

There was a general finding made ... that the applicant was not at risk of harm from the Army because of his TNA links. On the authority of WAEE, the Tribunal was not then required to specifically make a finding that the applicant was not at risk of harm from the Army because his links to the TNA would see him perceived to be an LTTE supporter.

63    He submits the second sentence in [39] does not necessarily follow from the first. Although the Tribunal made the [24] finding, it does not follow that the [24] finding subsumed the TNA-LTTE claim.

64    The appellant additionally notes that the primary judge adds, at [41], that [40] of the Tribunal’s decision “lends weight to the conclusion [his Honour has] reached”. His Honour (at [41]) highlighted sentences in the second half of [40] of the Tribunal’s decision. The highlighted sentences, he submits, divide into two parts:

(1)    First, the Tribunal stated:

The Tribunal notes that the applicant was questioned by the army about any connections he had with the LTTE in January 2012 and was released unharmed. The Tribunal therefore concludes the applicant despite the applicant’s brother in law being a member of the LTTE and the applicant’s father giving money and other support to the LITE during the Sri Lankan civil war, the Sri Lankan authorities do not consider the applicant is a person with such links to the LTTE that he would be targeted for harm.

The use of the word “therefore” indicates that the conclusion that the appellant was not a person with such links to the LTTE that he would be targeted:

(a)    followed directly from the finding concerning the appellant’s release from the army in January 2012 after questioning; and

(b)    did not involve a consideration by the Tribunal of additional matters such as the TNA-LTTE Claim.

(2)    Second, in the sentences highlighted by the primary judge at [40] of the Tribunal’s decision, the Tribunal continued:

The Tribunal considers given the personal circumstances of the applicant and his limited dealings with the LTTE, the Tribunal considers there is only a speculative and therefore not a real chance he will be questioned, arrested, detained ... or suffer any form of serious harm by the Sri Lankan authorities ... because of his race as Tamil ... or any other Convention reason.

The primary judge considered, at [42], that this was “a general finding” (with which the appellant says he agrees) which must be read in the context of [35] to [40] of the Tribunal’s decision. In relation to this context:

(a)    The sub-heading at [35] states “Tamil -pro LTTE”. This sub­heading does not refer to the appellant’s links to the TNA.

(b)    There is no sentence in [35] to [40] in which the Tribunal refers to the TNA-LTTE claim that the appellant’s father was a TNA politician, or the appellant’s links to the TNA.

In summary, the content and context of [40] of the Tribunals’ reasons indicate that the Tribunal’s findings in [40] do not deal with or consider the TNA-LTTE claim.

65    The Minister, having regard to his notice of contention, submits no obligation arose in the first place to consider the TNA-LTTE claim, in circumstances where:

(1)    the claim did not clearly emerge from the materials before the Tribunal, nor was it the subject of a “substantial clearly articulated argument relying on established facts”; and

(2)    to the extent the claim was raised (which is denied), it was abandoned by the appellant by his conduct at the Tribunal hearing.

66    The Minister observes a claim (or its essential/component integers) is generally only required to be considered where it is the subject of a “substantial, clearly articulated argument relying on established facts”, as explained in NABE at [55], [63] and [68].

67    He accepts there is one exception to that: that is, where a claim (although unarticulated) “clearly emerges”, is “squarely raised” or is “plain” on the materials before the decision-maker: NABE at [58] and [68]; SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 at [37]; [2016] FCA 45 (Markovic J). But a finding to such an effect is not one that will be made lightly (NABE at [68]) and the fact that a claim “might” be seen to arise on the materials is not enough: NABE at [68]. Further, while there is no precise standard for determining whether an unarticulated claim has been “squarely raised”, (MZXLB v Minister for Immigration & Citizenship [2007] FCA 1588 at [14] (Finkelstein J)) a court will be more willing to draw the line in favour of an unrepresented party: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 at [21] (Flick J).

68    The Minister says that despite the appellant’s attempts to the contrary, ascertaining whether the alleged claim was clearly articulated (or clearly emerged from the materials) cannot be considered in a vacuum. That issue must be considered in light of the way the appellant’s claims were presented over time.

69    He says the starting point in this case is the statement of claim the appellant filed in connection with his protection visa application. By that document, the appellant identified two claims: (1) that he feared harm from the SLA because they perceived him to be an LTTE supporter on account of the fact that the SLA had received misinformation that the appellant delivered a parcel to LTTE members in Kokunari and (2) that, due to his and his father’s support of the TNA, he feared harm from the members of a rival political party (the TMVP).

70    Pertinently, the Minister submits, no suggestion of any kind was made that the SLA perceived TNA supporters to be LTTE supporters. And, in fact, [8] of the appellant’s statement of claims shows that the SLA had no interest in the appellant’s father (a high profile TNA member).

71    The Minister notes that the appellant’s claims in his interview before the Minister’s delegate remained the same. In fact, the delegate’s decision record shows that the appellant made no attempt to make any kind of assertion that TNA supporters were perceived to support the LTTE. And, further, the delegate specifically noted that the appellant “did not explicitly claim that he fears persecution in Sri Lanka because he is suspected of having links to the LTTE” (let alone such links arising on account of his TNA support).

72    Before the Tribunal hearing, the Minister submits, the appellant’s migration agent provided lengthy written submissions to the Tribunal. He notes the appellant contends that [3] of those submissions was adequate to sufficiently raise the alleged claim in accordance with the principles discussed by the Full Court in NABE as discussed above. Paragraph [3] reads as follows:

3.    [AWT15] will be perceived to be opposed to the government of Sri Lanka and the TMVP, and to support the LTTE because:

a.    he is a Tamil;

b.    his family have strong links to the TNA, a party which supports greater autonomy for Sri Lanka’s Tamil population (and opposes the Sri Lanka Freedom Party);

c.    his brother-in-law was an LTTE cadre; and

d.    he has applied for protection in Australia.

73    The Minister submits that even if [3] could be read in isolation for the purposes of ascertaining whether the claim was sufficiently raised (which is denied), it is ambiguous or equivocal. The body of this point 3 speaks of three alleged perceptions: that is, the applicant will be perceived to: (1) oppose the SLA; (2) oppose the TMVP; and (3) support the LTTE. Those three perceptions relate to four factual matters identified in subparagraphs (a) to (d). However, logically, each of the four factual matters do not (or do not clearly) link to each of the three perceptions. By way of example only, there is no reason to think that having applied for protection in Australia (fact (d)) gives rise to an anti-TMVP or pro-LTTE perception. Also, there is no reason to understand why merely being a Tamil would render a person being seen to be anti-TMVP. Similarly, while fact (b) can be seen to explain why TNA supporters might be seen to be opposed to the SLA, it does not (in any clear or unequivocal way) link this to some kind of pro-LTTE support (as opposed to the fact that TNA members oppose the political views of the political party in power).

74    The Minister further contends that once the agent’s submission is read as a whole, it becomes apparent that no attempt was made (or evidence put forth) to suggest that having TNA links would give rise to an imputed LTTE supporter profile (from the perception of the SLA). In this regard:

(1)    paragraph [6(c)] of the agent’s submission (and [11]-[14] by reference) addressed why the appellant would have perceived links to the LTTE. It did so entirely on account of the fact that Tamils were perceived to be LTTE supporters;

(2)    paragraph [6(d)] of the agent’s submission (and [15]-[16] by reference) addressed why TNA supporters were persecuted by the SLA. It did so by reference to the fact that the TNA was the most forceful and coherent opposition of the government;

(3)    in paragraphs [17] to [20] of the agent’s submission, the agent purported to explain why the appellant would be persecuted as a failed asylum seeker. One aspect of this was that the appellant would have an LTTE profile. However, in explaining why the appellant would have such a profile, no attempt was made to suggest that it would be imputed on account of his family’s TNA support; and

(4)    the appellant’s own case ran at odds with the alleged claim (in that the appellant conceded that the SLA had no interest in him on account of his TNA profile).

75    Further, the Minister submits no submission or evidence (at least of any clear or direct nature) was put forth at any point that suggested that having TNA links resulted in the SLA imputing an LTTE supporter profile. Rather, the appellant’s assertion that such a profile might be imputed was on account of: (1) the previous misinformation given to the SLA about the appellant delivering a parcel to the LTTE; (2) the appellant’s brother-in-law’s LTTE connections; and (3) the appellant being a Tamil.

76    The Minister notes that, during the Tribunal hearing, no attempt whatsoever was made to suggest that the SLA perceived TNA supporters to support the LTTE (or that the appellant was at risk of harm on such a basis). Rather, as the Tribunal’s decision (and the Tribunal hearing transcript) shows, at every juncture where the appellant was directly asked to clarify or explain why he would be imputed with an LTTE supporter profile (or the relevance of his TNA links from a risk/adverse profile perspective), the appellant referred to other matters: See, for example, the Tribunal’s reasons at [23]. On one view, this could be seen to amount to the abandonment of any claim (as to this possibility, see Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42]) (even if it was raised – which is denied). However, the Minister says that the better view is that this just further evidences the fact that the alleged claim was never (clearly or otherwise) raised.

77    The Minister adds that the appellant never put forth any “established facts” in support of the alleged claim. In this regard, no evidence was ever put before the Tribunal that suggested that the SLA imputed TNA supporters with LTTE supporter profiles. See SZQTW v Minister for Immigration [2012] FMCA 777 at [11] (Raphael FM); MZANX v Minister for Immigration [2016] FCCA 2654 at [55] (Wilson J). In fact, the evidence before the Tribunal was at odds with this. A claim being based on established facts is a threshold requirement to it being sufficiently raised so as to require a decision-maker to consider it: SZUTM at [38] (Markovic J).

78    If the alleged claim was raised (which the Minister denies), he says it could hardly be said to be a substantial one. It would be, at best, a claim that was incidental to – and at the outer periphery of – the appellant’s claim to be at risk from the SLA on account of his TNA links.

79    Thus, the Minister submits, viewed as whole, no clear attempt was ever made by the appellant to link his TNA support to an imputed LTTE supporter profile. The clear focus of his attempt to suggest that an LTTE supporter perception arose was on account of the three facts identified.

80    The Minister thus contends that the appellant’s attempt to raise “one convoluted and equivocal paragraph” of a written submission (in the context of having made voluminous submissions during the course of the matter) – in an illogical and technical way, and in a way which: (1) found no support in the balance of the agent’s written submission; (2) ran against the way the appellant had presented his case over time and at the Tribunal hearing; and (3) lacked evidential support – was far from the presentation of a “substantial, clearly articulated claim relying on established facts”. That is particularly so when regard is had to the fact that the appellant was, at all relevant stages, assisted by lawyers and migration agents in the formulation of his claims.

81    The Minister further contends that, in any event, as the primary judge correctly pointed out (at [27]-[43]), it is apparent on the face of the Tribunal’s reasons that the alleged claim was considered.

82    In my view, this ground 3 of the appeal fails, principally for the reasons advanced in the Minister’s notice of contention.

83    The ground and the arguments pressed in support of it by the appellant are artificial in the extreme. The manner in which the issue to which this ground relates had historically been pursued and dealt with in the Tribunal, and all the evidence led in the Tribunal focussed on an issue quite different from that which the appellant now wishes to contend for. He now seeks to read point 3 in isolation and to construe it as though it were a statutory provision.

84    For all the reasons the Minister has contended for, and I have set out above, viewed as a whole no clear attempt was ever made by the appellant to link his TNA support to an imputed LTTE supporter profile. The clear focus of his attempt to suggest that an LTTE supporter perception arose was on account of the three factors identified earlier.

85    As a consequence, for the reasons contended for by the Minister, the notice of contention is upheld.

86    In those circumstances, there is no need to consider the ground of appeal any further and whether or not the analysis otherwise made by the primary judge was correct.

87    Ground 3 therefore fails.

Grounds 1 and 2 of the notice of appeal

88    Grounds 1 and 2 of the notice of appeal state:

1.    The appellant claimed to the Refugee Review Tribunal (‘the Tribunal’) that he faced a real chance of serious harm from the Sri Lankan army and authorities as a result of his association with and support for the TNA – see for example the Tribunal’s summary of claims at paragraph 20 of its decision. In the circumstances of this case, whether the appellant faced a real chance of persecution in the future if required to return to Sri Lanka required a consideration of past events experienced by the appellant and current or contemporaneous country information concerning the situation in Sri Lanka. The Tribunal, in considering the appellant’s claim, failed to consider current or contemporaneous country information concerning persecution of supporters of the TNA in Sri Lanka. This was a jurisdictional error. The appellant advanced this ground of review in the Federal Circuit Court in a post-hearing submission dated 2 June 2016. The Federal Circuit Court found at paragraph 64 of its decision that, in respect of the post-hearing submission, ‘the applicant has still not identified any jurisdictional error with the Tribunal’s decision.’ The Federal Circuit Court erred in not finding that the Tribunal’s decision was infected by jurisdictional error for the reason explained in this paragraph.

2.    The appellant, through his migration agent, provided to the Tribunal a large amount of current/ contemporaneous country information concerning persecution of supporters of the TNA. The Tribunal failed to consider or have regard to the country information. In the circumstances, this was a jurisdictional error. The appellant advanced this ground of review in the Federal Circuit Court in a post-hearing submission dated 2 June 106. The Federal Circuit Court found ‘that the Tribunal has considered [this] evidence’ (paragraph 68), ‘the Tribunal did not overlook the evidence’ (paragraph 77), ‘even if the Tribunal overlooked such evidence… such a failure would not amount to jurisdictional error’ (paragraph 77), and ‘the overlooking of evidence (if it does occur) is not an error of law’ (paragraph 80). The Federal Circuit Court erred in making these findings.

89    The appellant notes that he claimed to the Tribunal that he faced a real chance of serious harm from the SLA and Sri Lankan authorities as a result of his association with and support for the TNA – see for example the Tribunal’s summary of claims at [20] of its decision.

90    He says, whether an applicant faces a real chance of serious harm in the future requires a consideration of:

(1)    past events experienced by the applicant; and

(2)    current/contemporaneous country information concerning the country the subject of enquiry.

So, if an applicant provides current/contemporaneous country information to the Tribunal, the Tribunal has an obligation to consider it. He says that task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground for him if he were to be returned there.

91    The appellant contends that in the present case, his migration agent provided to the Tribunal a large amount of current/contemporaneous country information concerning, among other issues, persecution of supporters of the TNA. Specifically:

(1)    On 22 January 2014, the appellant’s agent provided country information to the Tribunal including “Annex 2: Persecution of supporters of the Tamil National Alliance”. This document contained detailed current/contemporaneous country information concerning persecution of supporters of the TNA in Sri Lanka.

(2)    On 19 January 2015, which was about one week before the hearing in the Tribunal on 27 January 2015, the appellant’s agent provided “further country information in support of [the appellant’s] claims for protection”. The country information included “Annexure 2: Persecution of supporters of the Tamil National Alliance”, which contained updated detailed current/contemporaneous country information concerning persecution of supporters of the TNA in Sri Lanka.

92    The appellant says the logical place for the Tribunal to refer to the country information provided by his agent concerning persecution of supporters of the TNA by the Sri Lankan authorities was in [24] of its decision. However, the Tribunal did not refer to this country information in this paragraph, or anywhere else in the Tribunal’s reasons for decision.

93    However, he says, the Tribunal, in other parts of its decision, considered current/contemporaneous country information concerning other issues, for example, at [30].

94    On the one hand, the appellant accepts:

    the Tribunal does not have an obligation to expressly refer to items of country information in its reasons for decision; and

    the fact that the Tribunal has not referred to an item of country information does not necessarily mean the Tribunal has overlooked or failed to have regard to the information.

95    On the other hand, he contends, where the Tribunal does not refer to an item of evidence before it which appears (from the perspective of a court on a judicial review application) to be important in light of the Tribunal’s reasoning process, the Court may infer that the Tribunal overlooked, failed to have regard to or did not consider the evidence. Such inferences were drawn in Minister for Immigration & Multicultural Affairs v SBAA [2002] FCAFC 195 at [43]; and WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319 at [18]-[21] where the Full Court stated that “the failure by the RRT to refer to the interview of 10 September 1997 and to take it into account in considering whether the appellant departed illegally did amount to an error of law because it constituted a failure to have regard to relevant material”.

96    Here, the appellant submits that taking into account:

    the express language of the Tribunal at [24] of its decision; and

    the fact that the Tribunal, in other parts of its decision, expressly referred to current/contemporaneous country information concerning other issues,

the Court can infer that the Tribunal failed to consider current/contemporaneous country information concerning the issue of whether the appellant faced a real chance of serious harm from the SLA and authorities as a result of his association with and support for the TNA.

97    The Tribunal’s error, he contends, can be characterised in two alternative ways:

(1)    Whether an applicant faces a real chance of serious harm in the future requires a consideration of:

(a)    past events experienced by the applicant; and

(b)    current/contemporaneous country information concerning the country the subject of enquiry.

If an applicant provides current/contemporaneous country information to the Tribunal, the Tribunal has an obligation to consider it: Minister for Immigration & Multicultural & Indigenous Affairs v MZYTS (2013) 136 ALD 547 at [38]. Even if an applicant does not provide current/contemporaneous country information to the Tribunal, the Tribunal, in order to carry out its statutory function of considering whether an applicant’s fear of persecution is well-founded, must consider the current position, associated with the applicant’s claims, in the applicable country. The Tribunal, in considering whether the appellant faced a real chance of serious harm from the SLA and Sri Lankan authorities as a result of his links with and support for the TNA, failed to consider current/contemporaneous country information concerning this issue. The Tribunal thereby failed to properly apply the real chance test. This is a jurisdictional error.

(2)    The country information provided by the appellant’s agent concerning persecution of supporters of the TNA by the Sri Lankan authorities was important in light of the Tribunal’s reasoning process. Where the Tribunal does not refer to an item of evidence before it which appears (from the perspective of a court on a judicial review application) to be important in light of the Tribunal’s reasoning process, the court may infer that the Tribunal overlooked, failed to have regard or did not consider the evidence. Such an inference should be drawn in the present case.

98    The appellant accepts that the authorities indicate that the mere overlooking of, or failing to have regard to, evidence is not a jurisdictional error. Something more is required, although he submits the cases do not speak with one voice as to the nature of that “something more”. In Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317, Robertson J considered this issue in some detail. His Honour stated at [111] that “the fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”. In the present case, the appellant submits, the country information concerning persecution of supporters of the TNA in Sri Lanka was important to the exercise of the Tribunal’s function, since a necessary step in the Tribunal’s task in deciding whether an applicant faces a real chance of serious harm in the future in connection with an issue is to consider current/contemporaneous country information concerning the issue in the country the subject of enquiry. The Tribunal failed to carry out this necessary step. In the circumstances, the Tribunal’s failure to consider the country information provided to it by the appellant’s agent concerning persecution of supporters of the TNA in Sri Lanka involved jurisdictional error.

99    The appellant says the primary judge found, at [68], that “the Tribunal has considered the evidence contained in pages 242 and 306 of the Court Book”, that is the material in “Annex 2: Persecution of supporters of the Tamil National Alliance” provided by the appellant’s agent to the Tribunal in January 2014 and in updated form in January 2015. The basis for this finding was an assertion by the Tribunal, at [7] of its decision, that:

The migration agent provided written submissions to the Tribunal on 22 January 2014 and 19 January 2015. The Tribunal has had regard to the submissions, which are discussed in more detail below.

100    However, he submits, “a mere assertion in general terms that a decision-maker has had regard to a matter does not necessarily show that in fact he or she did so” and “the general assertion in the decision record that the minister had considered all relevant matters cannot be conclusive”: Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 152 at [61]; [2001] FCA 389.

101    He notes the primary judge found at [77] that “even if the Tribunal had overlooked such evidence, I accept the submission on behalf of the [Minister] that such failure would not amount to jurisdictional error”. The most recent authority on which his Honour relied in support of his conclusion was Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at [28]; [2010] FCAFC 51. However, the appellants submits, recent cases do not speak with one voice as to the circumstances in which the overlooking of evidence can constitute jurisdictional error. In SZNPG, at [28], the Full Court stated that “overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error ... does not mean that the RRT has not considered the applicant’s claim”. In the present matter, the nature of the Tribunal’s error was, in the course of considering the appellant’s claims concerning fear of persecution as a result of his association with and support for the TNA, to fail to consider current/contemporaneous country information concerning the issue. In this manner, the Tribunal failed to consider an aspect of the appellant’s claims.

102    I reject these submissions made on behalf of the appellant.

103    As the Minister notes, before the primary judge the appellant contended that the country information in “Annexure 2: Persecution of Supporters of the Tamil National Alliance” was not considered by the Tribunal and wishes to re-agitate this argument on appeal.

104    The appellant suggests that the Tribunal’s non-express reference to such country information evidences a failure to take such information into account. That submission ought to be rejected; a mere non-reference to evidence does not mean that such evidence has not been taken into account.

105    Here, the Tribunal expressly stipulated, at [7], that it considered the agent’s submission (which contained such evidence). There is no reason to doubt the veracity of that statement.

106    The obvious reason why the Tribunal did not refer to such information was because it was of minimal materiality to its decision and was not something the Tribunal was obliged to refer to in its statement of reasons.

107    In this regard, the country information showed that the Sri Lankan government had used its organs of state to harass some TNA supporters (and that there had been some instances involving violence). However, the country information suggested that only certain TNA supporters had been targeted.

108    The Tribunal did not appear to doubt this information. However, the Tribunal needed to ascertain whether the appellant’s profile was sufficient to make him a person who was likely to be targeted. The Tribunal evaluated this by primarily looking through the prism of: (1) the appellant’s historical interactions with the SLA (at [23] and [24]); and (2) the current political climate (that is, where there was a seemingly lessening of political violence and in which the TNA was part of the ruling coalition of the new president) (at [25]-[30]). After considering such matters, the Tribunal formed the view that the appellant did not have a sufficiently adverse profile and did not face a real chance of being persecuted by the SLA due to his political opinion.

109    As such, the Tribunal primarily focussed on the past events and the current political climate to evaluate the likely situation in the future for the appellant. That was a logical place to focus to evaluate such matters. But that was not to put to one side the country information: it was, rather, to seek to ascertain whether the appellant was likely to be one of the persons who the country information suggested might be targeted and, otherwise, evaluate the continuing accuracy of the country information in light of the current political climate.

110    Finally, and in any event, as the Minister submits, the Tribunal’s relevant finding of fact was based on the evidence it referred to. That was the only evidence that the Tribunal’s reasons needed to refer to – not country information that the Tribunal’s findings of fact were not, in fact, based on. Having regard to the authorities above, no inference should be drawn that the Tribunal did not consider the relevant country information.

111    Accordingly, grounds 1 and 2 fail.

ORDERS

112    For these reasons, the following orders should be made:

(1)    The appeal be dismissed.

(2)    The appellant pay the costs of the first respondent, to be assessed if not otherwise agreed.

Associate:

Dated:    15 May 2017