FEDERAL COURT OF AUSTRALIA

ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The appellant is a citizen of Sri Lanka. He arrived in Australia as a 16 year-old, unaccompanied, by boat, on 25 July 2012. On 16 January 2013 the appellant lodged an application for a Protection (Class XA) visa (“visa”). On 14 February 2013 a delegate (“delegate”) of the first respondent (“Minister”) refused the appellant’s application. On 31 October 2013 the Refugee Review Tribunal, a predecessor of the second respondent (“Tribunal”), affirmed the delegate’s decision (“first Tribunal decision”). By consent of the parties, the Federal Circuit Court of Australia quashed the first Tribunal decision and the matter was remitted to the Tribunal for reconsideration. On 10 February 2015, the Tribunal, differently constituted, again affirmed the delegate’s decision (“second Tribunal decision”). The appellant sought judicial review of the second Tribunal decision in the Federal Circuit Court but was unsuccessful. The subject of this appeal is the primary judge’s dismissal of that application on 25 November 2016. The primary judge’s judgment is published as ACE15 v Minister for Immigration & Anor [2016] FCCA 2939.

2    The primary judge’s task was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) (“Migration Act”) and Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The task of this Court is to determine whether the primary judge’s judgment is affected by appellable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).

Background

3    The main focus of the appellant in his visa application was on claims arising from his ethnicity and political opinion. The appellant primarily claimed that if returned to Sri Lanka, as a Tamil, he would face persecution from the Sri Lankan authorities on the basis of his ethnicity and his perceived and actual association with the Liberation Tigers of Tamil Eelam, a Tamil separatist group. The primary claims of the appellant are not relevant to the present appeal.

4    The appellant alternatively claimed that because he had departed Sri Lanka unlawfully, by boat, he would be subject to harm should he be returned to Sri Lanka, including prosecution and penalty under the Immigrants and Emigrants Act (Sri Lanka) (“unlawful departure claim”). Beyond the general submission that the appellant, as a returnee, would face a “difficult situation” on return to Sri Lanka, on the materials before the Court, it is not clear that the precise nature of the unlawful departure claim was ever expressly put in any submission of the appellant or his advisors.

5    Perhaps for this reason, the unlawful departure claim appears to have evolved between the various stages of the visa application and review process, influenced in this regard by the changing nature of country of origin information (“COI”) available to the various decision-makers. At different times the unlawful departure claim involved a claim that the appellant would suffer discriminatory treatment from immigration authorities on return to Sri Lanka, that the appellant would be convicted under the Immigrants and Emigrants Act and sentenced to imprisonment in inhuman or degrading conditions, that the appellant would be imprisoned on remand awaiting prosecution under the Immigrants and Emigrants Act, and that the appellant would be suffer significant harm in consequence of a fine imposed as punishment under the Immigrants and Emigrants Act. It is the last iteration of the unlawful departure claim (“fine claim”) that is most pertinent to the present appeal.

6    The delegate considered the unlawful departure claim through the lens of the Refugee Convention only. That is, whether the appellant would face discriminatory treatment by authorities on return to Sri Lanka on account of his ethnicity or imputed political opinion. Having already found that the appellant had no adverse profile in Sri Lanka, the delegate found that any questioning the appellant would face on return would be through an operation of law and non-discriminatory. The delegate cited advice from the Department of Foreign Affairs and Trade (“DFAT”) dated October 2012 which indicated that “no failed asylum seekers who have returned from Australia have been charged under the [Immigrants and Emigrants Act] … for offences related to their irregular departure from Sri Lanka”. The delegate also acknowledged, in a context unrelated to the unlawful departure claim, that the appellant’s “financial situation may be challenging”.

7    On the basis of updated advice from DFAT dated February 2013 indicating that “the Sri Lankan Government started to enforce the law in all cases”, the Tribunal, at [38] of the first Tribunal decision, considered the likely punishment the appellant might receive on return to Sri Lanka for his unlawful departure. The Tribunal noted that “those convicted have received fines and not prison sentences”. On that basis the Tribunal concluded that the appellant would most likely be fined, and that the chances were remote that he would be sentenced to any term of imprisonment for his unlawful departure from Sri Lanka. The Tribunal in the first Tribunal decision did not consider the consequence of any fine imposed. In an annexure to that decision headed “Relevant Independent Information on Sri Lanka” the Tribunal cited various COI, including an extract that stated that a large number of prisoners were detained in Sri Lanka on minor charges due to their inability to pay fines, and another that stated that prison conditions in Sri Lanka amounted to degrading treatment.

8    Following remittal from the Federal Circuit Court of Australia, the Tribunal held a further hearing on 11 December 2014 (“second Tribunal hearing”). The appellant’s advisor provided a detailed written submission to the Tribunal in advance of the second Tribunal hearing which relevantly included reference to DFAT advice dated March 2014 indicating that all returnees who had been passengers of people smugglers had avoided custodial sentences for departing Sri Lanka illegally, but that fines had been issued, typically in the range of 5,000 to 50,000 Sri Lankan Rupees (“March 2014 DFAT advice”).

9    In the course of the second Tribunal hearing, the Tribunal member put a detailed summary of the March 2014 DFAT advice to the appellant for comment. The transcript of the second Tribunal hearing recorded the exchange as follows (emphasis added):

MEMBER:    And the Tribunal’s understanding is that if you were charged under those provisions, the most likely outcome, you would receive a fine, that nobody has received a custodial sentence to date for having departed Sri Lanka illegally, and that the fine is between 5,000 and 50,000 rupees. I don’t know. Your advisor has provided information, but I don’t know, I might go through it with you, about what happens when people are returned to Sri Lanka. That they arrive at the airport and they’re interviewed by the Department of Immigration and [Emigration], State Intelligence Services and Airport CID. Officials from the Australian Immigration Department endeavour to meet all arrivals. They meet involuntary arrivals and the International Organisation for Migration meets voluntary arrivals. That the reason for the interviews are that the Department of Immigration and [Emigration] checks travel documents and identity information. The SIS checks the person against intelligence databases, and Airport CID verifies a person’s identity and determines whether there’s any outstanding criminal matters. Confirming a person’s identity can involve contacting their home area for verification. The process can take several hours. Tamil, Sinhalese and Muslim returnees are all treated the same way and that they’re not subject to mistreatment whilst processed at the airport. People who have left illegally are usually charged with offences. They are transported to the nearest Magistrates Court at the first opportunity and to date, they’ve all been released on bail on their own recognisance. If for some reason the court is not available because it’s a weekend or public holiday, a person might be remanded for one or two days until the court is open. A family member may have to come and collect a person from the court. As I said earlier, when the matter is finally heard, the outcome to date has been a fine unless you’re involved in people smuggling. In your case, you were a minor when you left Sri Lanka and I’m not quite sure, under their law, whether you’d be treated as having committed the offence as a minor when you went back. If you were regarded as a minor, some minors are charged, some aren’t; there doesn’t seem to be a consistent policy. So I’m suggesting that as a result of having left Sri Lanka illegally, that it isn’t likely that you’d be seriously harmed or significantly harmed on return to Sri Lanka. Is there anything you’d like to say about that?

10    Later in the second Tribunal hearing, the appellant’s father appeared as a witness to give evidence in support of his son’s application. The transcript recorded the appellant’s father’s evidence, relevantly, as follows:

In Vavuniya, we faced problems and left the assets and we came to Chilaw, so in Chilaw we faced problems and left the assets and we came to Chilaw, so in Chilaw we faced the problems, so we left and we came over here. We are human beings. We lost our everything. We just have – we are just alive. We don’t know what to do.

11    The Tribunal had before it, in making the second Tribunal decision, the file of the Department and Immigration and Border Protection, which contained, relevantly, the following documents:

    A record of the appellant’s entry interview taken at Christmas Island in August 2012 in which the appellant is recorded as having said that his father paid $2,500 for his passage to Australia;

    The appellant’s visa application and attachments in which it was recorded that the appellant had no employment history, and that, since the time of the appellant’s arrival to Australia, his family had left Sri Lanka and were on Christmas Island;

    The appellant’s statutory declaration accompanying his visa application in which he indicated that his father had been self-employed in Sri Lanka, operating a food delivery business.

12    As I will explain in more detail, that information, together with the delegate’s finding that the appellant’s financial situation was “challenging”, and the appellant’s father’s evidence to the Tribunal that the family had “lost our everything”, is said by the appellant to be relevant to the appellant’s capacity to pay any fine (“capacity material”).

13    The Tribunal’s analysis of the appellant’s unlawful departure claim in the second Tribunal decision was lengthy and detailed. At [66], the Tribunal accepted that the appellant left Sri Lanka without valid travel documents and had departed from a place other than an approved place of departure. That conduct of the appellant was accepted to give rise to separate offences under the Immigrants and Emigrants Act for which the appellant might be prosecuted (at [69]).

14    At [70] the Tribunal found that even if the appellant were prosecuted, the likely outcome would be a fine. At [73]–[81] the Tribunal considered and dismissed the risk that the appellant would suffer significant harm while imprisoned on remand prior to any grant of bail.

15    The Tribunal’s dispositive reasoning in relation to the fine claim is set out at [82]–[84]. It is convenient that I set out those paragraphs of the second Tribunal decision in full.

[82]    The Tribunal has considered whether a conviction for illegal departure under the Immigrants and Emigrants Act gives rise to a real risk the applicant will suffer significant harm. As discussed with the applicant and set out above the country information above indicates that the penalty most likely to be imposed on the applicant is a fine. Based on this information, the Tribunal finds that the likelihood of a prison sentence is remote and not a real risk.

[83]    The fine likely to be imposed on the applicant is between 5,000 and 50,000 Sri Lankan rupees according to the information above. On the current exchange rate, this amounts to between approximately $47 AUD and $467 AUD. The Tribunal does not accept that the imposition of such a fine on the applicant will give rise to a real risk of significant harm. The applicant’s family had a good employment history in Sri Lanka. His family was able to afford to pay for his journey to Australia. Further the Sri Lankan legislation allows for payment of fines by instalment. In these circumstances the Tribunal is satisfied that the applicant would be able to pay any fine imposed.

[84]    The Tribunal finds that there are no substantial grounds for believing that there is a real risk that the applicant would be significantly harmed as a result of his illegal departure from Sri Lanka.

16    The Tribunal ultimately affirmed the decision of the delegate under review (at [98]).

The primary judge’s judgment

17    Before the primary judge, the appellant was legally represented by counsel instructed by Victoria Legal Aid. Two particularised grounds of review were advanced on his behalf as follows:

1.    The Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth)(Act) by failing to give the applicant the opportunity to give evidence and present arguments in relation to:

a.    the applicant’s capacity to pay any fine imposed under the Sri Lankan Immigrants and Emigrants Act of 1948 (I&E Act) by reason of the applicant's illegal departure from Sri Lanka; or

b.    the consequences for the applicant of any failure to pay such a fine, including the extent to which default in payment would result in imprisonment and subject the applicant to “significant harm” as those terms are defined in s 36(2)(aa) of the Act.

Particulars

a)    The applicant sought complementary protection for reasons that included he would suffer “significant harm” on return to Sri Lanka because he had left the country illegally and was liable to be imprisoned as a result. The conditions of imprisonment were such that Tamils were vulnerable to abuse and torture.

b)    The Tribunal ultimately decided the applicant would be issued a fine for his illegal departure and his family had capacity to pay the fine: CB 301 [82]. This finding was critical, central and dispositive.

c)    The Tribunal’s conduct of the hearing was insufficient to put the applicant on notice that an issue arising on the review was his capacity to pay any fine imposed.

d)    The issue was not otherwise raised by the delegate.

2.    The Tribunal failed to consider a relevant consideration by failing to consider, properly or at all, matters going to the applicant’s ability to pay any fine imposed for breach of the I&E Act.

Particulars

a)    The applicant claimed:

i.    He had no employment history, having fled from Sri Lanka as a 16 year old student: CB 58.

ii.    His father paid US$2,500 for the applicant’s passage to Australia: CB 32. The applicant’s mother, father and sister subsequently fled to Australia by boat: CB 44, 133.

iii.    His father was self-employed and operated a food-delivery business: CB 94, 131.

b)    The delegate “acknowledged the applicant’s financial situation may be challenging”: CB 141.

c)    The applicant’s father was a witness at the Tribunal hearing. The applicant’s father gave evidence to the effect that the family had had to relocate several times to avoid persecution as Tamils. His evidence was ultimately: “…so in Chilaw we faced the problems, so we left and we came over here. We are human beings. We lost our everything. We just have – we are just alive”: “HK-1”, T32, line 38 to 40.

d)    The matters identified at sub-paragraphs (a) to (c) above were express claims, integers of claims or central and significant evidence before the Tribunal.

e)    The matters identified at sub-paragraphs (a) to (c) above went to the Tribunal’s dispositive finding at CB 301 [83], that the applicant could pay any fine imposed for breach of Sri Lankan law.

f)    The matters identified at sub-paragraphs (a) to (c) above were not considered.

18    In relation to the first ground, the primary judge implicitly accepted that the appellant’s capacity to pay any fine imposed was an issue for the purposes of s 425 of the Migration Act. However, at [9]–[10] the primary judge found that the appellant was nevertheless on notice of the issue by virtue of, variously, the finding at [38] of the first Tribunal decision that the appellant would be fined and not imprisoned, the citation and extraction of the March 2014 DFAT advice to that effect by the appellant’s advisors in their submissions, and the opportunity provided to the appellant at the second Tribunal hearing to respond to that DFAT advice, the transcript of which I have extracted above at [9].

19    Relying on NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [61] (Black CJ, French and Selway JJ) and NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] (Allsop J), the primary judge rejected the second ground of review on the basis that the claim of significant harm as a consequence of the appellant’s incapacity to pay any fine, the fine claim, was not raised squarely on the materials before the Tribunal and therefore no obligation to consider that claim accrued.

The present appeal

20    By his notice of appeal, the appellant raised two grounds of appeal. Ground 1 alleges that the primary judge erred in not accepting the appellant’s second ground in the court below. Ground 2 raised an allegation of jurisdictional error on the part of the Tribunal that was not argued before the primary judge, although his Honour did consider the ground independently; that is, that the Tribunal’s finding that the appellant could pay any fine imposed was illogical. The appellant’s reliance upon that ground was contingent on the grant of leave, which was neither opposed nor consented to by the Minister.

21    At the hearing the appellant also sought leave to rely upon an additional third ground, not included in the notice of appeal. Ground 3 is an allegation that the primary judge erred in not accepting the first ground of review in the court below: that is, that the appellant was denied procedural fairness in accordance with the Tribunal’s obligations under s 425 of the Migration Act. The grant of leave was similarly unopposed by the Minister.

Ground 1

22    As I have said, ground 1 substantively reproduced the second ground in the court below, asserting that the primary judge erred in not accepting that ground. Broadly stated, the nature of the complaint was that the Tribunal had committed jurisdictional error in failing to consider the capacity material.

23    The ground, both in the court below and as it was put on appeal, refers to a failure “to consider a relevant consideration” and the appellant cited in support of the ground the well-known passage from the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39–40. However, I do not consider the ground to have been advanced on the basis that the capacity material said to have not been considered was a mandatory relevant consideration in the Peko-Wallsend sense. As Robertson J explained in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (at [99]), Peko-Wallsend was concerned with a relevant consideration of which decision-makers were bound to take account by the terms of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), and does not provide a sound basis for considering questions of jurisdictional error in the making of decisions under the broadly-framed decision-making powers in the Migration Act. It is not apparent that the capacity material, or the broader question of the appellant’s capacity to pay any fine, ought to be regarded as considerations mandatorily relevant to the making of a decision under s 65 of the Migration Act, in the sense contemplated by Mason J.

24    Rather, understood fairly, ground 1 is more appropriately to be regarded as a claim that the Tribunal, by its failure to take account of the capacity material, failed to respond to an argument or “integer” of claim of the appellant and thereby constructively failed to exercise its jurisdiction under the Migration Act: NABE at [55]; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] (Gummow and Callinan JJ, with whom Hayne J agreed at [95]). The submissions in support of the ground relied heavily on the proposition, drawn from SZRKT and Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (Kenny, Griffiths and Mortimer JJ), that a failure of the Tribunal to consider material evidence may be so grave that it amounts to such a constructive failure.

25    It was contended in this case that the Tribunal’s wholesale failure to consider, grapple with, or show any consciousness of the capacity material in its disposition of the fine claim constituted jurisdictional error. The appellant’s submission was developed orally. The capacity material demonstrated a fundamental change to the circumstances of the appellant’s family and in particular their ability to assist him to pay any fine imposed. It was said that that evidence was so critical to the resolution of the fine claim that it rendered the Tribunal’s reliance on the appellant’s family’s historical financial capacity an error so serious, or “fundamental”, that it amounted to jurisdictional error.

26    In response, the Minister contended that the primary judge was correct to say that the fine claim or the capacity material did not emerge clearly, or squarely, from the material before the Tribunal and was therefore not required to be considered. In support of the submission, the Minister, as did the primary judge, relied upon NABE and NAVK, as well as the decision of the Full Court (Mansfield, Gilmour and Foster JJ) in Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287, who, at [70], endorsed Allsop J’s approach in NAVK. In reply to this point, the appellant relied upon MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497 at [39] (Young J) to say that the obligation of the Tribunal to consider claims extends further, and includes an obligation to consider those claims which arise, or are apparent, from the findings of fact made by the Tribunal.

27    While I respectfully agree that a Tribunal’s obligation to determine a claim extends only to those claims which arise squarely from the materials before the Tribunal, and would also agree that those materials ought to include the Tribunal’s own findings of fact, I consider that the debate misses the point in this case.

28    Whether the fine claim arose clearly on the materials or not, the Tribunal recognised the claim and determined it. While the authorities support the proposition that the Tribunal is not required to engaged in a “creative activity” or an “independent analytical exercise” to expose an unarticulated claim for an applicant which is not apparent on the face of the materials (NABE at [58]; NAVK at [15]), as Allsop J went on to say at [15] of NAVK, an unarticulated claim will be taken to be apparent where it is in fact appreciated by the Tribunal: see also AVU15 v Minister for Immigration and Border Protection [2017] FCA 608 at [10] (Bromberg J). It is difficult to see how ignorance of the existence of a claim could be invoked as an answer to ground 1 in circumstances where the Tribunal was not so ignorant.

29    However, to the extent that the primary judge’s reasoning in this regard reveals error, that error of itself is not sufficient for the appellant to succeed on the appeal. The appellant must in any case demonstrate jurisdictional error on the part of the Tribunal.

30    In MZYTS, the Full Court considered the nature of the Tribunal’s duty to consider the claims of a visa applicant. The Court summarised the duty at [32]–[34] (emphasis added):

[32]    The Tribunal’s task on review under s 414 of the Migration Act is to form, for itself and on the material before it, the requisite state of satisfaction under s 65 of the Migration Act in respect of the criterion (or criteria) for a visa in issue before it. Relevantly, and almost uniformly for the Tribunal (putting complementary protection to one side), the criterion is the one set out in s 36(2)(a) of the Migration Act, which picks up Art 1 of the Refugees Convention.

[33]    The occasion on which the application of this criterion is to be considered is the prospect that a person currently in Australia will be returned to her or his country of nationality, the risks if any she or he might then face, and the reasons she or he may face those risks. It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 571-573.

[34]    Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.

31    In that case, the Full Court found that the Tribunal, having accepted that the visa applicant was a former member of the MDC opposition political party in Zimbabwe, committed jurisdictional error through its reliance on outdated information to find that the visa applicant’s fears of politically-motivated violence were not well-founded, without reference to the more current information put to it by the applicant’s representatives which indicated increasing political violence in Zimbabwe in the lead up to an election.

32    The appellant relied upon the Full Court’s reasoning in MZYTS to contend for the existence of a general proposition that where the Tribunal fails to consider evidence that, had it been considered and dealt with, may have been dispositive of a critical issue, then the Tribunal will have committed jurisdictional error. The facts of MZYTS were said to be especially pertinent to the present appeal given that the failure in that case was a failure to take account of a fundamental change in circumstances, as was said to be the case here.

33    I do not accept that MZYTS stands for the broad proposition contended for by the appellant. Critical to the Full Court’s reasoning was that the failure of the Tribunal in that case was such that it betrayed a misapprehension of the nature of the claim which it had been invited to determine and a miscarriage of the task it was required to perform: MZYTS at [3], [34], [37]–[36], [44]–[45], [52]. At [62], the Full Court said:

As we have set out above, the visa applicant’s claim to be, or to be perceived to be, a member or supporter of the MDC if he were to have to return to Zimbabwe required the Tribunal to form a state of satisfaction about what might happen to him, and why, given the prevailing circumstances in Zimbabwe on his return. As we have also set out above, the Tribunal’s reasons do not disclose any consciousness, nor any consideration, of those prevailing circumstances in any part of 2011, nor of the effect of the election cycle in Zimbabwe. They disclose no consciousness, nor any consideration, of what were submitted to be increasing incidents of political violence directed not at high-profile people but at “ordinary” MDC supporters or members …

34    This was not simply a matter of overlooking or failing to consider important, or even potentially dispositive, pieces of evidence in coming to a decision. The failures pointed to by the Full Court revealed that the Tribunal in that case had failed to form a “correct understanding of the basis” of the claim. In particular, it had not appreciated that the risk to the visa applicant was said to arise, or at least to be exacerbated, by the changed circumstances brought about by the prospect of elections. The Tribunal thereby failed to perform its statutory task.

35    The failures of the Tribunal in the present case expose no such misapprehension. It is not possible to infer from the Tribunal’s failure to account for the capacity material that the Tribunal did not have a genuine consciousness of the nature of the claim, at least as it related to the appellant’s ability to pay any fine.

36    The Tribunal was conscious that an inability to pay the fine may result in significant harm, it asked itself the correct question: whether the appellant would be able to pay any fine, and the material it considered was relevant to the resolution of that question. That there may have been additional material relevant to that question that was not considered does not betray the kind of error envisaged by MZYTS, that being a misapprehension of the basis of the claim and a miscarriage of the statutory task of determining the claim. Any error of the Tribunal did not go to jurisdiction.

37    For those reasons, I consider that the appellant’s ground 1 must fail.

38    If I am wrong, and MZYTS does stand for the broader proposition that any failure by a Tribunal to consider evidence that may have been dispositive of a critical issue will amount to jurisdictional error, I would nevertheless conclude that the appellant’s ground 1 must fail.

39    It was conceded by the appellant’s representative at the appeal hearing that the only relevant element of the capacity material not taken into account by the Tribunal was the appellant’s father’s evidence of having “lost … everything”. It was accepted that the balance of that material was either expressly or implicitly referred to by the Tribunal, or was not in fact relevant to the appellant’s capacity to pay any fine.

40    Insofar as the Tribunal did not take account of the appellant’s father’s evidence that they had “lost … everything”, I do not consider that that evidence may be categorised as necessarily critical to or dispositive of the question of the appellant’s capacity to pay any fine. What the evidence reveals is equivocal at best. “Lost … everything” in that context may plausibly be a reference to non-material loss as a result of the appellant’s family having been forced to leave their lives behind. Even taken at its highest, that the evidence revealed that the appellant’s family had lost all of their material wealth or “assets”, the evidence does not preclude a finding that the appellant, with the help of his family, may be able to pay any fine in the future. The evidence of the family’s relevant financial history, relied upon by the Tribunal in the disposition of the fine claim, may have indicated to the Tribunal a general resourcefulness and a willingness to assist the appellant financially. Similarly, the Tribunal relied upon additional evidence at [83] in support of its conclusions, including that the potential fine was only a relatively small amount of money and that it was able to be paid in instalments. In those circumstances, a change to the financial capacity of the appellant’s family, even a fundamental change, will be relevant to but not necessarily dispositive of the question of the appellant’s future capacity to pay.

Ground 2

41    By his second ground, the appellant contended that it was illogical for the Tribunal to have reached its conclusion in relation to the appellant’s ability to pay any fine by reference to the appellant’s family’s historical situation when there was evidence, not considered, that that situation had “fundamentally changed”. The ground, and the appellant’s submissions in support of it at the appeal hearing, overlapped to a significant degree with the first ground.

42    The essence of the appellant’s submissions in support of ground 2 was that it was illogical for the Tribunal to proceed from historical facts without taking into account changed circumstances.

43    In response, the Minister said that there was no illogicality in the Tribunal’s reasoning, which proceeded from findings of fact relevant to the appellant’s ability to pay a fine and drew conclusions from those findings. The Minister relied on the observations of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [133]:

[T]he correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.

44    To that may be added their Honours’ earlier observation (at [130]):

"[I]llogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.

45    I grant the appellant leave to agitate the proposed ground 2 but for the following reasons that ground should be dismissed.

46    As I have said, the purpose for which the Tribunal relied upon the appellant’s family’s historical financial circumstances was not clear. The appellant’s submission proceeds from the assumption that the Tribunal’s reliance was for the purpose of showing that the appellant’s family continued to have money and could afford to pay for a fine using that money. However, that assumption is not sound. It is equally possible that the Tribunal was merely seeking to demonstrate, as I have indicated above, that those circumstances evidenced the appellant’s family’s general resourcefulness and willingness, when they had money, to help their son. In those circumstances, the conclusion that the appellant would be able to pay any fine was reached according to a logical process of reasoning, even taking into account the appellant’s father’s evidence that they had, in fleeing Sri Lanka, “lost … everything”.

47    In any event, as I have indicated above in relation to Ground 1, there were logical bases unrelated to the appellant’s family’s financial status upon which the Tribunal may have reached the conclusion that the appellant would be able to pay any fine imposed, including the relatively small size of the fine and ability to pay by instalments. As I have said, the alleged changed financial circumstances of the appellant’s family were, taken at their highest, not necessarily dispositive of the question of the appellant’s capacity to pay any fine. Even if the appellant’s assumption were made out, and the Tribunal erroneously considered the appellant’s family’s past financial status as remaining current, there remained those alternative bases by which another rational decision-maker could arrive at the conclusion that the appellant could in any event afford to pay any fine imposed.

48    Ground 2 is not made out.

Ground 3

49    Proposed ground 3 asserts, essentially, that the Tribunal breached its obligation to provide a hearing under s 425 of the Migration Act in relation to an issue, or issues, arising in relation to the decision under review. The ground is confined to an argument that was before the primary judge. The Minister did not oppose the application for leave, nor did the Minister demonstrate any prejudice in now being forced to resist the proposed ground. Additionally, I consider the proposed ground 3 to be sufficiently arguable to justify the grant of leave.

50    Section 425(1), which is subject to exceptions not presently relevant, is in the following terms:

(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.

51    At this point, it is necessary that I say more about the Tribunal’s dispositive reasoning in relation to the fine claim at [83] of the second Tribunal decision. For that purpose, it is convenient that I set out that paragraph again in full:

[83]    The fine likely to be imposed on the applicant is between 5,000 and 50,000 Sri Lankan rupees according to the information above. On the current exchange rate, this amounts to between approximately $47 AUD and $467 AUD. The Tribunal does not accept that the imposition of such a fine on the applicant will give rise to a real risk of significant harm. The applicant’s family had a good employment history in Sri Lanka. His family was able to afford to pay for his journey to Australia. Further the Sri Lankan legislation allows for payment of fines by instalment. In these circumstances the Tribunal is satisfied that the applicant would be able to pay any fine imposed.

52    The first observation to be made about [83] is that it is not clear on the face of that paragraph, or by reference to any of the balance of the reasoning of the Tribunal, the nature of the significant harm that was contemplated as a consequence of the appellant’s inability to pay a fine. To my mind there are two possible ways to read the paragraph. First, that the Tribunal considered the imposition of a fine per se could amount to significant harm. Second, it is possible that the Tribunal had in mind the COI annexed to the first Tribunal decision indicating that people are imprisoned in Sri Lanka in default of payment of fines, and that the significant harm the Tribunal considered in [83] was the inhuman prison conditions said to exist in Sri Lanka by certain COI.

53    The appellant’s ground 3 (his ground 1 in the court below) was premised on the second of those interpretations being correct. At the hearing, the Minister also accepted the second interpretation. I am not so sure that the Tribunal did have in mind the appellant’s imprisonment in default of a fine. However, as I will explain in more detail below, it is unnecessary for the resolution of the appellant’s complaint under s 425 that the interpretation of the Tribunal’s use of “significant harm” be finally determined.

54    The appellant contended generally that he was not, prior to the second Tribunal hearing, on notice of the related issues of his capacity to pay any fine and the consequences to him if he were unable to pay any fine. It was said that the question of whether the appellant would be fined under the Immigrants and Emigrants Act did not arise before the delegate on the basis of earlier DFAT advice indicating that returnees were not charged. It was also said that the Tribunal in the first Tribunal decision did not consider the appellant’s capacity to pay any fine, nor was that issue dispositive. The appellant further contended that the Tribunal, at the second Tribunal hearing, failed to discharge its duty under s 425 to invite the appellant to give evidence and present arguments relating to the asserted issues.

55    The first question that falls to be considered is the nature of the relevant issue or issues for the purposes of s 425 of the Migration Act.

56    The Minister asserted that the relevant “issue” was broader than the appellant’s capacity to pay any fine and was the appellant’s likely treatment on return to Sri Lanka, in particular, his exposure to penalty under the Immigrants and Emigrants Act, that being an issue the appellant had notice of. I accept that the appellant may be considered to have been on notice of an issue framed in those terms, however, as I will explain, I do not consider that, for the purposes of s 425, it is appropriate that the relevant issue be so broadly-framed.

57    I recently considered the nature of the Tribunal’s obligation under s 425 in ABV16 v Minister for Immigration and Border Protection [2017] FCA 184, and in particular, precisely what may constitute the “issues arising in relation to the decision under review”. There (at [29]–[30]), I rejected the Minister’s contention that the issue in that case should be framed broadly. I did so on the basis that the critical issues needed to be identified at a level of specificity which gave meaning to the opportunity to respond: SZMUF v Minister for Immigration and Citizenship [2009] FCA 182 at [22] (Flick J). I observed that the guiding principle was one of fairness: VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [28] (Allsop J, with whom Gyles and Conti JJ agreed on this point), and that the purpose of a procedural fairness obligation such as that imposed by s 425 was the avoidance of a practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 (Gleeson CJ).

58    At [23]–[26] of ABV16, I considered the respective approaches of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) and a Full Court of this Court in SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1 (Gray, Gyles and Besanko JJ) to the question of what is an “issue” for the purposes of s 425. Those authorities, and in particular SZHKA at [7] (Gray J, with whom Gyles J agreed) and [115] (Besanko J), support a conclusion that “issues”, relevantly, are the matters in the case about which the Tribunal holds reservations, which are sufficiently substantial to be dispositive of a claim. I followed that approach to the framing of the relevant issue in ABV16, and I see no reason to depart from that course in the present proceeding.

59    I return then to the formulation of the “issue” pressed upon me by the Minister, namely, whether and to what extent the appellant would be exposed to penalty under the Immigrants and Emigrants Act. There may be any number of reasons for the Tribunal to find that the appellant would not have been exposed to significant harm through punishment under the Immigrants and Emigrants Act. These include the various reasons given by decision-makers throughout the appellant’s visa application: ie because the appellant would not be charged (as was found by the delegate), because the appellant would not be exposed to a custodial sentence (as was found in the first Tribunal decision), or because the appellant would avoid significant harm through the payment of a fine (as was found in the second Tribunal decision). To that may be added additional matters potentially dispositive of such a broadly-framed “issue”, including a finding (in spite of COI evidence to the contrary) that prison conditions in Sri Lanka did not generally amount to inhuman or degrading treatment or punishment, or that some feature of the appellant’s case meant that he would avoid such treatment. As should be evident, to frame the issue at the level of generality contended for by the Minister would provide no meaningful opportunity to the appellant to respond to it. The appellant would suffer a practical injustice, being left to guess at precisely what about his exposure to harm under the Immigrants and Emigrants Act may be concerning the Tribunal.

60    The appellant asserted that the Tribunal failed to discharge its s 425 obligation in respect of two relevant “issues”. It was said that the issues for the purposes of s 425 were first, the appellant’s capacity to pay any fine imposed as punishment under the Immigrants and Emigrants Act, and second, the consequences to the appellant if he were unable to pay any fine.

61    The appellant takes an overly narrow approach to identifying the relevant issue. To my mind, the issue is fairly identified as being whether the imposition of a fine on the appellant for contravention of the Immigrants and Emigrants Act will give rise to a real risk of significant harm. That is how the Tribunal framed the issue at [83] and, in my view, it was correct to do so.

62    Once the issue of the significance of the harm consequential on the imposition of a fine is raised, the question of capacity to pay the fine naturally and obviously arises because the extent to which the imposition of a fine will impose significant harm on a person has a direct nexus with that person’s capacity to pay the fine. That is true where what is being considered is whether the imposition of a fine per se could amount to significant harm or whether the consequence of a failure to pay the fine (including imprisonment) could amount to significant harm.

63    In my view, if the appellant was on notice that the Tribunal may consider whether the imposition of a fine may give rise to a real risk of significant harm, the appellant had a meaningful opportunity to address the question of whether or not he had a capacity to pay any fine that may be imposed.

64    It may fairly be concluded that, in the circumstances, the appellant was on notice that the Tribunal may consider whether the imposition of a fine will give rise to a real risk of significant harm.

65    That issue did not rise in the decision of the delegate. The delegate’s decision was based upon DAFT advice which was later superseded, indicating that returnees would not be charged under the Immigrants and Emigrants Act. The question of punishment under that Act did not arise.

66    It may be accepted that despite the focus in SZBEL on the decision of a delegate, a visa applicant may be put on notice of an “issue” by an intervening Tribunal decision which is subsequently quashed: AZAAD v Minister for Immigration and Citizenship (2010) 189 FCR 494 at [41] (Besanko J, with whom Siopis and Reeves JJ agreed on this point); SZDFZ v Minister for Immigration & Citizenship (2008) 168 FCR 1 at [19]–[22] (Flick J).

67    At [38] of the first Tribunal’s decision, the Tribunal noted that COI indicated that those returnees charged under the Immigrants and Emigrants Act received fines, and found it very likely that the appellant would receive a fine and very remote that the appellant would receive a custodial sentence. That Tribunal did not however directly address the question of whether the imposition of a fine gave rise to a real risk of significant harm.

68    Nevertheless, by reference to the first Tribunal’s decision, the appellant must be regarded as being on notice that a possible consequence for him of being returned to Sri Lanka was that he would be fined for contravention of the Immigrants and Emigrants Act, which must be acknowledged to be harm of some degree. The question of whether that harm was sufficiently severe to amount to significant harm, to be answered by reference to the appellant’s ability to pay, naturally and obviously flows from that acknowledgement. Furthermore, the appellant’s advisor provided a written submission to the Tribunal in advance of the second Tribunal hearing which relevantly included reference to DFAT advice that fines in the range of 5,000 to 50,000 Sri Lankan Rupees had been issued upon returnees departing Sri Lanka illegally. Lastly, that information was conveyed to the appellant in the course of the second Tribunal hearing when the Tribunal said to the appellant that those facts were consistent with the Tribunal’s understanding.

69    In all of those circumstances, I consider that the appellant was on notice that the Tribunal may consider whether the imposition of a fine upon him for contravention of the Immigrants and Emigrants Act may give rise to a real risk of significant harm. That notice availed the appellant of a meaningful opportunity to deal with his capacity to pay the fine for the reasons I have outlined. Accordingly, the Tribunal discharged its obligation under s 425 without jurisdictional error. My conclusions are largely consistent with the conclusion reached by the primary judge. The primary judge did not err. The appellant’s ground 3 is not made out.

Notice of Contention

70    At the hearing of the appeal I granted leave to the Minister to file out of time a Notice of Contention by which it was asserted that the primary judge ought to have alternatively found that the Tribunal was not required to consider the appellant’s ability to pay any fine imposed under the Immigrants and Emigrants Act because it found that no such fine would be imposed. As it was fully argued, I will address the Minister’s Notice of Contention, despite it being unnecessary for the Minister to rely upon it in light of the conclusions I have reached on the appellant’s grounds of appeal.

71    The assertion in the Notice was made on the basis of the Tribunal’s observations at [69] of the second Tribunal decision. It is convenient that I reproduce [69] of the second Tribunal decision:

[69]    The Tribunal acknowledges that the applicant might be prosecuted under the Immigrants and Emigrants Act of 1948. The Tribunal notes that the applicant was a minor when he left Sri Lanka and DFAT has advised that minors are not charged with these offences. However the Tribunal has also considered what would happened if he was charged.

72    It was said that the second sentence of that paragraph amounted to a finding that the appellant, who was a minor at the time he left Sri Lanka, would not be charged with offences under the Immigrants and Emigrants Act. It was further said that the word “however” at the beginning of the third sentence of that paragraph had to be given work to do, and indicated that the deliberation which follows is in the alternative to the primary finding that the appellant would not be charged, having offended as a minor.

73    In response, the appellant submitted that the second line was not indicative of any finding at all. This was apparent, it was said, on the basis of the express words used by the Tribunal. Moreover, the appellant placed reliance on the transcript of the second Tribunal hearing, at which the Tribunal indicated that it had doubts about the way that the appellant would be treated under the law of Sri Lanka, given that he was a minor at the time of offending. That statement of the Tribunal is included in the extract of the transcript of the second Tribunal hearing above at [9]. The appellant contended that the expressed doubt informs the construction of [69], such that the construction contended for by the Minister in his notice of contention is implausible.

74    I need not determine the contention by reference to the transcript even if it were permissible to do so. I am satisfied that it should be dismissed by reference to the words of the second Tribunal decision alone.

75    In the absence of express language, I am unable to infer that a finding has been made by the Tribunal through its use of the verb “notes” at [69] in circumstances where it has had no difficulty using clearer language elsewhere throughout the second Tribunal decision. The Tribunal expressly stated that it “finds” or “accepts” (or does not “find” or “accept”) certain facts or claims of the appellant at [28], [30]–[33], [37], [39]–[43], [45], [47]–[51], [55], [61], [64]–[66], [68], [72]–[73], [79]–[80], [82]–[84], [86]–[88], [91]–[94].

76    This conclusion is reinforced by the Tribunal’s acknowledgement in the first sentence of the paragraph that the appellant might be prosecuted under the Immigrants and Emigrants Act. It would be utterly inconsistent with that observation to then make a finding that the appellant would not be fined. The Minister’s contention would be more compelling if the second sentence led to the necessary conclusion that the appellant would not be charged. However, the appellant is (and was at the time of the second Tribunal decision) no longer a minor. Accepting the DFAT advice to be accurate, it is inconclusive about whether a person such as the appellant, who was a minor at the time of offending but has subsequently reached the age of majority, would be charged. I consider that the third sentence does no more than introduce the next stage of the Tribunal’s analysis, given the uncertainty attending whether or not the appellant would be charged on return.

77    For those reasons the Minister’s notice of contention must be dismissed.

Conclusion

78    The appellant has not been successful in relation to any of his grounds of appeal. I will dismiss the appeal with costs, which parties accepted should follow the event.

Associate:    

Dated:    5 September 2017