FEDERAL COURT OF AUSTRALIA

BMQ16 v Minister for Immigration and Border Protection [2017] FCA 1197

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    The appellant is a citizen of Sri Lanka. He appeals from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) on 22 February 2017 dismissing his amended application for judicial review of a decision of the Immigration Assessment Authority (Authority): see BMQ16 v Minister for Immigration and Border Protection [2017] FCCA 150 (BMQ16). The Authority had affirmed a decision of a delegate of the first respondent (Minister) not to grant the appellant a Safe Haven Enterprise Visa (Class XE, Subclass 790) (Visa).

background

2    The following background is extracted from the decision of the primary judge: see BMQ16 at [2]-[16].

3    The appellant arrived in Australian waters at Cocos Islands as an irregular maritime arrival on 28 August 2012 and was thereafter transferred to Christmas Island.

4    On 11 and 15 January 2013 the appellant participated in arrival interviews with an officer of the Department of Immigration and Border Protection (Department). According to a migration agent, who acted for the appellant in 2015, the appellant was also interviewed on 1 September 2012 and 3 October 2012.

5    In February 2013 the appellant, having been transferred to the Australian mainland, was released into the community and granted a bridging visa.

6    On 18 July 2013 the appellant applied for a protection visa. He provided a statutory declaration setting out his claims with his application (Statutory Declaration).

7    In August 2015 the Department sent a letter to the appellant informing him that his application for a protection visa was invalid but that he could apply for the Visa. On 24 September 2015 the appellant did so. His application included a statement setting out his claims (Statement).

8    On 16 December 2015 the appellant attended an interview with a delegate of the Minister.

9    On the same date the Department sent a letter to the appellant, by email to his migration agent, inviting him to comment on adverse information. By letter dated 7 January 2016 the appellant’s migration agent provided a response.

10    On 21 April 2016 a delegate of the Minister refused to grant the Visa.

11    The delegate’s decision was referred to the Authority for review under Pt 7AA of the Migration Act 1958 (Cth) (Act). On 22 April 2016 the Authority sent the appellant a letter which, among other things:

(1)    informed the appellant that the decision of the Minister’s delegate had been referred to it for review;

(2)    stated that the Department “has provided us with all documents they consider relevant to your case” and that the Authority “will proceed to make a decision on your case on the basis of the information sent to us by the Department”; and

(3)    invited the appellant to make a submission of “no longer than 5 pages” within 21 days.

12    By letter dated 10 May 2016 the appellant’s migration agent provided a submission to the Authority.

13    On 23 May 2016 the Authority affirmed the decision of the Minister’s delegate.

the appellant’s claims for protection

14    The appellant’s claims for protection, which were first set out in the Statutory Declaration and subsequently in the Statement, are summarised below.

15    The appellant is of Tamil ethnicity and is Hindu. He was born in and lived in Navithanvely, Ampara District, Eastern Province, Sri Lanka for most of his life. His father was a rice farmer. The appellant is married with three daughters. With the exception of one brother, his family live in Sri Lanka.

16    The appellant attended school from 1983 to 1992 but during this period he and his family frequently had to live elsewhere to avoid the Sri Lankan Army (SLA), which would damage property and beat and shoot people. When they were displaced, the appellant and his family would go to Mandoor, which was controlled by the Liberation Tigers of Tamil Eelam (LTTE) and live in the school or temple. The appellant claimed that the SLA targeted Tamils who they suspected of supporting the LTTE.

17    After he left school the appellant assisted his father on the rice farm. The problems with the SLA continued and they would flee as soon as the situation became dangerous.

18    From the age of 15 the appellant had to report to the SLA every Sunday and undertake various jobs for them such as cutting trees and helping to prepare food. The appellant claimed that the SLA threatened to beat them if they did not follow orders and that a friend was shot dead one night by the SLA when the friend was out herding cattle.

19    In about 1995 the appellant obtained a passport. He was afraid of living in Sri Lanka and in January 1996 went to Qatar, where he worked as a labourer, having obtained a work visa. Because his employer stopped paying him, the appellant had to return to Sri Lanka in July 1997. He returned to his village where he worked as a labourer and assisted his father.

20    In June 1999 the appellant was married. His first of three children was born in January 2007. Between March 2007 and July 2007 the appellant travelled to Dubai but was unable to find work there so he returned to his village in Sri Lanka.

21    From around 2006 the appellant’s village started to experience problems caused by the Karuna group, a paramilitary group which had separated from the LTTE. The Karuna group assisted the SLA by targeting anyone who supported or who they suspected of assisting the LTTE. They set up a camp near the appellant’s village and villagers were forced to help them. The appellant claims that he was required to assist the Karuna group by giving its members lifts to various places because he had a motorbike which was given to him by his uncle. The appellant claimed that the Karuna group members threatened to kill him if he did not do as he was ordered.

22    The appellant also feared the LTTE should they discover that he had been assisting the Karuna group.

23    On one occasion the Karuna group wanted to take the appellant’s motorbike. The appellant told them he needed it to go to hospital to see his wife. He claimed that the members of the Karuna group were armed, threatened him and said that he had to go to their office. The appellant said he could not go because his wife was in hospital.

24    The appellant became fearful and decided to leave Sri Lanka. He renewed his passport on 3 June 2008 and, having obtained a work visa through an agent, went to Iraq in October 2008. In Iraq the appellant worked as a cleaner at a US military camp. The camp eventually closed and in July 2011 the appellant returned to his village in Sri Lanka.

25    Shortly after the appellant returned from Iraq, two men came to his house and demanded 20,000 rupees. The appellant thought that they were associated with the government and that they were armed. Although he had savings that he had brought back from Iraq, the appellant lied and said that he had no money. The men left but returned three days later when the appellant was not home. They repeated their demand to the appellant’s wife and threatened to kill him if he did not hand over the money.

26    The appellant said that he reported the incidents to the police, who told him that they could not assist him unless they knew who the men were.

27    The appellant was fearful and went into hiding, visiting his wife from time to time. His wife told him that while he was in hiding the men visited his home for a third time and again made the demand and threatened the appellant. The appellant says that he was in hiding when his third daughter was born on 25 April 2012.

28    The appellant claimed that he also complained to the regional and district offices of the Sri Lankan Tamil Party, which wrote letters on 5 December 2011 and 12 August 2013 in support of his need for protection, and to a local church and a local temple.

29    The appellant realised that he could not live in Sri Lanka without fear and decided to leave. He explained his situation to a friend, who told him that there was a boat leaving for Australia. The appellant left Sri Lanka by boat on 7 August 2012, arriving at Cocos Island on 28 August 2012.

30    The appellant claimed that in 2013 his wife told him that the men returned to his house searching for him, but his wife told them that he had left Sri Lanka. The men searched his house, found the appellant’s passport and asked the appellant’s wife how he was able to travel without a passport. They took the passport with them and told the appellant’s wife that if the appellant wanted it back then he would have to take it from them.

31    The appellant fears returning to Sri Lanka because he believes that he will be killed by the men who threatened him and because he believes that he is targeted because of his Tamil ethnicity. He also fears that if he returns he will be identified as someone who supported the LTTE because he assisted the LTTE by collecting and delivering food to them.

the authority’s decision

32    After reciting the appellant’s claims the Authority made a number of factual findings:

(1)    the Authority:

(a)    accepted that the appellant is a Tamil and Hindu;

(b)    accepted the appellant’s evidence that he was not an LTTE member but that he shared their political opinion and found it plausible that the appellant, who was living in the east of Sri Lanka, may have provided assistance to LTTE members when asked;

(c)    accepted as plausible the appellant’s claims that he was required to report to a nearby army camp every Sunday and that he was threatened with being beaten if he did not perform various jobs for the SLA;

(d)    accepted the appellant’s claim that his brother-in-law was imprisoned for helping the LTTE;

(e)    accepted the appellant’s claim that he witnessed an incident in 1996, before he went to Qatar, where SLA soldiers made a worker hold an explosive device while another was told to detonate it. However, the Authority found that the workers appeared to have been victims of the incident because the explosive device was found on the roadside near the rice paddy in which they were working and that the attack was not specifically aimed at the appellant, his father or the other workers; and

(f)    accepted that if the appellant were to return to Sri Lanka, he would be considered a failed asylum seeker who departed Sri Lanka illegally;

(2)    in relation to the claim by the appellant that he was targeted by the Karuna group, the Authority:

(a)    accepted as plausible that the appellant was forced to help members of the Karuna group by giving them lifts and that he was threatened by them if he failed to comply;

(b)    accepted that there was an attempt by the Karuna group in 2008 to take the appellant’s motorbike, but that he did not hand the motorbike over, and that he did not report the incident to the police because he believed they would not assist Tamils;

(c)    found that the appellant was visited by armed men from a paramilitary group who attempted to extort money from him in July or August 2011. The Authority considered it plausible that the same men made subsequent visits to his home; that, because he was not there, they spoke to his wife in a threatening manner; and that these men came to his home again in 2013 and found and took his passport; and

(d)    considered it implausible that the armed men from the paramilitary group came to his home in 2011 to ask for money because of the assistance the appellant had given to the LTTE between 2002 and 2004. Rather, the Authority considered it likely that the men were aware that the appellant had recently returned from working overseas and that he may therefore have money that they could attempt to extort from him; and

(3)    the Authority noted that the appellant gave inconsistent evidence about whether he reported the 2011 extortion attempt to the police. The Authority considered that it was unlikely that the appellant went to the police at that time given his belief that the police do not help Tamils and the fact that he did not report the 2008 extortion attempt. The Authority did not consider it plausible that the appellant's inconsistent evidence in relation to police conduct after he tried to report the 2011 extortion was given because he was confused at the entry interview. The Authority was of the view that the inconsistencies in the appellant's evidence were because he did not attempt to report the 2011 extortion attempt to the police.

33    The Authority then considered whether the appellant was a refugee, having regard to ss 5H(1) and 5J of the Act. It rejected his claims based on the 1996 roadside bomb incident; based on his being a Tamil from the east; and based on his assistance to the LTTE in the period from 2002 to 2004, finding that it was not satisfied that the appellant faced a real chance of persecution for any of those reasons.

34    Of central relevance to the appellant’s ground of appeal is the Authority’s finding in relation to the appellant’s claim to fear harm from the paramilitary group and, in particular, the extortion attempt in 2011. In that regard, the Authority said at [77]-[79] of its decision record that:

77    I have found that the applicant was visited, after his return from Iraq in 2011, by armed men who asked him for money and that these men visited his home on subsequent occasions in 2011 and 2012 when he was not at home, telling his wife that they would kill him if he did to (sic) hand over the money. I also accept that these men took the applicant's passport in 2013.

78    However, simply making a finding about what occurred in the past is not enough to satisfy the real chance test; the essence of that test is the process of looking to the future. While past events will often provide a reliable means of predicting future persecution, that will not always be the case. On the basis of country information discussed in this decision, particularly in relation to the Sirisena government which was elected in January 2015, there has been a substantial change in country conditions since the applicant left Sri Lanka in August 2012. Given that three years have passed since the men last visited the applicant's home, I am not satisfied that the applicant is still of interest to them. I consider that the possibility of the applicant being visited by a paramilitary group in the future is purely speculative.

79    I am not satisfied that the applicant faces a real chance of persecution now or in the reasonably foreseeable future for these reasons.

35    The Authority was also not satisfied that the appellant would face a real chance of persecution from the LTTE for helping the Karuna group or because he departed Sri Lanka illegally and would be returning as a failed asylum seeker.

36    The Authority concluded that the appellant did not meet either the definition of “refugee” in s 5H(1) of the Act or the requirements of s 36(2)(a) of the Act. In addition, the Authority concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the appellant would suffer significant harm. It thus concluded that the appellant did not meet the requirements of s 36(2)(aa) of the Act.

Federal Circuit Court proceeding

37    The appellant sought judicial review of the Authority’s decision in the Federal Circuit Court. By an amended application filed at the hearing on 31 January 2017 the appellant relied on two grounds. Relevantly, insofar as the appeal before this Court is concerned, ground one was in the following terms:

The Immigration Assessment Authority ("the IAA") accepted the applicant's claim that he "was visited by armed men from a paramilitary group who attempted to extort money from him in July or August 2011", and these men made subsequent visits to the applicant's home up to 2013: at [36]. The IAA added that it was "likely that these men were aware that the applicant had recently returned from working overseas and that he may therefore have money which they could attempt to extort from him": at [37] and [72]. If the applicant is required to return to Sri Lanka, there is a real chance he would again be perceived by paramilitary groups as having money earned from working overseas. This would form the basis for fresh extortion attempts against the applicant by paramilitary groups. The IAA failed to consider this issue. This is a jurisdictional error in connection with the IAA’s finding at [78] that "the possibility of the applicant being visited by a paramilitary group in the future is purely speculative".

38    The primary judge noted that by ground one the appellant alleged that the Authority erred by failing to consider a claim and that the appellant conceded that the claim was not express but that it arose by implication: BMQ16 at [57] and [60].

39    The primary judge rejected ground one for the following reasons.

40    First, the primary judge held that it was plain from [37] of the Authority’s reasons that it had considered and rejected the claim that the appellant had been harassed by extortionists because of an imputed association with the LTTE. That is, the Authority had considered and rejected the claim insofar as it was based on the appellant’s imputed political opinion.

41    Secondly, to the extent that the appellant’s claim was based on him presenting as a “soft target” because of his Tamil ethnicity, the primary judge held that, while this integer of the extortion claim was not expressly considered by the Authority, it was subsumed in the Authority’s more general reasoning at [78] of its decision record: BMQ16 at [61]-[63].

42    Thirdly, the primary judge held that, to the extent that the appellant contended in oral argument that he would be at risk of further extortion attempts on return to Sri Lanka because he would be perceived as being wealthy, having worked in Australia, such a claim was not made by the appellant prior to the proceeding in the Federal Circuit Court. The primary judge noted that, on the contrary, the appellant claimed that he would be perceived as a failed asylum seeker on return to Sri Lanka from Australia and that he would be at risk of harm for that reason, not because of any perception of wealth: BMQ16 at [64].

The appeal

43    The appellant raises one ground of appeal which, in effect, seeks to re-agitate ground one of the amended application that was before the Federal Circuit Court by alleging that the primary judge erred in rejecting that ground.

44    The single ground of appeal is in the following terms:

The Immigration Assessment Authority ("the IAA") accepted the appellant's claim that he "was visited by armed men from a paramilitary group who attempted to extort money from him in July or August 2011", and these men made subsequent visits to the appellant's home up to 2013: at [36]. The IAA added that it was "likely that these men were aware that the appellant had recently returned from working overseas and that he may therefore have money which they could attempt to extort from him": at [37] and [72]. If the appellant was required to return to Sri Lanka, there is a real chance he would again be perceived by paramilitary groups as having money earned from working overseas. This would form the basis for fresh extortion attempts against the appellant by paramilitary groups. The appellant contended in the Federal Circuit Court that the above matters gave rise to a claim by the appellant before the IAA which the IAA failed to consider, and this was a jurisdictional error in connection with the IAA's finding at [78] that "the possibility of the applicant being visited by a paramilitary group in the future is purely speculative". The Federal Circuit Court rejected this ground of review. The Federal Circuit Court erred in rejecting this ground of review.

The appellant’s submissions

45    The appellant submitted that the manner in which he wrote the Statutory Declaration and the Statement indicated that the 2011 extortion attempt was a principal reason for his departure from Sri Lanka in August 2012. The appellant said that he gave similar, albeit briefer, evidence at his arrival interviews in January 2013. The appellant contended that he had claimed that, if he returned to Sri Lanka, he feared further extortion demands. He relied on examples in the Statutory Declaration, the Statement and a letter dated 7 January 2016 from his migration agent to the Department.

46    The appellant submitted that a question which arises on this appeal is the nature or scope of his claims to fear further extortion demands should he return to Sri Lanka. He submitted that there were two possibilities when characterising his claims, being that:

(1)    the men who initially demanded money from him in the second half of 2011, motivated by a belief that he had earned money in Iraq, would return to locate him if he returned to Sri Lanka; or

(2)    he had more broadly expressed fear of further extortion attempts by “members of the Karuna group or some other group that is associated with the Sri Lankan government”. He submitted that this claim is broader because it is not limited to the same men who demanded money shortly after July 2011, nor is it limited to an extortion attempt motivated by the money the appellant had earned in Iraq in the period between 2008 and 2011.

47    The appellant submitted that the claim he advanced in support of his application for the Visa was the broader claim. He submitted that the Authority accepted the factual basis of his claim by making the following findings at [36] and [37] of its decision record:

36    … I find that the applicant was visited by armed men from a paramilitary group who attempted to extort money from him in July or August 2011. I also consider it plausible that the same men made subsequent visits to the applicant's home, but he was not there and they spoke to his wife in a threatening manner instead. I accept that these men came to his home again in 2013 and found and took his passport.

37    … I consider it likely that these men were aware that the applicant had recently returned from working overseas and that he may therefore have money which they could attempt to extort from him. …

48    The appellant submitted that he has been in Australia since 2012 and that he has had permission to work in Australia since September 2015. In those circumstances, the appellant contended that three questions arise for consideration:

(1)    did the Authority consider the question of whether he might face extortion attempts based on the perception that he earned money while in Australia (Australia-based extortion issue);

(2)    if the Authority did not consider that question, was the Authority’s failure to consider the Australia-based extortion issue a jurisdictional error; and

(3)    if it was a jurisdictional error, how did the primary judge err in his decision on this issue?

49    As to the first question, the appellant submitted that the Authority addressed the question of whether the appellant had a well-founded fear of persecution from the extortionists under the headings “Persecution due to affiliation with LTTE” at [61]-[73] of its decision record and “Persecution from paramilitary groups” at [74]-[79] of its decision record and, in particular, at [78] (see [34] above).

50    The appellant further submitted that, on a fair reading of [78] of the Authority’s decision record, the Authority addressed the question of whether the appellant, if required to return to Sri Lanka, would still be of interest to the extortionists who searched for him from the second half of 2011 to 2013 based on his three year stay in Iraq. He submitted that [78] did not address the question of whether, if he returned to Sri Lanka, the appellant might face extortion attempts based on his stay in Australia between 2012 and 2017.

51    As to the second question, identified as the critical question, the appellant submitted, relying on s 473CC(1) of the Act, that, like the former Refugee Review Tribunal, the Authority has a statutory obligation to “review” a decision of the Minister’s delegate. The appellant thus contended that the principles in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) apply to the Authority and, in particular, relied on NABE at [55], [58] and [63].

52    The appellant submitted that the following matters are relevant in considering whether the Authority’s failure to address the Australia based extortion issue was a jurisdictional error:

(1)    his claim that he feared persecution by extortionists was a central claim both in the Statutory Declaration and the Statement. The appellant contended that, on a fair reading of his claims, his claim to fear persecution from extortionists was not limited to a claim that the people who sought to extort money from him between 2011 and 2013, based on their belief that he had earned money in Iraq, would resume doing so based on their belief that he had earned money in Iraq. His claim was more generally that he feared extortion attempts by paramilitary groups. This encompassed a claim by implication that he feared extortion attempts by paramilitary groups following his return from Australia based on their perception that he earned money in Australia;

(2)    the country information before the Authority indicated that paramilitary groups continued to engage in extortion in Sri Lanka at the time of the Authority’s decision in 2016; and

(3)    where a person faces a risk of extortion by paramilitary groups because, as the Authority stated at [72] of its decision record, “they were aware that he had just returned from working overseas and was likely to have money”, it does not follow that the extortion does not have a Convention nexus.

53    The appellant submitted that, taking these matters into account, the Australia-based extortion issue arose squarely and clearly on the materials before the Authority and its failure to deal with or address the claim was a jurisdictional error.

54    The third question concerns the primary judge’s finding at [64] of his reasons. The appellant submitted that he disagrees with the primary judge’s findings at [64] for the following reasons:

(1)    while the appellant accepts that he did not expressly claim in the materials before the Authority that a reason he would be at risk of further extortion attempts on return to Sri Lanka was because he would be perceived as wealthy, having worked in Australia, he claimed to fear further extortion demands if required to return to Sri Lanka. He contended that, although the claim is spread through a few documents, he expressly claimed that paramilitary groups target, for extortion, Tamils who are perceived to have money because Tamils are vulnerable due to their ethnicity. For those reasons he said that his claim arose squarely from the materials. The appellant contended that the primary judge erred in finding otherwise; and

(2)    the primary judge correctly stated that “the [appellant] claimed that he would be perceived as a failed asylum seeker on return to Sri Lanka from Australia and at risk of harm for that reason”. The appellant noted that the claimed risk of harm was from the Sri Lankan authorities, in contrast to paramilitary groups. However, the appellant contended that the fact that he made a “failed asylum seeker claim” did not prevent him from claiming a fear of further extortion attempts by those who target returnees from overseas countries who are perceived to have earned money in those countries and that the two claims are not contrary to each other. The appellant contended that the primary judge erred in considering that they were.

The Minister’s submissions

55    The Minister submitted, by reference to the material before the Authority in which the appellant articulated his fear of harm on the basis of extortion attempts, that the appellant’s fear of harm was based on a fear of harm from the men who had threatened him in the past; and a fear of harm on the basis of his ethnicity. The Minister submitted that the material before the primary judge did not support a finding that the appellant had claimed to fear harm from paramilitary groups generally on the basis of his perceived wealth, nor could such a claim be inferred from that material.

56    The Minister submitted that the appellant was represented by a migration agent both before the delegate and in relation to the review by the Authority and that that was a relevant matter to consider when determining whether a claim or an integer of a claim was not addressed, relying on SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26; [2013] FCAFC 125 (SZSHK) at [37] and BGR15 v Minister for Immigration and Border Protection [2016] FCA 920 at [32].

57    The Minister contended that, as held by the primary judge at [64] of BMQ16, a claim that the appellant would be at risk of further extortion attempts on return to Sri Lanka because he would be perceived as being wealthy, having worked in Australia, was simply never made by the appellant prior to the proceeding in the Court below, nor could any such claim be inferred from the material that was before the Authority.

58    The Minister submitted that it was unclear in what way it was contended that the primary judge erred in rejecting ground one of the amended application, nor was any appellable error apparent on a reading of the primary judge’s reasons.

Consideration

59    The critical issue for determination in this appeal is whether the Authority failed to consider a claim. That, in turn, depends on the characterisation of the claim made by the appellant. There is no dispute between the parties that, if the claim is construed as the broader claim contended for by the appellant, namely, the Australia-based extortion claim, then the Authority did not address that claim directly.

60    In NABE a Full Court of this Court (Black CJ, French and Selway JJ) recognised, relying on Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088, that one circumstance in which it is clearly established that the absence of a finding of a relevant fact by the Refugee Review Tribunal may amount to jurisdictional error is where the Tribunal fails to “make a finding on ‘a substantial, clearly articulated argument relying upon established facts’”: at [55]. At [58] the Full Court said:

The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

61    At [63] the Full Court further said:

It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. …

62    Also relevant to a consideration of the appellant’s claim is SZSHK. There a Full Court of this Court (Robertson, Griffiths and Perry JJ) considered whether a particular matter had been “squarely raised” as a key integer of the appellant’s claims in circumstances where the appellant was represented before the decision-maker. At [36] their Honours agreed with the conclusions of the primary judge that “the appellant’s legal representative’s long and detailed submissions … made no specific reference” to the claim in issue. Their Honours found that the relevant issue was not “expressly made or clearly arising”. At [37] the Full Court said:

We do not suggest there is a formula to assess whether the case put has sufficiently raised the relevant issue but relevant matters to be taken into account are whether or not the claim for complementary protection clearly arises from the materials and, where the claimant is represented by professional advisers, whether the advisers have articulated the case which is later said not to have been dealt with by the tribunal of fact. We do not accept the appellant’s submission that merely because material is put as giving rise to a claim on Refugees Convention grounds it automatically follows that that claim is required to be considered as a claim for complementary protection.

63    In the Statutory Declaration the appellant referred to the extortion attempt made against him after his return from Iraq. He stated that he believed that the men who came to his house and demanded the money were “members of the Karuna group or some other group that is associated with the Sri Lankan government”. After the third time that “these men” came to his house the appellant said that he “went into hiding” and that he “would stay at other places ... and would sometimes return home to [his] family”. He also said that during this time he sent a copy of his passport to his friend in Qatar “in approximately January 2012 with the intention to go to Qatar to escape [his] problems”. The appellant spoke to his friend in Qatar in July 2012 and his friend told him about the boats leaving for Australia. The appellant said that he then made the necessary arrangements “to escape the country as [he] was afraid that the men would [come] back and kill [him]”.

64    Under the heading “Who I think will harm or mistreat me if I go back” the appellant stated that he was fearful of “the Karuna group as well as other groups which are associated with the Sri Lankan authorities”. That statement was made in the context of a claim that the appellant believed that the men who attempted to extort money from him after he returned from Iraq “were members of the Karuna group or some other group that is associated with the Sri Lankan government”.

65    Insofar as the appellant articulated a claim based on the extortion attempts made against him, the appellant’s claim made in the Statutory Declaration is framed as one based on his fear of harm by the men who had threatened him “two months after [he] returned from Iraq” and who returned to his house on two further occasions.

66    In the Statement the appellant reiterated his claim that, after he returned from Iraq, two men came to his house who he believed were associated with the government and demanded 20,000 rupees from him. He also stated that the men returned to his house on two further occasions when he was not there and made the same demands. At [50] of the Statement the appellant said that he “realised that [he] could not live in Sri Lanka without fear”; that he “decided to flee to a country where [he] would be safe”; and that he thereafter left for Australia by boat. At [51] the appellant stated that in 2013 he was informed by his wife that “the same men came to [their] home and were looking for [him]”. At [52] of the Statement, under the heading “What I fear may happen to me, by who and why, if I return to that country”, the appellant states:

I fear that if return (sic) to Sri Lanka I will be killed by the men who have threatened me and who are searching for me. I believe that I am targeted because I am vulnerable due to my Tamil ethnicity.

67    The appellant submitted that [52] of his Statement should be read disjunctively. He submitted that the first sentence articulates the narrower claim, a fear of harm because the men who made the extortion attempts after his return from Iraq would return, and the second sentence articulates the broader claim, a fear of harm by extortion more generally.

68    In my opinion, the claim cannot be construed in the broader way contended for by the appellant. The appellant did not state that he fears harm because extortion attempts will be made in the future because he worked and earned money while in Australia. There is nothing in the Statement that could lead the Tribunal to conclude that such a claim was being made. Even if the sentences at [52] are read disjunctively, it is difficult to see how the broader claim would arise on the basis of the second sentence, in which the appellant expressed his fear that he will be targeted because he is Tamil. In any event, I do not think that the sentences should be read disjunctively. The second sentence gives further context to the first. That is, the second sentence clarifies that the appellant believes that if he returns to Sri Lanka he will be killed by the same men who targeted him and that he was and will be so targeted because of his Tamil ethnicity.

69    The statement relied on by the appellant in his migration agent’s letter dated 7 January 2016, that the appellant “maintains that he is at real risk of serious harm from the authorities and from associated armed groups in Sri Lanka for reason of his ethnicity and (imputed) political opinion”, does not take the matter any further. That statement was made after the appellant’s migration agent addressed specific issues about inconsistencies in the appellant’s evidence relating to the extortion attempts in 2011 were raised by the Department. The statement is general, in the nature of a “catch-all”, and does not, in my opinion, raise the broader Australia-based extortion claim either when read alone or in the context of the Statutory Declaration and the Statement.

70    I am not satisfied that the Australia-based extortion claim was made. The appellant conceded that such a claim was not made expressly, nor can it be inferred or implied from the material before the Authority. Neither the evidence nor any other material before the Authority could be construed to raise the Australia-based extortion claim. Such a claim was not apparent and did not squarely arise on the face of the material before the Authority, including the country information.

71    In addition, it is common ground that the appellant was represented, both in connection with the initial application for the Visa and before the Authority. The appellant’s migration agent did not clearly articulate the claim which it is now alleged was before the Authority: see SZSHK at [37]. That is a further matter that militates against a finding that the Australia-based extortion claim was raised on the material before the Authority.

72    The appellant also relied on the country information that was before the Authority. He submitted that it was evident from that country information that, in 2016, paramilitary groups continued to operate and to engage in criminal activities such that, if the Court accepted that the Australia-based extortion claim was made, the Authority’s finding at [78] of its decision record about a change in conditions in Sri Lanka would not address that claim. Given the conclusion I have reached, I do not propose to address that submission. However, I note the Minister’s submission that, to the extent that the appellant’s claim was more generally about fear of extortion attempts in the future by different people and not the same men who threatened him in 2011, as opposed to the Australia-based extortion claim, that claim was dealt with by the Authority at [78] of its decision record. I accept that that is so.

73    It follows that, in my opinion, there was no error on the part of the primary judge in finding that the Australia-based extortion claim was not expressly made and did not squarely arise from the materials before the Authority.

conclusion

74    In light of the conclusions I have reached the appeal should be dismissed with costs. I will make orders accordingly.

Associate:

Dated:    10 October 2017