FEDERAL COURT OF AUSTRALIA

BYK16 v Minister for Immigration and Border Protection [2017] FCA 1217

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

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an appeal from the decision of the Federal Circuit Court to refuse the appellant constitutional writ relief from the decision of the Administrative Appeals Tribunal made on 27 June 2016 to affirm the decision of the Minister’s delegate not to grant the appellant a protection visa: BYK16 v Minister of Immigration and Border Protection [2017] FCCA 191.

Background

2    The appellant is a Tamil citizen of Sri Lanka who arrived as an unauthorised maritime arrival at Christmas Island on 13 August 2012. In his first statement, providing biodata to the Minister’s Department, in response to the question why he was seeking Australia’s protection, being given one sentence in which to do so, he said: “I have economic problems.” Subsequently in June 2013, after another biodata interview and an entry interview with Departmental officials, he made some claims for protection.

3    Throughout the process leading to the Tribunal’s decision he disclosed that he was of the Catholic faith, and provided to the Department letters written by two different priests at his parish church in Sri Lanka in 2012 and 2013. The first letter, dated 12 October 2012, was from a priest at the church. He wrote, “To whom it may concern” and certified that the appellant was a parishioner, giving his dates of birth and baptism. That letter noted that the appellant had migrated recently to Australia, and asked “please be kind enough to see to his request and do the needful”. The second letter was dated 21 June 2013, and also addressed “To whom it may concern” (the June 2013 letter). It stated that the bearer, being the appellant:

is a good Catholic from my parish and an active member of the church. He comes from a good Catholic background. Recently he emigrated to your country. I think that you know the situation of Sri Lanka. Please be kind enough to see his request and do the needful.

4    By an administrative error, the June 2013 letter was never put before the Tribunal by the Secretary of the Department under s 418 of the Migration Act 1958 (Cth), albeit that the Department had received it in its system on 27 June 2013.

5    The appellant relied in his appeal on the omission of the Secretary to put the June 2013 letter before the Tribunal, arguing that it was material and relevant to the assessment of his claims to a protection visa by reason of his Catholic faith.

The delegate’s decision

6    The delegate interviewed the appellant. On 27 March 2014, she decided to refuse his application for a protection visa. She found that, during his biodata and entry interviews in August and September 2012 and January 2013, he had told the Department that he had come to Australia in order to find a job. She made allowance for the fact that those interviews had occurred in stressful circumstances for the appellant, and that he had been asked to keep his answers brief, but she doubted the credibility of his substantive claims for protection that he had begun to advance only from 21 June 2013. In his written statements dated 21 June 2013, the appellant claimed that he feared persecution were he to be returned to Sri Lanka because:

    the authorities suspected him of being involved with the Liberation Tigers of Tamil Eelam (LTTE);

    he would be arrested by reason of that suspicion;

    his uncle had been a member of the LTTE between 1995 until 2005, when his uncle left Sri Lanka. He claimed that his uncle lived in Italy;

    when he was 16 years old, he had been arrested by the police on four separate occasions and had been unable to finish school. He claimed that he travelled to Qatar in order to avoid arrest and stayed there for about a year and a half before returning to Sri Lanka because his mother was ill;

    shortly after his return, one of his friends had been shot dead by the police because he had been a Tamil and that subsequently, he, the appellant, had travelled to another city in Sri Lanka without the knowledge of his parents where he stayed for two years. He claimed that while he was away from his home, a group of unknown individuals inquired about his whereabouts on three occasions and that his father had reported that to the police;

    in early 2012, he had been travelling from his home village to local markets and had been stopped by the police because he was not wearing a helmet, that they then identified him as a person of interest and detained him at the police station. He claimed that the police subsequently released him following a recommendation from his village head;

    following that incident, his parents had sent him to the Maldives to visit his brother on a visitor’s visa for the month of May 2012 and that when he returned to Sri Lanka he had lived in constant fear because he was under police suspicion;

    he came to know of an opportunity to travel to Australia and departed Sri Lanka illegally by boat on 26 July 2012.

7    On 5 September 2013, the appellant made a statutory declaration in support of his protection visa application, in which he made substantially the same claims as in his 21 June 2013 statements as well as the following claims:

    he and his family had been harassed at roadblocks, arrested, detained and beaten by the Sri Lankan police on many occasions because they were related to a former member of the LTTE;

    if he were to return to Sri Lanka, he feared being abducted or killed;

    his father had made arrangements for his travel to Australia;

    he was unable to relocate to any other part of Sri Lanka to avoid harm because the harm he claimed to fear had been perpetrated by agents of the government.

8    The delegate noted that during the course of the interview, the appellant had raised general claims about facing discrimination and difficulty in his home village, which was a majority Tamil village surrounded by ethnic Sinhalese.

9    The delegate considered each of the substantive claims. She accepted the appellant’s biographical details, including the fact that he was an ethnic Tamil, Catholic, and that he had experienced difficulty, including incidents of detention and harassment by Sri Lankan authorities, by reason of his Tamil ethnicity during the civil war and, in particular, as he claimed, during 2003. She also accepted that he departed Sri Lanka to live in Qatar for 18 months, that he had been detained two months after his return and sent to Criminal Investigation Department offices, where he had been questioned in relation to his uncle’s involvement in the LTTE, and released about three or four days later as a result of a request by the head of his village. She accepted he had moved in early 2010 and resided with another uncle for about two years, and then travelled to the Maldives in May 2013.

10    However, the delegate did not accept the appellant’s substantive claims for protection in relation to matters that had occurred following the conclusion of the civil war. She also found that, while she was prepared to overlook small variations in his separate accounts of events, on examination of the evidence before her, there were large gaps in the appellant’s explanation of his uncle’s involvement with the LTTE, his experience of being detained and interrogated in 2003 and his experiences of being detained and arrested in 2009.

11    The delegate did not accept that the appellant was of continuing interest to any branch of the Sri Lankan government because of his relationship to his uncle or “for any reason at all”. She noted that, on his own evidence, the appellant had never been politically active or a supporter of the LTTE. She said that, had he been a person of interest at the time of the 2009 detention, it would have been unlikely that the police would have released him at all, and that he did not appear to be of any ongoing interest because he was not subsequently detained after 2009. She did not accept his assertion that he had left his village and relocated in 2009 or 2010 for two years on the basis that he had been of any interest to the authorities or wanted to avoid further arrest. The delegate relied on country information in further support of that finding. She did not accept his assertions that he had not passed through any security checks at the airport when he returned from his trip to the Maldives.

12    The delegate found that he left Sri Lanka primarily for economic reasons and that any problem he had experienced for reasons of suspected LTTE involvement during the civil war was not a driving force in his decision to come to Australia. She found it implausible that the authorities would be interested, by reason of his uncle’s prior involvement with the LTTE, in the appellant nine years after his uncle had left Sri Lanka in 2005. She concluded that his claim to be of continuing interest to the Sri Lankan authorities was a fabrication. As a result, she did not accept that the appellant harboured a genuine fear of being harmed by the authorities as he claimed, and, accordingly, he had not satisfied her that he had a well-founded fear of persecution for any reason under the Refugees Convention. For the same reasons, she did not accept that Australia owed him complementary protection obligations. Accordingly, the delegate refused to grant him a visa under either s 36(2)(a) or (aa) of the Act.

The proceedings in the Tribunal

13    The appellant applied to the Tribunal for a review of the delegate’s decision. He had been assisted earlier in his review by a migration agent, but when he had relocated from Perth to Melbourne in April 2014, the previous migration agent ceased to be funded and was unable to represent him.

14    His new solicitor migration agent wrote to the Tribunal on 11 May 2015 in anticipation of a hearing to take place two days later. The appellant provided new information and claims in the letter. The letter again referred to his Roman Catholicism, without elaboration, and to the substantive main claims that the delegate had rejected. The solicitor migration agent wrote that since being appointed to act, the appellant had provided her with further important details of his claims, and had updated matters since the delegate’s decision. She said that she had asked the appellant why some of the information that he disclosed to her had not been disclosed earlier and that he had explained that his “preference on arrival” had been to avoid mentioning the LTTE and that he had been a person of interest to the Sri Lankan authorities because people on his boat had discussed whether they should say anything about those matters when they came to Australia. She stated that he told her that he thought he would have a better chance of staying in Australia if he did not mention his problems with the Sri Lankan government. She added new claims by the appellant that:

    he had been arrested and detained on two more occasions in 2007 with other persons, leading to his fleeing to Qatar at the end of 2007;

    following his return his family had paid a bond of 50,000 rupees and that he had been ordered to report to authorities on the first Sunday of every month;

    since he had fled to Australia, his father and brother had been targeted by the authorities and questioned as to his whereabouts and that men had visited his house in a white van looking for him;

    in 2013, his father had been ordered to attend court because the appellant had failed to appear as required and he provided, in support, what purported to be court documents and translations;

    in 2014, the 50,000 rupee bond paid in 2009 was forfeited;

    in about February 2015, his father and paternal aunt had been arrested while they were at church and held for 24 hours before being released, during which detention his father had been questioned about his son’s whereabouts; and

    a warrant had been issued for the appellant’s arrest on 23 March 2015, a copy of which and a translation he also provided.

15    The solicitor migration agent asserted that the cumulative effect of the factors and claims that she outlined would result in the appellant being detained, questioned and imprisoned upon his return to Sri Lanka.

16    The letter noted that it was already known that all returnees to Sri Lanka from Australia were detained and brought to court for questioning and that many were bailed and released. The solicitor migration agent said that the factors to which she had referred resulted in a higher risk that the appellant would not be granted bail and would be detained for a longer period, and that, as a young Tamil man with known family links to the LTTE and a police record, there was a high risk that he would be detained for a longer period and subjected to torture or cruel, degrading or inhuman treatment or punishment in prison. The letter went on to assert Refugees Convention claims based on the appellant’s fear of persecution for reasons of his Tamil race, his membership of the particular social group comprising Sri Lankan Tamils with known family links to the LTTE, his imputed political opinion as being supportive of the LTTE, and his membership of the particular social group of Tamils who had fled Sri Lanka illegally and unsuccessfully claimed asylum in Australia.

17    On 9 June 2015, the appellant and his solicitor migration agent attended a hearing. The Tribunal summarised the appellant’s claims in its decision record. It noted that, during the hearing, it had asked him about whether he had any other fears of harm were he to return to Sri Lanka, apart from his claimed links to the LTTE, and that he had responded that he could not stay in his village because the Sinhalese people would beat him. He claimed that, in his village, his family were the only Tamils and the Sinhalese would make problems for them, even on the way to church. He claimed that he had to leave school after completing his O levels at the age of 16, had started working on a prawn farm and then did electrical work in Qatar. He said that he was working with an engineering firm in Sydney before his employer opened a branch in Melbourne where he had moved.

18    The Tribunal asked the appellant whether he wanted to comment on anything in the delegate’s decision. The appellant identified the delegate’s findings that he had not mentioned his problems in Sri Lanka initially on his arrival here and had come to Australia to work. The appellant repeated his explanation that, initially, he had been scared to tell authorities or the delegate about his claims to protection, but claimed that he told this to his case worker in the Perth immigration detention centre.

19    The Tribunal questioned the appellant over a broad range of matters including his illegal departure from Sri Lanka that appeared to breach Sri Lanka’s Immigrants and Emigrants Act. The Tribunal referred to country information that, upon return to Sri Lanka, he would be questioned about his departure, detained, presented before a magistrate, granted bail, ultimately released and fined about 50,000 rupees. The appellant responded that he was not sure how long he would be detained.

20    His solicitor migration agent submitted that he should be given the benefit of the doubt for his failure to raise his fears of harm earlier. Among other matters, she submitted that the fine of up to 50,000 rupees applied where a person had no previous dealings with the authorities or was of no interest to them, but that the appellant was a person who was of interest to the authorities and, therefore, he would be put under greater scrutiny and be likely to be held in prison for longer.

21    On 12 and 29 June 2015, following the conclusion of the hearing, the solicitor migration agent made further submissions to the Tribunal. The 12 June 2015 submission again summarised accurately his main claims.

22    It is apparent from my recitation above of his claims, that the appellant raised not a word about fearing persecution or serious or significant harm on account of his Catholic faith or of any inability to pay a fine of about 50,000 rupees.

23    The Tribunal concluded, after reviewing all of the evidence before it, that the appellant was an unreliable and untruthful witness. It gave detailed reasons for that finding, including that he had concocted his claims over a period of time since arriving in Australia. It reasoned that it defied credibility that he would not have mentioned his claimed fear of harm for reasons of perceived links to the LTTE in at least one of the three interviews he had given until after his third interview on 15 January 2013.

24    It found that his evidence at the hearing had been confused and at times incoherent. The Tribunal said that it had considered his evidence very carefully before concluding that “the inconsistencies and vagueness reflect the fact that significant parts of his claims are fabricated”. The Tribunal made allowances for the likelihood that, at least in his initial interview, the appellant may have been scared but, ultimately, formed the significant adverse view to which I have referred.

25    The Tribunal adopted the solicitor migration agent’s summary and classification of the appellant’s claims for protection, and, accordingly, made no reference to a claim based on the ground of the appellant’s religion. It found that there was not more than a remote chance, then or in the reasonably foreseeable future, that, were he to return to Sri Lanka, based on country information before it, he would suffer serious harm for reasons of his Tamil ethnicity or his being a Tamil from the north of Sri Lanka. The Tribunal gave the appellant the benefit of the doubt and accepted that his uncle was involved in some way with the LTTE, had stayed at the family’s home for three days in 2005, had fled Sri Lanka for Italy in 2005, and that the appellant had been questioned about his uncle by the authorities.

26    The Tribunal rejected the appellant’s claim that he had been targeted for harm while in Sri Lanka for reasons of his uncle’s association with the LTTE or that he would be targeted or harmed for reasons of that association, should the appellant return to Sri Lanka. It relied on country information from the United Nations High Commissioner for Refugees 2012 guidelines that indicated that a person with family links with former LTTE combatants or cadres could give rise to a need for international refugee protection depending on the specifics of the individual case.

27    The Tribunal had considered the appellant’s gender, age, place of origin, coupled with his Tamil ethnicity, in light of the country information, and did not accept that he would be imputed with an anti-government, pro-LTTE or pro-Tamil separatist political opinion were he to return to Sri Lanka then or in the foreseeable future. It accepted that the appellant and his family may have been under some suspicion immediately at the conclusion of the civil war in 2009 in relation to an association with the LTTE, but it found that the appellant was not and would not become a person of interest to the Sri Lankan authorities for reasons of his actual or perceived political opinion then or in the reasonably foreseeable future.

28    It did not accept that he had been prosecuted on his return from Qatar. That was because of its negative assessment of his credibility and the facts that he had re-entered Sri Lanka freely, having left it lawfully, had been questioned, found not to be a person of interest and subsequently been released. It did not accept his subsequent claims of other incidents following his return to Sri Lanka in 2009, or that the documents that the solicitor migration agent had provided in support of court processes allegedly being taken against him were genuine. It placed little weight on those documents, having regard to the prevalence of fraudulent documents from Sri Lanka and its negative assessment of the appellant’s credibility. Moreover, the Tribunal found that the appellant was able to obtain a passport, leave for the Maldives in May 2013 and return to Sri Lanka because he was not a person of interest to the authorities.

29    The Tribunal also considered his claim that because the area in which he lived was surrounded by Sinhalese, he was or felt vulnerable there. It noted his claims that he could not stay in his village because Sinhalese people would beat him, that his family were the only Tamils in the village, and that the Sinhalese would make problems, even when they were on the way to church. It accepted that if he, in fact, lived in such an area, he might feel vulnerable, especially during the civil war, and that during that time, he may have been accused of being an LTTE member and in such a circumstance would be physically harassed. However, it found that:

with the cessation of the war, the Tribunal does not accept that the past burning down of his house, of itself or coupled with all the evidence, elevates the [appellant’s] chance of serious harm to a ‘real chance’.

30    The Tribunal rejected all of the appellant’s claims of subsequent difficulties following the end of the civil war. Accordingly, it found that there was no real chance that the appellant would suffer serious harm by reason of his ethnicity or his membership of any of the particular social groups which he claimed.

31    The Tribunal found that the appellant had departed Sri Lanka illegally and would be subjected to a fine of about 50,000 rupees after being detained on his return to Sri Lanka, presented before a magistrate, granted bail, and ultimately released. It found that, having regard to all of the evidence before it and its earlier findings, the appellant would not be a person of interest to the Sri Lankan authorities for reasons of his Tamil ethnicity, for any actual or imputed anti-government or pro-LTTE political opinion, or for any other reason.

32    It rejected his claim that he would be placed under greater scrutiny upon his return to Sri Lanka, or that he would be detained for longer or treated in any way different to other persons who had departed Sri Lanka in contravention of the Immigrants and Emigrants Act. It found that, having regard to country information, that Act was a law of general application in Sri Lanka and that the processes that the appellant would face on return involved a non-selective enforcement of that law reasonably adapted for the purpose of preventing unauthorised departures of persons from that country. It found that there was no evidence before it that the appellant would be unable to pay, or to make arrangements to pay, the fine of around 50,000 rupees, would not be granted bail or otherwise would be detained for a longer period that might expose him to a greater chance of serious or significant harm. It also found there was no evidence before it to suggest that the appellant would not be able to find employment upon his return to Sri Lanka.

33    The Tribunal came to the ultimate conclusion that, having regard to all of the circumstances and the relevant country information, the appellant did not face a real chance of serious harm, then or in the reasonably foreseeable future, if he were to return to Sri Lanka as a failed asylum seeker or as a person returning from a western country, regardless of how any Refugees Convention nexus to the claimed harm was characterised. It considered his claims individually and cumulatively, and found that he did not face a real chance of persecution for any of the reasons claimed or the cumulative effect of those reasons and circumstances. For similar reasons, it found that Australia’s complementary protection obligations were not engaged because the appellant did not face a real chance of serious harm on any of the grounds that he claimed. Accordingly, it affirmed the delegate’s decision.

The proceedings before the trial judge

34    The appellant filed his application for relief before the trial judge, based on three grounds, namely that the Tribunal:

(1)    failed to take into account relevant considerations when assessing his claims for a protection visa;

(2)    was not independent of the Department because it had taken into account reports of the Department of Foreign Affairs and Trade (DFAT); and

(3)    had failed to provide the appellant with clear particulars of any information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review in accordance with ss 424A or 424AA of the Act.

35    The appellant propounded five particulars for his first ground, including the Tribunal’s failure to consider the 21 June 2013 letter. His three particulars for the third ground asserted failure by the Tribunal to put to him particular inconsistencies in accordance with ss 424A or 424AA in relation to his evidence, what he had said to the delegate, what was in the delegate’s decision and what was in his biodata and earlier interviews with the Department.

36    His Honour considered each of the particulars to ground 1 and rejected them. He found that:

    the appellant had not made a separate claim that he had suffered torture or sexual violence by reason of having been suspected of being a member of the LTTE or would, in the future, suffer such consequences, and that that claim, in any event, had been subsumed in his general claim of fear of harm by reason of his actual or imputed association with the LTTE;

    the Tribunal had referred to a scar which the appellant claimed had resulted from earlier incidents in 2003 with the authorities, but that it had found that the appellant had not made any separate or independent claim based on that matter outside his other claims;

    the Tribunal, in its consideration of his claims to fear persecution by reason of his Tamil ethnicity and as a failed asylum seeker, had dealt appropriately with, and rejected, the appellant’s claimed fear that he would be deprived of his cultural freedom, land rights and freedom of expression;

    the Tribunal had considered the appellant’s claims in relation to being a failed asylum seeker in Australia as they may impact on him on his return and found that there was no substance in his particulars that it had not;

    although the June 2013 letter was not before the Tribunal, the appellant had not claimed to fear harm by reason of his Catholicism;

    the appellant had had a genuine and meaningful hearing in which he had had the opportunity to put his evidence and arguments in accordance with s 425 of the Act;

    before the Tribunal hearing, the appellant had been on notice of the delegate’s decision and of the need for him to establish each of his claims;

    the June 2013 letter itself did not appear to be relevant to any of the claims which the appellant made.

37    In relation to the second ground, his Honour found, correctly, that the Tribunal was entitled to take into account country information from DFAT.

38    In relation to the third ground, his Honour found that the delegate’s decision was information that the appellant himself had provided to the Tribunal for the purposes of the review, and, by force of s 424A(3)(b), it was not obliged to give him any further information. He found, correctly, that any inconsistencies in the appellant’s evidence to the Tribunal in earlier accounts would not enliven any obligation under ss 424A or 424AA.

39    His Honour rejected the argument that the decision of Judge Harland in BXB15 v Minister for Immigration [2017] FCCA 77 dealt with a situation analogous to the appellant’s circumstances. In that case, Judge Harland found that the Tribunal had committed a jurisdictional error by contravening its obligation under s 425 of the Migration Act when making findings about the impact of the Immigrants and Emigrants Act on BXB15, where that Act had not been raised in the delegate’s decision or in the Tribunal’s identification of issues arising in the review. Judge Harland found that BXB15 had not been given a sufficient particularity of any matter arising under the Sri Lankan legislation to enable BXB15 to present evidence and arguments, including as to his capacity to pay a fine were he to return to Sri Lanka.

This appeal

40    In his notice of appeal, the appellant raised, as separate ground, what was his fifth particular of ground 1 before the trial judge, and then repeated, as a second ground of appeal, the balance of ground 1 below. He then added what appeared to be submissions that he had cut and pasted into the notice of appeal from other cases that had no coherent relationship to a ground of appeal. In paragraphs 7 to 15, which immediately followed paragraph 3, the notice of appeal set out the appellant’s submissions in substance in support of grounds 1 and 2. The notice of appeal asserted in paragraphs 16 and following that, had the Tribunal had the opportunity of considering the June 2013 letter “and the claim mentioned in the letter”, there was a possibility that it could have made a different decision, as asserted in paragraph 20. In paragraph 22, he asserted that he had outlined a fear of harm on the basis of religion very clearly in the June 2013 letter and that, in accordance with NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, he had raised a substantial, clearly articulated argument relying upon established facts that the Tribunal was bound to take into account but failed to do so.

41    The appellant made further arguments in his filed outline of submissions. Those repeated some of the matters in his notice of appeal and he put further arguments about the significance of the Department’s failure to provide the Tribunal with the June 2013 letter. He relied on the decision in BBS15 v Minister for Immigration and Border Protection [2017] FCAFC 61.

42    The appellant appeared for himself today before me. I asked him what it was in the June 2013 letter that, in substance, first, raised a claim that he was at risk of persecution or, secondly, added to anything that had been said in the letter of 12 October 2012 about his membership of, or attendance at, the church in his village. The appellant said that he had never raised a claim to fear persecution or serious or significant harm for reasons of his Catholic religion at any point in the process leading to the Tribunal’s decision. However, he said that, had the Tribunal had before it the June 2013 letter, it would have asked him about it and he would have been able to explain his position. He said the same problem applied in the proceeding before the delegate, and that, accordingly, the failure of the Department to put the letter before the Tribunal and, so he said, the delegate, meant that he could not raise the issues in it with either decision maker.

43    He also argued that the Tribunal had arrived at its decision that he was able to pay the fine of 50,000 rupees unilaterally, he did not have that amount of money and no one in his family in Sri Lanka did either. He claimed that he had been denied procedural fairness because, before the Tribunal found that he would be fined 50,000 rupees, it should have asked him whether he was able to pay that sum.

Consideration

44    In my opinion, the June 2013 letter was not relevant to the appellant’s claims to protection. While it added information that he was a good Catholic in the priest’s parish, an active member of the church and came from a good Catholic background, the letter said nothing about any difficulties that attended the practise of the Catholic religion in the area of the village or at the church, or anything about any difficulties which the appellant may have had in that regard.

45    Moreover, it is important to appreciate that the appellant had multiple opportunities, before the Tribunal made its decision, in which to put forward a claim that, by reason of his religious faith or Catholicism, he feared persecution or significant harm were he to return to Sri Lanka, or that he had suffered any instances of harm or persecution in the past as a result of that faith. While he mentioned to it that there had been incidents during the course of the civil war, the Tribunal dealt with that claim and made the finding to which I have referred above, namely that, following the cessation of the war, there was no real chance that the appellant would suffer serious or significant harm by reason of his religion, including by going to or leaving church.

46    The appellant had the benefit of two separate migration agents who were able to discuss his claims with him, including the solicitor migration agent who added significant information and claims in submissions that she made to the Tribunal and who represented and assisted him in the hearing in the Tribunal. The circumstances in which the appellant claimed to have experienced Sinhalese beating him or his family because they were Tamils in his village, even on the way to church, arose in the context of, not his religion, but, his being of Tamil ethnicity.

47    I am of opinion that there was nothing before the Tribunal amounting to a matter that it ought to have considered, but failed to consider, or any other form of jurisdictional error in relation to the appellant’s religious beliefs or the June 2013 letter. In NABE 144 FCR at 22 [68], Black CJ, French and Selway JJ noted that, although some kind of claim could have been made on material before the Tribunal, “it did not represent, in any way, ‘a substantial, clearly articulated argument relying on upon established facts’”. They said that a judgment that the Tribunal has failed to consider a claim not expressly advanced is not lightly to be made. Such a claim must emerge clearly from the materials before the Tribunal. In my opinion, the new argument that the appellant now seeks to raise based on the June 2013 letter did not arise, even remotely, on the basis of the material before the Tribunal or would have if the June 2013 letter were before it. That is the more so when he was represented by a solicitor migration agent who made detailed new claims and submissions for him during the Tribunal’s processes and because of the similarity between the substance of the June 2013 letter and the earlier letter from the appellant’s church, dated 12 October 2012, that was included at all times in the material before the delegate and the Tribunal.

48    Accordingly, the grounds of appeal that relied upon the failure of the Secretary, under s 418 of the Act, to provide the June 2013 letter to the Tribunal, and, to the extent that it was not before the delegate, to her, did not bring about any situation in which it could conceivably be asserted that, had the June 2013 letter been before the Tribunal or (if it were not) the delegate, any different result would have occurred. The June 2013 letter was not material to any claim that the appellant made at any time prior to the Tribunal’s decision: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145, 147 per Mason, Wilson, Brennan, Deane and Dawson JJ.

49    Even if I were wrong that it was a matter that should have been put before the Tribunal, I would not have been prepared to grant relief in any event, based on the failure of the Secretary to put the June 2013 letter before the Tribunal. That is because no useful result would ensue from the grant of that relief. The June 2013 letter could have made no difference to the Tribunal’s processes, reasoning or determination of the appellant’s claims, as it said nothing of substance to raise any claim and was in materially identical terms to the 12 October 2012 letter from his church that was before the Tribunal. That is unlike the position in BBS15 [2017] FCAFC 61 where a letter from a pastor corroborating an articulated claim that BBS15 was a church attendee had not been put before the Tribunal and he was disbelieved on that issue. The appellant made no clearly articulated, or any, claim based on religion which the Tribunal was required to consider, and the June 2013 letter raised no such claim: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 618-619 [28]-[29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

50    The other four particulars that supported ground 1 below and are now in paragraph 3(a)-(d) of the appellant’s notice of appeal do not, in my opinion, raise any matter that could give rise to a conceivable jurisdictional error. Each of the matters, being incidents on which the appellant relied in the material before the Tribunal, such as his claims that there had been torture and sexual violence used against Tamil prisoners, that he had scars, that he would be deprived of cultural freedom, land rights and freedom of expression, and that his activities in Australia exposed him to the risk of harm were he to return to Sri Lanka, all depended upon either, in the case of the first three, his account of evidence, which the Tribunal rejected, in support of his claims to fear serious or significant harm, or in the case of the fourth, the Tribunal’s assessment, based on country information, of how failed asylum seekers who were returned from Australia are treated on their return to Sri Lanka, if they had no other profile that would attract the attention of the Sri Lankan authorities. There is no substance to the appellant’s arguments, and they must be dismissed. I see no error in the way that the trial judge rejected them.

51    The appellant’s argument that the Tribunal denied him procedural fairness in a way analogous to that found in BXB15 [2017] FCCA 77 must also be rejected. First, the Tribunal expressly raised with the appellant the fact that the country information suggested that he would be fined around 50,000 rupees. At no point during the questioning, at which both he and his solicitor migration agent were present, did he suggest that he or his family was incapable of paying such a fine. His evidence before the delegate and the Tribunal was that he had been able to secure work in Australia. There was no suggestion that he was impecunious, and, as the Tribunal found, there was no evidence before it that he would not be able to pay the fine or make arrangements for its payment, such that he would not be granted bail or otherwise be detained for a longer period than the period which the Tribunal had identified in its reasons as being necessary for him to be brought before a magistrate to be granted bail following his being charged with illegal departure. In those circumstances, the contention has no substance. The circumstances in BXB15 [2017] FCCA 77 were different to those here. It is not necessary for me to consider whether that decision is correct.

52    The issue here is whether the Tribunal made a jurisdictional error, having put the appellant on notice that it proposed to make a finding, based on the country information to which it referred in the hearing, that he would be ordered to pay a fine of about 50,000 rupees. He was represented in the Tribunal by a solicitor migration agent, and neither she nor he said anything during the hearing or otherwise about the possibility that he might not be able to pay the fine. I reject that argument.

53    To the extent that the appellant sought to raise, and it is not entirely clear whether he did or not, in his notice of appeal an argument in particular (c) of ground 3 of his application below, relating to a failure of the Tribunal to give him clear particulars of any information that it considered would be the reason or part of the reason for affirming the decision under review, I am of opinion that that ground is also without substance.

54    The Tribunal’s decision record is the only evidence of the conduct of the hearing. It is plain beyond argument that the Tribunal put to the appellant clearly and fairly the very things on which it found against him. The appellant’s solicitor migration agent, in her letter of 11 May 2015, referred specifically to the fact that she had asked the appellant why, in his first interviews, he had claimed to have come to Australia primarily for economic reasons. She specified the biodata interviews in 2012 and gave his explanation for that statement. The Tribunal asked the appellant whether he wanted to comment on anything in the delegate’s decision (see [18] above), and he did so.

55    In my opinion, the information which the solicitor migration agent included in her letter evidence to the Tribunal and the appellant’s comment on the delegate’s decision were either information which he gave to the Tribunal for the purpose of the application for review, or that he gave during the process that led to the decision that was under review, and were not information provided orally by him to the Department within the meaning of s 424A(3)(ba).

56    Accordingly, it was not necessary for the Tribunal to explain, and, in any event, it was obvious to the solicitor migration agent, what the relevance to the decision under review of that information and its inconsistency with his claims to fear serious or significant harm were. The appellant himself, or through his solicitor migration agent, put the delegate’s decision before the Tribunal.

57    There is no substance in the appellant’s other complaints.

Conclusion

58    For these reasons, I am of opinion that the appeal must be dismissed with costs.

Associate:

Dated:    12 October 2017