FEDERAL COURT OF AUSTRALIA

BDJ15 v Minister for Immigration and Border Protection [2017] FCA 1281

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court of Australia made on 20 October 2016 be set aside.

3.    A writ of certiorari issue quashing the decision of the formerly-named Refugee Review Tribunal made on 22 May 2015.

4.    The appellant’s application for review of the decision of the delegate of first respondent be remitted to the second respondent, differently constituted, for determination in accordance with these reasons.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This is an appeal against a judgment and orders of the Federal Circuit Court of Australia (FCC). The primary judge dismissed an application for judicial review of a decision of the formerly-named Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth).

2    The appellant is a citizen of Sri Lanka and of Tamil ethnicity. In support of his visa application, he claimed to have suffered harassment from Sri Lankan naval officers while working as a fisherman’s assistant between 2006 and 2010. In the appellant’s words, “the harassments were mostly in form of verbal abuse and insults, repeated requests for producing fishing permit and physical assaults”. The appellant also claimed to have been beaten by Sri Lankan authorities in 2002 and later beaten by the authorities when in a market with his friends.

3    The appellant contends that the Tribunal erred in the performance of its review function by wrongly assuming that he had made only one allegation of harassment by the Sri Lankan authorities, and by finding that he had raised the claim that he had been beaten by the Sri Lankan authorities while with his friends for the first time at the Tribunal’s hearing.

4    These arguments were not agitated in the proceedings before the primary judge and leave is required to now introduce them on the appeal. For the reasons that follow, I would grant the application for leave and allow the appeal.

GROUNDS OF APPEAL

5    The amended notice of appeal dated 22 February 2017 contains three grounds, expressed as follows (with the original paragraph numbers retained):

3.    The [Tribunal] and the Federal Circuit Court of Australia took into account irrelevant matters, facts and evidence and failed to take into account relevant facts, matters and evidence.

5.    The [Tribunal] and/or the Federal Circuit Court of Australia erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to give proper consideration to and weight to the evidence presented by me.

9.    The Federal Circuit Court erred in law by failing to find that the [Tribunal] fell into jurisdictional error when it failed to address part of the appellant’s claim and/or failed to take into account a relevant consideration.

6    It is said that grounds [3] and [5] broadly correspond with the two grounds for judicial review relied upon in the application for judicial review before the primary judge. Those grounds were expressed as follows:

1.    The Applicant was denied procedural fairness by the Refugee Review Tribunal member’s failure to address part of the Applicant’s claim and/or the failure to take into account a relevant consideration.

2.    More details will be provided later.

7    The intention expressed in [2] of the originating application was not carried out, as the primary judge noted (at [31]) in his reasons for dismissing the application:

The ground of application raised by the applicant complains of a lack of procedural fairness caused by the Tribunal’s failure to address part of his claim. The applicant did not identify what part of his claims he said the Tribunal failed to address. He did not identify the relevant consideration he says should have been taken into account. As I have already summarised in these reasons, his submissions amounted to a repetition and endorsement of his claims, not an identification of any manner in which the Tribunal erred. …

8    Although grounds [3] and [9] of the amended notice of appeal employ similar language to ground [1] of the application for judicial review, the particular arguments advanced by Counsel for the appellant on this appeal were not advanced by the appellant when he appeared self-represented before the primary judge. It is not simply a case of newly-briefed Counsel advancing a point more eloquently or completely than was done by the appellant below: the appellant’s single ground of judicial review was broadly stated and, according to the primary judge, no meaningful content was given to it in the course of his oral submissions. Leave to introduce the arguments on the appeal is, in the circumstances, required.

9    The Minister opposes the grant of leave on the basis that the arguments lack merit. It is not otherwise suggested that the Minister would suffer prejudice, should leave to introduce the arguments now be granted.

10    Weighing in favour of the grant of leave is the circumstance that the primary judge did in fact examine the Tribunal’s decision for jurisdictional error on a broader basis than the grounds raised on the originating application, notwithstanding that the appellant had made no substantive submissions in support of the single ground of review specified in it. That circumstance, together with the appellant’s self-represented status and in the context of an underlying protection visa application, in my judgment makes it appropriate to decide the application for leave having regard to the merits of the new grounds. In all of the circumstances, I am satisfied that the grounds are reasonably arguable and that it is expedient in the interests of justice to grant leave to introduce them, and to determine the appeal in accordance with their substantive merits: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588.

THE VISA criteria

11    In order for the appellant to be granted the visa it was necessary that the Minister be satisfied that the appellant fulfilled either the criterion in s 36(2)(a) (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

12    The Refugee Criterion would be fulfilled if the appellant could satisfy the Minister that he is a person to whom Australia owes obligations under the Refugee Convention as amended by the Refugees Protocol, being a person who (subject to some statutory limitations that are not presently relevant):

… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

13    As to the Complementary Protection Criterion, s 36(2)(aa) of the Act provides:

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

…

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

14    A non-citizen would suffer “significant harm” if he or she would, without exhaustion, be arbitrarily deprived of his or her life or subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment: s 36(2A). The expression “cruel or inhuman treatment or punishment” is defined as an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)    pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant; or

(d)    arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

15    The expression “real risk that the non-citizen will suffer significant harm” in s 36(2)(aa) means a reasonable possibility, or a real chance, as opposed to a remote chance, that such harm will occur: see Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 (per Lander and Gordon JJ (at [242] — [247]).

THE APPELLANT’S CLAIMS

16    In respect of the Refugee Criterion, the appellant claimed to have a well-founded fear of persecution because of his race (Tamil Sri Lankan), his imputed political opinion (that of a supporter of the Liberation Tigers of Tamil Eelam (LTTE)) and his membership of a social group (being failed asylum seekers who left Sri Lanka illegally). The appellant claimed, in the alternative, that he fulfilled the Complementary Protection Criterion because it was reasonably foreseeable that he would, if removed from Australia and returned to Sri Lanka, suffer serious harm as a Tamil who had left Sri Lanka illegally.

17    It is necessary to set out in some detail the relevant statements made by the appellant at various times before the delegate and then before the Tribunal, at least insofar as they bear upon the outcome of this appeal.

Claims made at entry interview

18    The appellant participated in an entry interview about four months after his arrival in Australia. In the course of the interview, he stated that he had worked as a fisherman in Sri Lanka. He related an incident in which he was beaten by Sri Lankan naval officers in 2007. As to that incident, the interview record states (among other things):

I was fishing, so one night the navy came and beat me up and broke one of my arms. And because of that disability I did not work for about 1 ½ years.

…

So the Navy always asked me for the pass when I was working for 4 years. So one time we both (me and my boss …) did not have the pass and the Navy came and threatened us. So we told them we didn’t get the pass, so they beat us up. And then after I fell into the water … my elbow was broken.

19    I will refer to this as the 2007 incident.

20    The appellant said that he underwent surgery and further treatment for several months after the incident. He said that he went fishing again for three to four days in 2008. He continued:

At that time the Navy came. It wasn’t the same guy that beat me up, it was a different person. So he told me ‘You can’t be fishing at this time without a pass, go back, if not, I will shoot you’.

21    I will refer to this as the 2008 threat.

22    The appellant also claimed that he had been beaten in 2002:

At that time I went to work for 2-3 weeks [in 2002], but my dad was alive then. At that time the Army in [the area] has asked ‘Who is he? Why do you have him here?’ They took me away and beat me up. I escaped, because I was brave. I was in Udappu and they had asked my mum ‘Where is your son? Is he helping out the terrorists?’

23    I will refer to this as the 2002 incident.

Statutory declaration

24    In support of his application for a visa, the appellant provided a statutory declaration dated 17 December 2012 in which he claimed to live in an area which had supported the LTTE for a long time. He stated:

I started working as a fisherman in 2006 in … Sri Lanka. I suffered a lot of harassments from the Sri Lankan navy officers whilst working as a fisherman in …

The harassments were mostly in form of verbal abuse and insults, repeated requests for producing the fishing permit and physical assaults.

25    The appellant went on to give further details about the 2007 incident. He continued:

After that incident, I was very fearful about continuing my work as a fisherman. In or about July 2008, unidentified people started abducting people from my village in the white vans. Almost fifteen young Tamil boys went missing. The families of the disappeared people asked authorities to investigate the incidents but to date they have not received any response. The government was responsible for the abductions because they suspect young Tamil boys to be supporters or members of LTTE.

26    I will refer to this as the abduction claim.

Submissions before the Minister’s delegate

27    The appellant made further submissions in support of his visa application by way of a letter from his migration agent to the delegate dated 8 January 2013. The letter repeats the claim that the appellant “suffered a lot of harassments at the hands of the Sri Lankan navy officers whilst working as a fisherman” and that “the harassments were mostly in form [sic] of verbal abuse and insults, repeated requests for producing the fishing permit and physical assaults”. The 2007 incident is recounted, and the essence of the abduction claim is also repeated. There is, however, no mention of the 2008 threat nor of the 2002 incident in the letter. The letter states that the appellant would, at the very least, be perceived by Sri Lankan authorities to have an association with LTTE.

28    The appellant was interviewed again in August 2013. The record of the delegate summarises the relevant part of the interview:

The applicant was asked what had occurred in 2010 that prompted him to consider departing Sri Lanka. The applicant stated that the Sri Lankan Army continued to torture him during the fishing season. The applicant defined torture as intimidation and threats to break his bones. The applicant stated that this occurred sometime in 2010 but was unable to provide any further clarity as to the time.

29    I will refer to this as the 2010 harassment claim.

Submissions before the Tribunal

30    In advance of the review hearing before the Tribunal, the appellant provided written submissions prepared by his migration agent dated 27 April 2014. The opening paragraphs of the submission confirm that the appellant relied upon all of the submissions he had previously made in support of his visa application. The submission goes on to summarise the appellant’s claims in the following terms:

[The appellant’s] life changed when his elbow was broken by the Sri Lankan Navy. It has made it difficult for him to work. The extensive scarring of his arm about the elbow is also a badge he carries, identifying him as somebody who has clashed with the Sri Lankan forces of law and order. In a place like [the appellant’s town], there is nowhere to hide. If he is on the street and is seen by the police or army, there is a real chance that he will be detained or assaulted or both. It has happened repeatedly and he has no wish to return to Sri Lanka to submit himself to the same treatment. The chances of this occurring have increased substantially since he left Sri Lanka.

31    The submission annexed a further statement signed by the appellant in which the appellant described the 2002 incident in the following terms:

That night, I was bringing my mother on my motorbike back from my sister’s place and passed the same army camp. The two men who had blocked me in the morning stopped me and asked me to come into the camp with them, asking my mother to go home … they said I was needed for an enquiry. I cooperated with them and went inside the camp. They asked me to kneel and started to ask me about the incident in the morning. They produced a pistol and threatened me with it, saying that, if I did not obey them, I would be shot. I tried to explain that I had not understood them in the morning. I was crying and screaming. I believe my mother tried to contact prominent people in the community to get me released, but no one came. At 1 AM, after about six hours in the camp, I was released but had to walk home, which was dangerous at that hour.

This kind of thing was typical …

32    The appellant further claimed to fear persecution by reason of his Tamil ethnicity because of the abduction of young Tamil men or boys from his village in 2008. He claimed that the government was responsible for the abductions because Tamil boys and young men in the region were suspected by the government of involvement with the LTTE. He claimed that he lived in a region that had supported the LTTE for a long time. He stated: “This exacerbates my fear of harm because I have fled the country unlawfully and shall be treated as a LTTE member by the Sri Lankan authorities if I return to that country”.

33    He further claimed that if returned to Sri Lanka as a failed asylum seeker and a Tamil, he would be suspected of divulging information to a foreign government, considered a traitor, and tortured.

34    The appellant gave oral evidence at the Tribunal’s hearing, the effect of which is summarised in the Tribunal’s reasons as follows:

76    The applicant then went on to talk about abuse which he had claimed he suffered in Sri Lanka and when I asked for details he said that it was a situation where he would find himself in a location with several of his friends around ten or eleven O’clock at night. He said that the authorities would come and abuse and beat him. He said that his friends would run off.

77    When I asked how often this happened he said that it was a common occurrence and although it was not every night the authorities would come around the same area every two or three nights.

35    The Tribunal raised with the appellant its concerns that the claim in relation to the beatings at night when with friends had been raised for the first time at the Tribunal’s hearing. The appellant said that this aspect of his claims had been raised previously.

36    There is no ground of review challenging the Tribunal’s statements as to what was said by the Tribunal member and by the appellant and his agent in the course of the Tribunal’s hearing. For the purposes of the appeal, the Tribunal’s reasons are to be accepted as a true record of the things said and not said.

THE TRIBUNAL’S REASONS

37    In its reasons for decision, the Tribunal set out the whole of the content of the appellant’s statutory declaration of 17 December 2012. It then summarised the delegate’s decision. In the course of doing so, the Tribunal said (at [22] – [23]):

22.    The delegate found that since the applicant was only an assistant and was with the owner and fishing license holder of the boat that it was not plausible that the Navy authorities would have targeted him as he claimed.

23.    However, in regard to his claim to have been questioned by the Navy personnel in 2010 she gave him benefit of the doubt and accepted that as possible.

38    The Tribunal stated that it was in receipt of the appellant’s submissions dated 8 January 2013 and his further submissions dated 27 April 2014. It noted the appellant’s submission that he had “a history of mistreatment at the hands of the Sri Lankan authorities and that Tamils face persecution without apparent cause”. It identified inconsistencies in the accounts the appellant had given about the 2007 incident. It noted that in his statutory declaration the appellant had referred to having a fishing permit and to being beaten by navy officers when he failed to produce it. Before the Tribunal, however, he acknowledged that he had not personally held a fishing permit and that only his boss held one.

39    The Tribunal referred at length to country information concerning the treatment of Tamils during the civil war which ended, the Tribunal found, in May 2009.

40    The Tribunal found that the 2007 incident had been “either fabricated or exaggerated”. It rejected the claim that the naval officers involved in the incident had associated the appellant with the LTTE. The Tribunal said (at [159]):

In any event, although I accept that there was a single incident in 2007 he makes no further claims in his statutory declaration or to the Tribunal in that regard and I am satisfied that there were none. As the incident occurred in 2007 and there was no other incident I find that this minor incident at that time and nothing further in the next five years leads me to find that he does not face a real chance of serious harm for this reason now or in the reasonably foreseeable future.

(emphasis added)

41    On the basis of the country information before it, the Tribunal found that the area in which the appellant resided was a considerable distance from LTTE strongholds in the north and north east of Sri Lanka. It continued (at [189]):

The conflict came to an end in May 2009 and apart from his claim to have been questioned by the Navy in 2007 he experienced no problems or any adverse interest at the hands of the Sri Lankan authorities.

42    As to the appellant’s claim that he had been beaten by authorities when he was in a market area with his friends, the Tribunal said that “this had never been raised previously” and that, particularly, there had been no mention of it when the appellant was interviewed by the delegate.

SUBMISSIONS AND PRINCIPLES

43    In order for the appellant to succeed on his application for judicial review it was necessary for him to show jurisdictional error on the part of the Tribunal: s 474 and s 476 of the Act, Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.

44    In essence, the appellant submits that the Tribunal misapprehended his claim in that it:

(1)    proceeded on the incorrect basis that the 2007 incident was the only claim the appellant had made concerning harassment by the Sri Lankan navy; and

(2)    wrongly found that the appellant had not previously raised the allegation that he had been beaten by Sri Lankan authorities while with his friends at any time prior to the Tribunal’s hearing.

45    These alleged errors are, the appellant submits, jurisdictional because they each amount to an “error of fact as to the existence of a claim or part of a claim”. The error was, the appellant submits “tantamount to failing to consider the claim” because the Tribunal did not give conscious consideration to the critical facts alleged by him. There was, it was submitted, a constructive failure on the part of the Tribunal to exercise its jurisdiction.

46    The task of the Tribunal was to carry out a review the decision of the delegate: s 414 of the Act. In cases where the decision under review concerns the application of the Refugee Criterion, the statutory task requires the Tribunal to ask (at least) the questions identified by Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [26] (Hayne J agreeing at [95]):

At the outset it should be pointed out that the task of the Tribunal involves a number of steps. First the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.

(footnote omitted)

47    In that case, their Honours held, the Tribunal failed to determine the first question arising before it because it misapprehended the particular social group of which the appellant claimed to be a member and by virtue of which membership he claimed to have a well-founded fear of persecution. The error was factual in the sense that it involved a misapprehension of the facts alleged by the visa applicant. It was nonetheless a jurisdictional error because the Tribunal had, by misconceiving the alleged facts, proceeded to ask itself the wrong question (at [27]).

48    Kirby J agreed that the error in that case amounted to a jurisdictional error. His Honour said at [88]:

Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way.

49    To similar effect, Allsop J (as his Honour was then) said in Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42]:

… The requirement to review the decision under s 414 of the Migration Act 1958 (Cth) (the Act) requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration … It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act … make it clear that the Tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant. …

(emphasis added)

See also Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [33] – [36] (Kenny, Griffiths and Mortimer JJ).

50    The question of whether or not an administrative decision-maker has failed to properly apprehend, examine and decide a claim or a critical component of a claim is a question to be answered having careful regard to the reasons given for the decision, bearing in mind that the decision-maker is not a court of law and that “the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (per Neaves, French and Cooper JJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 — 272 (per Brennan CJ, Toohey, McHugh and Gummow JJ).

51    In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, the visa applicant submitted to the Tribunal that there were ramifications for him arising out of the marriage of his son to a Muslim woman in Tehran. The Tribunal had made an express reference to that claim in its written reasons in the course of giving an overview of the appellant’s case. The approach to determining whether the Tribunal had committed jurisdictional error in such a case was explained by the Full Court (French, Sackville and Hely JJ) at [46] – [47].

46    It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

47    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

CONSIDERATION

52    It is convenient to deal first with the contention that the Tribunal erred in finding that the appellant’s claim to have been beaten by Sri Lankan authorities while at a market with his friends had not previously been raised.

53    The allegation was made in a context where, as the Tribunal noted, the appellant had claimed, in the course of his oral submissions before the Tribunal, to have suffered abuse in Sri Lanka. The Tribunal asked the appellant to provide details. It was in the context of that invitation that the appellant alleged that he had been beaten at a market while with his friends and that such beatings were a “common occurrence” (the market claim). The material relied upon by the appellant does not support the proposition that he raised this particular allegation in support of his application for a visa. Accordingly, the Tribunal did not err in finding that the market claim had not in fact been raised previously. The passage of the reasons relied upon by the appellant is clearly confined in its language to the market claim, made as it was in response to the Tribunal’s invitation to him to provide details of a more generalised claim of abuse. The passage does not, in and of itself, support an inference that the Tribunal erroneously proceeded on the basis that the appellant had not made any other claim to have been beaten by the Sri Lankan authorities in 2002.

54    As I have mentioned, the 2002 incident was raised in the appellant’s entry interview and further details of it were given in the letter of 27 April 2014. The Tribunal expressly referred to the letter and to the entry interview in its reasons. On a fair reading of the Tribunal’s reasons as a whole, I am nonetheless satisfied that although the Tribunal made reference to the material in which the incident was recounted, it has not consciously engaged with the claim and has not made any findings concerning it. To the contrary, this express statement in the Tribunal’s reasons clearly suggests that the Tribunal made an incorrect evaluation of the facts that the appellant had alleged (at [181]):

… he makes no claims to have come to the adverse attention of the authorities as an LTTE suspect, at any time through the conflict.

55    That statement is plainly an inaccurate evaluation of the facts upon which the appellant relied especially in connection with the Refugee Criterion and his alleged imputed political opinion. The facts asserted by the appellant in relation to the 2002 incident clearly amount to an allegation that he had in fact come to the attention of the Sri Lankan authorities as an LTTE suspect during the period of the conflict to which the Tribunal referred.

56    For the Minister it is argued that the inference should not be drawn that the Tribunal ignored the claim about the 2002 incident. It is submitted that the Tribunal’s reasons support an inference that it had concluded the claimed events so significantly predated the 2007 incident that the claim was either subsumed in the generality of the Tribunal’s other findings, or otherwise regarded by the Tribunal as unimportant. The Minister points to the Tribunal’s unchallenged findings (based on country information) that the civil conflict in Sri Lanka ended in 2009 and that the appellant resided in an area situated a considerable distance from LTTE strongholds. It is further submitted that the Tribunal’s rejection of more recent incidents was fairly based upon credibility findings open to it and that its focus remained, properly, on the situation in Sri Lanka as it affected Tamils after the conflict ended in 2009. In the context of a claim by a young Tamil man alleging risk of harm because of ethnicity and political opinion, the Minister submits, events prior to 2009 “would have been of far less relevance”.

57    As a matter of principle, it is to be accepted that a claim may be implicitly dealt with at a greater level of generality, or otherwise rendered unnecessary to determine because of the significance of other findings: WAEE at [47]. However, a conclusion that a particular claim falls within those accepted principles should not be drawn in cases, such as the present, where the Tribunal has expressly stated that no claim of the relevant kind was made at all.

58    In the context of the appellant’s claims as a whole, the question of whether the appellant had, in the course of the conflict, come to the attention of Sri Lankan authorities as a suspected LTTE sympathiser was a significant issue. It legitimately bore on the question of whether the 2007 incident had occurred as the appellant had claimed, and it was plainly relevant to the Tribunal’s assessment of whether the appellant’s claimed subjective fear of persecution was objectively well founded. If the claim concerning the 2002 incident was actively engaged with and accepted, it would legitimately weigh against the Tribunal’s finding (made on the basis of country information) that the area in which the appellant resided was far from the heart of the conflict so as not to expose him to suspicion or harm.

59    It may be that if the Tribunal determined the claim it might have been open to it to reject the claim on the facts or otherwise to afford the incident little weight because of its distance in time from the more recent claimed incidents. But there is nothing in the reasons to suggest that the Tribunal engaged in any such process of reasoning. In light of the Tribunal’s express statement extracted at [55] above, it should not be inferred that the Tribunal consciously engaged with and dealt with the claim, whether at a greater level of generality or at all.

60    It cannot be said that the outcome of the Tribunal’s review could not have been different had it consciously engaged with and dealt with the appellant’s claim concerning the 2002 incident, as it was obliged to do. It is to be borne in mind that the Tribunal accepted that the appellant’s elbow was broken by naval officers in 2007, and yet the Tribunal did not consider the attack to have been as “intense” as the appellant had claimed, and, importantly, it did not accept that the attack was politically motivated. The Tribunal’s diminution of the seriousness of the attack and its assessment of the motivations for it are both affected by its failure to engage with the appellant’s claim to have previously been detained and beaten as an LTTE sympathiser. Moreover, had the Tribunal considered and determined the factual allegations concerning the 2002 incident, it may well have afforded less weight to country information suggesting that the area in which the appellant resided was removed geographically from LTTE strongholds and the area of the conflict. In short, it is not for the Minister to say that the 2002 incident was of little or no relevance: assessments of relevance and weight form an essential part of the Tribunal’s statutory task which, for the reasons given, it has constructively failed to perform.

61    I am satisfied that the failure to engage with and determine the allegations concerning the 2002 incident constitutes a jurisdictional error in accordance with the authorities summarised earlier in these reasons. It matters not whether the allegation is conceived of as a “claim” or a “component of a claim” or otherwise labelled. As a matter of substance, the allegation was one that, if accepted, bore critically on the remaining issues the Tribunal was tasked to decide.

62    In his additional ground of appeal, the appellant contends that the Tribunal failed to apprehend that he had made a claim to have suffered harassment by Sri Lankan naval officers on multiple occasions. This ground should be rejected. Unlike the 2002 incident, the claim to have suffered “multiple harassments” by the Sri Lankan navy was expressly adverted to in the Tribunal’s reasons. The Tribunal set out in its reasons the content of the appellant’s statutory declaration. Viewed objectively, the 2007 incident was the most serious and specific of the claims of harassment by the Sri Lankan navy that the appellant had made. Whilst he had claimed that the harassing conduct was ongoing, the factual particulars given were, apart from the 2007 incident, sparse. The appellant’s claim concerning the 2008 threat, although raised in the appellant’s entry interview, was not advanced by the appellant before the Tribunal when asked to give examples of ongoing abuse beyond 2007.

63    It is true that in the latter part of the Tribunal’s reasons the Tribunal refers to there being a “single” incident of harassment by the Sri Lankan navy, however that language is to be read in the context of the Tribunal having already made specific reference to the fact that the delegate had accepted the possibility that the appellant had also been questioned by the Sri Lankan naval authorities in 2010. Read fairly, the reasons of the Tribunal indicate that the 2007 incident was regarded by the Tribunal as the only claimed incident in which “serious harm” had in fact been inflicted on the appellant, allegedly by reason of his race. Having rejected the claim that the 2007 incident was motivated by a Convention reason, it was, I am satisfied, unnecessary for the Tribunal to consider whether the other claims of harassment (whether particularised or not) were similarly motivated. These conclusions are, however, somewhat academic as the Tribunal’s reasoning in respect of the 2007 incident is affected by jurisdictional error in the manner I have explained. The orders of the primary judge should be set aside and, in substitution, orders made for the remittal of the matter to the Tribunal, differently constituted, so that the whole of the appellant’s claims may be reconsidered in accordance with these reasons.

64    Before concluding, I should acknowledge that the appellant sought to have the final determination of the appeal delayed pending the delivery of judgment in the High Court on appeal from a judgment of this Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 (Kenny, Buchanan and Nicholas JJ). The High Court dismissed that appeal on 6 September 2017; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936. The judgment does not assist the appellant. Having determined to allow the appeal for the reasons given above, I do not consider it necessary or appropriate to delay the final disposition of the appeal for the purposes of hearing submissions from the parties on the question.

65    I will hear the parties as to costs.

Associate:

Dated:    3 November 2017