FEDERAL COURT OF AUSTRALIA

AJQ16 v Minister for Immigration and Border Protection [2018] FCA 244

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant have leave to rely on his amended notice of appeal in the form filed as a draft on 30 January 2018.

2.    The appeal be granted.

3.    The decision of the Second Respondent to affirm the delegate’s decision be quashed and the review remitted to the Second Respondent for determination according to law.

4.    The First Respondent pay the Appellant’s costs of the appeal.

5.    The parties to file and serve submissions limited to 1 page, excluding lists of authorities, within 7 days from the date of this order as to whether the costs order made by the primary judge in AJQ16 v Minister for Immigration and Border Protection [2017] FCCA 661 should be disturbed.

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

REASONS FOR JUDGMENT

KERR J:

1    The Appellant is a Sri Lankan citizen who arrived in Australia in August 2012. The Appellant applied for a Protection (Class XA) visa (the visa) on 5 December 2012. A delegate of the Minister for Immigration and Border Protection (the delegate) refused the visa application on 6 January 2014. The Appellant applied to the then Refugee Review Tribunal (the Tribunal) for review of the delegate’s decision and, on 28 January 2016 the Tribunal affirmed the delegate’s decision.

2    The Appellant applied to the Federal Circuit Court of Australia (the FCCA) for judicial review of the Tribunal’s decision. On 15 February 2017 a single judge of the FCCA dismissed the Appellant’s application in AJQ16 v Minister for Immigration and Border Protection [2017] FCCA 661. By a Notice of Appeal filed on 6 March 2017, the Appellant applies to this Court for judicial review of the FCCA decision.

grounds of appeal

3    The Appellant seeks leave to amend the grounds of appeal before this Court. The proposed amended grounds are as set out in an “Amended Draft” filed on 30 January 2018. The single proposed amended ground of appeal is as follows:

1.    The Federal Circuit Court erred in failing to find that the Tribunal had failed to discharge its statutory obligation of review.

Particulars

a.    The Tribunal at [68] of its decision record accepted that the appellant was interrogated and mistreated by Sri Lankan authorities in June 2012, but that the Tribunal was uncertain of the reason for that interrogation and mistreatment.

b.    The Tribunal failed to satisfy itself that the appellant’s fear of persecution was not for a Convention reason.

c.    The Tribunal failed to satisfy itself that the appellant would not face a real risk of significant harm if returned to Sri Lanka in light of the finding at [68].

The Appellant initially had proposed a further draft ground of appeal in but in his outline of submissions filed on 13 February 2018 advised that he no longer seeks to rely on that second ground.

4    The First Respondent (the Minister) opposes leave being granted for the Appellant to rely on the amended ground of appeal principally on the basis that the only ground which is now pressed has no prospect of success. The Minister does not submit that that any significant prejudice would result were leave to be granted.

5    In Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33; (2017) 248 FCR 1 at [40] to [41] the Full Court (Griffiths, Kerr and Farrell JJ) gave attention to the nature of an appeal from a decision of a single judge of the FCCA brought under s 24 of the Federal Court of Australia Act 1976 (Cth):

40.    It is an appeal in the nature of a rehearing. This has important implications for the nature and scope of the appeal. It is well established that a rehearing is not a new hearing during which the original application is determined without regard to what happened in the Court below and without regard to its findings (see Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; 124 CLR 192 at 208-210 per Windeyer J and Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3 at [73] per North, Barker and Katzmann JJ).

41.    It is equally well established that the role of the Court on an appeal by way of rehearing is the correction of error. As Allsop J (as his Honour then was) emphasised in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [21] in such a case there is a “need to show error on appeal”. It is desirable to set out in full that paragraph from his Honour’s judgment (noting that Drummond and Mansfield JJ agreed with it):

However, this conclusion does not alter the need to show error on appeal. In Hamsher Beaumont J and Lee J identified the need for the demonstration of error in the trial judge's findings or conclusions and they expressed the view that the statements in Warren v Coombes (1979) 142 CLR 531 (dealing with an appeal by way of rehearing) that an appellate court must not shrink from giving effect to its own conclusion were premised on a conclusion that the decision of the trial judge was wrong and should be corrected.

6    The Minister has sought and obtained special leave to appeal that decision to the High Court (see Minister for Immigration and Border Protection v SZVFW [2017] HCATrans 191) but, at least as I apprehend, the basis upon which leave was sought and granted was as to the application of those principles rather than their correctness.

7    The proposed amended ground asserts an error which was not the subject of a ground of appeal in the court below. In the ordinary course a party to an appeal will not be permitted to rely on a contended error not pressed in the court below see Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7, and notably and, recently, Coshott v Crouch [2017] FCAFC 135 at [51] to [54]. However that rule is not inflexible – particularly in the instance of a vulnerable self-represented appellant. In that regard I refer to and adopt the comments of Logan J in SZSFS v Minister for Immigration and Border Protection [2015] FCA 534; (2015) 232 FCR 262 (SZSFS) at [9]:

In cases like the present and in relation to an application for leave to raise on appeal a point not taken below, it is always necessary to remind oneself of a number of matters. The disparity between the resources available to the Minister and an applicant for a Protection Visa is usually likely to be very great. An explanation of the kind proffered by the Appellants may be all that can be proffered. Further, an appeal to this Court is the final means by which, as of right, a Protection Visa applicant may secure a fresh opportunity to press on the merits before the Tribunal a claim for such a visa. Yet further, in terms of the future health, comfort or even life of an appellant, much possibly may turn on whether he or she has that further opportunity, given that the alternative to securing a Protection Visa is leaving Australia.

8    As I construe it, the present application for leave proposes the Appellant be permitted to agitate a ‘pure’ question of law. The Appellant does not seek to challenge the factual findings made by Tribunal. The leave sought is confined to putting in issue whether those findings are capable of establishing a lawful basis for the conclusion ultimately reached by the Tribunal – or perhaps more accurately, to have validly completed its review. While also exceptional, a court will more readily permit a party to advance a legal contention of error not earlier identified, than one requiring involving a challenge to mixed findings of fact and law or a challenge not earlier made to a factual finding: Mercer Superannuation (Australia) Limited v Billinghurst [2017] FCAFC 201 at [41].

9    The Minister did not oppose the leave sought on the basis that the ground proposed did not assert a relevant error of law. Nor did the Minister submit he will suffer prejudice if leave is granted. The Minister confined his opposition to the argument that the proposed ground lacks merit. The Minister accepted that consideration of merit might properly be addressed upon hearing the appeal on the premise that leave might be given.

10    Having regard to the reasoning in SZSFS and the conclusions I have reached as to the merits of the ground proposed, I would grant leave to the Appellant to rely on his proposed amended ground of appeal notwithstanding that it was not agitated in the court below.

Factual background

11    The Tribunal accepted that the Appellant’s friend was murdered in 2006; that the Appellant had been one of the last people who had been with him before he was killed; and that the Appellant had been questioned in October and November 2006 in relation to his friend’s murder. It accepted that he had been required by the Sri Lankan Army to remain in Point Pedro for a short time after his friend’s death. However, it was satisfied that since then he not been the subject of further adverse attention from the Sri Lankan authorities until the events described below.

12    In June 2012 the Appellant was interrogated and brutally mistreated by different elements of the Sri Lankan Army. He told the Tribunal that he had been interrogated about his suspected involvement in his friend’s murder. The Tribunal accepted his account of having been interrogated and mistreated but disbelieved his explanation for that having occurred. The Tribunal put various other hypotheses to the Appellant, all of which he rejected. It concluded that what had happened to him in 2012 was “not for any reason he put to the Tribunal.”

13    The Tribunal then reasoned as follows at [68]:

Given the Tribunal is uncertain why the [Appellant] was questioned in June 2012, I am satisfied it was not for any reason that would now give rise to protection obligations.

Having regard to the context in which that conclusion appears in the Tribunal’s reasons it is clear that the Tribunal’s reference in that paragraph to “any reason that would now give rise to protection obligations” was to those as might meet the criterion of s 36(2) of the Migration Act 1958 (Cth) (the Act). The Tribunal discussed complimentary protection later in its reasons.

14    The Appellant fled Sri Lanka shortly after that event, arriving in Australia in August of that year.

The gravamen of this appeal

15    The attack that is made on the Tribunal’s decision is that, having found that the Appellant was interrogated and mistreated by Sri Lankan authorities in June 2012, but uncertain of the reason for that interrogation and mistreatment, the Tribunal, by rejecting his claims for protection and complimentary protection notwithstanding, had failed to discharge its statutory obligation to complete its review according to law.

16    It is therefore appropriate to set out the Tribunal’s findings with respect to that contention.

17    The Tribunal’s reasons with regard such claims for protection as the Appellant advanced in reliance of s 36(2) of the Act are at [63] to [69]:

63.    The [Appellant] then said that after returning to Sri Lanka from India in December 2011, he was subjected to another of his “regular interrogations in June 2012”. On 5 June 2012, the [Appellant] reported to the SLA camp and was interrogated by different officers. He said they were “extremely harsh on the torture they subjected him to [and he] feared they were going to kill him”. One of the officers said he knew the [Appellant] knew who [X]’s murderer was, and that the [Appellant] was simply refusing to tell them. After being released on this occasion the [Appellant] decided it was time to flee Sri Lanka. On 27 July 2012, the [Appellant] illegally departed Sri Lanka by boat.

64.    As stated above, by migration agent submission dated 19 March 2015, it was submitted inter alia that it was “difficult to make a subjective assessment of the intention of the SLA [for] failing to arrest the [Appellant].” The Tribunal accepts this to be true, however a critical part of any refugee protection process involves establishing the facts; and assessing credibility is a critical part of the process for establishing the facts. That said, the Tribunal accepts the Sri Lankan authorities have acted in a brutal and arbitrary manner (particularly prior to and in the immediate aftermath of, the cessation of the civil war in May 2009). However, and as stated above, I do not accept it [is] plausible the [Appellant] was regularly questioned about the October 2006 death of [X] up to [and] including mid-2012. I am satisfied the [Appellant] was not questioned about the incident, at least in the 4 years leading up to his July 2012 departure from Sri Lanka.

65.    The Tribunal is also satisfied the [Appellant’s] claim that “maybe” [X] was important to inter alia the Sri Lankan authorities, is speculation on his part, and I also do not accept this overcomes the Tribunal’s other adverse findings herein.

66.    Next, regarding the June 2012 interrogation, the [Appellant] explained at hearing this was particularly brutal, and again he was questioned about the death of [X]. He was at that time accused of being with the LTTE (and given the material findings herein, even if this was stated, I am not satisfied this was a serious accusation); he was accused of murdering [X] (and given the material findings herein, I reject this as false). The [Appellant] said the SLA officer who interrogated him was new, and that might be why he was so brutal. He also said (words to the effect) that “maybe” pressure had been put in the SLA to “solve” the crime.

67.    For the reasons set out above, the Tribunal is not satisfied the [Appellant] was subject to ongoing questioning about the October 2006 death of [X]. Neither am I satisfied this was the reason for his interrogation in June 2012. On my understanding of the available country circumstances, it might be plausible the [Appellant] had come to the adverse attention of local SLA personnel (ie arising from personal animosity – or due to some isolated incident) and he was thus subject to mistreatment. However, the [Appellant] did not agree with this and said this was not the reason for the harm). In the circumstances, the Tribunal has not found the [Appellant] was subject to some form of personal animosity with a local SLA person, or local Sri Lankan government official in his home area, being Point Pedro.

68.    That said, based on the findings herein, including the adverse credibility findings, the Tribunal is not satisfied that an essential and significant part of the reason for questioning the [Appellant] in June 2012, related to the October 2006 death of [X]. The Tribunal is satisfied this is untrue. However, the Tribunal proposes to accept the [Appellant] was interrogated and mistreated in June 2012, but not for any reason he put to the Tribunal. Given the Tribunal is uncertain why the [Appellant] was questioned in June 2012, I am not satisfied it was for any reason that would now give rise to protection obligations in Australia.

69.    The Tribunal does not accept the [Appellant] has a real chance of persecution in Sri Lanka for any matter discussed above.

    (Footnotes omitted.)

18    Under the heading “Relocation” the Tribunal reasoned at [74] to [75] as follows:

74.    … [E]ven assuming the [Appellant] was subject to a one-off incident in June 2012 where he was mistreated by a local Sri Lankan government official in Point Pedro, based on the information accepted by the Tribunal, I am not satisfied there is a real chance the [Appellant] would suffer further harm either in Point Pedro, or on relocation, whichever he should choose to do, on his return to Sri Lanka

75.    Accordingly, the Tribunal is satisfied the [Appellant] could safely relocate within Sri Lanka.

    (Footnotes omitted.)

19    Turning to the issue of complementary protection the Tribunal reasoned at [110] to [111] as follows:

110.    Based on the reasons provided above, I am not satisfied the [Appellant] has a real chance of suffering persecution for reason of any claim I have accepted, should he relocate within Sri Lanka. For the same reasons, I am not satisfied he has a real risk of suffering significant harm for reason of any claim I have accepted, should he relocate. Further, and though I understand I need not make an [Appellant’s] case for them, after having considered the country information, neither am I satisfied he has a real risk of suffering significant harm for any other reason, should he relocate within Sri Lanka.

111.    Regarding whether it is reasonable to relocate, the Federal Court in MZYXS [MZYXS v Minister for Immigration and Citizenship [2013] FCA 614] has accepted the ‘issues which arise when considering the reasonableness of relocation in the refugee context are the same as which arise in the complementary protection context.’ Further, the FCC has also suggested that where relocation has been considered in a refugee protection assessment, it may be open to refer to those findings when assessing complementary protection. That said, the Tribunal understands each case still needs to be considered according to its merits. However, in this case, and for the reasons discussed above, I am satisfied the [Appellant] may reasonably relocate within Sri Lanka.

(Footnotes omitted.)

20    At [116] to [118] it concluded:

116.    Based on the accepted facts and the country information in the sources cited herein, the Tribunal is also not satisfied the [Appellant] has a real risk of suffering degrading treatment of punishment arising from an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, should he return to Sri Lanka.

117.    Next, based on the country information and accepted facts, I am not satisfied the [Appellant] has a real risk of suffering harm that is intentionally inflicted on him (cruel or inhuman treatment or punishment). If he is subject to harm on return, I am not satisfied there is a real risk it would be more than some possible harassment – and none of the country information in the sources cited herein, has satisfied me the ‘possible harassment’ that a person with the [Appellant’s] lack of profile may suffer, would constitute significant harm. Next, and for the same reasons, I am not satisfied the [Appellant] has a real risk of suffering relevant harm that is intentionally inflicted on (torture). Again, if he is subject to harm on return, I am not satisfied there is a real risk it would be more than some possible harassment. Further, none of the country information in the sources cited herein, have satisfied me the [Appellant] has a real risk of suffering arbitrary deprivation of life in a (sic) Sri Lanka.

118.    Finally even considering those of the [Appellant]s’s] claims that I have accepted cumulatively, for the reasons stated herein, I do not accept he has a real risk of suffering significant harm in Sri Lanka. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the [Appellant] has a real risk of suffering significant harm in Sri Lanka.

(Footnotes omitted.)

THE DECSION OF THE PRIMARY JUDGE

21    For the reasons discussed above the primary judge’s reasons did not engage with the issues as they have now been framed. There can be no basis for any criticism of the primary judge. The ground of appeal the Appellant has been given leave to rely on in these proceedings was not considered because the then unrepresented Appellant did not then press it.

before the federal court

Ground 1(a)

22    Ground 1(a) does not advance a ground of appeal distinct from those particularised in Grounds 1(b) and 1(c). It functions simply to identify the bedrock upon which those grounds are to be understood. I therefore turn to those grounds.

Convention related issues: Ground 1(b)

Appellant’s submissions

23    The Appellant’s written submissions are as follows:

15.    The Tribunal at [68] of its decision record accepted that the appellant have been detained, interrogated and mistreated in June 2012. It said:

However, the Tribunal proposes to accept the applicant was interrogated and mistreated in June 2012, but not for any reason he put to the Tribunal. Given the Tribunal is uncertain why the applicant was questioned in June 2012, I am satisfied it was not for any reason that would now give rise to protection obligations.

16.    In Minister for Immigration and Ethnic Affairs v Guo [(1997) 191 CLR 559 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at [57]], the plurality of the High Court said of the “real chance” test:

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.

17.    The Tribunal’s finding at [68] in this case is conclusive in terms of the harm claimed having occurred, but is explicitly inconclusive in terms on the reason for that harm.

18.    The reason for future harm feared by a claimant for refugee status is a critical part of the assessment required by s 36(2)(a). Having found that the harm occurred, it was incumbent on the Tribunal to consider the reason for it, and by extension the reason for the fear of any future harm.

19.    In this case, the Tribunal’s finding that it was satisfied that the harm suffered by the appellant was “not for any reason that would now give rise to protection obligations in Australia” is not supported by any reasoning as to why the Tribunal was so satisfied. On the contrary, the Tribunal says it was “uncertain why” the harm occurred. While the Tribunal found that it did not believe that the interrogation related to the reason given by the appellant, namely the investigation of the 2006 death of [X], its reasons reveal no consideration of whether it related to any other Convention reason.

20.    Having found that past harm occurred, but not for the reasons given by the appellant, the Tribunal had no rational basis for finding that the appellant did not face a real chance of persecution in Sri Lanka for a Convention reason in the absence of any consideration of the reason for the harm.

21.    The absence of any such consideration in the reasons of the Tribunal infers that the Tribunal did not consider whether the reason for the harm found by the Tribunal to have occurred could have been connected to a Convention reason on some basis other than the basis proffered by the appellant. To the extent that the absence of those matters infers that the Tribunal did not consider the question of the reason for the harm to be material to its task of determining whether the appellant had a well-founded fear of persecution, that reveals a fundamental misunderstanding of the Tribunal’s task sufficient to give rise to jurisdictional error.

22.    For the same reasons set out by Perry J in SZTFI v Minister for Immigration and Border Protection [(2015) 231 FCR 222 at [44]], the failure of the Tribunal to assess the appellant’s fear of future harm against the Convention reasons, disconnected from his evidence about the [X] investigation, amounts to a constructive failure to exercise its jurisdiction.

The First Respondent’s submissions

24    The Minister’s written submissions were as follows:

A.    Constructive failure – real chance of serious harm or a real risk of significant harm

26.    As the appellant notes, at AB25, page 26 [68], the Tribunal was willing to accept that the appellant was interrogated and mistreated in June 2012, but the Tribunal was not satisfied that this occurred for any reason proffered by the appellant. Having rejected the reasons the appellant gave, the Tribunal was left in a state of uncertainty, which did not permit it to reach the requisite standard of satisfaction that there was a real chance of persecution for a Convention reason.

27.     This incident is referred to at AB 25, page 506 and AB 25, page 293. Based on the Tribunal’s reasons, it appears that this was also discussed at the hearing before the Tribunal.

28.    The appellant’s submission is that the Tribunal constructively failed to exercise its jurisdiction because:

28.1    its reasons do not disclose any consideration of whether the incident had any other convention reason;

28.2    from the absence of any such consideration, it may be inferred that the Tribunal did not engage in that consideration; and

28.3    it was integral to the Tribunal’s statutory function to consider possible Convention-bases for the incident.

29.    The first step in the appellant’s argument is wrong. The Tribunal rejected two bases for the incident: [X]’s death and the appellant’s suspected involvement with the LTTE: AB 25, page 25 [66].

30.    The second step is also wrong. There is no reason to infer that the Tribunal did not understand that its statutory task was to assess whether an applicant had a real chance of harm in the future for a Convention reason. Statements by the Tribunal in the immediate context of this incident show that the Tribunal was aware of its statutory task: AB25, page 26 [68], [69]. The Tribunal’s discussion of relocation also reveals that it was aware of its future-oriented task: AB 25, page 27 [74].

31.    The third step is also wrong (and it is, perhaps, the error in the third step that helps to expose the error in the second). The appellant implicitly assumes that the Tribunal was required to explore every conceivable Convention basis for an incident occurring, if the Tribunal accepted that it occurred, in order to discharge its statutory task. That is not so.

32.    The Tribunal is only required to consider claims which are expressly made or which “squarely” arise from the material in the sense that they are “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”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs [No 2] (2004) 144 FCR 1 at 19 [58] (Black CJ, French and Selway JJ). That is because it is for a review applicant to put his or her case: Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187] (Gummow and Hayne JJ).

33.    No other reason connected with the Convention was proffered by the appellant and it is not the Tribunal’s statutory function to find a connection for the appellant. Two matters are particularly important:

33.1    The appellant was represented before the Tribunal seemingly at all times; this increases the clarity with which a claim must appear from the materials before a failure to consider it will result in a constructive failure to exercise jurisdiction: see Kasuene v Minister for Immigration and Citizenship (2008) 49 AAR 77 at 84 [21] (Flick J);

33.2.    The Tribunal appears to have attempted to explore potential other reasons for the incident with the appellant during the hearing: AB 25, pages 25-26 [67]. The appellant would not accept any other possible explanation for it: AB 25, page 26 [67].

34.    There is no merit in this contention. For completeness, SZTFI v Minister for Immigration and Border Protection (2015) 231 FCR 222 is distinguishable. Indeed, each case of supposed error of this kind turns on its own facts: SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [50] (Robertson J).

Consideration

25    The Appellant submits that having regard to the findings of fact that it made this Court should conclude that the Tribunal mistook its legal duty when it failed to satisfy itself that the Appellant’s fear of persecution was not for a convention reason. However, I accept the Minister’s submission that the Tribunal’s reasons, read fairly, are inconsistent with that proposition.

26    A reviewing court cannot substitute its findings of fact for those of a Tribunal. The facts found by an administrative decision maker are for the decision maker alone unless subject to identifiable legal error, such as there being no evidence to support them. A finding may also be set aside for serious irrationality but such a conclusion will be rare and is not to be lightly reached. No such contention was advanced by counsel for the Appellant and, in any event, the ground of appeal for which leave has been granted does not extend to this Court entertaining such a proposition.

27    The Tribunal expressly disbelieved the Appellant’s explanation that his detention and mistreatment in 2012 had been because he was still suspected of involvement in the murder of his friend. The Tribunal was entitled to disbelieve him.

28    The Tribunal for that reason was also entitled to make the finding it did that his 2012 detention was not for any reason the Appellant had put to it. On a fair reading the conclusion at [66] embraced both his being suspected of involvement in his friend’s murder, and suspected of involvement with the LTTE. Moreover that paragraph is not to be read in isolation. It is to be read as informed by the Tribunal’s earlier finding that, with respect to his friend’s murder, the Appellant had not been the subject of any adverse attention from the Sri Lankan authorities since 2006. As noted, that was a reference to protection obligations as relevant to s 36(2) of the Act.

29    In those circumstances the Tribunal said it was not satisfied that the Appellant’s unexplained interrogation and mistreatment at the hands of the Sri Lankan Army in 2012 had been for any reason that would give rise to protection obligations as a refugee in Australia.

30    It was for the Appellant to satisfy the Tribunal that he had a well-founded fear of persecution for a convention related reason.

31    He failed to do so because the Tribunal had disbelieved him as to the reasons why he had been mistreated. It was not illogical on the Tribunal’s part to accept the fact of the mistreatment but to deny the reasons advanced for it having happened. Some other possible reasons were put to the Appellant but were rejected by him. In that circumstance I agree with counsel for the Minister that even if the Tribunal might have thought those reasons were likely to explain those events it would have been unjustified for the Tribunal to have made a finding contrary to his denials in the absence of evidence to support such a finding. The reasons suggested by the Tribunal and put forward by the Appellant did not exhaust the universe of other possibilities.

32    It may be accepted, having regard to the reasoning of the plurality in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25] that, in some circumstances, a failure by the Tribunal to make an enquiry may constitute a failure to discharge the statutory obligation to review:

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. …

(Emphasis added and citation omitted)

33    However, beyond the questions that the Tribunal put to the Appellant during the hearing, there was no obvious enquiry about a critical fact, the existence of which would have been easy to ascertain, open for it to have undertaken.

34    Some potential reasons, even if true, would have been unlikely to be advanced either by the Appellant or capable of being established even by the most diligent enquiry on the Tribunal’s part; hypothetically the Appellant might, for example, have been involved with those elements of the military in some significant criminal enterprise, but betrayed them. Other more benign explanations were among the possibilities but perhaps were not advanced because the Appellant had been determined to stick with his original account. In the circumstances actually before the Tribunal it would be absurd to insist there was a duty on its part to select one possibility from a universe of speculative possibilities and specify that as “the cause”.

35    The criterion required by s 36(2) of the Act for those aspects of the Appellant’s protection claim to be accepted required the Tribunal to be satisfied that the harm he feared suffering should he return was for a “convention related reason”. That is what he failed to do.

36    Once that is acknowledged, the Appellant’s submission that the Tribunal did not lawfully discharge its duty with respect to the convention related claims as AJQ16 had advanced as the subject of its review cannot be accepted.

37    I reject Ground 1(b).

Complementary protection: Ground 1(c)

Appellant’s submissions

38    The Appellant’s written submissions were as follows:

The Tribunal constructively failed to consider complementary protection

23.    Even if, contrary to the appellant’s submissions, the Tribunal’s reasoning was sufficient to deal with the claim for protection under s 36(2)(a), the Tribunal failed to deal with a claim for complementary protection under s 36(2)(aa).

24.    Unlike a claim for protection relating to the grounds in the Refugees Convention, s 36(2)(aa) provides that an applicant will be entitled to complementary protection if “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.” There is no requirement that the real risk of significant harm be for a particular reason.

25.    Having declared itself satisfied that the appellant had been interrogated and mistreated by Sri Lankan authorities shortly before fleeing in June 2012, but uncertain why that occurred, it was incumbent on the Tribunal to assess whether there was a real risk that the appellant would face similar mistreatment in the future. The Tribunal failed to embark on that assessment, having satisfied itself (despite its uncertainty) that the June 2012 incidence was not for a Convention reason and having then considered the matter no further.

26.    The Tribunal’s failure to do so amounts to a failure to consider the claim for complementary protection and thus a constructive failure to exercise its jurisdiction.

The consideration of relocation was inadequate to cure the Tribunal’s failure

27.    The Tribunal’s failure to consider the claim for complementary protection in relation to the June 2012 mistreatment is not cured by the fact the Tribunal went on to consider the reasonableness of relocation at [70]-[81].

28.    The assessment of whether it is reasonable for an applicant to relocate to another part of the country from which he or she has fled requires consideration of whether “there is an area in the visa applicant’s country of nationality where he or she may be safe from harm.” If there is such a safe area, there is then a second enquiry as to whether it would be reasonable, in the sense of practicable, for the applicant to relocate there.

29.    A proper consideration of internal relocation required an understanding by the Tribunal as to the nature of the harm faced by the appellant so that it could assess whether there was a part of Sri Lanka where he would be safe from that harm.

30.    The relocation assessment by the Tribunal was effectively conducted in a vacuum, considering such matters as whether the appellant could expect to be harmed by local Sinhalese if he relocated to another majority Tamil area, but not engaging with the very harm that the appellant claimed to fear. The assessment failed to take into account whether there was a place where the appellant could be safe from the type of harm that the Tribunal accepted occurred.

31.    It follows that if this Court accepts that the Tribunal failed to exercise its jurisdiction in relation either to a claim for refugee protection or a claim for complementary protection, based on the finding at [68] of its reasons, that failure cannot be cured by an assessment of relocation that failed to appreciate the cause of the harm that the relocation was supposed to remedy.

First Respondent’s submissions

39    The Minister’s written submissions were as follows:

B. Constructive failure – complementary protection

35.    The appellant further contends that the Tribunal was obliged to consider whether the appellant might again suffer an incident such as that which the Tribunal accepted occurred in June 2012, whatever the reason for its occurrence in June 2012.

36.    This contention should be rejected.

37.    First, the Tribunal was not satisfied of any possible reason for the June 2012 incident. The Tribunal tried to explore possible alternative reasons for it with the appellant, but he rejected those explanations: AB 25, pages 25-26 [67]. Without any credible explanation for the incident, it is understandable that the Tribunal could not reach a state of satisfaction for the purposes of complementary protection. If an applicant has been unable to persuade the Tribunal about the reasons why something occurred, it is unsurprising that the Tribunal might not be satisfied that this unexplained occurrence is sufficiently likely to happen again. Certainly, that is a matter for the Tribunal.

38.    Second, there is no reason to infer that the Tribunal failed to consider whether a one-off incident such as the June 2012 incident might occur again (whatever the reasons for it having occurred in June 2012). When still considering his alleged refugee status, the Tribunal referred to this explicitly: AB 25, page 27 [74]. Turning then to complementary protection, the Tribunal couched its reasons by reference to “the accepted facts” [AB 25, pages 37-38]. That picks up the June 2012 incident, which is an “accepted fact” in the appellant’s favour. The Tribunal’s reasons are brief, but read as a whole, including its reasons for rejecting his refugee claim, there is no error shown.

C. Relocation

39.    In the event that it should be wrong, the Tribunal went on to consider relocation. It found that he could reasonably and safely relocate to avoid any real risk of harm: AB 25, pages 26-28 [70]-[81], pages 36-37 [109]-[112].

40.    The appellant seeks to avoid this alternative basis for the Tribunal’s reasons on the basis that the Tribunal could not properly consider relocation without an appreciation of the reasons for the harm found to have occurred in June 2012.

41.    This argument must be rejected. The best that the Tribunal could do, having regard to what was claimed to emerged from the materials, is that this was a once off event for inexplicable reasons. The Tribunal dealt with that: AB 25, page 27 [74]; AB 25, page 37 [110]]. Otherwise, the Tribunal found that the Convention reasons propounded by the appellant could be avoided by relocation: AB 25, pages 26-27 [71]-[73]. The Tribunal’s reasons are appropriately directed to the claims and evidence put to it for consideration.

Consideration

40    The criterion for a protection visa may also be met if the decision maker is satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia “there is a real risk that the non-citizen will suffer significant harm”: s 36(2)(aa).

41    There is no requirement for that purpose (complementary protection) that the decision maker be satisfied that the harm foreseen be occasioned for any particular reason. What the Tribunal is required to consider is whether the necessary and foreseeable consequence of the non-citizens removal would amount to “significant harm”.

42    That expression is defined by s 36(2A) of the Act as follows:

(2A)    A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

43    The Tribunal accepted at [68] that the Appellant had been interrogated and mistreated by elements of the SLA in June 2012. It is uncontentious that the abbreviation “SLA” is to be understood as a reference to the Sri Lankan Army. The Appellant’s account (as recorded by the Tribunal at [64]) of what had happened to him was that his interrogation had been “extremely harsh on the torture” and that he had “feared they were going to kill him”.

44    Counsel for the Minister expressly accepted that the Court was entitled to proceed on the basis that the Tribunal had accepted the Appellant’s account (a) in so far as it identified who had mistreated him; and (b) regarding his characterisation of the mistreatment had been subjected to.

45    The Tribunal made no express finding as to whether that mistreatment was what motivated the timing of the Appellant’s decision to leave Sri Lanka but it is uncontentious he had done so shortly thereafter. His mistreatment occurred in June 2012. He arrived in Australia in August 2012. His departure in its immediate aftermath was evidence of flight. A finding that the Appellant had an actual fear of returning to Sri Lanka not only was open, but inevitable. The Tribunal’s acceptance of that proposition is implicit in it proceeding to consider whether there was an objective basis for him to hold such fears. What the Tribunal understandably focussed upon was the relevant statutory question: whether it was satisfied Australia had protection obligations. That turned on whether the Tribunal was satisfied there were “substantial grounds for believing that, as a necessary and foreseeable consequence of [his return to Sri Lanka] there [was] a real risk that [he] will suffer significant harm.” It is implicit in it doing so, that the Tribunal accepted that the Appellant subjectively feared being required to return to Sri Lanka.

46    The Tribunal’s rejection of the Appellant’s account of why events might have occurred did not disqualify the fact of their having occurred remaining relevant to the question of complementary protection. Counsel for the Minister did not contest the submission advanced in oral submissions on behalf of the Appellant that such conduct, if the Tribunal were satisfied his return would incur a real risk of their repetition, would be capable of being found by the Tribunal to involve cruel or inhuman treatment or punishment or degrading treatment or punishment and thus constitute “significant harm” within the meaning of ss 36(aa) and 36(2A) of the Act.

47    The Tribunal gave relatively limited attention to complementary protection. The essence of its reasoning was stated at [74]:

…[E]ven assuming the [Appellant] was subject to a one-off incident in June 2012 where he was mistreated by a local Sri Lankan government official in Point Pedro, based on the information accepted by the Tribunal, I am not satisfied there is a real chance the [Appellant] would suffer further harm either in Point Pedro, or on relocation, whichever he should choose to do, on his return to Sri Lanka.

48    The Appellant’s contention before this Court is that the reasoning of the High Court in Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) applies to prohibit such reasoning. The joint judgment of Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at page 575 states that the starting point in assessing whether there is a real chance that a future event will occur is to look at what has occurred in the past. The Appellant submits once it is accepted that an event of some seriousness had occurred previously in the country to which he has expressed a fear of return, that must prevent the decision maker concluding that there are not substantial grounds for believing that as a necessary and foreseeable consequence of returning the Appellant to Sri Lanka, there is a real risk that the Appellant would face significant harm within the meaning of the Act.

49    I am unpersuaded that, properly understood, Guo stands for a proposition expressed in the terms advanced on the Appellant’s behalf. Nonetheless in the actual circumstances applying in which the Tribunal had accepted that the Appellant had been detained by the Sri Lankan Army and subjected to mistreatment which had been “extremely harsh on the torture” such that it had caused him to fear that he would be killed and which had prompted his flight, Guo compelled the Tribunal to have addressed the Appellant’s claims for protection as including an integer that the unexplained harm he had suffered in the past gave rise to a real risk of it recurring in the future. There was thus a live question before the Tribunal as to whether as a necessary and foreseeable consequence of his return to Sri Lanka, there was a real risk that the Appellant would face significant harm.

50    The Tribunal did not find that the interrogation and mistreatment of the Appellant had occurred, as the Tribunal had speculatively put to the Appellant at [67], as a result of an isolated incident or arising from personal animosity, such that the Tribunal would be entitled to conclude that the Appellant would not face a real risk of significant harm if returned to Sri Lanka.

51    In this appeal the Minister sought to defend the reasoning process of the Tribunal on two bases; the first being that if the Appellant had been unable to persuade the Tribunal about the reasons why those events had occurred, it would be unsurprising that the Tribunal might not be satisfied that that unexplained occurrence was sufficiently likely to happen again.

52    In light of the actual circumstances then before the Tribunal that submission is advanced at too abstract a level to be persuasive. Had the Appellant suffered an unexplained beating on the streets by unidentified thugs such a submission might be plausible. But those were not the facts the Tribunal had before it. The violence that had been directed towards the Appellant had involved elements of an institution of the State, namely the Sri Lankan Army directly participating in the mistreatment of the Appellant. It was implicit that complicity in that regard must have extended beyond one or two individuals, given that those events had occurred within a military camp when the Appellant was interrogated and tortured.

53    The Tribunal’s findings of fact that the Appellant had been subjected to those acts of (unlawful) gross mistreatment occasioning him to fear death by elements of the Sri Lankan Army required the conclusion that serious malice must have existed towards the Appellant within either a rogue element in the military apparently acting with impunity, or within the military as a whole, for whatever reasons that malice might have arisen. It was as the victim of violence occasioned to him by at least an element of the Sri Lankan Army that, in its aftermath, the Appellant had fled Sri Lanka.

54    Second, the Minister submits, there can be no reason to infer that the Tribunal failed to consider whether a one-off incident such as the June 2012 incident might occur again (whatever the reasons for it having occurred in June 2012). The Court rejects that submission.

55    The description given by the Tribunal as a “one-off” event to what had happened to the Appellant cannot support the Tribunal’s reasoning because on the facts known to the Tribunal, the Appellant had fled Sri Lanka in its immediate aftermath.

56    Given that the Tribunal had accepted that the violence the Appellant had been subjected to was undertaken by persons within the Sri Lankan military and that he had fled, those circumstances gave rise to an obligation on the part of the Tribunal to give proper, genuine and realistic consideration to that integer of the Appellant’s claims as was apparent on the materials before it.

57    In that regard, the reasoning process of the Tribunal as recorded in its decision reveal that it failed to do so. In those circumstances the statutory task of the Tribunal remained incomplete.

58    The analysis required of the Tribunal did not require an answer favourable to the Appellant as an applicant for a protection visa. However it obliged the Tribunal to realistically engage with the substance of the integer of the Appellant’s claim then clearly discernible before it. Depending on its conclusions, the Tribunal may or may not have then been required to address further issues such as impunity and the availability of effective state protection.

Relocation as relevant to the Appellant’s claims for complementary protection

59    In dealing directly with the issue of complementary protection, the Tribunal at [111] reasoned that:

Regarding whether it is reasonable to relocate, the Federal Court in MZYXS [MZYXS v Minister for Immigration and Citizenship [2013] FCA 614] has accepted the issues which arise when considering the reasonableness of relocation in the refugee context are the same which arise in the complementary protection context. Further, the FCC has also suggested that where relocation has been considered in a refugee protection assessment, it may be open to refer to those findings when assessing complementary protection. That said, the Tribunal understands each case still needs to be considered according to its merits. However, in this case, and for the reasons discussed above, I am satisfied the [Appellant] may reasonably relocate within Sri Lanka.

60    The corollary of that proposition must be that to the extent such findings are adopted, an error in reasoning in the refugee context regarding relocation may infect the reasoning of a Tribunal when it turns to consider relocation in the context of complementary protection.

61    The assumption by the Tribunal at [63] when deciding that the Appellant might safely relocate having regard to his rejected protection claims for convention reasons that “even assuming the [Appellant] was subject to a one off incident” was therefore, for the reasons discussed above, incapable of sustaining the Tribunal’s conclusion.

62    Moreover, the description the Tribunal then accorded to the events subject to that assumption, that “where [the Appellant] was mistreated by a local Sri Lankan government official in Port Pedro” was inconsistent with findings the Tribunal had earlier made in regard to those who had inflicted those abuses and their nature. The serious mistreatment the Tribunal had accepted as having been suffered by the Appellant at the hands of an element of the Sri Lankan Army was incapable of being described in those terms.

63    As noted at [39], counsel for the Minister did not seek to characterise what the Tribunal stated at [63] as an alternative finding of fact.

64    The Tribunal then applied that flawed reasoning by reference as expressed at [111] of its reasons. No other basis exists that would lawfully justify its conclusion.

65    I therefore accept the Appellant’s submission that the assessment made by the Tribunal as to whether the Appellant might safely relocate within Sri Lanka having regard to his claims for complementary protection was effectively conducted in a vacuum. Counsel for the Minister did not submit that the Tribunal was entitled to proceed on an unstated finding that the reach of the Sri Lankan Army or the element thereof which had caused the Appellant harm in June 2012 might not extend to all parts of Sri Lanka.

66    The Tribunal considered matters such as whether the Appellant could expect to be harmed by local Sinhalese if he relocated to another majority Tamil area, but, as counsel for the Appellant submitted, its reasoning did not engage with the very harm that the Appellant claimed to fear. It failed therefore to give proper, genuine or realistic consideration to that integer of the Appellant’s claims.

67     I uphold Ground 1(c) of the Grounds of Appeal.

68    The decision of the Second Respondent to affirm the delegate’s decision must be quashed and the review remitted to the Administrative Appeals Tribunal for determination according to law. In the circumstances the remittal may most appropriately be to a differently constituted Tribunal, but the Court would leave the question of the constitution of the Tribunal to the President.

Costs

69    Having regard to the conventional principles, the Appellant should have his costs of this appeal. However, given that AJQ16’s appeal has succeeded on a ground not advanced in the court below, the parties should be given an opportunity to make submissions as to whether, in those circumstances, the order made by the FCCA in favour of the Minister for costs in the court below should be disturbed.

70    The parties have until the expiry of seven days from the date of publication of these reasons to file and serve brief written submissions on that question limited to one page excluding any list of authorities. Having regard to their submissions the Court will decide that question on the papers.

Associate:

Dated:    7 March 2018