FEDERAL COURT OF AUSTRALIA

AWL17 v Minister for Immigration and Border Protection [2018] FCA 570

ORDERS

THE COURT ORDERS THAT:

1.    Leave to further amend ground 1 of the amended notice of appeal be refused.

2.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia. His Honour dismissed an application for judicial review of a decision of the Immigration Assessment Authority that affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse the grant of a particular type of protection visa known as a Safe Haven Enterprise (subclass 790) visa to the appellant.

2    By leave granted at the hearing by consent, the appellant relied upon an amended notice of appeal. The appellant subsequently sought leave to rely upon a further amended notice of appeal, by which ground 1 was sought to be enlarged. That further amendment was opposed by the Minister on the ground of futility.

Overview

3    The appellant is a fisherman from Sri Lanka. He arrived in Australia by boat on 17 September 2012 as an unauthorised maritime arrival. He applied for the visa on 2 December 2012. The bar to him applying for a protection visa under s 46A of the Migration Act 1958 (Cth) was lifted on 29 September 2015. In these reasons, all statutory provisions referred to are in the Migration Act, unless indicated to the contrary.

4    On 31 August 2016, the delegate refused the grant of the visa to the appellant. On 8 September 2016, the delegate’s decision was automatically referred to the Authority for a review. On 7 February 2017, the Authority affirmed the delegate’s decision not to grant the appellant a protection visa.

5    The aspect of the appellant’s case for the grant of a protection visa that was advanced before the Authority, pursued on judicial review to the Federal Circuit Court and maintained on appeal to this Court concerns the impact of his asserted mistreatment as a Tamil fisherman on his livelihood. The other primary aspect of this appeal concerns the manner in which the Authority dealt with the use of new information that was not before the delegate under the confined statutory regime for considering such further material.

6    The appellant contends that the primary judge erred in failing to find jurisdictional error on the part of the Authority, with other points raised below no longer being pursued on appeal. The appellant had different counsel on appeal from counsel in the hearing below.

The nature of merits review by the Authority

7    Part 7AA of the Migration Act provides for a limited form of “fast track” merits review by the Authority for certain protection visa applicants who arrived by boat after 13 August 2012 and before 1 January 2014. The scheme of Pt 7AA was helpfully described in some detail in Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 by Griffiths J at [12]-[27] (with whom Dowsett and Charlesworth JJ agreed as to the result and substantially as to the reasons). AMA16 is not otherwise relevant because the issue in that case concerned the Authority’s procedural fairness obligations.

8    As canvassed in AMA16, the Authority does not have the power to grant protection visas, but only either to affirm the delegate’s decision or to refer the case back to the Minister’s Department for further consideration, for example, after making a finding that a visa applicant was a refugee: see s 473CC. The Authority’s review process is ordinarily confined to the material that was before the delegate and is conducted on those papers: s 473DB. While the Authority may obtain any additional documents or information that was not before the Minister (and thus the delegate) that it considers relevant, it has no duty to do so: s 473DC(1) and (2). Such additional documents or information are defined in that provision as “new information”. This does not preclude the Authority inviting anyone to give new information: s 473DC(3). Section 473DD provides that the Authority must not consider any new information unless several mandatory conditions are met, as discussed in more detail below.

Background

9    The following summary of the appellant’s circumstances, as relevant to this appeal, is principally drawn from written submissions provided on behalf of the appellant. The facts are not in dispute.

10    As aforementioned, the appellant is a Sri Lankan Tamil who was a fisherman in the Jaffna area of Sri Lanka. The Authority accepted the substance of his claims concerning his interactions with the Sri Lankan Navy. This included accepting that, as a fisherman, he was required to have entry and exit passes and fishing permits, that his home area was a high security zone with multiple checkpoints that he had to pass through when he travelled to and from fishing, and that the Navy frequently took part of his fishing catch at said checkpoints.

11    It was accepted that, in around June 2012, the appellant was returning from fishing when Navy officers confiscated a larger than normal portion of his catch, that the appellant argued with those officers, that they mistreated him and that he was taken to the Navy office. His photograph was taken and his pass and fishing permit were confiscated for the month of July 2012. As a result, he could not work or earn a living during that time. The asserted mistreatment by the Navy was that they broke the engine of his boat, pushed him over, pressed the palm of his hand into gravel and crushed his hand with a foot.

12    The Authority accepted that the appellant would again face the pass system if he were to return to his home area, and that he would lose part of his catch. The Authority accepted that this would be discriminatory and systematic conduct by the Sri Lankan authorities, including police, based on his Tamil ethnicity. This would result in day-to-day harassment while undertaking fishing that may impact on his future capacity to earn a living. The Authority reasoned that the evidence did not suggest that the appellant was unable to maintain and support himself through his previous livelihood as a fisherman, or that he would be unable to do so in the future. The Authority was not satisfied that the harassment in relation to the appellant’s fishing work, including the loss of part of his catch, was to such an extent that his capacity to subsist was threatened, or that it otherwise constituted serious harm.

The general nature of the appeal

13    Counsel for the appellant helpfully summarised the issues pursued on appeal as being whether the Authority reasoned illogically, or failed to complete its jurisdictional task, by asking the wrong question in considering whether persecution or significant harm could arise from the appellant continuing to have part of his fishing catch taken by the Navy if he returned to his life as a fisherman in Sri Lanka, with the harm feared being the loss of a viable livelihood. A related issue was whether the Authority had complied with s 473DD in relation to the new information that the appellant sought to have the Authority consider.

The grounds of appeal

14    The Minister did not object to the appellant relying upon an amended notice of appeal that had been electronically filed prior to the hearing of the appeal, pending the grant of leave. Leave was therefore granted to rely upon that document, which contains the following grounds of appeal:

1.    The Federal Circuit Court (the Court) erred in finding that the Authority’s finding in relation to the applicant’s ability to subsist as a Tamil fisherman was open on the material before it as the Authority reasoned illogically or, alternatively, asked the wrong question when considering whether the impositions or restriction/conditions limiting the applicant’s fishing (his former subsistence) constituted serious harm and/or significant harm as it failed to consider whether the applicant would suffer serious harm or significant harm (including his capacity to subsist) if he refused to give part of his catch to the Sri Lankan authorities.

2.    The Court erred in not accepting that the Authority adopted a too narrow construction of exceptional circumstances when considering new information under s 473DD of the Migration Act 1958.

3.    The Court erred in finding that there was no warrant in this case for inferring that the Authority failed to take into account s473DD(b) in its assessment of exceptional circumstances.

15    At the hearing of the appeal and subsequently, counsel for the appellant recognised some difficulties with the drafting of ground 1. He ultimately sought leave to amend ground 1 further, which was opposed by the Minister. The proposed amendment has been slightly reduced in scope in subsequent additional written submissions and now reads as follows:

1.    The Federal Circuit Court (the Court) erred in finding that the Authority’s finding in relation to the the [sic] appellant’s ability to subsist as a Tamil Fisherman was open on the material before it. The Court should have found the Authority reasoned illogically or alternatively asked the wrong question when considering the impositions or restriction/conditions, limiting the applicant’s fishing (his former subsistence). The Court should have found that the Authority failed to ask why the appellant was modifying his conduct by surrendering a portion of his catch and whether he was influenced by the threat of serious harm (being the loss of his livelihood through the loss of his fishing permit) directed towards him as a Tamil.

16    Ground 1, both in its existing form and as sought to be further amended, thus concerns a challenge mounted before the primary judge, and pressed on appeal, to the conclusions reached by the Authority in relation to the appellant’s claims as to the harm he feared he would suffer at the hands of the Sri Lankan authorities. Grounds 2 and 3 respectively concern the meaning given to s 473DD by the Authority, and the application of the restriction in s 473DD in relation to the appellant’s new information, challenging the primary judge’s reasons for upholding the Authority’s approach.

17    It is convenient to address grounds 2 and 3 before proceeding to consider ground 1 (both in its present form and in the amended form for which leave is sought).

Grounds 2 and 3 – exceptional circumstances under s 473DD

18    Section 473DD provides as follows:

Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

19    When the appellant’s case was referred to the Authority, his migration agent made a submission that the authority should consider new information concerning:

(1)    the appellant’s involvement in diaspora activities in Australia;

(2)    three cousins of the appellant who were members of the Liberation Tigers of Tamil Eelam (LTTE);

(3)    the appellant’s brother (referred to elsewhere in these reasons as “B1”) having been granted asylum in the United Kingdom;

(4)    additional country information; and

(5)    letters from a local MP and from a regional coordinator of the Human Rights Commission of Sri Lanka discussing the risk to the appellant should he be returned to Sri Lanka.

20    The Authority summarised the appellant’s submissions as to why the new information should be considered as follows:

5.    It was submitted that the diaspora material was credible personal information that was not known and may have affected the consideration of the applicant claims; the applicant did not realise his activities were important to his case and he was self-represented at the SHEV interview; and his lack of representation amounts to an exceptional circumstance especially when a person’s life is at risk. It was submitted that the material about the cousins was not previously known and may have affected consideration of the applicant claims; the applicant failed to mention the cousins’ LTTE involvement because he was scared he would be locked up for a close family association to the LTTE; and he did not have the benefit of any legal advice or the benefit of representation at his interview. It was submitted that the MP’s letter was dated 15 September 2016 and could not have been provided before the delegate’s decision as it was only recently obtained; it was important to give consideration to a serving MP’s letter as regards the applicant’s plight if he returns to Sri Lanka and the political climate in Sri Lanka; and this amounts to an exceptional circumstance especially when a person’s life is at risk. It was submitted that the material about B1 was not previously provided as he was never questioned about this matter or asked to provide further information; the applicant did not have the benefit of representation at the interview; this amounts to an exceptional circumstance especially when a person’s life is at risk; and had the information been known by the delegate it may have affected the consideration of the applicant claims. It was submitted that some of the articles now provided as country information are dated before the delegate’s decision but should be treated as new information because in the applicant’s case he was not represented. It was submitted that the letter from the Regional Coordinator of the HRCSL was dated 6 October 2016 and on that basis could not have been provided to the delegate and as the applicant’s life is at risk the IAA should consider the document new information and it is exceptional.

21    The Authority considered that part of the material supplied by the appellant’s migration agent was before the delegate, was therefore not new information, and was taken into account.

22    The Authority analysed the part of the material supplied by the appellant’s migration agent that it considered did constitute new information, finding that it was not satisfied that there were exceptional circumstances to justify considering that material. The Authority stated:

6.    Not all protection visa applicants are represented when they prepare their SHEV application and/or attend their SHEV interview. In the absence of other relevant circumstances, such as vulnerability due to age or disability. I do not accept that lack of representation at the SHEV application and/or SHEV interview stage of the protection visa process amounts to exceptional circumstances. Similarly, a fear of possible adverse consequences when supplying some information to the people encountered in the protection visa claim and assessment process – whether representatives, interpreters or officers Department of Immigration and Border Control (DIBP) – is not uncommon among protection visa applicants and I do not accept that it generally amounts to exceptional circumstances. In the applicant’s case I note that he was represented when he lodged his invalid visa application in 2013 and confirmed at the SHEV interview that his representatives had read back his 2013 written statement to him and, when asked if he understood the information provided to him by DIBP on Australia’s protection obligations, he said he understood because his lawyers had previously explained it to him. The delegate also told the applicant at the SHEV interview that it was extremely important that he provide full, personal and accurate protection claims as early as possible in the protection visa process, including during the interview.

7.    Given that the applicant was represented at an earlier stage of the protection visa process and at that time had access to legal advice, that he was told that it was important to provide his full protection claims as early as possible and that his lack of representation and/or his fear of the consequences if he disclosed certain information are not uncommon factors, I am not satisfied that there are exceptional circumstances to justify considering the new information provided by the applicant about diaspora activities and his cousins.

8.     At the SHEV interview the applicant was asked a number of questions about his family including their current locations and he confirmed B1 was in the UK. The delegate also asked if any of his siblings had encountered any problems with the Sri Lankan authorities. In those circumstances I am satisfied that the applicant had a fair opportunity to put information about B1’s situation but did not do so. Given that the applicant had a fair opportunity to raise the situation of B1 in relation to his residence in the UK and any problems with the Sri Lankan authorities, that he was represented at an earlier stage of the protection visa process and at that time had access to legal advice, and that his lack of representation at the SHEV interview is not an uncommon factor, I am not satisfied that there are exceptional circumstances to justify considering the new information provided by the applicant about B1.

…

10.    The letters from the MP and the Regional Coordinator of the HRCSL both post-date (15 September 2016 and 6 October 2016) the delegate’s decision and appear to have been obtained for the purpose of supporting his application. However, the information provided by those letters pre-dates the delegate’s decision and there is no explanation provided as to why it was not possible to make the information in those letters available earlier. The applicant was aware that he could lodge further supporting documents as, after lodging his SHEV application, he provided further material to the DIBP including letters confirming aspects of the applicant’s claim including letters from a Justice of the Peace in Jaffna and a letter from the Mandaitivu St Peter’s Fishermen Co-op Society. At the SHEV interview the delegate explained to the applicant the limits on the IAA’s ability to consider new information. It is not uncommon for applicants to be unrepresented at a SHEV interview and the applicant had representation and access to legal advice at an earlier stage of the protection visa application process. Therefore, I am not satisfied that there are exceptional circumstances to justify considering the new information provided by the applicant in the letters from the MP and the Regional Coordinator of the HRCSL.

23    No issue was taken about the authority declining to have regard to the additional country information.

24    The primary judge found:

27.    A fair reading of the Authority’s reasons reflects the Authority having a proper and meaningful engagement with the submissions advanced in relation to the new information. Further, it is apparent both from the submissions and from the Authority’s reasons that the Authority had regard to the whole of the provisions of s 473DD in considering the new information. There is no warrant in the present case for inferring that the Authority failed to take into account s 473DD(b). The reference to credible personal information in the Authority’s reasons supports that finding.

28.    I do not accept that the Authority adopted a narrow construction of exceptional circumstances on a fair reading of the Authority’s reasons of the kind identified in BVZ16 nor in light of the finding that I have made including the reference to credible information is this a case where it can be inferred that the Authority had failed to have regard to the whole of the provisions of s 473DD. The reference to the detail and content of the submissions reflects a real and meaningful engagement by the Authority with the submissions in respect of the new information. Further, there is no warrant in the present case for inferring the Authority has failed to take into account the whole of the circumstances in relation to the exercise of the power under s 473DD. No jurisdictional error as alleged in Grounds 1, 2 and 4 is made out.

25    The appellant asserts that the primary judge erred:

(1)    in not accepting at [28] that the Authority adopted too narrow a construction of the meaning of “exceptional circumstances” under s 473DD; and

(2)    in finding at [27] that there was no warrant for inferring that the Authority failed to take into account s 473DD(b) in its assessment of exceptional circumstances in this case.

26    The appellant relied upon three authorities on this topic:

(1)    CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192;

(2)    BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; and

(3)    BBS16 v Minister for Immigration and Border Protection [2017] FCAFC 176.

27    In particular, it was submitted that the following part of [5] of the Authority’s reasoning in CHF16, reproduced in full in that case at [15], had a high degree of similarity with this case:

In the submission the applicant also raised that: just before his SHEV was finalised, the Criminal Investigation Department (CID) in Sri Lanka arrested his extended family members; in May 2016 his wife was sexually assaulted by CID officers on the basis of the applicant's involvement with the LTTE and his subsequent illegal departure to Australia; his wife has subsequently attempted to commit suicide; while residing in Mullaitivu, the applicant had been forced to work for the LTTE and will be identified upon return by ex-LTTE cadres who now work for the CID. This information was not before the delegate and I consider it to be ‘new information.’ The applicant was interviewed in relation to his claims for protection on 28 October 2015 with a registered migration agent present. During this interview the applicant was provided the opportunity to present all his claims for protection. At the end of the interview the delegate provided the applicant an opportunity to submit any further detail to his claims for protection. The delegate also provided the applicant’s representative an opportunity to provide a written submission which was submitted to the delegate on 11 November 2015. During the interview the applicant was explained (sic) the importance of providing all his claims for protection as early as possible. The applicant was also represented by a registered migration agent who was provided through the Department’s Primary Application Information Service (PAIS). A decision was made on 9 June 2016. This new information relates to events which occurred prior to the primary decision being made. I am not satisfied there are exceptional circumstances to justify considering the new information.

28    In CHF16, after quoting from BVZ16 at [8]-[9] and [36]-[37] and from BBS16 at [77], [102]-[104], [106] and [112], and considering the reasoning of the primary judge in that case and the appeal submissions, it was concluded at [44]:

In our opinion, the proper and fair reading of [5] the Authority’s reasons is that, in considering whether or not it was satisfied that there were exceptional circumstances, it considered only the fact that the new information which related to events which occurred prior to the primary decision being made was not brought forward before. It did not take into account why the new information was not brought forward before or any other circumstances. It did not address itself to whether the material was credible personal information or information of such a character which was not previously known to the Minister and, had it been known, may have affected the consideration of the appellants’ claims. We do not accept the submission on behalf of the Minister that the paragraph should be read as, in effect, containing other reasons for the conclusion of the Authority. In so concluding, we have read the paragraph as a whole and in context.

29    The appellant submitted that the Authority’s reasons for not considering the new information dealt with each set of information in discrete paragraphs, without any analysis of its probative value. There was no consideration of whether the material was credible personal information, or information of a character which was not previously known to the Minister and which might have affected the assessment of the appellant’s claims. The appellant submitted that the reasons therefore did not support the construction given to them by the primary judge at [27]-[28]. That is, the deficiency was, in substance, the same as in CHF16.

30    The Minister submitted that, on a fair reading of the Authority’s reasons for refusing to have regard to the new information, it considered first, whether exceptional circumstances existed to have regard to this new information for the purposes of s 473DD(a); second, the claims as to why this information could not have been provided to the delegate, as contemplated by s 473DD(b)(i); and third, the claims that the new information constituted credible personal information for the purposes of s 473DD(b)(ii). In finding that there were no exceptional circumstances, the Minister submitted that the Authority had regard to the appellant’s particular claims as to why there were exceptional circumstances in his case, including that he had represented himself at the application and interview stages, and because of his asserted fear as to the consequences of disclosing certain information. The Minister submitted that there was therefore no basis to suggest that the Authority had limited itself to only the appellant’s explanations for not providing the material sooner, as had occurred in CHF16.

31    The Minister also pointed to the formal acceptance in CHF16 at [46] of the Minister’s submission in that case that there is no obligation to consider and make findings as to both s 473DD(a) and (b) if either are found not to be satisfied. The Full Court observed that this conclusion implicitly sidestepped the real issue, because the question that arose was whether the consideration that was required had taken place at all.

32    The Authority’s treatment of the new information was dealt with by category. However, there was nothing wrong with dealing with the submissions made on behalf of the appellant in that way. Indeed, it is difficult to see what other practical way there was to address each argument that had been advanced. As noted above, [5] of the Authority’s reasons summarised the submissions made on behalf of the appellant. As to the analysis of those reasons by the Authority, a few short observations may be made, the text having been reproduced in full above at [22]:

(1)    At [6], the Authority considered the question of the appellant being unrepresented at the earlier stages of his application, and of withholding information because of a fear of adverse consequences. The Authority explained why neither circumstance was exceptional, noting that the appellant had been represented or assisted at certain key points.

(2)    At [7], the Authority also considered that the fears the appellant expressed as to the consequences of not disclosing information were not an exceptional circumstance because that issue had only arisen after a time when he was represented.

(3)    At [8], the Authority considered the reasons advanced for not providing information about his brother, and noted that the question of whether any of his siblings had encountered any problems with the Sri Lankan authorities had been expressly raised, giving him ample opportunity to raise the information at an earlier stage.

(4)    At [10], the Authority noted that the letters from a local MP and from a regional coordinator of the Human Rights Commission of Sri Lanka post-dated the delegate’s decision and contained information that could have been provided earlier. The Authority also noted that no explanation had been given as to why the information had not been provided earlier. The Authority outlined the opportunities that had been given to the appellant to provide such information.

33    The summary above, when read with the reasons themselves, leads to the conclusion that the Minister’s characterisation of the Authority’s reasons should be accepted. There was furthermore no defect in reasoning or approach of the kind found in CHF16.

34    Grounds 2 and 3 must therefore fail.

Ground 1

35    The appellant submitted that, given that the Authority accepted that the taking of his catch by the Navy was systematic and discriminatory treatment directed towards him because:

(1)    he was a Tamil and he had a particular vulnerability to that conduct because of his race; and

(2)    when he resisted the taking of his catch, he was physically mistreated and had his means of earning a living removed for a month,

it was therefore clear that if he resisted the taking of his catch in the future, he was likely to suffer similar mistreatment, including long periods without the capacity to earn a livelihood.

36    The appellant contended that the Navy was engaging in extortion. In those circumstances, the appellant submitted that the Authority’s conclusion that the harassment of the Navy was not to such an extent as to threaten his capacity to subsist was illogical. It was submitted that the Authority failed to ask the question of whether the threat of harm underlying that extortion constituted persecution. Reliance was placed upon the reasoning of Logan J in SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; 238 FCR 404, in which his Honour gave additional reasons to those of Robertson and Kerr JJ for upholding a somewhat different ground of appeal as follows:

14.    To reason, as the Tribunal did, at [51], that there is no real chance of abduction on return because the appellant’s mother will continue to make the payments demanded is, with all respect to the member constituting the Tribunal, perverse. The very essence of extortion, if successful, is that the threat made to the victim will not be carried into effect providing that the demand made is satisfied.

…

17.    To conclude that the reasons given by the Tribunal as to why it was not satisfied that the appellant was a person to whom Australia owed protection obligations were logical and rational would be to render that protection obligation largely ineffectual in cases grounded in claimed extortion for multi-faceted reasons which include being targeted for Convention-based reasons, if not to stand those protections on their head. The type of reasoning evident in [51] was rejected as fallacious by McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [43]:

… The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many — perhaps the majority of — cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

(Original emphasis.)

This explanation for the rejection of such reasoning has later been applied in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1142 and SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 and, in the United Kingdom, in HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596.

37    It was submitted that the primary judge was therefore in error when his Honour found at [30]:

In relation to Ground 2, Mr Kumar of counsel took the Court to the Authority’s reasons in relation to the incidents that the applicant had encountered in relation to loss of his fishing catch and argued that there was not a meaningful and real consideration being given to the applicant’s claim in relation to his ability to sustain himself. The Authority’s reasons reflect a proper and genuine engagement with the applicant’s claims. The adverse finding in relation to the applicant’s ability to subsist as a Tamil fisherman was open on the material before the Authority and cannot be said to lack an evident and intelligible justification. No jurisdictional error of the kind alleged in Ground 2 is made out.

38    The Minister submitted that the claim upon which the appellant relied, namely extortion, was not one that was ever made before the delegate, before the Authority or before the primary judge. The Minister also relied upon s 5AAA, which provides that it is for the appellant to specify all particulars of a claim of being a person who is owed protection obligations and to provide sufficient evidence to establish such a claim. It was submitted that without further elaboration, this ground could not succeed.

39    As the case for the appellant unfolded, it became apparent that the appellant sought to ventilate the issue of having to continue his prior behaviour modification to avoid the dire consequence of losing his livelihood altogether. The appellant was, in substance, objecting to having to forgo, without resistance and as a result of admittedly discriminatory conduct, a part of his fishing catch so that he could keep his fishing permit and continue fishing to earn his livelihood. That is, the appellant objected to the proposition that if he complied and surrendered a part of his catch, as the Authority effectively found he would have to, there would be no significant harm. Stated in those terms, without qualification, that argument might have found support in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473, in which it was found that asylum seekers are not required to modify their behaviour, such as by taking reasonable steps to avoid persecutory harm, and if such steps are taken, it is necessary to inquire as to why that had taken place to ensure it was a truly voluntary choice. The High Court found that if the fear of harm will influence an asylum seeker to live discreetly, a decision-maker will err if consideration is not given to whether the fear of harm is well-founded and whether the threat of harm itself constitutes persecution.

40    However, Appellant S395 was addressed by Parliament legislatively, not to curtail that case in its terms but, rather, to confine the scope of its potential application to the sort of case in which it arose. The current manifestation of that legislative response is contained in part of s 5J, a provision which defines in some detail the Refugees Convention concept of a “well-founded fear of persecution”, being an aspect of what is necessary for refugee status and the grant of a protection visa under ss 5H(a) and 36(2)(a) respectively. Section 5J(3) provides:

A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)    conceal an innate or immutable characteristic of the person; or

(c)    without limiting paragraph (a) or (b), require the person to do any of the following:

(i)    alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)    conceal his or her true race, ethnicity, nationality or country of origin;

(iii)    alter his or her political beliefs or conceal his or her true political beliefs;

(iv)    conceal a physical, psychological or intellectual disability;

(v)    enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)    alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

41    The outcome in Appellant S395 would have been the same had s 5J(3) existed at the time it was decided. However, s 5J(3) operates so that modification of conduct can be required if it does not go so far as to compromise the essential terms of the Refugees Convention, now set out in s 5H. Thus, a person cannot claim to have a well-founded fear of persecution if reasonable steps could be taken to avoid a real chance of that persecution by modifying their behaviour, provided that the modification does not entail any of the matters listed in s 5J(3)(a), (b) or (c). Other exclusions of such conduct contained in s 5J do not require consideration in this case.

42    In written submissions for the appellant in support of being given leave to amend ground 1 in the terms proposed, it was submitted that nothing more was involved than an elaboration of the way in which the ground had previously been drafted. The asserted error remained a failure to address whether the threat of harm which underpinned the appellant’s decision to surrender his fish amounted to serious harm. On that argument, the ground as sought to be amended asserts a failure to ask the question required by the High Court in Appellant S395, as modified by s 5J(3). That is, it is asserted that, akin to Appellant S395, the Authority’s consideration was confined to the seriousness of the harm remaining after the modifying behaviour, and that it was not open to the Authority to assess the seriousness of the greater harm feared if that modifying behaviour had not taken place.

43    The Minister’s anticipatory response to the above amendment argument was that the amendment was futile because the Authority had found that the harm feared, and not just the harm to be imposed after modified behaviour by way of compliance, was not serious harm. The Minister asserted that the appellant had not made any claim to fear other harm and, in particular, made no claim that he would modify his behaviour. Section 5AAA required the appellant to specify all particulars of his claim.

44    It is convenient to outline the aspects of the Authority’s reasons to which the Minister was adverting in relation to the findings made about harm.

45    The Authority found that the beatings that the appellant described happened only twice over a five-year period, and only within the context of the immediate aftermath of the civil war between the LTTE and the Sri Lankan government. The Authority thus addressed the basis for finding little future risk of physical harm of a kind that was not present in SZTAP (being the ratio of that case). The Authority was satisfied that the incidents of physical harm described by the appellant were attributable to the conditions prevailing at the time and that the chance of the appellant suffering similar harm now or in the foreseeable future was remote.

46    The Authority accepted that the appellant would still be subject to a pass system, and may face the same situation of day-to-day discriminatory and systematic conduct by the Sri Lankan authorities, based on his Tamil ethnicity, that may impact on his capacity to earn a living. However, the Authority did not accept that the evidence suggested that the appellant would be unable to support and maintain himself as a fisherman, or that the harassment of him while conducting his fishing work was to such an extent that it would threaten his capacity to subsist or that would otherwise constitute serious harm.

47    The appellant’s response to the Minister’s futility argument was that the materials before the Authority, and the Authority’s own findings as to the harm that the appellant had faced in the past, were sufficient to raise for consideration whether the appellant was modifying his conduct to avoid serious harm, namely by surrendering his catch. A comparison was drawn with Appellant S395, in which the Tribunal found that the applicants for protection visas were homosexuals, rejected claims of past serious harm and said that the applicants had been discreet, but also found that the applicants had not in terms claimed that they had to modify their behaviour so as not to attract attention, relying on McHugh and Kirby JJ at [35] and [39]. Thus, it was the threat of serious harm that mattered in Appellant S395. It should be noted that the modifying behaviour of the applicants in that case was to conceal their homosexuality, which was what attracted a Convention ground of persecution.

48    The appellant in this case argued that his claims of past harm that were accepted included the surrender of his fishing catch, and being physically mistreated and having his fishing permit suspended for a month when he objected. He argued that the loss of his ability to fish fell within the s 5J(4)(f) definition of “serious harm”, being “denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist”. Thus, it was effectively argued, the “but for” case of what would happen if his behaviour was not modified was stronger and clearer than it had been in Appellant S395, in which the claims of past harm had been rejected. The appellant submitted that the findings by the Authority made it highly likely that he had surrendered part of his catch in the past because of the fear of greater harm, amounting to serious harm, if he did not do so. He submitted that there was no other plausible explanation for his acquiescent behaviour, given the accepted evidence of what had happened when he had not submitted to surrendering his catch. Thus, while the appellant had made no express claim of behaviour modification, he submitted that it unavoidably arose from the findings as to what had happened in the past, those findings being the best guide as to what would happen in the future.

49    The arguments advanced on behalf of the appellant addressed Appellant S395. There subsequently remained a need to address the legislative confinement of the effect of that case by s 5J(3). The appellant’s argument in relation to that provision was that it operated in a manner analogous to the principles applicable to relocation. It was submitted that before that provision arises for consideration, there must first be a finding that there is a real chance of harm for a Refugees Convention reason (as manifested in the reproduction of the terms of that Convention in s 5H). The appellant submitted that it is only then that the Authority needs to consider whether the appellant can take reasonable steps to avoid the serious harm within s 5J(3). Thus, it was argued, the terms of s 5J(3) had not yet arisen for consideration.

50    The submissions for the appellant set out in the preceding paragraph cannot be accepted. The whole point of enacting s 5J(3) was to confine the scope of the application of Appellant S395 to Convention-like reasons for modifying behaviour. If, as a result of the modification of behaviour of the kind required by s 5J(3), there was either no harm at all, or harm falling short of serious harm, then no further inquiry is required on that aspect of the claim of a well-founded fear of persecution. The only circumstance in which that does not apply is if the modification of behaviour is of a kind that does not fall within s 5J(3), so as to be back within the operation of Appellant S395 (as essentially covered by the terms of paragraphs (a), (b) and (c) of s 5J(3)).

51    In seeking leave to further amend ground 1, the appellant did not identify any reason why the conduct of the appellant, in surrendering part of his catch so as to avoid the more serious consequences that had occurred in the past, fell outside each of the subparagraphs in s 5J(3). It is at this point that the reliance by the appellant on Appellant S395 breaks down, because there is no reason to doubt that the modifying behaviour in that case was of the kind described in s 5J(3)(c)(vi), being concealment of true sexual orientation. By contrast, there was no suggestion made that the appellant surrendering part of his catch, discriminatory though it was, amounted to modifying conduct that:

(1)    conflicted with any characteristic fundamental to his identity or conscience (s 5J(3)(a));

(2)    concealed any innate or immutable characteristic that he has (s 5J(3)(b)); or

(3)    required him to do any of the things listed in s 5J(3)(c).

52    Without Appellant S395 reasoning applying, as provided for and perhaps more by paragraphs (a), (b) and (c) of s 5J(3), the appellant cannot rely on the seriousness of the harm in the absence of modifying behaviour. Rather, the seriousness of the harm can only be relied upon with the benefit of modifying behaviour. Even on a reading of the Authority’s reasons that is most advantageous to the appellant, it was effectively found that if the appellant were to continue to surrender part of his catch, as he had done in the past, he would not suffer serious harm. There was no legal error, let alone jurisdictional error, in that conclusion.

53    It follows that whether or not leave to further amend ground 1 is granted, ground 1 must fail. In those circumstances, there is no utility in granting leave to further amend. Leave is therefore refused, and this ground fails.

Conclusion

54    As all three grounds of appeal must fail, and the proposed amendment to ground 1 would not change that conclusion, leave to further amend must be refused and the appeal must be dismissed with costs.

Associate:

Dated:    27 April 2018