FEDERAL COURT OF AUSTRALIA

CSN15 v Minister for Immigration and Border Protection [2018] FCA 985

ORDERS

THE COURT ORDERS THAT:

1.    The appellant is granted leave to rely upon all five grounds of appeal recited in the Notice of Appeal filed on 24 April 2017.

2.    The appeal is dismissed.

3.    The appellant pay the First Respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

GREENWOOD ACJ:

1    These proceedings concern an appeal from orders made by, and a judgment of, the Federal Circuit Court of Australia (the “primary judgment”) dismissing the appellant’s application for judicial review (and a claim for the grant of the constitutional writs) of a decision of the Administrative Appeals Tribunal (the “Tribunal”) of 4 December 2015 by which the Tribunal affirmed a decision of the Minister’s delegate not to grant the appellant a Protection visa under the provisions of the Migration Act 1958 (Cth) (the “Act”): CSN15 v Minister for Immigration & Anor [2017] FCCA 1038.

2    The appellant is a citizen of Sri Lanka. He was born on 1 July 1993. He is a Tamil and he is of the Hindu faith.

3    Some uncontroversial background matters are these. The appellant arrived on Christmas Island on 8 August 2012. Shortly thereafter, he lodged an application for a Protection (Class XA) visa with the assistance of a solicitor. On 20 December 2013, the Minister’s delegate refused to grant the visa. The appellant sought merits review before the Tribunal. The appellant put on written submissions on 4 August 2014 and appeared at a hearing before the Tribunal on 21 April 2015. At that hearing, he was assisted by Mr Jeremy Bayliss on behalf of Vrachnas Lawyers who were then acting for the appellant. The appellant was assisted at the hearing by an interpreter. As already mentioned, the Tribunal affirmed the decision under review not to grant the appellant a Protection visa.

4    In the proceedings before the Federal Circuit Court, the appellant contended that the decision of the Tribunal is affected by an error of law (Ground 1(a)) and that the Tribunal denied the appellant procedural fairness (Ground 1(b)).

5    The hearing before the Federal Circuit Court took place on 5 April 2017. The application was dismissed. Judge Hartnett delivered ex tempore reasons in support of the dismissal of the application. Judge Hartnett observes at [4] of those reasons that the appellant had filed no amended application and nor had he filed any written submissions. The appellant, however, made oral submissions in support of the application aided by an interpreter. It is not necessary to examine the content of the reasons of the primary judge in rejecting the application.

6    That follows because the appellant does not seek to demonstrate error on the part of the primary judge in addressing the two unparticularised grounds upon which he relied before that court in support of his application. Rather, the appellant relies upon five new grounds of challenge to the Tribunal’s decision by which it is said that the Tribunal fell into jurisdictional error.

7    The Minister raises no objection, due to the appellant’s lack of legal representation, to the appellant relying upon all of these grounds except as to Ground 5(a). As to Ground 5(a), the Minister says that since that ground relates to evidence that was given before the Tribunal by the appellant, and could have been answered by the Minister before the Federal Circuit Court (had the matter been raised before that court) by reference to the transcript of evidence before the Tribunal which reveals the appellant’s actual oral evidence during that hearing, the Minister was deprived of the opportunity to address the material facts, before the primary court. The Minister says that if the appellant is given leave to rely upon Ground 5(a), the Minister seeks to rely upon the relevant part of the transcript which is attached to the affidavit of Ms Christine Demiris sworn and filed on 15 February 2018.

8    I will return to that matter later in these reasons.

9    The hearing before this Court took place on 22 February 2018. On 13 February 2018, Ms Carina Ford of Carina Ford Immigration Lawyers filed a notice of ceasing to act as the lawyer for the appellant. A notice of intention to withdraw dated 6 February 2018 was addressed to the appellant. On 24 April 2017, Carina Ford Immigration Lawyers filed, on behalf of the appellant, the notice of appeal which recites the five new grounds.

10    Before turning to those grounds, it is necessary to say something about the nature of the claims made by the appellant as the basis of his claim for the grant of a Protection visa under s 65 of the Act having regard to s 36 and particularly s 36(2)(a), s 36(2)(aa) and s 36(2A).

11    The appellant claims to be a refugee because, owing to a well-founded fear of persecution, he is unable or unwilling to avail himself of the protection of the authorities of Sri Lanka. He claims to hold a well-founded fear of persecution for reasons of political opinion, race, religion and membership of a particular social group. As to political opinion, that claim is based upon an “imputed political opinion” as a supporter of the Liberation Tigers of Tamil Eelam (the “LTTE”). As to race, he fears persecution due to his Tamil ethnicity. As to religion, he fears persecution due to his Hindu religion. As to membership of a particular social group, he fears persecution due to his membership of a social group of “failed asylum seekers and Sri Lankan nationals who have departed Sri Lanka illegally”.

12    Apart from the claims based on a contended well-founded fear of persecution on these four grounds, the appellant also says that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as contemplated by s 36(2)(aa). He says that there are substantial grounds for believing that there is a real risk he will suffer significant harm by being subjected to cruel or inhuman treatment or punishment as contemplated by s 36(2A) of the Act.

13    As to these matters, the following position was adopted by the Tribunal.

14    At [13] of the Tribunal’s reasons (“TR”), the Tribunal notes the appellant’s claims that he will be harmed in Sri Lanka because of his family association with the LTTE. That was said to arise because his father was killed when fishing in particular waters in January 1997 when his boat was fired upon by the Sri Lankan Navy who were said to have believed that fishermen were LTTE members or supporters. The Tribunal also notes at [13] the claim that the appellant’s mother was a member of the LTTE from 1986 until 1992 and, according to the appellant, she may have been a spy. The appellant claimed before the Tribunal that two of his maternal cousins were members of the LTTE and they were killed in fighting between the LTTE and the Sri Lankan Army (the “Army”). The appellant thought that one cousin had been killed before the appellant was born in July 1993 and one cousin was killed after the appellant was born. Both cousins were killed in the 1990s.

15    As to these matters, the Tribunal said this at TR [14]:

The Tribunal accepts that the applicant’s father may have been killed by the Navy in 1997. The war was raging across the north and east of Sri Lanka at that time and the Tribunal accepts that the Navy may have fired on a fishing vessel it suspected of being an LTTE boat. The Tribunal accepts that the applicant’s mother may have been a member of the LTTE or assisted the LTTE before 1992 and that two of his cousins may have been members of the LTTE and killed in fighting in the 1990s. These events are well in the past and occurred before the applicant was born or when he was a young child.

[emphasis added]

16    The Tribunal then expanded upon the remarks set out at TR [14] (quoted above) and then concluded that it did not accept that these past events or associations would cause the applicant to be imputed with an LTTE association “now”. At TR [15] and TR [16], the Tribunal sets out other claims or contentions of the appellant in relation to his family’s engagement with the LTTE which were said to have caused members of the Army in 2012 to interrogate him and members of his family about their engagement with the LTTE. At TR [16], the Tribunal simply “notes” that the Army is unlikely to have been concerned in 2012 about the limited degree of contact in 2009 between the LTTE and the appellant’s family and, for that matter, the appellant. The engagement was said to be that in January 2009 the appellant’s parents allowed two members of the LTTE to stay for about two weeks in an empty house which belonged to the appellant’s step-father’s brother, located in a nearby village. At TR [17], the Tribunal said this:

The Tribunal does not accept that the applicant and his mother and step-father were questioned by the Army in 2012. The Tribunal accepts that the house may have been used by LTTE members [but] does not accept that the [Army] would be concerned in 2012 about that limited contact. The LTTE had a pervasive presence in the north during the conflict and most Tamils from the north had contact with or provided a low level of support to the LTTE.

[emphasis added]

17    The Tribunal expanded upon those remarks by reference to material from the Department of Foreign Affairs and Trade (“DFAT”). The appellant contended, before the Tribunal, that the Army had developed an interest in connections between the appellant and the appellant’s family on the one hand and the LTTE on the other because former members of the LTTE were now working with the Army and those former members would have informed upon the appellant and his family. At TR [17], the Tribunal regarded that matter as speculation and said this:

As noted above, the applicant and his family were not previously questioned in relation to suspected LTTE links [as part of a screening of the Tamil population at the end of the conflict in 2009] despite a past family association and the Tribunal does not accept that they were of interest in 2012 because LTTE members stayed in a relative’s house for two weeks in 2009. As the Tribunal does not accept that the applicant or his family members were questioned by the Army in 2012, it does not accept that former members of the LTTE working with the Army told the Army about the house.

[emphasis added]

18    At TR [18] and [19], the Tribunal examines other claims related to this topic and ultimately reaches this conclusion:

For the reasons set out above, the Tribunal does not accept that the Sri Lanka authorities have imputed or will impute the applicant with an LTTE association.

[emphasis added]

19    The Tribunal also rejected the claim that a Tamil paramilitary group called the EPDP which split from the LTTE during the conflict and supported the Army, have imputed to (or will impute to) the appellant, an association with the LTTE thus giving rise to a fear of persecution from that group.

20    As to questions of race, that is, the appellant’s Tamil ethnicity, the Tribunal examined at TR [21] to TR [29] the claims of the appellant and concluded that the Tribunal was satisfied that the appellant did not face a real chance of serious harm in Sri Lanka as a Tamil or as a Tamil from the north. The Tribunal was also satisfied that the appellant does not face a real risk of significant harm due to his race: TR [30].

21    As to the claims based on religion, the Tribunal examined those matters at TR [31] and [32]. The Tribunal also had regard to country information on this topic. At TR [32], in reliance upon such material, the Tribunal said this:

DFAT has advised that there were 65 listed cases of attacks on places of religious worship between May 2009 and January 2013 (mostly on evangelical Christian churches); that most Sri Lankans are able to practice their faith unmolested; and that the risk of harassment or violence increases where practitioners are proselytising or carrying out conversions. In view of this country information, the Tribunal does not accept that there is a real chance [that] the applicant will be prevented from practising his religion or that he will suffer serious harm, or a real risk he will suffer significant harm, because of his religion.

[emphasis added]

22    As to the appellant’s fear that there is a real risk that he will suffer significant harm on his return to Sri Lanka, the appellant claimed that on return he would be questioned and asked why he left Sri Lanka. He says that he is fearful that he will go to jail in Sri Lanka. At TR [33] to TR [35], the Tribunal examines advice from DFAT on the entry and exit procedures for returnees to Sri Lanka. The Tribunal observes that that material was discussed with the appellant. At TR [36], the Tribunal notes the appellant’s claims that he knows of a person from a neighbouring village who “was returned” from Australia to Sri Lanka and was tortured. That person is required to report to Colombo every month. The Tribunal also notes that the appellant when asked if he had spoken to this person, gave evidence that he has spoken to other friends who have told him that when they returned to their villages in Sri Lanka, the authorities demanded bribes from them. As to these matters, the Tribunal said this at TR [36]:

The Tribunal accepts that there may be instances when bribes are paid but does not accept that the applicant will be required to pay bribes. He is not wealthy; he is not associated with the LTTE; and he will have been questioned at the airport and charged with an offence before he returns to his village. There is no apparent reason why the applicant would be targeted for a bribe or any advantage that the applicant would obtain by paying a bribe. The Tribunal places weight on the DFAT advice above that there have not been any reports of mistreatment of returnees from Australia. LandInfo also concluded in 2012 that there is nothing to indicate that returning Tamils are treated in any particular way or are at risk of violations.

[emphasis added]

23    At TR [37], the Tribunal said this:

The Tribunal does not accept that the applicant will be imputed to hold a political opinion of opposition to the government because he sought asylum in Australia. The applicant has not claimed to have engaged in any protest or human rights activity in Australia. The Tribunal does not accept that the mere lodging of an asylum claim will be regarded as political or protest activity which will attract the adverse attention of the authorities in Sri Lanka.

[emphasis added]

24    As to detention, the Tribunal said this at TR [38]:

The Tribunal is satisfied that the applicant will not be subjected to any detention or interrogation on return to Sri Lanka other than the standard questioning and procedures at the airport as outlined above by DFAT. The Tribunal does not accept that this questioning and procedure amounts to serious or significant harm. The Tribunal does not accept that there is a real chance or a real risk that the applicant will be harmed at the airport or on return to Point Pedro [his home place].

[emphasis added]

25    As to the procedures described by DFAT as related by the Tribunal, the Tribunal said this at TR [42]:

The advice from DFAT above indicates that the Immigrants and Emigrants Act 1945 is being applied to all persons who have departed Sri Lanka illegally regardless of ethnicity. The Tribunal is satisfied that the terms of the law do not have a discriminatory manner for a Convention reason. The Tribunal finds that section 45 of [that Act] is a law of general application and does not give rise to persecution under the Refugee’s Convention.

26    At TR [44], the Tribunal further considered the question of whether the appellant would be likely to be held in detention, that is, in jail for a period. At TR [44], the Tribunal said this:

The Tribunal is satisfied that the applicant will be held in remand for a short period, between one day to several days, if he is charged with an offence under the Immigrants and Emigrants Act. The applicant’s mother and step-father are present in Sri Lanka to guarantee his bail. The evidence before the Tribunal does not indicate that they would not guarantee his bail and the Tribunal is satisfied they would do so.

[emphasis added]

27    At TR [45], the Tribunal considered whether the appellant faces a real chance of serious harm for a Convention reason whilst in custody for a short period of time pending bail. The Tribunal notes that the appellant gave evidence that prison conditions are “poor” and that “anything could happen to him in prison”. The Tribunal notes that the appellant’s lawyer submitted that the appellant is “susceptible to significant harm” even if he is only detained for a “few hours or a few days”. The Tribunal also notes that the appellant’s lawyer submitted that “Tamils are treated inhumanely and in a discriminatory way in the prison system”.

28    At TR [46], the Tribunal addressed those matters and said this:

There are reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka’s prison system. In 2002, Freedom from Torture reported that “those at particular risk included Tamils with an actual or perceived association with the LTTE including those returning from abroad [Freedom from Torture, 2012, “Sri Lankan Tamils tortured on return from UK”, 13 September]. For the reasons set out above, the Tribunal does not accept that the applicant will be perceived to have an association with the LTTE which would cause him to be targeted whilst in custody. The evidence before the Tribunal does not indicate that Tamil refugees who have been charged with illegal departure and remained in custody have been tortured or suffered other serious harm whilst on remand.

[emphasis added]

29    As to the question of prison conditions in Sri Lanka, the Tribunal accepted that prison conditions are “poor and do not meet international standards”. At TR [51] the Tribunal accepted that the appellant would be remanded for a short period of time of between one and several nights. However the Tribunal did not accept that a relatively short period of remand “amounts to an act or omission by which severe physical or mental pain or suffering [would be] intentionally inflicted on the [appellant]”. Nor did the Tribunal accept that such a period of remand constituted an act “which could reasonably be regarded as cruel or inhuman in nature of an act or omission which is intended to cause extreme humiliation which is unreasonable”: TR [51]. At TR [52] the Tribunal expanded upon the notion of cruel or inhuman treatment or punishment intentionally inflicted. The Tribunal examined the content of the notion of degrading treatment or punishment intended to cause extreme humiliation. Having examined those matters, together with the matters earlier mentioned, the Tribunal said this at TR [53]:

For the reasons set out above, the Tribunal finds that a short period of remand on return to Sri Lanka does not give rise to substantial grounds for believing that the applicant faces a real risk of significant harm in the form of torture or cruel or inhuman or degrading treatment or punishment. The Tribunal also finds, for the reasons set out above, that there are not substantial grounds for believing there is a real risk the applicant will be arbitrarily deprived of his life whilst on remand and the death penalty does not arise on the facts.

[emphasis added]

30    The Tribunal also concluded on the basis of country information that should the appellant be convicted of an offence of illegal departure under the Act earlier described, the penalty likely to be imposed is a fine, and that the likelihood of a prison sentence is remote and not a real risk. Thus the Tribunal was satisfied that, as to this matter, the possibility of conviction and a fine did not give rise to a real risk that the appellant would suffer significant harm upon return to Sri Lanka.

31    The Tribunal also concluded that it could not be satisfied that the appellant held a well-founded fear of persecution for any of the reasons identified by the appellant whether considered “separately or cumulatively”: TR [55].

32    Because the Tribunal could not be satisfied that there were substantial grounds for believing there existed a real risk that the appellant would suffer significant harm for any of the reasons identified or claimed by the appellant, the Tribunal was not satisfied that the appellant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

33    Against that background it is now necessary now to consider the five new grounds of appeal to this Court. Although each ground recites that the Federal Circuit Court erred by failing to find jurisdictional error on the part of the Tribunal by reason of the identified matters, the real position is that these matters were not agitated before the primary judge at all.

34    By Ground 1, the appellant says that the Tribunal applied the incorrect test in determining the question of “significant harm” under s 36(2)(aa) of the Act.

35    The appellant says that the Tribunal accepted that he was likely to be imprisoned upon return; country information referred to by the Tribunal established that prison conditions in Sri Lanka contravene the prohibition on cruel, inhuman or degrading treatment or punishment under international law; and the Tribunal accepted that prison conditions in Sri Lanka are “poor and do not meet international standards”.

36    The appellant says that, having regard to those matters, the Tribunal erred in finding that cruel or inhuman treatment or punishment, as an instance of significant harm under s 36(2)(aa) of the Act, requires “an intention” on the part of the Sri Lankan authorities to cause harm to the appellant, and erred in observing that “mere negligence” or” lack of resources” is insufficient to give rise to cruel or degrading treatment for the purposes of the Act.

37    At TR [52], the Tribunal observed that mere negligence or lack of resources is not sufficient to give rise to cruel or inhuman or degrading treatment or degrading punishment under Australian law. The Tribunal also observed that the poor prison conditions in Sri Lanka are due to a lack of resources (acknowledged by the government) and steps were being taken to improve those conditions. The Tribunal also observed that these poor prison conditions are not an expression of an intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment or cause extreme humiliation: TR [52]. That being so, the Tribunal could not be satisfied of a subjective intention on the part of the Sri Lankan government to cause the relevant statutory harm for the purposes of s 36(2)(aa). That was the correct test to apply: SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936; 347 ALR 405, Kiefel CJ, Nettle and Gordon JJ at [26] and [27]. At [26] the plurality said this:

The reference in the Act to “intentionally inflicting” and “intentionally causing” is to the nature and ordinary meaning of the word “intends” and therefore to actual, subjective, intent. As Zaburoni confirms, “a person intends a result when they have the result in question as their purpose.

[emphasis added].

38    Moreover, the Tribunal concluded that the appellant was likely to be in remand for a relatively short period. Quite apart from the limited period of time in which the appellant might be in remand, it is clear that the Tribunal was not satisfied about the element of intention.

39    Ground 1 must necessarily fail.

40    Ground 2 contends that the Tribunal fell into jurisdictional error in failing to apply the correct test in determining whether the appellant faced a well-founded fear of persecution for the purposes of s 36(2)(a) of the Act. The appellant says that the Tribunal accepted that he and his family had provided support for the LTTE by allowing its members to stay in their vacant house. The appellant says that the Tribunal relied upon country information to conclude that Tamils who were not members of the LTTE but who had provided “a low level of support” for the LTTE are at “a low risk” of being detained or prosecuted. The appellant says that the Tribunal, having accepted that the appellant faced, at least at a minimum, a low risk of prosecution, fell into jurisdictional error in reaching a finding that the appellant did not face, for that reason, “a real chance of persecution” for the purposes of s 36(2)(a) of the Act.

41    The appellant also puts this ground in the alternative on the footing that the Tribunal fell into jurisdictional error by failing to “acquit its statutory task of review” by failing to give “proper consideration” to whether the level of risk of harm accepted by the Tribunal amounted to “a real chance” of persecution under the Act.

42    As the review of the Tribunal’s findings set out above reveals, it is correct to say that the Tribunal accepted that in 2009 the appellant’s family allowed two members of the LTTE to stay, for two weeks, in a house they owned: TR [15] and [16]; [16] of these reasons. It can properly be said, as the appellant contends, that once the Tribunal concluded that the appellant was a person who was at a risk of detention or prosecution, albeit a low risk, the Tribunal as part of its statutory review function was required to consider whether that low risk was “a real risk” of “serious harm”. In other words, did the Tribunal consider whether there was a real risk of serious harm due to the feared detention or prosecution of the appellant even though the risk of detention or prosecution was characterised, on the facts, as a low risk (thereby discharging its statutory function).

43    Plainly, the degree of risk is, itself, an element of whether the risk is a real risk of serious harm. At TR [17], the Tribunal considered the question raised at [42] of these reasons. The Tribunal there considers why, in its view, the appellant was not at a real risk of serious harm. Part of the reason was that he faced only a low risk of detention or prosecution. The Tribunal considered the appellant to be within a class of persons who suffered that low risk rather than a person specifically singled out by authorities. The second consideration was that “the LTTE was a spent force by 2012” and the focus of the authorities was on LTTE members, fighters or operatives or [those] responsible for financing the LTTE and supplying it with arms.

44    At TR [14] the Tribunal notes the appellant’s evidence before the Tribunal that neither he nor his parents were questioned about, or detained in relation to, their LTTE links at the end of the conflict in 2009 which suggested to the Tribunal that the appellant and his parents were not suspected of an LTTE association at that time. At TR [17], the Tribunal again notes that neither the appellant nor his family were questioned in relation to suspected LTTE links in 2009 and the Tribunal did not accept that they were of any interest to authorities in 2012 simply because “LTTE members [had] stayed in a relative’s house for two weeks in 2009” [emphasis added].

45    It can be seen that the Tribunal evaluated the facts as put to it and rejected the basis for the appellant’s claim. The Tribunal did not misconceive the test and did not fall into jurisdictional error in the way suggested. Once the Tribunal rejected the factual basis for the claim, it was open to the Tribunal to conclude that the appellant was not at a real risk of significant harm.

46    Accordingly Ground 2 is not made out.

47    By Ground 3 the appellant says that the Tribunal failed to apply the correct test in determining the appellant’s claim for complementary protection under s 36(2)(aa) of the Act.

48    The appellant says that the Tribunal assessed this claim only by reference to the Convention grounds rather than undertaking an assessment of the appellant’s personal circumstances regardless of any Convention nexus. As to that, the appellant says that the Tribunal framed, at TR [10], the issue as one of whether the appellant would be harmed because of his race or religion or his status as an asylum seeker. The appellant says that the Tribunal found, at TR [30] that he did not face a real risk of serious harm “arising from his race”. The appellant says that the Tribunal found, at TR [32], that he did not face a real risk of serious harm “because of his religion”. The appellant also says that under the heading “Complementary protection assessment” at TR [56], the Tribunal found that there were not “substantial grounds for believing that there is a real risk that the [appellant] will suffer significant harm arising from his race or religion or imputed link with the LTTE, his status as a Tamil returnee or failed Tamil asylum seeker or Tamil person who may be charged with departing Sri Lanka illegally” [emphasis added].

49    It is undoubtedly true, as the Minister accepts, that at TR [56] of the Tribunal’s reasons, the Tribunal focuses upon a collection of factors which frame the claims of the appellant related to the Convention grounds which go to the question of whether the Tribunal could be satisfied that the appellant holds a well-founded fear of persecution having regard to those claims. However, the Tribunal also said this at TR [56]: “The Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the [appellant] being removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm”. Clearly, that conclusion is in addition to the matters recited in the first part of TR [56]. Nevertheless, the observation in that sentence, as just quoted, is conclusionary. The question is whether the Tribunal, in addressing the claims for complementary protection, reasoned to that conclusion.

50    Consideration of the Tribunal’s reasons shows that the Tribunal understood and recognised that apart from the appellant’s claims based on a contended well-founded fear of persecution on the four Convention grounds advanced before the Tribunal, the appellant also contended that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there was a real risk that the appellant would suffer significant harm because the appellant would be subjected to cruel or inhuman treatment or punishment. To the extent that the latter claim was based upon any of the factors otherwise described as a Convention ground, the Tribunal rejected the foundation for those claims. To the extent that the claim to complementary protection was related to his illegal departure from Sri Lanka or his return to Sri Lanka as a person falling within a group or class of “returning failed asylum seekers”, or both, the Tribunal rejected the foundation for the claim that the appellant was at risk of harm which could be described as “significant harm”.

51    In reaching that conclusion, there can be no doubt that the Tribunal correctly understood the content of the term “serious harm” and applied its mind to assessing the factual foundation of the appellant’s claims, against the background of that understanding.

52    To restate the conclusion, the Tribunal reasoned to a position where it found that there was no risk of harm in the degree required so as to constitute “significant harm” and, as to the likelihood of the appellant’s short period of remand, the Tribunal was satisfied that the Sri Lankan authorities did not hold the relevant intention, as earlier described, even should it be the case that in the short period of the appellant’s potential detention as a returning failed asylum seeker, he became exposed to “poor prison conditions which do not meet international standards”.

53    No jurisdictional error, as contended for by Ground 3, is made out.

54    By Ground 4, the appellant says that the Tribunal fell into jurisdictional error by failing to consider his claims “cumulatively”.

55    The appellant says that the Tribunal accepted, as having occurred, a series of factual claims put to it by the appellant, and although the Tribunal found that those claims, as accepted, did not give rise to an imputed political opinion as a person assumed to be associated with the LTTE, the Tribunal failed to go on and consider whether the cumulative effect of those accepted examples could give rise to an imputed political opinion.

56    The appellant also says that the Tribunal failed to consider the cumulative effect of two or more of his claims going to race, religion, status as a failed asylum seeker and his status as a person who had departed Sri Lanka illegally, on the one hand, and the connection with the LTTE which was accepted by the Tribunal (the two week use of the house by LTTE members), on the other hand, so as to determine whether, cumulatively, the Tribunal could be satisfied that the appellant held a well-founded fear of persecution notwithstanding that each factor, considered in isolation, did not give rise to the relevant state of statutory satisfaction in the Tribunal.

57    The appellant also says that the Tribunal failed to consider whether the cumulative effects of two or more of the appellant’s individual circumstances gave rise to a real risk of significant harm as a necessary and foreseeable consequence of the appellant being removed from Australia that would not have satisfied the Tribunal when considered in isolation.

58    The Minister accepts, unsurprisingly, that if an applicant makes a claim that the cumulative effect of a series of identified factors gives rise to a risk of serious or significant harm, the Tribunal has an obligation to consider such a claim as a necessary part of its statutory review function under the Act. The Minister says, in effect, that the first question is whether such a claim arises. Whether it does so depends upon the claims made, directly or inferentially, before the Tribunal. Any such claim must be considered in light of the material put before the Tribunal. The Minister says that in a submission to the Tribunal dated 30 July 2014, the appellant’s lawyers asserted that the appellant feared persecution by reason of his Tamil race; his actual and imputed political opinion (as earlier described); and his membership of a particular social group described as failed asylum seekers involuntarily returned to Sri Lanka. The appellant’s lawyers then immediately said this in their submission: “The above grounds must be considered both separately and cumulatively in assessing whether or not the [appellant] faces a real chance of persecution”.

59    The Minister correctly says that the submission does not then articulate how the aggregation of factors, now relied upon by the appellant, would lead to a risk of harm should he return to Sri Lanka.

60    As to the issue of jurisdictional error in failing to consider the cumulative effect of the individual factors, these findings need to be kept in mind.

61    First, the Minister points out, correctly, that the Tribunal did not accept that the appellant was at risk of harm on account of his religion. As to that, see [21] of these reasons and TR [32].

62    Second, as to the question of whether the appellant was suspected of having involvement with the LTTE and whether the appellant would have imputed to him a particular political opinion by reason of suspected involvement with the LTTE or views sympathetic to the objectives of the LTTE, the Tribunal considered the factual foundation for those claims and reasoned to a position in which it did not accept the claims. As to that see [14] to [19] of these reasons and TR [14] to [19].

63    Third, as to the question of whether the appellant was at risk of relevant harm by reason of his status as a failed asylum seeker returned involuntarily to Sri Lanka or as a person having departed Sri Lanka unlawfully, the Tribunal did not accept those claims for the reasons identified in these reasons. As to that see [22] to [30] of these reasons; TR [38] and TR [46] to [54].

64    Fourth, the Minister correctly points out that for the reasons identified at TR [21] to [29], the Tribunal reasoned to a conclusion at TR [30] that it could not be satisfied that the appellant faced a real chance of serious harm in Sri Lanka as a Tamil or a Tamil from the north or a real risk of significant harm arising from his race.

65    Fifth, the Minister says that other than an assertion by the lawyers for the appellant, as set out at [56] of these reasons, there was nothing in the material before the Tribunal that suggested that the cumulative claim was anything other than the effect of the constituent parts of the appellant’s various claims. The Minister says that each constituent part was addressed by the Tribunal. The difficulty for the appellant in sustaining this ground of jurisdictional error is that, as the Minister correctly observes, the Tribunal was not required to consider the cumulative claim now advanced as a ground of appeal, because the cumulative claim could not be sustained once the Tribunal found that the appellant would not be imputed with the relevant political opinion or that the appellant was not at risk of harm due to his ethnicity or religion or membership of a particular social group as claimed. In other words, the essential elements of the cumulative claim were simply not sustained. Thus, this case is not that class of case where the factual elements individually were found to be sustained but notwithstanding that, the Tribunal could not be satisfied that each separate claim gave rise to the relevant state of satisfaction, yet when taken cumulatively, the relevant state of satisfaction might arise. In this case the foundation claims were not accepted based on reasoned conclusions.

66    The Tribunal at TR [55] under the heading “Refugee Assessment” reaches its summary of conclusionary findings. Those findings are reached on the reasoning set out in the decision. The Tribunal at TR [55] says this: “The Tribunal finds that the [appellant] does not have a well-founded fear of persecution in Sri Lanka because of his race or religion or imputed political opinion or as a member of a particular social group of Tamil returnees or failed Tamil asylum seekers or Tamils who left Sri Lanka illegally, separately or cumulatively. The Tribunal, no doubt, added those particular words at the end of that sentence in order to recognise that the written submission from the appellant’s lawyers had added one sentence asserting the Tribunal’s obligation to assess the claims “both separately and cumulatively”.

67    As earlier mentioned, the cumulative claim was not developed by the appellant or by his then lawyers. The Tribunal in its reasons does not separately analyse or reason to a conclusion about a cumulative claim. However, there was no obligation on the part of the Tribunal to address a cumulative claim made up of elements which had been rejected as the source of a protection obligation. Thus, there was no failure on the part of the Tribunal to discharge its review function. The Tribunal recognised that a cumulative claim had simply been asserted and recognised in its conclusion that no such claim could be sustained once the foundation elements of it were rejected: see W352 v Minister for Immigration [2002] FCA 398 at [26], French J.

68    By Ground 5, the appellant says that the Tribunal fell into jurisdictional error by failing to consider one or more integers of the appellant’s claim.

69    As to that, the appellant says that the Tribunal failed to consider his claim that two people from his village had been killed by unknown persons and four people from a neighbouring village had been kidnapped or killed in the period May to June 2012 which prompted the appellant’s mother and step-father to fear that the appellant would also be targeted. The appellant says that these events prompted him to flee Sri Lanka. The appellant says that the Tribunal erroneously observed at TR [21] that the appellant had claimed that the abductions and killings had taken place “before the end of the conflict” and the Tribunal accepted that those events had occurred “during the conflict”. The appellant says that, as a result of that factual error, the Tribunal failed to consider the claim that was “actually made” by the appellant, namely, that the abductions had occurred in the period May to June 2012 and those events, at that time, had caused him to “fear persecution” and to “flee Sri Lanka”: Ground 5(a).

70    The appellant also says that the Tribunal failed to consider the appellant’s claim that “the white van group comes and shoots you” when they discover that [you] have fled the country: Ground 5(b).

71    The Minister opposes the grant of leave to rely upon Ground 5(a). Should leave be given, the Minister seeks to rely upon the affidavit of Ms Demiris sworn 15 February 2018 as earlier mentioned.

72    At TR [21] the Tribunal said this under the heading, Race:

The applicant stated that, as a Tamil, he has had no human rights in Sri Lanka. He stated that the [Sri Lankan Army] came into the village during the conflict, took villager’s ID cards and lined them up to be viewed by masked men. The Tribunal accepts that this sort of security round-up and search for LTTE operatives occurred during the war. The applicant also stated that four villagers from a neighbouring village and two people from his village were abducted before the end of the conflict. The Tribunal accepts that these events occurred during the conflict.

73    I grant leave to the appellant to rely upon Ground 5(a). I also grant leave to the Minister to rely upon the affidavit of Ms Demiris. Ms Demiris is a lawyer employed by Clayton Utz, the solicitors for the Minister. Ms Demiris says that on 14 February 2018 she reviewed files received by Clayton Utz from the Department of Home Affairs in relation to these proceedings. Ms Demiris identifies a file containing the audio recording of the hearing attended by the appellant before the Tribunal on 21 April 2015 in relation to the Tribunal’s review of the decision of the Minister’s delegate to refuse the appellant’s application for a Protection visa. Ms Demiris says that on 14 February 2018 she listened to the entirety of the audio recording of the hearing. Ms Demiris sets out in her affidavit a transcript of an exchange between the Tribunal and the appellant (with the assistance of an interpreter at the hearing) which occurred from about 55 minutes and 9 seconds into the audio recording to about 56 minutes and 35 seconds of that recording. The relevant transcript is as follows:

Tribunal:    Okay, now in your statement you’ve also referred to abductions and killings from neighbouring villages.

Appellant:    Yep.

Tribunal:    And, when did those … you said that there were four neighbours, no you said there were four members from neighbouring, four people from neighbouring villages who were abducted.

Appellant:    Yep.

Tribunal:    Yep, and that two people from your village were killed.

Appellant:    Yep.

Tribunal:    Okay. And so when did these occur?

Appellant:    I don’t know the dates but I know it happened at some point.

Tribunal:    Was it before or after the Army questioned you?

Appellant:    Before.

Tribunal:    Was it before the end of the war or after?

Appellant:    Before.

Tribunal:    Before the war ended. Okay.

74    I accept that the best evidence of the position adopted by the appellant on this factual question is the position reflected in the transcript. I am satisfied that the Tribunal properly understood the factual position being put to it by the appellant.

75    Ground 5(a) is not made out.

76    As to Ground 5(b), the reference to “the white van group comes and shoots you” finds its origin in answers given by the appellant in Pt C of a document described as “Irregular Maritime Arrival Entry Interview”. In Pt C, in answer to the question: “Were there any armed groups, political groups, or religious groups operating in the area you lived? (Question 7), the appellant answered “yes” and provided the following details: “UNKNOWN ARMED GROUP – they would make you go to the check-points and come in white vans to take you”. At Question 18, under the heading “Reasons Not To Return To Country Of Nationality”, the following question is asked: “What do you think will happen to you if you return to your country of nationality (residence)?” In answer to that question, the appellant said this:

Because they think I was helping LTT[E], if I go back they will think that it is proof I was involved because I fled the country; when they find this out the WHITE VAN GROUP comes and shoots you.

77    A further question was asked of the appellant as an aspect of Question 18 and it was this: “Q:  Anything else you think might happen to you if you return?” The appellant answered: “We have problem with the ARMY – they would have further inquiries into our connection to LTT[E]; and because I left JAFFNA without permission they will think I am guilty and I don’t know what might happen to me or my family but I think it will be something”.

78    The appellant was also asked: “Is there anything I have not asked you that you would like to say?” He answered “no” to that question.

79    The appellant says that the Tribunal failed to consider this factual claim concerning the “White Van Group” and its conduct of shooting people, as a basis for a Protection visa. The particular difficulty with this ground is that although the allegation was made in the interview as a response to the questions identified above, no further mention is made of these factual assertions either in materials submitted to the department or material put to the Tribunal by the appellant nor, importantly, by the lawyers acting for the appellant in their written submissions.

80    That being so, it is difficult to identify whether these factual assertions are being put forward as a basis for a well-founded fear of persecution in support of one of the Convention grounds relied upon by the appellant or whether it is relied upon in support of claims under s 36(2)(aa) or both. The question then is this: what was the Tribunal to do with this factual assertion. No emphasis was given to it in any of the material and no attempt was made to show its relationship with any ground upon which the appellant sought a Protection visa.

81    I accept that a necessary element of the answer (particularly to Question 18) is that the appellant was asserting that he had a basis for a fear for his life on the footing that a group described as the White Van Group would seek him out upon his return to Sri Lanka on the basis that because he had fled Sri Lanka he must be a person who has, or had, political opinions supportive of or sympathetic to the LTTE, or perhaps the White Van Group might be a group that seeks out, and seeks to harm, persons of the ethnicity of the appellant. I also accept that the appellant in making such a claim was asserting a fear from this group on the footing that the group was, he believed, associated with either, directly or indirectly, and either actually or in a de facto sense, Sri Lankan authorities.

82    The difficulty with Ground 5(b) is that the Tribunal dealt with a claim that the appellant held a well-founded fear of persecution from Sri Lankan authorities on the ground of feared imputed political opinion and by reference to the appellant’s ethnicity. It examined both of those claims quite comprehensively and reasoned to a conclusion that it could not be satisfied that the appellant held a well-founded fear of persecution related to those Convention grounds. The Tribunal also considered the question of whether protection obligations might be owed to the appellant on the ground of his membership of a social group of failed asylum seekers and Sri Lankan nationals who have departed Sri Lanka illegally. It might be that an element of the appellant’s claims relating to the conduct of what he describes as the White Van Group, concerns conduct which has a relationship with his membership of a group of failed asylum seekers who have departed Sri Lanka illegally and have been involuntarily returned to Sri Lanka. That ground was also addressed by the Tribunal and it came to a reasoned conclusion about that matter.

83    It is true that the analysis of the facts, in the course of the reasoning, does not address a factual contention that there is a group, moving about in a white van, who engage in the conduct of shooting people when the group finds out that a particular returning person has earlier fled Sri Lanka, on the assumption that persons who have fled Sri Lanka are people who “helped the LTT[E]”. However, those particular facts although contained in an answer to two questions, were not expressly put to the Tribunal or even mentioned as facts material to the grounds upon which the claims were made. The facts upon which the claims were made were analysed by the Tribunal and the claims, resting upon those facts, were not accepted. The Tribunal did not fall into jurisdictional error by failing to expressly deal with the factual assertion contained in the answers to Questions 7 and 18 of the Interview document. The appellant’s lawyer did not attach any significance to the statements contained in answer to Questions 7 and 18 or assert those factual matters as facts supporting the contended grounds. In this context the observations of French, Sackville and Hely JJ in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] should be noted: “It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written submissions”: see [46] generally. This proposition is even more true in circumstances where no emphasis is given to the fact by the appellant or the appellant’s lawyers in the written submissions. The factual matter here rises no higher than a statement in an answer which was taken no further by either the appellant or his then lawyer in the course of the proceedings before and engaging the Tribunal. Ground 5(b) must be rejected.

84    The appellant has not made good any grounds of the appeal. The appeal must be dismissed with an order that the appellant pay the costs of the first respondent of and incidental to the appeal.

Associate:

Dated:    2 July 2018