FEDERAL COURT OF AUSTRALIA

ASD16 v Minister for Immigration and Border Protection [2018] FCA 1165

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

TRACEY J:

1    The appellant, ASD16, appeals from a judgment of the Federal Circuit Court (“the FCC”) which dismissed his application for judicial review of a decision of the then-Refugee Review Tribunal (“the Tribunal”). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection (“the Minster”) to refuse to grant him a protection visa under the Migration Act 1958 (Cth) (“the Act”).

2    The appellant is a citizen of Sri Lanka. His religion is Hindu. He departed Sri Lanka illegally and entered Australia by boat in June 2012. He made a claim for asylum in November 2012. His claimed to fear persecution in Sri Lanka on the basis of being a Hindu Tamil male from the East, having imputed links to the Liberation Tigers of Tamil Eelam (“the LTTE”), being a person who left Sri Lanka illegally, and being perceived on return to Sri Lanka as a failed asylum seeker. He claimed that he would be tortured on return to Sri Lanka by the country’s security apparatus during any detention he might face.

3    A delegate of the Minister rejected his application for a protection visa in January 2014. He sought review of that decision by the Tribunal. A hearing was held on 28 October 2015 where he was assisted by his registered migration agent and an interpreter. On 7 March 2016 the Tribunal affirmed the delegate’s decision.

4    The appellant applied to the FCC for judicial review of the Tribunal’s decision. His application was dismissed by the FCC on 1 December 2016: see ASD16 v Minister for Immigration and Border Protection [2016] FCCA 3091. The appellant’s grounds of appeal to this Court replicate those that were before the FCC.

GROUND 1(A)

5    Ground 1 alleged that the FCC had erred in failing to find that the Tribunal fell into jurisdictional error by failing to consider relevant material or a relevant consideration, or an integer of the claim, or a material question of fact. This ground originally had three particulars. Ultimately only two were pressed.

6    The first particular was that the Tribunal had noted evidence from the Australian Department of Foreign Affairs and Trade (“DFAT”), including that a family member as guarantor was needed for a returned failed asylum seeker to be released on bail, but failed to consider whether a member of the appellant’s family would be willing and able to do so, and, if not, the implications for the length of time he may stay in prison and the risk of him suffering serious harm amounting to persecution, or significant harm, by the length of time he was deprived of liberty in poor conditions in prison, or by ill treatment in prison.

ASD16’s submissions

7    ASD16 submitted that the Tribunal must consider each necessary and relevant consideration: see, eg, Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 (Mason J). It was also obliged to consider every integer of the claim: SZSZW v Minister for Immigration and Border Protection (2015) 150 ALD 465 at 468-470; [2015] FCA 562 at [13]-[18] (Perry J). It must consider a material question of fact, squarely raised by the material before the Tribunal: see Dranichnikov v Minister for Immigration and Citizenship (2003) 197 ALR 389 at 394; [2003] HCA 26 at [24] (Gummow and Callinan JJ), [95] (Hayne J agreeing). Failure to do so constitutes a failure to discharge the Tribunal’s jurisdiction.

8    He submitted that the Tribunal’s statutory task as an inquisitorial tribunal means that it “must act according to substantial justice and the merits of the case” (s 420), has the power to seek information (s 424), has an obligation to give particulars of information (ss 424AA and 424A), and has an obligation to invite an applicant to a hearing to give evidence and present arguments. Its statutory task necessarily includes having regard to the information before it. An error about this information and a failure to have regard to it, therefore, can be an error of law and a jurisdictional error: Applicant M190 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1362 (Finkelstein J).

9    The Tribunal, he submitted, is obliged by s 340 to provide a written statement of its decision, reasons, findings on material questions of fact and to refer to the evidence on which those findings were based. As Gleeson CJ said in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 330; [2001] HCA 30 at [5]:

When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal’s decision, in the light of the statutory requirements contained in s 430. The Tribunal is required, in setting out its reasons for decision, to set out “the findings on any material questions of fact”. If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material.

(Emphasis added.)

10    ASD16 noted that the Tribunal had accepted recent DFAT Country reports at [61]. This material identified two conditions for bail: “in most cases, returnees have been granted bail on personal recognisance by the magistrate, with the requirement for a family member to act as guarantor”, and “[s]ometimes returnees then need to wait until a family member comes to court to collect them” (at [34]).

11    He submitted that the Tribunal had referred to this material when it said (at [63]): “I accept and give weight to the evidence about many people remanded and charged under the I & E Act being allowed to go free even without their families being required to come and collect them.” Despite this the Tribunal had failed to consider whether the other condition would be met, namely whether the appellant had a family member who was able to act as a guarantor.

12    ASD16 submitted this was a necessary question raised for the Tribunal on the DFAT material. If there was no such family member, then bail would likely be denied or delayed. This would mean more time in prison. The short period of prison time (which was dependant on the availability of a family member to act as guarantor) was a “crucial link” in its reasoning (at [63] and [79]) that he would not suffer persecution or significant harm during this process. This was the same error which was evident in Minister for Immigration and Border Protection v SZTQS (2015) ALD 507; [2015] FCA 1069.

The Minister’s submissions

13    The Minister noted that the Tribunal’s reasons referred to country information that provided that most failed asylum seekers who returned to Sri Lanka were questioned and, if they had departed illegally, charged under the Immigration and Emigration Act. They were not given custodial sentences but were often fined. They would be in custody until being released on bail. This was usually granted on personal recognisance with a family member as a guarantor.

14    The Minister submitted that this information had been put to the appellant. In particular, it had been put to him that detention for most returnees was “intended to be brief and aimed at processing them for bail at the earliest opportunity”: at [53]. The Tribunal’s reasons record that “ASD16 did not rebut any of the DFAT material that [the Tribunal] summarised, and he said that this information is commonly known”: at [54]. The Tribunal found that, although he might be in custody for a short period, he would “very likely be granted bail on no steeper condition than personal recognisance”: at [63].

15    It was evident, he said, that the appellant was aware of the information about detention and bail. He had raised no concern in response. This was sufficient to distinguish SZTQS. That case turned on its own facts, namely that money was required to be paid as a surety to secure the person’s release because of a previous outstanding charge. It did not follow that the Tribunal had erred in this instance: see SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 at 425-426; [2015] FCAFC 175 at [76]-[78] (Robertson and Kerr JJ). Here, as in SZTAP, the need for surety and the payment of money were not critical: at [79]-[80].

16    The Minister relied upon BEV15 v Minister for Immigration and Border Protection [2016] FCA 507. In that case Bromwich J held that the Tribunal had not erred in dealing with the question of bail. It had put to the appellant DFAT country information about detention and bail. The appellant was on notice of the Tribunal’s assumption that bail would be granted. He had an opportunity to make submissions on this point but “at no stage did he raise any problem with having a family member being a guarantor for bail, despite that being a requirement known to him via his advisors” (at [53]). This case, the Minister said, was analogous to the present proceeding. The primary judge was correct in finding at [10] that the Tribunal had not erred.

Consideration

17    The paragraphs of the Tribunal’s reasons, on which the Minister relies to support the proposition that the Tribunal put to the appellant that he would be bailed on a personal recognisance and that a familial guarantor would be required, were:

53.    … I put to him the DFAT information cited above relating to the I & E Act [Immigrants and Emigrants Act] being a law of general application enforced in a non-discriminatory way in regard to all returned illegal emigrants. I put to him that remand in the case of returnees, although potentially crowded and unsanitary, was evidently intended to be brief and aimed at processing them for bail at the earliest opportunity, the ultimate penalty merely being a monetary fine.

54.    [ASD16] did not rebut any of the DFAT material that I summarised, and he said that the information is commonly known. He said, however, that things are different “at the local level” and said that many people who returned to Sri Lanka have been subjected to pressures. He said the CID [Central Intelligence Department] might arrest, interrogate or torture a person after he or she has retuned home, but it depended on the individual case. I asked him why he thought he might be such a case, and he said the CID would suspect he had helped the LTTE. I asked him to be specific about the help he might be perceived to have provided. I asked him if he had been involved in any political activities in Australia and he said he had not. He said he might be suspected of having helped the LTTE because he had lived in an area formerly controlled by the LTTE.

18    I take the reference to “the DFAT information cited above” at [53] to be a reference to the extract of the DFAT Country Report dated 16 February 2015 which was quoted at [34] of the Tribunal’s reasons. Among the paragraphs quoted from that report were the following:

5.27    Most Sri Lankan returnees from Australia are questioned by police on return and, where an illegal departure from Sri Lanka is suspected, are charged under the I & E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo international airport. As part of this process, most returnees will have their fingerprints taken and be photographed. They are transported by police to the Magistrates Court in Negombo at the first available opportunity after investigations are completed, when custody and responsibility for the individual shifts to the courts or prison services. The Court makes a determination as to the next steps for each individuals. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time — for example, because of a weekend or public holiday — those charged are held at the nearby Negombo Prison.

5.28    DFAT was informed in March 2014 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was just a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future. The Magistrates Court in Colombo typically levies fines of around 5,000 Sri Lankan Rupees (around AUD 40) for persons attempting to depart Sri Lanka irregularly on boats. However, in Negombo, the magistrate, who handles a large number of these cases, typically levies fines of around 50,000 Sri Lankan Rupees (around AUD 400) to act as a deterrent. In most cases, returnees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor. Sometimes returnees then need to wait until a family member comes to court to collect them.

(Emphasis added.)

19    At [63] the Tribunal found as follows:

I accept and give weight to the evidence about many people remanded and charged under the I & E Act being allowed to go free even without their families being required to come and collect them. I find on the independent evidence that [ASD16] would very likely be granted bail on no steeper condition than personal recognisance. I find for want of evidence on the contrary, that the fine in involved would not be so onerous as to amount to persecution.

20    The FCC dealt with this ground at [10] of its reasons. It stated:

The [M]inister draws attention to [53] where the Tribunal records putting the country information to the applicant and went on to record at [54] that the applicant did not rebut that information but said it might be different for him because he would be suspected to have helped the LTTE. The Tribunal rejected the applicant’s contention about being imputed as having links to the LTTE. I accept the Minister’s submissions that the applicant had the opportunity to raise the issue of bail. Also most significantly it is clear that the applicant’s advisor had the DFAT February 2015 report as his advisor refers to it in his written submissions. Therefore if the issue of bail and the availability of a family member was of concern to him he had ample opportunity to raise that issue both in the written submissions made prior to the Tribunal hearing and at the Tribunal hearing itself. The applicant was aware of this issue given his representative’s written submissions which refer to the country information.

21    In BEV15 Bromwich J considered a case in which the Tribunal had put to an applicant country information which indicated that the provision of a guarantee might be required. At [53] his Honour stated:

I agree with the Minister’s submission that the provision of a guarantee was not a crucial plank in the Tribunal’s reasons. It is, however, an implication flowing from the assumption that bail would be granted, based on country information known to the appellant via his advisors. The appellant was squarely on notice of that assumption because it was directly raised with him, as evidenced in the extract of the transcript reproduced by the primary judge at [7] of his reasons, and also reproduced at [15] above. He was given an opportunity to address the issue of bail being granted in post-hearing submissions, and took advantage of that opportunity. At no stage did he raise any problem with having a family member being a guarantor for bail, despite that being a requirement known to him via his advisors. The opportunity to make those submissions arose directly from the Tribunal’s indication that the country information indicated that the appellant would be likely to be released on bail, rendering a risk of harm remote.

22    As noted the Minister submitted that BEV15 was not relevantly distinguishable from the present case and that the primary judge was correct in finding at [10] that the Tribunal had not erred.

23    It may be accepted that, unlike in BEV15, the appellant did not make any post-hearing submissions about the question of bail. However, the appellant did make some submissions during the hearing that this information is commonly known but that things are different “at the local level” (at [54]). It may also be accepted (as the primary judge did at [8]) that there was no transcript of the Tribunal hearing before the FCC which records what was actually said by the Tribunal member to the appellant during the hearing. Nevertheless its decision record (at [53] when read with [34]) makes it tolerably clear that it did put ASD16 on notice as to the country information about bail and the need for a family guarantor.

24    Further, as the FCC found (at [10]), the appellant’s registered migration agent was in possession of the relevant DFAT report. In the written submissions dated 19 October 2015, made by the appellant’s migration agent to the Tribunal, reference is made at p 5 to the DFAT Country Report on Sri Lanka dated 16 February 2015. Paragraphs 5.24 and 5.26 of the report are quoted in the submissions, being the paragraphs which immediately precede those containing the information about bail (see above at [18]).

25    This ground must fail.

GROUND 1(B)

26    As noted Ground 1 alleged that the FCC had erred in failing to find that the Tribunal fell into jurisdictional error by failing to consider relevant material or a relevant consideration, or an integer of the claim, or a material question of fact.

27    The second particular was that the Tribunal had failed to consider the risk to the appellant of being followed up and suffering torture in his home area as part of the general pattern of such abuse. This claim, it was alleged, had been put in submissions to the Tribunal supported by detailed reports from independent sources.

ASD16’s submissions

28    ASD16 accepted that the Tribunal had considered whether the appellant might be at risk of being followed-up and suffering torture in his home area. However, he submitted, it had impermissibly confined its consideration. This was because it had rejected certain claims. This was said to be evident from its reasons at [66].

29    The material which he had put before the Tribunal, he submitted, went beyond evidence of targeted harm. It included evidence of torture or other serious harm as part of the general state of affairs. This evidence came from the US State Department, DFAT, Human Rights Watch, the United Nations High Commissioner for Refugees (“UNHCR”), the Edmund Rice Centre and the Immigration Review Board of Canada. The US State Department material, which was from 2013, referred to torture by the police. DFAT’s Country Report on Sri Lanka, dated 16 February 2015, referred to torture by security forces. The DFAT report also stated that “incidents of torture are not confined to any particular ethnic, religious or political group”. Human Right Watch’s World Report 2013 made particular reference to the torture of Tamils. Arrest after leaving the airport had been noted as a practice by the Immigration Review Board of Canada. This information was emphasised in the written submissions made by the appellant’s migration agent to the Tribunal.

30    ASD16 submitted that the Tribunal had considered the prospect of targeted torture or harm on the basis of the appellant’s profile with the authorities (or lack thereof). In doing so it had failed to consider the risk of being followed-up and suffering torture as part of the general pattern of such abuse. It had failed to do so even though this had been expressly put in written submissions supported by detailed reports from independent sources. The material explicitly raised the question of torture or other serious harm arising from the operation of the authorities. It was not limited to harm targeted at suspected LTTE members or persons under specific suspicion by the authorities. The Tribunal had erred by failing to consider this material which was before it.

The Minister’s submissions

31    The Minister disputed that the Tribunal had failed to deal with the risk of torture. The primary judge at [16]-[17] found that it had properly done so. Her Honour also appeared to accept the Minister’s submission that the claim about a more general risk of torture was neither expressly nor impliedly raised by the appellant: cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 18-20; [2004] FCAFC 263 at [58]-[61] (Black CJ, French and Selway JJ); Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287 at 300-301; [2013] FCAFC 161 at [70] (Mansfield, Gilmour and Foster JJ). These findings, he submitted, should not be disturbed.

32    The Minister disputed the appellant’s claim that his submissions to the Tribunal included “evidence of torture or other serious harm as part of the general culture”. While his written submissions contained general background information, no such express claim was made and nor did it arise clearly on the material. As the appellant was represented it was to be expected that he would have raised expressly the integers upon which he relied: MZZQY v Minister for Immigration and Border Protection [2015] FCA 883 at [27]-[28] (Beach J).

33    In any event, he said, the Tribunal had considered in detail the relevant background, country information and the situation for Tamils at [20]-[34]. It was a matter for it to decide what weight to give this information. It found that there was no reason that the appellant would be imputed with LTTE links: at [58]. There was, therefore, no reason to think he would be at risk of harm. Similar reasoning was evident in its finding at [76] on complementary protection.

34    The Tribunal had considered the appellant’s claims of risks arising from detention as a returned failed asylum seeker and found that they did not rise to the level of a risk of serious harm. It was not satisfied that the appellant “would suffer torture or other serious harm at the hands of the authorities or others during questioning or remand or any other stage of or after the process of return processing or prosecution as an illegal emigrant” (at [66]) (emphasis in original).

Consideration

35    The FCC considered this ground at [16]-[18] of its reasons when it stated:

16.    Paragraph 66 of the decision addresses the applicant’s claim that he would be followed up and tortured on his return to his local area. The Tribunal rejected his claim as it was not satisfied that he would have a profile of interest as it rejected his evidence. I reject the applicant’s submission that the Tribunal did not properly consider this claim based on the country information. It is clear from fair reading of the decision that the Tribunal considered the applicant’s evidence and country information.

17.    In his written submissions the Minister argues it is not a claim the applicant expressly raised or was obvious from the material. Therefore the Tribunal was not obliged to consider it.

18.    None of the complaints made under ground two are made out.

36    The Tribunal’s reasons at [66] state as follows:

Whilst I accept that [ASD16] may be monitored for a period after return to Sri Lanka, for reasons of having breached the I & E Act in the past, I am not satisfied on the evidence before me that this would be disproportionate to the offence of having left Sri Lanka [il]legally, let alone that it would amount even cumulatively to persecution. Whilst I have considered [ASD16’s] claims about being followed-up and tortured after return to his local area, I find that this claim is based in the main on his false claims about already being a person of interest with agencies like the CID [Criminal Investigation Department] and STF [Special Task Force]. I am not satisfied on the evidence before me that [ASD16] would suffer torture or other serious harm at the hands of the authorities or others during questioning or remand at any other stage of or after the process of return processing or prosecution as an illegal emigrant.

(Emphasis in the original.)

37    As the Minister submitted, the Tribunal’s reasons disclose at [20]-[34] that it considered a range of country information. This information included:

    DFAT’s report titled “DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam” dated 3 October 2014: at [20] and [32].

    DFAT’s report titled “Country Report: Sri Lanka” dated 16 February 2015: at [27] and [34].

    Human Rights Watch’s report titled “UK: Halt Deportations of Tamils to Sri Lanka. Credible Allegations of Arrest and Torture upon Return” dated 25 February 2012: at n 14.

    Human Rights Watch’s report titled “UK: Suspend Deportations of Tamils to Sri Lanka. Further Reports of Torture of Returnees Highlight Extent of Problem” dated 29 May 2012: at n 14.

    UNHCR’s guidelines titled “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka” dated 21 December 2012 at [28]-[31].

38    It can be seen, therefore, that the Tribunal did have regard to at least some of the sources and authors upon which the appellant relied. It is true that the Tribunal in its reasons does not refer to Human Rights Watch’s “World Report 2013”, from which the appellant quotes at p 3 of his written submissions before the Tribunal. Nor does it specifically refer to the country information authored by the US State Department (from 2012 and 2013), the Edmund Rice Centre (from 2014) and the Immigration Review Board of Canada (from 2013) upon with the appellant relied in his written submissions. It did, however, consider those submissions including the extracts of these reports referred to therein. This is evident from the Tribunal’s statements that it had “considered in detail the claims to the effect that [ASD16] might be persecuted, including tortured” (at [61]) and “considered [ASD16’s] claims about being followed-up and tortured” (at [66]). It is also evident from its statement at [79] that:

I have considered submissions from [ASD16] and his adviser including country information reporting detention conditions and alleging use of torture by authorities in Sri Lanka. … I note that the bulk of the evidence cited in the course of making submissions on this subject relates to past practices carried out by the military while detaining LTTE cadres and suspected LTTE supporters closer to the end of the civil war. In particular, I have considered all the evidence before me about the military and other authorities having exploited detention conditions to torture those detainees held under suspicion of having LTTE links, in the aftermath of the civil war, but overall I have given this information about that treatment in those circumstances only very limited weight. I am not satisfied on the evidence before me overall that there is a real risk that [ASD16] would be tortured in the event of removal to Sri Lanka.

Although [76] appears in the section of the Tribunal’s reasons which deals with complementary protection I consider that it supports the conclusion that the Tribunal did, in fact, have regard to the appellant’s written submissions and supporting material on torture.

39    I also note that the Tribunal does, in its reasons, expressly deal with evidence of torture of Tamils returned to Sri Lanka. At [31] of its reasons, the Tribunal stated:

… UNHCR in 2012 did observe that in dealings with the police, the Tamil-speaking population appeared to be at a disadvantage: despite ongoing efforts to increase the number of Tamil-speaking police staff, particularly in Tamil majority areas. The 2012 UNHCR Guidelines also referred to reports relating to some cases, in the years between 2009 and [2012] in which “former Sri Lankan (in particular Tamil) asylum-seekers … were allegedly detained and ill-treated or tortured after having been forcibly returned to Sri Lanka upon rejection of their asylum claims or who voluntarily returned to Sri Lanka.

40    At the end of that extract was a reference to footnote 14. That footnote stated:

Human Rights Watch has reported thirteen cases of arbitrary arrest and torture of failed asylum-seekers, upon their return to Sri Lanka, most recently in February 2012. See: Human Rights Watch. “UK: Halt Deportations of Tamils to Sri Lanka. Credible Allegations of Arrest and Torture upon Return”, 25 February 2012 … and Human Rights Watch, “UK: Suspend Deportations of Tamils to Sri Lanka. Further Reports of Torture of Returnees Highlight Extent of Problem”, 29 May 2012 … .

Freedom from Torture has documented 54 cases of Sri Lankans (predominantly Tamils), who experienced torture in detention in the post-conflict period (i.e. after May 2009), including cases of individuals who were tortured after having voluntarily or forcibly returned from the United Kingdom to Sri Lanka. See: Freedom from Torture (formerly the Medical Foundation for the Care of Victims of Torture), Sri Lankan Tamils tortured on return from the UK, 13 September 2012 ….

The total of 54 cases includes 35 cases of post-conflict torture in Sri Lanka documented ear1ier, including of 14 individuals who returned to Sri Lanka after a period abroad (in three cases the person was forcibly returned from a European State, upon rejection of the asylum claim). See: Freedom from Torture, Freedom from Torture submission to the Committee against Torture for its examination of Sri Lanka in November 2011, undated, last accessed November 2012 ….

See also Amnesty International, Sri Lanka: Briefing to Committee Against Torture, October 2011, …, detailing the case of two brothers who were arrested, imprisoned for 8 months and reportedly tortured in 2009 after having been deported to Sri Lanka from Australia. They were reported to be re-arrested in August 2010.

The same case has been reported in more detail in the Asian Human Rights Commission’s report, Police torture Cases, 1998- 2011, Sri Lanka, case 299, page 379 …

(Paragraph breaks inserted, URLs omitted.)

41    As already noted the Tribunal had regard to the appellant’s “claims about being followed-up and tortured after return to his local area”. It rejected those claims because those claims were “based in the main on his false claims about already being a person of interest with agencies like the [Central Intelligence Department] and [the Special Task Force]”: see at [66].

42    The Tribunal was not required to deal, in its reasons, with every report which had been placed before it. What it was required to do was to consider every integer of ASD16’s claim and the material questions of fact raised on the material before it. The Tribunal did consider the broader question of the risks he might face after he had returned to his home area. It dealt with the integers relied on by ASD16’s representative who was a registered migration agent. Those claims were rejected, in part at least, because of adverse credit findings made by the Tribunal.

43    This ground has not been made out. It must be dismissed.

GROUND 2

44    Ground 2 alleged that the FCC erred in failing to find that the Tribunal fell into jurisdictional error by misinterpreting or misapplying the law.

45    The particulars were that the Tribunal was required to assess whether there was “a well-founded fear” (a “real chance”) of persecution or a “real risk” of significant harm. Instead it had asked itself (at [66]) whether the appellant “would suffer torture or other serious harm at the hands of the authorities or others during questioning or remand or any other stages of or after the process of return processing or prosecution as an illegal emigrant” (emphasis added).

ASD16’s submissions

46    ASD16 submitted that the Tribunal had applied the wrong test when it had asked itself the question quoted above at [45]. Error was also evident in its statements that it was not satisfied that the appellant “will be mistreated or abused” (at [62]), that any factor “would lead to his being subjected to more harsh or prolonged questioning … or any other discriminatory or harmful treatment by the authorities” (at [63]), that he “would suffer serious harm during remand from non-State parties” (at [63]), or that “prosecution or its consequences would involve systematic or discriminatory conduct” (at [65]).

47    The Tribunal misdirected itself by asking what “would” happen, rather than “what may have a real chance of happening”. This infected its determination that the appellant did not have “a real chance of Convention-related persecution” and its assessment of complementary protection which relied “the same facts as his refugee claims”: at [75].

48    He submitted that the primary judge had wrongly parsed the word “would”: at [23]. The correct construction was evident from the Oxford English Dictionary which, in the first and second editions, notes that the verb “will” has many grammatical forms, including “would”. Of relevance is the use of “would” to form the auxiliary verb of the “anterior future”, or “future in the past”, as for example, “This he protested to be true, as he would answer before God.” Also of relevance was its use in the apodosis of a conditional sentence (expressed or implied) in the second or third person to form the auxiliary verb of the simple “conditional mood”, for example: “That which we call a Rose, By any other name would smell as sweet.”

49    Having regard to these definitions, it was evident that the Tribunal was clearly considering what “will happen” if the appellant returns to Sri Lanka. It is not expressing doubt about the future, but certainty conditional only upon the appellant’s return. In doing so, he said, it erred.

The Minister’s submissions

50    The Minister submitted that, when the Tribunal’s reasons were read as a whole, it was evident that it had understood and applied the “real risk” test. He quoted from Minister of Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 (Brennan CJ, Toohey, McHugh and Gummow JJ):

In other words, the delegate starts and finishes with the correct test; it is only some phraseology in between which provides the basis for a conclusion that she had slipped from an assessment of real chance to an assessment of balance of probabilities.

51    To support this contention he noted that the Tribunal had:

    stated at the outset of its discussion the correct test, being whether the claims and evidence gave rise to a real chance of the appellant being persecuted: at [55].

    repeated this expression of the test: at [59].

    again expressed its conclusion that there was only “the most remote chance” of suspected people smuggling, which was insufficient: at [60].

    accepted that the appellant would “likely” come to the attention of authorities, but was not satisfied that he would ever be suspected of links to the LTTE: at [61]. These statements, the Minister submitted, are expressions of risk and likelihood.

    again expressed itself (at [62]-[63]) in terms of future risk: not accepting that the appellant “will be mistreated”; not being satisfied that he would suffer serious harm; and that he would likely be released on bail on limited conditions.

    stated its lack of satisfaction that the appellant would suffer torture or serious harm: at [66]. The Minister characterised this as a further expression of risk.

    concluded that it was not satisfied that the appellant faces a real chance of persecution in the foreseeable future, returning to the statutory formation that it stated at the outset: at [67].

52    The Minister noted that the Tribunal continued to express its conclusions in terms of risk in the section of its reasons on complementary protection. For example, it stated that the appellant’s refugee claims failed “due to a lack of credibility and/or for not meeting the ‘real chance’ test”: at [75]. He also referred to the Tribunal’s reasons at [69]-[70], [74]-[76] and [79]-[82].

53    In any event, he submitted, the Tribunal’s use of the word “would” did not indicate the level of certainty for which the appellant contended. In Clone Pty Ltd v Players Pty Ltd [2005] SASC 281 at [96] Vanstone J had said that:

“Would” is the subjunctive tense of the word “will” used substantively. It denotes the conditional mood in the present context. The expression of an undecided or uncertain future position is one of the common usages of the subjunctive tense.

See also: SZVCZ v Minister for Immigration and Border Protection (2017) 252 FCR 540 at 542; [2017] FCAFC 130 at [12] (Logan J).

54    The Minister contended that the Tribunal was not to be understood as saying that it was not satisfied that there was an inevitably of persecution. Rather it was only saying that it was not satisfied that such persecution was a potential outcome. This had been accepted by the primary judge at [22]-[23]. See also AVD15 v Minister for Immigration and Border Protection [2016] FCA 1450 at [30]-[31] (Davies J).

55    When the reasons were considered as a whole, it was evident, he submitted, that the correct test was applied. Considering the reasons as a whole was the appropriate approach: Kelly v Australian Postal Corporation [2015] FCA 1064 at [46] (Griffiths J); Narbey v Commissioner of Taxation (2008) 111 ALD 312 at 315; [2008] FCA 1699 at [14] (McKerracher J). It was appropriate to give the reasons a “beneficial construction”: Narbey at 315 [13]. They were not to be scrutinised in an over-zealous way to discern inadequacy on review: see Wu Shan Liang at 272.

Consideration

56    The primary judge dealt with the ground at [22]-[23]. Her Honour said:

22.    The [M]inister concedes that reading the final sentence of [66] on its own could be read as misstating the real chance test as it refers to not being satisfied that the applicant would suffer torture, rather than returning to whether or not there was a real chance he would suffer torture. The [M]inister qualified this somewhat in his oral submissions by saying that the reference to “would” in that paragraph is referring to the subjunctive mood which is a grammatical term where a verb form is used to express a wish or a suggestion or a command. He says that the use of the word would in this context be the subjunctive mood referring to the possibility that it might occur, not a certainty.

23.    The Tribunal discusses the real chance test at [55] and [59]. The Tribunal uses the word “would” in [63] and [64] as well as [66]. When the paragraphs are read together it is clear that the Tribunal uses the word “would” not in the absolute sense but rather in the subjunctive mood. The comments of the High Court in Wu Shan Liang are salient here. The fair reading of the Tribunal’s decision does not reveal that the Tribunal has erred in applying the real chance test.

57    The semantic attack on the Tribunal’s reasons cannot be accepted. Its reasons have to be read as a whole and, when that is done, it is clear that the Tribunal properly directed itself in relation to the “real chance” test and applied that test.

58    The primary judge did not err in rejecting this claim.

59    This ground must be rejected.

DISPOSITION

60    The appeal must be dismissed with costs.

Associate:

Dated:    8 August 2018