FEDERAL COURT OF AUSTRALIA

SZULW v Minister for Immigration and Border Protection [2018] FCA 1335

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    This is an appeal from orders made by the Federal Circuit Court of Australia on 9 February 2018. The Federal Circuit Court dismissed an application for judicial review of a decision made on 30 January 2017 by the Administrative Appeals Tribunal (Second Tribunal). The Second Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (now the Minister for Home Affairs) made on 28 March 2013 refusing to grant the appellant a Protection (Class XA) visa.

LEGISLATIVE CONTEXT

2    After considering a valid application for a visa, the Minister is to grant the visa if satisfied, inter alia, that the criteria prescribed by the Migration Act 1958 (Cth) or the Migration Regulations 1994 (Cth) are satisfied: s 65(1)(a) of the Act.

3    The criteria for the grant of a Protection (Class XA) visa were relevantly set out in s 36 of the Act and Part 866 of Schedule 2 of the Regulations. An applicant for a protection visa had to satisfy at least one of the criteria in s 36(2): see s 36(1A)(b) of the Act.

4    At the relevant time, subsections (a) and (aa) of s 36(2) of the Act provided:

A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

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

5    The criterion in s 36(2)(a) is referred to as the “refugee criterion”. The criterion in s 36(2)(aa) is referred to as the “complementary protection criterion”.

Refugee criterion

6    The “Refugees Convention” and the “Refugees Protocol” were defined in the Act as “the Convention relating to the Status of Refugees done at Geneva on 28 July 1951” and “the protocol relating to the Status of Refugees done at New York on 31 January 1967” respectively. Australia is a party to the Convention and the Protocol. Article 1A(2) of the Convention, as amended by the Protocol, relevantly defined a “refugee” as a person who:

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

7    As applicable to the appellant’s application, s 91R(1) and (2) of the Act provided:

(1)      For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)      that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)      the persecution involves serious harm to the person; and

(c)      the persecution involves systematic and discriminatory conduct.

(2)      Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)      a threat to the person’s life or liberty;

(b)      significant physical harassment of the person;

(c)      significant physical ill-treatment of the person;

(d)      significant economic hardship that threatens the person’s capacity to subsist;

(e)      denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)      denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

8    Section 91R was repealed by item 12 of sch 5 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) with effect from 18 April 2015. However, absent statutory provisions providing otherwise, an application is determined in accordance with the law as it stood at the time of the application. Whether the relevant criteria are met is determined according to the facts as they stood at the time of determination (whether by the delegate or Tribunal): Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288 at 293F-G and 294B-C.

9    For a person to have a “well-founded” fear of persecution for one of the Convention reasons, there must be a “real chance” that the person will be so persecuted: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

Complementary protection criterion

10    The complementary protection criterion does not require the claimant to establish a well-founded fear of persecution for one of the five Convention reasons.

11    Sections 36(2)(aa), (2A) and (2B) provided:

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

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

…

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

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

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

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

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

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

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

12    Certain words and phrases used in these provisions are defined in s 5 of the Act.

13    The “real risk” test for complementary protection involves the same standard as the “real chance” test applicable to the assessment of whether a person has a “well-founded fear of being persecuted” for the purposes of the refugee criterion; it is to be understood as a real chance as opposed to a remote chance: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [242]-[248] (Lander and Gordon JJ), [297] (Besanko and Jagot JJ), [342] (Flick J).

Background

14    The appellant is a citizen of Sri Lanka. He is Hindu and belongs to the Tamil ethnic group. He arrived at Christmas Island as an “irregular maritime arrival” on 25 July 2012.

15    On 8 November 2012, the appellant lodged an application for a protection visa and a supporting statement of claim. He attended a protection visa interview (PV interview) on 15 November 2012 with the assistance of a Tamil interpreter.

16    The delegate summarised the appellant’s claims from his entry interview, his written statement of claim and claims made in his PV interview in the following terms:

•    The applicant was born on 17 May 1987 in Lunawa, Western Province. He is a Hindu of Tamil ethnicity and a Sri Lankan citizen by birth.

•    The applicant and his family were displaced because of the war and resided in a refugee camp in Chankalady, Batticaloa from 1990 to 1995. During this time, the applicant’s father and eldest brother disappeared. The applicant presumes they are dead.

•    In 1995, the applicant and his family relocated to Puttalam where they remained for three years, before fleeing to India by boat to escape the civil war.

•    The applicant and his family registered in India as refugees and the applicant has lived in Chennai for most of his life.

•    The applicant returned to Sri Lanka on two occasions: in 2003 and 2012. In 2003, the applicant lived with his uncle for a period of two years, during which time he ‘experienced serious issues with the Singhalese’. The applicant was working in Colombo as a knife sharpener and was attacked by a Singhalese man who refused to pay him for work undertaken. The Singhalese man called him a ‘Tamil dog’ and assaulted him. The applicant sustained injuries which required several stitches to his head.

•    Shortly thereafter, the applicant returned to India. He married in 2006 and his wife gave birth to his daughter the following year.

•    In July 2010, the applicant’s wife left him for another man. Ten days later, the applicant convinced his wife to come home. On the night of her return, she committed suicide by setting herself on fire. The applicant attempted to save her and sustained serious burns in the process. He was hospitalised for approximately one month.

•    Since his wife’s suicide, the applicant has suffered psychological trauma and has attempted suicide on several occasions. The applicant’s mother, worried about her son’s health, encouraged him (the applicant) to return to Sri Lanka and stay with his uncle. The applicant did so in February 2012.

•    Approximately ten days after his arrival in Sri Lanka, the applicant and his friend went to Bedrewa, a Singhalese area. They encountered six Singhalese men who told them ‘to come over here Tamil dogs’ and demanded that the applicant and his friend buy them liquor. After accusing the applicant of being a Tamil Tiger, the six men beat the applicant and his friend with sticks, kicked and bit them. The applicant sustained head injuries and had several bite marks on his arms. The applicant and his friend were treated in hospital.

•    In the course of his work as a knife sharpener, the applicant was required to pass through Singhalese areas where the Singhalese would shout abuse at him. On some occasions, they threw rocks at him.

•    The applicant states that the Singhalese believe that all Tamils are ‘Tigers’ and he is unable to obtain employment because of discrimination against Tamils and it is generally unsafe. As such, the applicant decided that there was no way he could continue to live in Sri Lanka.

•    The applicant believes that if returns to Sri Lanka, he will be detained, tortured and/or killed for the following reasons:

o    His Tamil race;

o    His (imputed) political opinion as a suspected LTTE supporter;

o    His membership to the following social groups:

•    Failed Tamil asylum seekers returning from Australia; and

•    Male Tamils suspected of being connected to the LTTE.

•    The applicant believes that the Sri Lankan authorities believe the LTTE are reforming overseas so they are suspicious of Tamils returning from foreign countries.

•    The applicant fears harm and/or mistreatment from the Singhalese population and from the Sri Lankan authorities.

•    The applicant does not believe that the Sri Lankan authorities can offer him protection as they are the ones whom he fears.

17    The delegate found the appellant to be “reasonably consistent throughout his entry interview, statement of claims and PV interview”. The delegate noted that the appellant had informed him at the commencement of the PV interview that he struggled with memory loss. The delegate considered that the appellant “appeared to answer questions instinctively with no evidence of exaggeration or embellishment”. The delegate “accepted the applicant’s claims relating to his personal experiences in their entirety”.

18    Nevertheless, the delegate was “not satisfied that the applicant … presented any compelling information that [linked] his personal circumstances to any likelihood of future harm at the hands of the Sri Lankan authorities (or anyone else)”. She found that there was not a well-founded fear of persecution for a Convention reason and that the appellant did not meet the criteria for the grant of a protection visa under s 36(2)(a).

19    The delegate then considered complementary protection under s 36(2)(aa), namely whether Australia had protection obligations because the delegate had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country there was a real risk that the appellant would suffer significant harm.

20    The delegate recorded that the appellant gave evidence that he feared that, if he were returned to Sri Lanka, he would be detained, tortured and/or killed by the Sri Lankan authorities, arbitrarily deprived of life, or subjected to cruel or inhuman treatment or punishment as a result of: his Tamil race; imputed political opinion (suspected involvement with the LTTE); and membership of the particular social group of “failed Tamil asylum seekers returning from Australia”.

21    The delegate concluded, on the basis of the country information that she had consulted, that there was no real risk that the Sri Lankan authorities or any other person would seek to harm the appellant should he return to Sri Lanka. The delegate was not satisfied that there were substantial grounds to believe that the appellant would be arbitrarily deprived of life or subject to cruel or inhuman treatment or punishment if he returned.

22    As noted above, that appellant’s protection visa application was refused on 28 March 2013.

The FIRST Tribunal and federal circuit court decisions

23    The appellant sought review, on 15 April 2013, of the delegate’s decision in the Refugee Review Tribunal (First Tribunal). He was unsuccessful before the First Tribunal, which made a decision on 29 April 2014 affirming the delegate’s decision.

24    The appellant was represented by his present solicitors. Those solicitors provided written submissions to the First Tribunal dated 14 May 2013. The issues were identified as follows:

A.     Does the Applicant have a well-founded fear of persecution on the basis of his race and political opinion?

B.     Does the Applicant have a well-founded fear of persecution on the basis of membership of a particular social group?

C.     Is the Applicant entitled to complementary protection?

25    As to whether the appellant had, for the purposes of s 36(2)(a), a well-founded fear of being persecuted for reason of his membership of a particular social group, the submission identified the particular social group as: “failed Tamil asylum seekers”.

26    Before the First Tribunal, it was not a part of the appellant’s case under s 36(2)(a) that he had a fear of being persecuted which was connected in some way with potential imprisonment as a result of the application of the Immigrants and Emigrants Act 1948 (Sri Lanka) (IEA) and the inability to pay a fine.

27    As to whether the appellant was entitled to complementary protection under s 36(2)(aa), the submission addressed at some length what was contended would happen to the appellant should he be returned to Sri Lanka. It was submitted that he would be charged with having departed Sri Lanka illegally and that there was a real risk the appellant would face significant harm in the form of torture, cruel or inhuman or degrading treatment or punishment. The operation of the IEA was a part of the appellant’s case under s 36(2)(aa).

28    There was a hearing before the First Tribunal on 31 May 2013. The appellant’s solicitors furnished further submissions on 13 June 2013. Those further submissions did not advance a case under the refugee criterion under s 36(2)(a) that the appellant feared harm by reason of the operation of the IEA and his illegal departure.

29    The First Tribunal affirmed the decision of the delegate to refuse the protection visa application. Its reasons included the following headings:

(1)    Well-founded fear of persecution [36(2)(a)]

(a)    Tamil race

(b)    Returned failed asylum seeker

(c)    Illegal departure from Sri Lanka

(2)    Real risk of significant harm [36(2)(aa)]

(a)    Discrimination

(b)    Illegal departure

30    In its reasons, and under the heading “Illegal departure from Sri Lanka”, located in that part of the reasons dealing with s 36(2)(a), was included (emphasis in original):

67.    There is also the consideration of the applicant facing a jail term for his illegal departure. On the face of the wording of s.45(1)(o) of the IEA states both a fine and a prison sentence are enforced upon conviction for illegal departure. The information from [the Department of Foreign Affairs and Trade (DFAT)] and the Attorney General Department of Sri Lanka is [that] Magistrates have discretion to suspend a sentence and that is what is routinely done. This power is found in s.303 of the Code of Criminal Procedure. The migration agent submitted the information from DFAT refers to the fining of persons charged with attempted offences under the IEA. There is no information before the Tribunal that indicates returnees who illegally departed Sri Lanka are having jail terms imposed against them. The Tribunal considers based on the available country information there is only a remote and therefore not a real chance the applicant will be sentenced to a term of imprisonment for his offences under the IEA. The Tribunal considers it high [sic] likely the applicant will be fined not more than LKR200,000 (AUD1,900) and more likely to be LKR 100,000 (AUD850). The evidence before the Tribunal does not suggest the applicant will be unable to pay [for] that fine or that payment of the fine will cause him hardship, nor is he without any relative able to provide surety, so he will be able to receive a suspended sentence. Therefore the Tribunal considers there is no real chance the applicant will face an extended period of imprisonment arising from his illegal departure from Sri Lanka.

68.    In summary, the Tribunal finds the applicant does not face a well-founded fear of persecution due to his illegal departure from Sri Lanka because: the laws were not persecution, due to lack of discriminatory intent or application; his being held in detention on remand would not amount to any harm so serious as to be serious harm and there is no real chance he would face a term of imprisonment for the offences.

69.    After assessing all the evidence and the applicant’s circumstances and being mindful of both the process and the outcome of the prosecution the applicant will face from the Sri Lankan authorities arising from his illegal departure, the Tribunal is satisfied that the applicant does not face a real chance of serious harm due to his illegal departure, now or in the reasonably foreseeable future if he returns to Sri Lanka.

70.    The Tribunal has considered the claims of the applicant individually and cumulatively. For the above reasons, the Tribunal finds the applicant faced no serious harm in the past. The Tribunal is not satisfied the applicant faces a real chance of serious harm by the Sri Lankan army, navy or from any other Sri Lankan authorities due to his race, religion, being a failed asylum seeker, political opinion, membership of a particular social group or unlawful departure from Sri Lanka. The Tribunal is not satisfied the applicant has a well-founded fear of persecution for any Convention reason now, or in the reasonably foreseeable future if he returns to Sri Lanka. Therefore he does not satisfy the requirements of s.36(2)(a). The Tribunal considers his claims further below in relation to complimentary protection.

31    The First Tribunal also dealt with “illegal departure” in that part of its reasons which dealt with s 36(2)(aa). It stated at [73]:

The Tribunal has had regard to whether the harm the applicant may suffer arising from his committing offences under the IEA amounts to significant harm, in particular, his bail conditions, being detained for a short period while on remand and imposition of a fine. The Tribunal considers the only relevant forms of significant harm are torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. On the evidence before it, the Tribunal is not satisfied the applicant’s bail conditions, detention on remand or fine will involve severe physical pain or suffering, therefore it does not meet the definition of torture in s.5(l ). Similarly, the bail conditions, detention while on remand and fine cannot meet limb (a) in the definition in s.5(l) of cruel or inhuman treatment or punishment, nor could his bail conditions, detention while on remand or fine be reasonably regarded in all the circumstances as cruel or inhuman in nature for the purpose of limb (b) of that definition. The Tribunal is not satisfied too that the bail conditions, detention while on remand and fine would cause extreme humiliation which is unreasonable. Therefore, the Tribunal is not satisfied any harm arising from the bail conditions, being detained while on remand or fine will amount to significant harm.

32    The appellant sought judicial review of this decision in the Federal Circuit Court.

33    On 4 October 2016, the Federal Circuit Court, by consent, quashed the First Tribunal’s decision (by this time, the Administrative Appeals Tribunal) and remitted the matter for reconsideration. Those orders contained the following note:

The first respondent concedes that the decision of the second respondent was affected by jurisdictional error. In considering whether the applicant would be able to pay a fine imposed upon him under the [IEA] for reason of his illegal departure from Sri Lanka, the second respondent found (at [67]) that the applicant would likely be required to pay a fine of LKR100,000 and that the evidence before it did not suggest that the applicant would be unable to pay that fine or that payment of the fine would cause him hardship.

In making that finding, the second respondent failed to have regard to critically relevant evidence contained in the applicant’s application for a protection visa that the applicant’s income at the time of his departure from Sri Lanka was approximately LKR2,000 per month and that he had been without income since his arrival in Australia in July 2012 (Court Book p.82). In failing to have regard to that critical evidence, the second respondent constructively failed to exercise its jurisdiction, thereby committing a jurisdictional error.

SECOND TRIBUNAL DECISION

34    On 30 January 2017, the Second Tribunal again affirmed the delegate’s decision not to grant the appellant a protection visa.

35    The appellant was represented by his present lawyers. Those lawyers provided written submissions on 11 January 2017. Early in the submissions, it was stated why the matter had been remitted and the notation made in the Federal Circuit Court orders made on 4 October 2016 was set out. The submissions then identified five issues arising on the review before the Second Tribunal:

A    Credibility

B    Does the Applicant have a well-founded fear of persecution on the basis of his race?

C    Does the Applicant have a well-founded fear of persecution on the basis of his imputed political opinion?

D    Does the Applicant have a well-founded fear of persecution on the basis of membership of a particular social group?

E.    Is the Applicant entitled to complementary protection?

36    In addressing whether the appellant had a well-founded fear of persecution on the basis of membership of a particular social group (issue D above), the submission stated (footnotes omitted):

There is a real risk that if forcibly returned to Sri Lanka, the Applicant will face significant harm (in the form of arbitrary deprivation of life, torture, or cruel, inhuman or degrading treatment or punishment) as a result of:

a.    Suffering from mental health issues; and

b.    Failed Sri Lankan asylum seekers.

37    In addressing the contended particular social group of “failed Sri Lankan asylum seekers”, the submission opened with these words under the heading “Failed Tamil Asylum Seekers”:

The Member in the First Tribunal Hearing was of the view that the Applicant does not face a well-founded fear of persecution due to his illegal departure from Sri Lanka [citing “Tribunal Decision, page 19”].

38    A number of submissions were then made. It was submitted that Australia had done little to monitor the treatment of returned asylum seekers. The submission then set out various accounts or reports of asylum seekers being mistreated upon their return to Sri Lanka. This part of the submission concluded (at [95]) with:

Accordingly, if the Applicant is forcibly returned to Sri Lanka, it is plausible he will be subjected to the deep rooted torture imposed against Tamils who are identified as being failed asylum seekers.

39    Under the heading “Is the applicant entitled to complementary protection?”, the submission opened with these words (footnotes omitted):

If forcibly returned to Sri Lanka, the Applicant will be arrested, interrogated, imprisoned and tried for charges relating to his illegal departure. The Applicant fears this criminal prosecution will result in torture; cruel or inhuman treatment or punishment; and/or degrading treatment or punishment.

40    The submission then set out articles 34, 35 and 45 of the IEA. The appellant submitted (footnotes omitted):

98.    Relevantly, Art 33 states that Arts 34 and 35 apply to all persons unless exempted from the provisions of the Act. In the present case it was accepted that the Applicant did not leave Sri Lanka from an approved port of departure or with a valid passport (or approved travel documentation). Accordingly, the Member in the First Tribunal Decision accepted that the Applicant would, upon return to Sri Lanka, be arrested by the relevant authorities and charged for contravening Arts 34 and 35 of the [IEA].

99.    From this premise the Applicant contends (and did so before the Tribunal) that:

(a)    Upon being charged and arrested, the applicant will be held on remand (i.e. imprisoned);

(b)    Upon prosecution he will be convicted, the applicant clearly having contravened Arts 34 and 35 [of] the [IEA];

(c)    Upon conviction, he will be liable to be sentenced to imprisonment; and

(d)    During the course of his inevitable imprisonment – either whilst on remand in Negombo prison or as a result of having received a custodian sentence as [sic] – he will face a real risk of significant harm because of:

(i)    The widespread prevalence of torture in Sri Lankan prisons, which is inflicted by state actors (i.e. prison guards); and

(ii)     The conditions of Sri Lankan prisons, including those in Negombo prison where the applicant will be remanded upon arrival back in Sri Lanka, which are so poor so as to cause (at the very lease) extreme humiliation that is unreasonable to those confined in them.

100.    The Member in the First Tribunal Hearing dismissed the Applicant’s contention in respect of the asserted real risk of significant harm arising from the applicant’s illegal departure from Sri Lanka and his certain imprisonment (for a variable length of time) in prisons of utterly deplorable conditions. It rejected the assertion put by the Applicant’s representative that: “any level of interaction with Sri Lanka’s interrogation process and prison system will result in the Applicant experiencing significant harm”.

41    The submission then set out updated country information. Amongst those submissions was the following (footnotes omitted):

105.    Most – but not all – returnees are granted bail based on personal recognisance with a family member standing as guarantor. Certain returnees (including repeat offenders and those suspected of facilitating the illegal movement of people) are not granted bail. Returnees granted bail must return to court at a later date to answer to charges under the [IEA]. By law, convicted returnees are liable for up to five years in prison or a fine up to 200,000 SLR.

106.    A Sri Lankan police spokesman commented that a group of 41 asylum seekers returned to Sri Lanka by Australia would face “two years of rigorous imprisonment” if found to be guilty of leaving Sri Lanka illegally.

107.    These facts demonstrate that the Applicant will be:

a.    identified as a failed asylum seeker to the Sri Lankan authorities;

b.     arrested upon arrival in Sri Lanka and taken into police custody;

c.    interrogated by the [Department of Immigration and Emigration], the [Criminal Investigations Department], the [State Intelligence Service] and / or the [Terrorist Investigation Department] at the airport for an unspecified period of time;

d.    detained at Negombo Prison for an unspecified period of time;

e.    forced to find someone to post bail for his release and regularly report to the authorities on bail conditions;

f.     tried and convicted of charges relating to his illegal departure; and

g.    face detention of up to two years imprisonment and required to pay a fine of up to 200,000 SLR.

108.    Even if the Applicant was issued with a fine and not sentenced to a term [of] imprisonment, the Applicant will unlikely be able to pay the required fine given that he has minimal work experience sharpening knifes [sic]. Since arrival in Australia, the Applicant has not been able to engage in any form of employment and therefore has no savings to pay the necessary fine. Therefore the Applicant fears that he will be detained in police custody.

42    The submissions then addressed evidence relating to prison conditions and the treatment of prisoners and stated (at [113]):

The above information demonstrates that the degrading treatment or punishment during imprisonment and interrogation processes in Sri Lanka is part of a systematic effort to break down, humiliate and degrade individuals in detention. Given the prevalence of torture, cruel or inhuman and degrading treatment or punishment in Sri Lankan prisons, it [the Tribunal] should accept that there is a real risk the Applicant will face significant harm.

43    The submission then set out facts which it was said had been found by the First Tribunal in respect of the claim for complementary protection under s 36(2)(aa) and reasons why its conclusion in that respect was unreasonable or irrational. One submission made was (at [116]):

Secondly, it is put to the Tribunal that the First Tribunal Decision erred in construing what constituted “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”: …

(d)    Unexplained by the Tribunal was why the provision restricting the Applicant from leaving Sri Lanka except via an authorised port and with a passport was not in violation of Art 12 of the ICCPR [International Covenant on Civil and Political Rights]: and see James C. Hathaway, The Rights of Refugees under International Law (2005), p 309-313; James C. Hathaway and Michelle Foster, The Law of Refugee Status (2nd ed., 2014), p 248. Arts 34 and 35 clearly do restrict departure from Sri Lanka, yet the Tribunal did not elucidate as to why those provisions were appropriately adapted to meeting a legitimate end. It clearly misunderstood the effect of Art 12(2).

44    A hearing was conducted on 16 January 2017. It is convenient to set out a few paragraphs of the decision record at this point. After setting out at T[2] a summary of the reasons for the matter having been remitted (set out fully at paragraph [33] above), the Second Tribunal stated at T[3]:

The matter is now back before the Tribunal pursuant to the orders made by the Federal Circuit Court. Since it has been held that it is incumbent on the Tribunal in a case such as this to make it clear on the face of its reasons how it has discharged its obligation to reconsider the matter according to law I note that, as referred to below, I have not considered it necessary to deal with the issue of [the appellant’s] ability to pay any fine which may be imposed on him under the [IEA] in light of the decision of the Federal Court in SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245.

45    At T[48], the Tribunal stated:

I noted that at the moment I wanted to focus on the [IEA]. I put to [the appellant] that I might take the view that if he were dealt with under this Act this would be the non-discriminatory enforcement of a law which applied generally to everyone in Sri Lanka. I put to him that, so far as the complementary protection criterion was concerned, the risk to him in this context was the same as that to anyone else who had broken this law and once again I might not accept that the law would be applied to him in a discriminatory manner. I put to him that this meant that the risk to him was one which applied generally to the population of Sri Lanka and not to him personally and that it was therefore excluded from the complementary protection criterion. [The appellant] asked who would take up the matter if he was abducted and killed on his return the Sri Lanka.

46    At T[52], the Tribunal stated:

I asked [the appellant] if there was anything further he wanted to say before I closed the hearing. He asked if I could make it happen so that he could stay here longer with his child. He said that this would give him an opportunity to settle his debt prior to returning. He repeated that if he were permitted to work here he would be able to repay his loan and secure something in Sri Lanka like a house or property and then he would return voluntarily. He said that he would have to hang himself if he returned because he would have no means of survival. I asked [the appellant’s] representative if she thought that there was anything we had not covered. She raised the issue of [the appellant’s] ability to pay any fine. [The appellant] said that he would not be able to pay a fine. I indicated to [the appellant’s] representative that for the reasons I had discussed with [the appellant] I did not think that this issue arose for consideration. I referred to the decision of the Federal Court in SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 which I noted had been delivered after the first Tribunal had made its decision. I noted that this decision said that if someone had broken the law, and the law was not applied in a discriminatory manner, then the consequences of breaking the law did not come within the complementary protection criterion. I gave [the appellant’s] representative until 23 January 2017 to make further submissions.

47    As is noted in the last sentence of the paragraph of the Second Tribunal’s reasons just set out, the Second Tribunal indicated the relevance it saw in the decision of Rares J in SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 and invited the appellant to make further submissions.

48    The appellant availed himself of that opportunity by providing a submission dated 23 January 2017 which addressed whether the appellant:

(1)    had a well-founded fear of persecution on the basis of his religion or ethnicity or his membership of a particular social group such that Australia owed a protection obligation under s 36(2)(a). As to the contended particular social groups, the submissions identified two: “failed Tamil asylum seeker” and “individuals suffering from mental health issues”. This part of the submission did not address any issue with respect to imprisonment associated with his illegal departure and the potential consequences as a result of the IEA;

(2)    was entitled to complementary protection under s 36(2)(aa). Under this heading, the appellant addressed two issues concerning the IEA: first, whether it was a law of ‘general application’; and secondly whether it was appropriate and adapted to achieving a legitimate object.

49    Included in that part of the appellant’s post-hearing submission which addressed the claim for complementary protection was the following (footnotes omitted):

Consequently, the [IEA] cannot be said to be a law of ‘general application’ as it discriminates against individuals who have sought asylum by departing illegally either due to a lack of means (financial) or ability to do so in a legal manner. The timing of reimplementation of the relevant provisions of the [IEA] indicate an intent to selectively punish those who have departed Sri Lanka by boat to seek asylum.

50    What this history makes clear is that the appellant’s contended inability to pay a fine, and his fears in relation to imprisonment, were raised in respect of his claim for complementary protection under s 36(2)(aa) and were not advanced in relation to a claim of well-founded fear under s 36(2)(a). The Second Tribunal understood the case being put to it as being that the decision of Rares J in SZSPT and the question of the appellant’s ability to pay a fine was relevant to the claim under s 36(2)(aa). This understanding was not contradicted or corrected by the appellant, including by his post-hearing submissions. The appellant was at all times represented.

51    At T[36], the Tribunal stated:

In relation to complementary protection [the appellant’s] representatives submitted that he would be arrested, interrogated, imprisoned and tried for charges relating to his illegal departure and that he feared that this criminal prosecution would result in torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. They submitted that [the appellant] would inevitably be sentenced to imprisonment but amendments made to the [IEA] in 2006 removed a legislative requirement for a minimum sentence of imprisonment for a conviction under paragraph 45(1)(b) of the Act (relating to leaving Sri Lanka in contravention of the provisions of the Act) and they removed paragraph 45(6)(a) of the Act, thus restoring the judicial discretion under section 303 of the Code of Criminal Procedure to suspend any sentence of imprisonment on a conviction under paragraph 45(1)(b) of the Act. They referred to a media report suggesting that a Sri Lankan police spokesman had said that a group of 41 asylum seekers returned to Sri Lanka from Australia in 2014 would face two years rigorous imprisonment but the Australian Department of Foreign Affairs and Trade has reported that according to the Sri Lankan Attorney-Generals [sic] Department, which is responsible for the conduct of prosecutions, no returnee who was merely a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally but that fines have been issued to act as a deterrent to people departing illegally in the future.

52    The fact that being charged with respect to illegal departure was seen as relevant to complementary protection accorded with the written submissions advanced to the Second Tribunal, both before and after the hearing.

53    The Second Tribunal accepted, at T[47], that the appellant would be charged under the IEA because he had left Sri Lanka illegally, but put to the appellant that there was nothing in the evidence to suggest he would be treated differently for one or more of the Convention reasons from anyone else charged with that offence.

54    At T[76] and T[77], the Second Tribunal stated:

76.    As I indicated to [the appellant], I accept that he will be returning to Sri Lanka as a failed asylum-seeker. As I put to him, the Australian Department of Foreign Affairs and Trade assesses that returnees are treated according to standard procedures, regardless of their race or religion. In their post-hearing submission [the appellant’s] representatives submitted that it would be erroneous to rely on this assessment because the Australian Department of Foreign Affairs and Trade has not been effectively monitoring individuals who had returned as failed asylum-seekers. However the assessment relates to the processing of returnees at the airport and it refers to observations made by officers of the Australian Department of Immigration and Border Protection with regard to the processing of returnees.

77.    I accept that [the appellant] will also be charged under the [IEA] because he left Sri Lanka illegally but, as I put to him, there is nothing in the evidence before me to suggest that he will be treated differently, for one or more of the five Convention reasons, from anyone else who had been charged with such an offence. In their post-hearing submission [the appellant’s] representatives argued that the [IEA] could not be considered appropriate and adapted to achieving a legitimate objective but they referred in this context to the quantum of the fines imposed whereas the case which they cited clearly establishes that a law may be one of general application even if the punishment for breach of the law is death or something else which is harsh and totally repugnant to the fundamental values of both Australian society and the international community. [The appellant’s] representatives submitted that the [IEA] discriminated against individuals who had sought asylum by departing illegally due to a lack of financial means or the ability to do so in a legal manner but [the appellant] was able to obtain a passport and to travel to India by air in 2005. The Act does not prevent people like [the appellant] from leaving Sri Lanka: it simply attempts to dissuade them from departing illegally.

55    Paragraph T[77] directly engaged with and addressed the submission, set out at [49] above, which had been put to the Second Tribunal in the post-hearing submissions in the context of the complementary protection claim.

56    At T[78], the Second Tribunal stated:

[The appellant’s] representatives also submitted that the fact that the provisions of the [IEA] had not been enforced against failed asylum-seekers returned from Australia until 29 November 2012 indicated an intent to punish selectively those who had departed Sri Lanka by boat to seek asylum. However the information available to me indicates that Sri Lankan returnees from Australia are being charged with offences in relation to suspected illegal departure irrespective of whether they left to seek asylum or for other reasons and that the only discrimination involved relates to the distinction drawn between those merely suspected of being passengers on a people-smuggling venture and those suspected of facilitating or organising the irregular migration of people from Sri Lanka. I do not accept on the evidence available to me that [the appellant] will be singled out or treated differently, for one or more of the five Convention reasons, from anyone else who may have departed Sri Lanka illegally in breach of the relevant provisions of the [IEA]. I do not accept, therefore, that one or more of the five Convention reasons is the essential and significant reason for any persecution which he may fear in consequence of his illegal departure as required by paragraph 91R(1)(a) of the Migration Act. As I put to [the appellant], I take the view that if he is charged in relation to his illegal departure it will be as a result of the non-discriminatory enforcement of a law that applied generally to everyone in Sri Lanka.

57    This paragraph addressed the appellant’s contention of discriminatory or selective enforcement of a law of general application (the IEA) against “failed Tamil asylum seekers returning from Australia” or “failed Sri Lankan asylum seekers”, being the particular social groups identified in written submissions for the purposes of the claim under s 36(2)(a). The Tribunal concluded that the appellant would not be treated differently for one of the five Convention reasons and, therefore, that he could not be a “refugee” by reason of the operation of s 91R(1)(a). The Tribunal concluded that the IEA was not being selectively enforced against those particular social groups. This aspect of the claim under s 36(2)(a) therefore failed. That conclusion was open to the Tribunal on the material before it and in respect of the particular social groups which had been identified by the appellant’s representatives. The appellant does not suggest otherwise.

58    It is relevant to note:

(1)    first, no case had been put that the IEA was discriminatory because it operated disproportionately on a particular social group;

(2)    secondly, there was no identification of a particular social group on which the IEA was said to have a disproportionate effect;

(3)    thirdly, the appellant did not put at all that the particular social group of which he was a member was: “Tamils who departed Sri Lanka illegally and travelled to Australia (being a Tamil diaspora country) in search of Asylum”; and

(4)    fourthly, no express case had been put that there was a claim under s 36(2)(a) of a fear of “serious harm” constituted by “significant economic hardship that threatens the person’s capacity to subsist” within the meaning of s 91R(2)(d).

59    At T[82], the Second Tribunal stated:

Putting to one side [the appellant’s] new claims with regard to what happened when he returned to Sri Lanka for the second time in February 2012, which I have rejected above, he does not claim that he has ever had any association with the LTTE [Liberation Tigers of Tamil Eelam] or with political activity in support of Tamil separatism, either inside or outside Sri Lanka, nor that he has ever been perceived or suspected by the Sri Lankan authorities of any association with the LTTE or of any political activity in support of Tamil separatism. I do not accept on the evidence before me that there is a real chance that, if he returns to Sri Lanka now or in the reasonably foreseeable future, he will be tortured or otherwise persecuted because of his race as a Tamil, his imputed political opinion in support of the LTTE or his membership of the particular social groups of ‘Failed Tamil Asylum seekers returning from Australia’, ‘Male Tamils suspected of being connected to the LTTE’, ‘young Tamil males in Sri Lanka’ or ‘Failed Sri Lankan asylum seekers’.

60    At T[87] the Second Tribunal rejected the s 36(2)(a) case, stating:

For the reasons given above I do not accept that there is a real chance that, if [the appellant] returns to Sri Lanka now or in the reasonably foreseeable future, he will be persecuted because of his race as a Tamil, his imputed political opinion in support of the LTTE or his membership of the particular social groups of ‘Failed Tamil Asylum seekers returning from Australia’, ‘Male Tamils suspected of being connected to the LTTE’, ‘young Tamil males in Sri Lanka’, ‘Failed Sri Lankan asylum seekers’ or ‘Individuals suffering from Mental Health Issues’ as has been submitted. I have considered the totality of [the appellant’s] circumstances as a young male Tamil who is suffering from anxiety and depression, who may have other health problems, who left Sri Lanka illegally and who will be returning to Sri Lanka from Australia as a failed asylum-seeker. However, even taking into account the cumulative effect of these circumstances, I do not accept for the reasons given above that he has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Sri Lanka now or in the reasonably foreseeable future.

61    The Second Tribunal also rejected the s 36(2)(aa) case. At T[97], the Second Tribunal stated:

For the reasons given above I consider that the consequences of [the appellant’s] breach of the [IEA] by departing Sri Lanka illegally fall within the exception in paragraph 36(2B)(c) of the Migration Act. I have considered the totality of [the appellant’s] remaining circumstances as a young male Tamil who is suffering from anxiety and depression, who may face other health problems, and who will be returning to Sri Lanka from Australia as a failed asylum-seeker. However, even taking into account the cumulative effect of these circumstances, I do not accept, having regard to my findings of fact above, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly I do not accept that there are 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 that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act.

THE SECOND FEDERAL CIRCUIT DECISION

62    The appellant advanced three grounds of review before the Federal Circuit Court. Only the first two remain relevant. There was no complaint made in any ground with respect to the conclusions regarding the complementary protection criterion; the appeal revolved solely around the refugee criterion in s 36(2)(a).

63    The first two grounds were as follows:

1.    The Tribunal: (i) erred in holding that Arts 34, 35 and 35 of [IEA], prohibiting persons from departing Sri Lanka otherwise than from an approved point of departure and with a passport, were laws of general application and non-discriminatory (nor applied in a discriminatory fashion) and, therefore, could not amount to persecution for the purposes of s 91R(1) of the Act: Tribunal’s Decision at [78]; and (ii) should have held that those provisions were discriminatory against the applicant as a member of the social group of Tamils who departed Sri Lanka illegally and travelled to Australia (being a Tamil diaspora country) in search of Asylum.

Particulars

a.    The Tribunal appeared to accept that the applicant belonged to a recognised social group of Tamils who departed Sri Lanka illegally and travelled to Australia ([being] a Tamil diaspora country) in search of Asylum: Tribunal’s decision at [82] and [87].

b.     In any event, the applicant was a member of such a social group, which was defined by more than the members’ shared fear of persecution (Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at [36]) or solely by the acts that they had undertaken (Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 at 405);

c.     The Tribunal accepted that upon return to Sri Lanka, the applicant would be charged with an offence pursuant to Art 45 of the [IEA] for contravening Arts 34 and 35 of that Act by departing Sri Lanka illegally: Tribunal’s Decision at [77] and [91]; and

d.     Arts 34, 35 and 45 of the [IEA] discriminated against persons belonging to the social group of Tamils who had travelled to Australia (being a Tamil diaspora country) in search of Asylum, even if those provisions could theoretically be enforced against all Sri Lankans: Minister for Immigration and Citizenship v SZNWC (2010) 190 FCR 23 (SZNWC) at [45]-[46] and [48]-[52].

2.    The Tribunal committed a jurisdictional error by not undertaking the inquiry assigned to it by s 414 of the Act (therein constituting a constructive failure to exercise jurisdiction) by failing to consider whether the applicant was a person to whom the Commonwealth of Australia owed protection obligations under s36(2)(a) of the Act by reason of the applicant’s well-grounded fear of persecution due to his membership of the social group of Tamils who departed Sri Lanka illegally and travelled to Australia (being a Tamil diaspora country) in search of Asylum.

Particulars

a.    The applicant repeats particulars (a) to (c) of ground 1 above.

b.    The Tribunal failed to make any findings as to likely consequences of the applicant having committed an offence pursuant to Art 45 of the [IEA].

c.    Before the Tribunal there was evidence that the applicant faced a real risk of receiving a fine of around 50,000 Sri Lankan Rupees (LKR) and up to 200,000 LKR: applicant’s written submissions dated 11 January 2017 at [105]-[107]; applicant’s written submissions dated 23 January 2017 at [35]-[36]; and Tribunal’s Decision at [36].

d.    Before the Tribunal, the evidence disclosed: (i) that during the times the applicant had worked in Sri Lanka he had received remuneration between 2,000 and 3,000 LKR per month and was now unemployed in Australia (Appendix A to Form 866C); and (ii) the applicant did not have any other relatives with means to pay any fine on his behalf (and nor did the Tribunal find as much).

e.    By reason of the above, the applicant faced a real risk of suffering serious harm pursuant to s 91R(2)(d) of the Act if returned to Sri Lanka by reason of the likely imposition of a fine for contravening Arts 34 and 35 of the [IEA]which the applicant had no means of paying;

f.    The Tribunal failed to consider whether the applicant faced a real risk of serious harm pursuant to s 91R(2)(d) of the Act for the above reason.

g.    The Tribunal further failed to consider further whether Arts 34, 35 and 45 of the [IEA]served any legitimate purpose and were appropriate and adapted to serve that purpose: SZNWC at [40] and [55]-[56].

h.    By reason of the above, the Tribunal did not undertake the inquiry consigned to it so that there was a constructive failure to exercise its jurisdiction: SZNWC at [56].

Ground 1

64    The substance of the complaint under ground 1 as advanced before the Federal Circuit Court was that the Second Tribunal failed to address, in considering the claim under s 36(2)(a), whether the IEA discriminated against the appellant because it disproportionately affected a particular social group of which the appellant was a member.

65    The particular social group of which the appellant was said to have been a member was “Tamils who departed Sri Lanka illegally and travelled to Australia (being a Tamil diaspora country) in search of Asylum”.

66    This complaint suffered two critical problems:

(1)    first, the particular social group identified was not one which the appellant had identified to the Second Tribunal; and

(2)    secondly, the appellant had not argued that the IEA should be found to be discriminatory on the basis of its disproportionate application to any particular social group, whether identified or not.

67    By reference to T[78], the appellant argued that the Second Tribunal only dealt with two ways in which a law might be discriminatory. The Second Tribunal found the IEA was in its terms a law of general application and that it was in fact enforced in a way which was not discriminatory. However, the appellant argued that the IEA, although in terms a law of general application enforced in a non-discriminatory way, was nevertheless discriminatory because the subject matter which it regulated or the way in which it operated practically had a disproportionate and discriminatory effect upon a particular social group. In support of this category, the appellant referred to Chen Shi Hai v the Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at [21], per Gleeson CJ, Gaudron, Gummow and Hayne JJ. Their Honours there said (citations omitted):

To say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non-discriminatory, may impact differently on different people and, thus, operate discriminatorily. Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination. As a general rule, however, a law of general application is not discriminatory. And [Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225] held that, merely because some people disagree with a law of that kind and fear the consequences of their failure to abide by that law, they do not, on that account, constitute a social group for the purposes of the Convention.

68    That is, a law may be discriminatory in at least these three ways:

(1)    on its face;

(2)    because of the way it is in fact enforced; or

(3)    because of its different impact on different people (or a particular social group) such that it operates discriminatorily.

69    The appellant submitted that this third way the IEA might be discriminatory was not addressed by the Second Tribunal; that is, it did not address in its consideration of s 36(2)(a) whether the IEA was discriminatory because of its disproportionate effect on “Tamils who departed Sri Lanka illegally and travelled to Australia (being a Tamil diaspora country) in search of Asylum”.

70    However, as noted above, that was not a claim put to the Second Tribunal either in respect of a claim under s 36(2)(a) or in respect of the appellant’s complementary protection claim. The claim was not one which could be described as an argument clearly articulated; it was not articulated at all. Nor did it arise sufficiently clearly from the material such that the principle in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 operated. Having regard in particular to the fact that the appellant was well represented and at all stages by the same representatives, the principle in NABE did not require the Second Tribunal to deal with permutations of particular social groups which might be constructed or to deal with legal arguments first conceived of on judicial review.

Ground 2

71    The substance of ground 2 was that the Second Tribunal failed to consider whether the appellant had a well-founded fear of persecution due to his membership of the particular social group “Tamils who departed Sri Lanka illegally and travelled to Australia (being a Tamil diaspora country) in search of Asylum”.

72    As noted above, this particular social group was not identified by the appellant as one relied upon before the Second Tribunal either in relation to a claim under s 36(2)(a) or a claim under s 36(2)(aa).

73    The written submissions of the appellant made to the Federal Circuit Court suggested that the particular social group had been put to the Second Tribunal. The written submissions of the respondent either conceded this or at least did not demur. The fact, however, is that it was not put to the Second Tribunal.

74    On appeal, the appellant was offered an adjournment to put before this Court any material not contained in the material before this Court which might suggest that the particular social group relied upon before the Federal Circuit Court had indeed been put to the Second Tribunal. The offer was not taken up.

75    The Federal Circuit Court concluded that the particular social group was not put to the Second Tribunal. It stated (at J[15]):

However, and importantly for this case, the applicant did not claim before the Tribunal that he was a member of the group he postulated for the first time in this proceeding, namely, the social group “Tamils who departed Sri Lanka illegally and travelled to Australia in search of asylum”. It is sufficiently clear from para.78 of its decision record that the Tribunal did not think that the [IEA] discriminated against the particular social groups actually identified to it by the applicant, a conclusion which was open to it on the evidence. However, that consideration did not include the particular social group postulated in this proceeding because the applicant had not raised it with the Tribunal.

76    This conclusion was correct.

APPEAL

77    There were two issues on the appeal. As framed by the appellant in written submissions, they were (footnotes omitted):

(a)     First, the [Federal Circuit Court (FCCA)] held that before the Tribunal the appellant had not contended that he feared persecution by reason of being a member of the social group of “Tamils who departed Sri Lanka illegally and travelled to Australia in search of asylum” (the PSG): J [15]-[16] and [23]. This was in error, and constituted a denial of procedural fairness, in circumstances where the parties had conducted the hearing before the FCCA on the basis that the appellant had contended before the Tribunal that he feared persecution by reason of his membership of the PSG, and the FCCA did not otherwise contend or invite submissions to the contrary; and

(b)     Secondly, the FCCA erred in failing to find that the Tribunal had erred in holding [at T[78]] that the application of the [IEA], and the likely imposition of a fine under that Act on the appellant upon his return to Sri Lanka from Australia by reason of departing Sri Lanka illegally, would not discriminate against the appellant by reason of his membership of the PSG because the I&E Act “discriminated against all Sri Lankans who left Sri Lanka illegally rather than the sub-set of those citizens represented by” the PSG: J [19]. This holding failed to acknowledge that a law of general application that was not discriminatory on its face could still operate discriminatorily by reason of its disproportional impact on certain social groups.

First issue

78    As indicated above, the particular social group identified to the Federal Circuit Court was not put to the Second (or First) Tribunal. Any denial of procedural fairness on the part of the Federal Circuit Court in not stating that it might diverge from the (erroneous) position of the parties in that respect caused no practical injustice – cf Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [60].

79    If the Federal Circuit Court had invited the appellant to address the issue, there was nothing the appellant could have pointed to which showed the particular social group had been put to the Second Tribunal. As noted above, the appellant was invited to put whatever further material he wished before this Court which might indicate otherwise.

80    The Federal Circuit Court stated at J[21]:

As the applicant did not claim that “Sri Lankan illegal departers returning from Australia” were a particular social group, in the circumstances the Tribunal’s failure to consider whether they were did not involve error unless such a claim arose clearly from the materials before it: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1. Whether a claimant is represented by professional advisers, and whether those advisers articulated a case to the Tribunal which it is later said not to have been dealt with, are questions relevant to whether a matter can be considered to have clearly arisen from the materials before the Tribunal: SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26 at 35 [37]. Unless there are reasons to think otherwise, it may be assumed that the claims which a represented applicant wishes to make before the Tribunal are the ones expressly articulated by him or her and his or her advisers and that any other arguable claims which are not expressly articulated are not pressed: SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 at [57].

81    That conclusion was correct.

Second issue

82    As indicated above, the Second Tribunal dealt with the case put to it under s 36(2)(a), including in relation to the particular social groups put to it. It dealt with the case put to in in respect of the IEA. It squarely addressed the submissions advanced by the appellant concerning whether the IEA was discriminatory – see: paragraphs [49], [54] and [55] above. No case was put to the Tribunal that the IEA was discriminatory because of its disproportionate impact on a particular social group, as opposed to it being selectively enforced. It did not err in not considering such a case.

83    As noted at [66] above, it was not put to the Second Tribunal that the IEA, although on its face a law of general application, was nevertheless discriminatory by reason of its disproportionate impact on the appellant as a member of the particular social group “Tamils who departed Sri Lanka illegally and travelled to Australia (being a Tamil diaspora country) in search of Asylum”. That was not put as part of a case under either s 36(2)(a) or s 36(2)(aa).

84    There was no jurisdictional error in not dealing with such a claim.

Conclusion

85    The appeal must be dismissed.

Associate:

Dated:    3 September 2018