FEDERAL COURT OF AUSTRALIA

SZQLS v Minister for Immigration and Border Protection [2019] FCA 211

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders of the Federal Circuit Court made on 28 March 2018 are set aside.

3.    The parties are to provide short minutes of order to otherwise give effect to these reasons within seven days.

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

REASONS FOR JUDGMENT

LEE J:

A    Introduction and background

1    This appeal by way of re-hearing under s 24 of the Federal Court of Australia Act 1976 (Cth) (Act) is from an application for judicial review determined by the Federal Circuit Court on 28 March 2018 in respect of an International Treaties Obligations Assessment (ITOA) made by the second respondent (Assessor) on 10 March 2015.

2    The appellant arrived in Australia in October 2009 from Sri Lanka by boat and in January 2010 a Refugee Status Assessment officer found that the appellant was not a person to whom Australia owed protection obligations. In 2010, an Independent Merits Reviewer upheld the original decision. The appellant was later granted a new merits review of his claims by reason of the decision of the High Court in Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319. In June 2011, the second Independent Merits Reviewer made a determination adverse to the appellant and an unsuccessful appeal to this Court followed (which was dismissed in November 2012). In March 2012, the appellant was placed in community detention.

3    In a letter dated 5 September 2014, the Assessor wrote to the appellant explaining that the Department was undertaking a “re-assessment of [the appellant’s] protection claims as part of a new” ITOA. It was said that the ITOA would “assess whether there are any non-refoulement concerns which would prevent the department from progressing removal arrangements in [the appellant’s] case”. It was the outcome of this ITOA which then formed the basis for the application to the Federal Circuit Court in 2018. There was only one ground of review pressed before the primary judge. It was that the Assessor “fell into jurisdictional error in failing to consider a claim squarely put”. Prior to coming to the primary judge’s reasons for dismissing the ground of review, it is necessary to first set out, regrettably in some detail, the submissions on the application before the Assessor.

B    THE SUBMISSIONS BEFORE THE ASSESSOR

4    In response to the Assessor’s letter, the solicitors for the appellant provided detailed submissions that were 12 pages in length (September submissions).

5    On page two of the September submissions, underneath the heading “Protection claims”, it stated that the appellant “makes the following claims” (AB 308-309). Ten claims were then set out in dot-point form. Point (a) indicated that the appellant was a young Tamil male from the North, point (b) stated that he has been imputed with the political opinion of supporting the LTTE. Points (c)-(e), and (g)-(i) appeared to provide a number of examples of why he might be of interest to the Sri Lankan authorities. None of these dot-points mentioned the timing of the appellant’s departure, or in fact, its illegal nature.

6    The September submissions included two further headings: “Article 33 of the Refugee Convention” and “Independent Country Information” (AB 310-311), the latter of which contained six sub-headings. Relevantly, a few pages later, the fourth sub-heading appears (AB 315):

Position of Sri Lankan Government on Tamils

On 11 January 2012, Gotabaya Rajapaksa, Defence Secretary and brother of the Sri Lankan President gave a public lecture and made the following observations (Annexure F):

“The first threat to consider is the on-going activities of LTTE linked organizations outside Sri Lanka. Despite the military defeat of the LTTE and the elimination of its top leadership two and a half years ago, the rump of the LTTE’s global establishment is [still] alive. There are ex-LTTE cadres, pro-LTTE activities and LTTE sympathizers still operating in various guises through various groups in many countries around the world.

One of the most high profile of these criminal activities is the trafficking of persons internationally ... [One] of the stated objectives of the LTTE-linked groups abroad is to encourage and facilitate the resumption of an armed struggle in Sri Lanka. There is ample evidence that members of those groups, as well as LTTE cadres who managed to flee Sri Lanka during the Humanitarian Operation, are consistently trying to contact various people within this country and encourage them to regroup militarily.”

I draw attention to the section where Mr Rajapaksa states that LTTE cadres were able to flee Sri Lanka during the Humanitarian Operation and that they are encouraging Tamils to regroup militarily. I respectfully submit that if [the appellant] is forcibly returned to Sri Lanka he will be arbitrarily detained and interrogated on this very point. During interrogation, he will be at risk of torture, cruel and inhuman treatment and punishment and degrading treatment and punishment.

(Emphasis added)

7    The next relevant event in the narrative is 1 October 2014, when the appellant was extended an invitation to attend an interview regarding his ITOA. The invitation set out adverse country information and some previous findings. The country information made reference to the fact that “reports from a range of credible independent human rights commentators indicates failed asylum seekers who return to that country after leaving Sri Lanka in an illegal manner are not persecuted … in a systematic and differential manner solely as a result of their Tamil race, the manner of their departure from Sri Lanka, time spent abroad, and/or their status as failed asylum seekers”.

8    In response, the appellant’s solicitor made further submissions (October submissions). The October submissions were six pages in length, and made eight numbered “points” which seemed to provide alternate country information to that provided by the Assessor. The October submissions relevantly included the following (AB 432):

7. The Sri Lankan authorities’ approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual’s past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Government of Sri Lanka.

Protection claims on point 7

The applicant was a young Tamil male from the north who left Sri Lanka illegally on 3 September 2009 during the Humanitarian Operation at the end [of] the civil war. He would be suspected of some level of involvement with the LTTE and the Tamil Congress in Sydney and was a main application of a highly publicised High Court of Australia case that the then Australian Prime Minister commented on.

(Emphasis added)

9    The October submissions concluded (AB 434):

I respectfully submit that Sri Lankan authorities will suspect the applicant of acting contrary to Sri Lanka’s national interests and assisting and supporting the LTTE. There is a real chance that he faces a threat to his life and liberty; he will be arrested, detained, interrogated using torture to force a confession from him, be subjected to cruel, inhuman and degrading treatment and punishment to such an extent that he may be even arbitrarily deprived of his life. I kindly request that the applicant be granted protection in Australia.

10    Lastly, on 22 October 2018, there was a further email sent by the solicitor for the appellant in response to updated country information which had been provided by the Assessor (AB 475). This email attached some online newspaper articles in response, and a few dot-points re-iterating particular claims made by the appellant as to why he might be considered to be associated with the LTTE. Relevantly, the appellant did not repeat the claim relating to the significance of his date of departure.

C    ITOA

11    The ITOA was completed in March 2015. It was not a superficial document and extended to 40 pages (AB 496–535). After detailing the migration history of the appellant and the lengthy history of the matter, it identified, in Section 5, the “PROTECTION CLAIMS/INFORMATION TO BE ASSESSED IN THIS ITOA”. In doing so, the following was set out by the Assessor (AB 502–503):

During the ITOA interview of 18 November 2014 the client reiterated his claims for protection as per his most recent IMR hearing of 1 March 2011 and these claims have been summarised above within ‘Migration History’. The submission lodged by the client’s representative dated 11 September 2014, and more recent submissions, reiterated the client’s previous claims and have raised new claims regarding the publication of the client’s details on the internet (‘data breach’), his involvement with members of the Tamil Congress while he was in detention and the publicity he received, including having his image depicted on national television, when his legal challenge to the High Court of Australia was reported in the media. It was submitted that the Sri Lankan authorities would be aware of the client seeking asylum in Australia due to his legal challenge through the High Court of Australia.

The representative also raised new claims in relation to the Complementary Protection provisions, stating that on return to Sri Lanka the client will be remanded in Negombo jail and that during this process he will be at a real risk of ill-treatment or harm from torture, cruel or inhuman treatment/punishment and degrading treatment/punishment. It was further submitted that the Sri Lankan authorities will suspect the applicant of acting contrary to Sri Lanka’s national interests and assisting and supporting the LTTE. In support of the submission dated 11 September 2014 the client’s representative attached country information reports from sources such as Amnesty International, the U.S. Department of State, DFAT and various other media reports.

These new claims are explained in more detail within the representative’s submission of 1 October 2014 which is cited in its entirety at ‘Procedural Fairness’ at Section 9 below. All of the information contained within the submissions dated 11 September 2014, 15 October 2014, 22 October 2014 and 19 November 2014 have been considered as part of this ITOA assessment.

12    As foreshadowed, the Assessor later turned to the topic “PROCEDURAL FAIRNESS” and at Section 9 set out, at some length, the submissions made on behalf of the appellant, including a lengthy quotation from the October submissions (which included the extracts at [8] and [9] above).

13    The Assessor then made several findings which are relevant for present purposes. The Assessor noted (at AB 528):

I do not accept the client’s claims that he will be targeted by the Karuna group if he returns to Sri Lanka. The incident occurred in 2007 and the neither the client, his father nor his brothers were harmed as a result of the father’s failure to make payment to the Karuna group.

Based on relevant country information I am prepared to accept that the client’s father may have been tortured or beaten for hiring sound system equipment to the LTTE at this point in time. However, given this occurred some 25 to 30 years ago and the client’s father has not been targeted by the Sri Lankan authorities in this time period, either through questioning or being detained, I fail to see how the client, who has not been involved with the LTTE, has been imputed with any type adverse political opinion to that held by the Sri Lankan authorities.

It is clear from the aforementioned findings that the client did not have a political profile within Sri Lanka …

14    At AB 522–523:

The client has not experienced problems or any undue attention from the authorities in Sri Lanka due to his Tamil race/being a young Tamil male from the north prior to departing Sri Lanka. Based on the lack of attention from the Sri Lankan authorities prior to departing Sri Lanka, I am unable to ascertain why the client would be of any particular interest to them on return to Sri Lanka. As discussed above, the client does not have any discernible link to the LTTE and he has not been active within the Sri Lankan diaspora within Australia. Based on the statement within the representative’s submission of 15 October 2014 that, ‘In post-conflict Sri Lankan, an individual’s past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Government of Sri Lanka’, it is apparent that the client does not have a history that would represent any risk to the Sri Lankan state.

Whilst I agree with the representative’s statement that, ‘Despite the comprehensive defeat of the LTTE in 2009, the Sri Lankan government still ostensibly claims that the LTTE remains a threat’, the client has never been a member of the LTTE and has no links to the LTTE.

…

In relation to the claim to fear persecution as a ‘young Tamil male from the North’, I give particular regard to the UNHCR’s advice from December 2012 that while all persons residing in an LTTE controlled and administered area at the height of the LTTE’s influence would have had contact with the LITE in their daily lives, originating from such an area does not in itself result in a need for protection in present day Sri Lanka. The previously cited DFAT country information, also referred to in the aforementioned letter, indicates that young Tamil males from the north are subject to extra scrutiny and I accept that the client could be more closely questioned than others but I find that in the absence of any further profile or characteristic of the client, the possibility that this questioning would lead to any other action against the client such as detention or physical assault is remote.

15    Relevantly for present purposes, and relevant to the submission referred to at [8] above (where reference had been made to the appellant having “left Sri Lanka illegally on 3 September 2009 during the Humanitarian Operation at the end the civil war”), the Assessor noted (at AB 524):

Although some asylum seekers have been seriously harmed by authorities after their return to Sri Lanka from abroad in recent times, reports from a range of credible independent human rights commentators indicates failed asylum seekers who return to that country after leaving Sri Lanka in an illegal manner are not persecuted by Sri Lankan authorities in a systematic and differential manner solely as a result of their Tamil race, the manner of their departure from Sri Lanka, time spent abroad, and/or their status as failed asylum seekers.

16    Finally, at AB 534:

Based on the aforementioned country information, in conjunction with my previous findings that the client does not hold a political profile and that he would not be of interest to the Sri Lankan authorities other than as a person who departed illegally, I am of the opinion that the client does not run a ‘real risk’ of being tortured or mistreated if detained on arrival in Sri Lanka.

D    Grounds of appeal

17    An amended notice of appeal was filed on 4 July 2018 in which the grounds were stated to be: (a) the primary judge erred in failing to deal with “the ground as pleaded” below; (b) the primary judge failed to give adequate reasons for his decision; (c) his Honour erred in making a finding that the particular social group “young Tamils from the North” subsumed the characteristic of leaving illegally during the Humanitarian Operation; (d) his Honour erred in finding the claim that the appellant was a member of a particular social group comprising “young Tamil males from the North who left during the Humanitarian Operation” did not arise fairly on the material before the Assessor; and (e) his Honour erred in finding that “it is not necessary for the Assessor to expressly refer to each integer of the claim”.

18    As was recognised during the course of oral submissions, the grounds are overlapping and seek to make two points in different ways. The first is that the primary judge provided inadequate reasons. The second, as refined during the course of argument on appeal, was that before the Assessor was a claim as to the significance of the date of departure of the appellant from Sri Lanka; that by reason of a combination of the appellant’s circumstances (including his date of departure) he comprised an “identifiable particular social group”; and that the primary judge was incorrect to find that the Assessor had dealt with the claim raised.

19    The first argument needs little elaboration by way of introduction and will be dealt with below. It is necessary, however, to expand upon the second point. The appellant points to the fact that in both the September submissions and the October submissions, a claim was articulated that because the appellant left Sri Lanka during the Humanitarian Operation, he would be at risk. The appellant submits that this submission had been overlooked and not considered by the Assessor, hence resulting in jurisdictional error. In response, the case advanced on behalf of the first respondent (Minister) was that at no point before the primary judge did the appellant rely upon, or attempt to draw to the primary judge’s attention, the September submissions, which included specific reference to the Sri Lankan Defence Secretary’s lecture about “LTTE cadres”. It was argued that the Court should find that there was no identifiable separate point of substance claiming that the appellant was at a heightened risk of harm because he was a young Tamil male from the north who departed Sri Lanka in 2009 during the Humanitarian Operation (Alleged Group) and, as such, the Assessor did not fall into jurisdictional error in failing to consider such a claim as it was not squarely put, and the primary judge did not err in his finding.

20    It follows from the above that the questions that arise on the appeal fall into three categories: (a) whether the primary judge dealt with the argument before it and gave adequate reasons for doing so; (b) whether even if the primary judge did fall into error, the Court should allow the appeal in circumstances where the Minister alleges that the Assessor did not, in any event, commit jurisdictional error; and (c) whether the Assessor did commit jurisdictional error.

E    What was put below and the alleged error

21    In brief ex tempore reasons the primary judge dismissed the claim that the Assessor fell into jurisdictional error in failing to consider the claim that by reason of the circumstances of the appellant leaving in 2009 he was at risk of harm.

22    The primary judge extracted the ground of appeal pressed by the appellant below at [20], which relevantly included the following particulars:

…reasons that [the appellant’s] activities would be of interest to Sri Lankan authorities:

i.    Young Tamil male from the north who left Sri Lank.an illegally on 3 September 2009 during the Humanitarian Operation at the end of the civil war:

ii.    The applicant’s date of departure at the end of the war itself raises suspicion of LTTE involvement; and

iii.    The particular social groups of “Young Tamil males from the north” and “Sri Lankan failed asylum seekers” at page 34 there is no consideration as to the implications of the date of illegal departure from Sri Lanka’.

23    The material establishes that in support of the one ground pressed before the primary judge, the following was submitted orally by counsel for the appellant (T6.20-28):

…young Tamil males from the north, but it’s not subsumed in – within that particular social group because they are – they have another characteristic which is separate from that which heightens, we say, heightens the risk, which is that they’ve left illegally at a time when people were being rounded up in 2009. Young Tamil males from the north were being rounded up, so if – if the applicant were to return to Sri Lanka he would have to go through that process. He would have to go through the process of being rehabilitated. That is not something that this decision maker looked at and we say it clearly arises from the materials.

(emphasis added)

24    At [22] of his judgment, the primary judge extracted the relevant portion of the October submissions and then went on to discuss the claim that the appellant was a young Tamil male from the North at [23]–[24]. At [25]–[28] the primary judge then made the following findings:

Ms Grotte of counsel submitted that, by reason of the circumstances that the applicant left in 2009, the applicant should be regarded as being in a particular social group that should have been addressed by the assessor as a result of the submission referred to above at [22] under Protection Claims on point 7 in the submission dated 15 October 2014. No express submission is advanced that the applicant was at a heightened risk of imputation of an LTTE connection because of his departure in 2009, nor was any submission advanced that there was a particular social group of the kind advanced in support of ground 2. No such claim was expressly made, and no such claim fairly arises on the material before the assessor.

I do not accept that the assessor failed to address an essential integer in relation to the applicant’s claim or that there is a claim that the applicant belonged to a particular social group of young Tamil males from the north who left in 2009 during humanitarian operations that arose on the material and should have been the subject of its findings. The assessor did not fail to consider the applicant’s claims and made findings dispositive of the applicant’s claims.

The context of the departure date of the applicant, being that this was during the operation at the end of the civil war, was in relation to the applicant’s claim to fear harm by reason of being a young Tamil male from the north, and was not a separate claim that the applicant belonged to a particular social group. Moreover, it is apparent on the face of the assessor’s reasons, that the assessor took into account the applicant’s contextual circumstances and date of departure, which was expressly identified in the submissions set out in the assessor’s assessment.

It was not necessary for the assessor to expressly refer to each aspect of the submissions advanced in relation to the applicant’s claim to fear harm by reason of being a member of a particular social group, being a young Tamil male from the north. I accept the first respondent’s submission that the contextual circumstances of the applicant being a person that left Sri Lanka during humanitarian operations in 2009 at the end of the civil war was on the face of the assessor’s reasons, information taken into account by the assessor in determining the claim advanced that the applicant was a member of a particular social group, being young Tamil males from the north. The assessor made dispositive findings on the applicant’s claims and there was no integer of the applicant’s claims that was not subsumed in the adverse findings by the assessor. No jurisdictional error as alleged in ground 2 is made out.

25    The first point that needs to be made is that when one examines what was put to the primary judge (see [23] above), and a similar point made in the written submissions below (at [16.5]), it is understandable his Honour did not make reference to the Sri Lankan Defence Secretary’s lecture about “LTTE cadres” (AB 315, 399), given it received no prominence in the submissions advanced before him. The focus of the appellant’s submissions was the October Submissions. It was in this context that the primary judge rejected what he characterised as the appellant’s submission, and made the express finding that there was no “particular social group”, being the Alleged Group, and said that “no such claim was expressly made, and no such claim fairly arises on the material before the assessor” (at [25]).

26    Initially in this Court, counsel for the appellant focussed upon this issue of whether a “particular social group” existed, and whether the primary judge was incorrect to find that it did not exist at the level of granularity contended for by the appellant. This was a distraction from the real issue. As the argument developed, in my view correctly, the appellant focussed more on whether this aspect of the overall claim made in the October submissions was adequately dealt with by the Assessor and the primary judge.

27    In supplementary submissions on this appeal, the appellant accepted that the primary judge’s reasons demonstrate that the primary judge accepted that the “date of departure” from Sri Lanka was a material fact relevant to the appellant’s “contextual circumstances” and, in the opinion of the primary judge, was a fact that had been “taken into account” by the Assessor (at [28]).

28    It is said by counsel for the appellant that the primary judge’s conclusion was mere assertion and conclusory. The vice being that the primary judge did not explain why he came to such a conclusion and his Honour did not expose his process of reasoning for so concluding. The relevant question is whether his Honour exposed his reasoning processes in forming the determinative conclusions that: (a) the Assessor “took into account the applicant’s contextual circumstances and date of departure, which was expressly identified in the submissions set out in the [A]ssessor’s assessment” (at [27]); and (b) “the contextual circumstances of the applicant being a person that left Sri Lanka during humanitarian operations in 2009 at the end of the civil war was on the face of the [A]ssessor’s reasons, information taken into account by the [A]ssessor in determining the claim advanced” (at [28]); and (c) the Assessor “made dispositive findings on the applicant’s claims and there was no integer of the applicant’s claims that was not subsumed in the adverse findings by the [A]ssessor” (at [28]).

29    The argument advanced by the Minister in response was initially that:

The Appellant’s submissions claim that his Honour’s reasons were “conclusory” but that is not so. His Honour sets out the relevant submission made to the assessor at [22] and the Appellant’s submissions in respect of it at [25]. Having done so his Honour concluded at [25-29] that no such social group claim was advanced, which is clearly the case given the submission at [22] does not do so. His Honour’s reasons are more than adequate to explain why he rejected the submission at [25], so this ground fails.

… his Honour held at [27-28], the date of departure of the Appellant from Sri Lanka was taken into account by the assessor in assessing his claim to fear harm in Sri Lanka for being a member of a social group of “young male Tamils from the North”. Otherwise the Appellant’s submissions on this ground are premised on there being a social group as he alleged before his Honour, which would be a factual matter for the assessor if such a claim had ever been made, but as his Honour held it had not. This ground fails.

30    When further submissions were filed, the Minister submitted:

For the reasons set out above and in the first respondent’s earlier submissions on the appeal, the primary judge did not fail to give adequate reasons in disposing of the appellant’s single ground at first instance. The issue before the primary judge was whether the appellant raised before the Assessor an argument of substance which indicated the alleged significance of the appellant’s date of departure from Sri Lanka. On this issue, the primary judge correctly recorded at [25] of his Honour’s reasons that in the appellant’s 15 October 2014 submission to the Assessor, “[n]o express submission is advanced that the [appellant] was at heightened risk of imputation of an LTTE connection because of his departure in 2009”. The relevant protection claim made in the 15 October 2014 submission, as the primary judge correctly noted at [22] and [25] of his Honour’s reasons, simply said that the appellant “would be suspected of some level of involvement with the LTTE” and did not raise a distinct claim of increased risk hinging on the significance of the appellant’s departure date. The primary judge’s finding was sufficient to dispose of this ground at first instance.

31    With respect, I do not consider that the Minister’s submissions grapple with the complaint made (or at least as it was made in final form). His Honour evidently thought the “contextual circumstance” of the date of departure was necessary for the Assessor to take into account but other than saying it was, no reason or explanation is given as to why this conclusion was reached. No specific reference is made as to where, in the 39-page ITOA, the date of departure at the time of the Humanitarian Operation was referred to and as to how it was taken into account in the assessment undertaken.

32    In BKL15 v Minister for Immigration and Border Protection [2016] FCA 802; (2016) 241 FCR 450 at [8]-[16], Flick J summarised the relevant authorities in relation to the duty to give reasons in terms which I gratefully adopt. I am conscious it is not a standard of perfection and for my part, at least, there can be too ready criticism of a judge trying to get through work by delivery of ex tempore reasons. Appropriate allowances must be given for the pressures under which judges are placed by the volume of cases coming before them: Maviglia v Maviglia [1999] NSWCA 188 at [1] per Mason P; Mega-Top Cargo Pty Ltd v Moneytech Services Pty Ltd [2015] NSWCA 402 at [24] per Leeming JA (Gleeson JA and Emmett AJA agreeing). Having said this, it is not possible, with respect, to understand the basis (or bases) for which his Honour came to the conclusions identified at [24] above. This ground of appeal is made out.

F    relief and jurisdictional error

33    The demonstration of error is not enough to ground the relief sought by the appellant in this Court. This would be the case, irrespective as to the relief sought having regard to futility principles, but the discretionary nature of relief is brought into sharper focus here by reflecting on the fact that this is an appeal from the primary judge dismissing an application for review of an ITOA concluding that there were no non-refoulement obligations applicable to the appellant. The ITOA is, of course, a non-statutory process, although review of it may be sought on the basis that it was not conducted according to law. In this case, however, the appropriate relief would be a declaration and possibly an injunction rather than relief by way of orders for certiorari and mandamus: see generally Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at 544-546 [200] per Lander and Gordon JJ.

34    Irrespective as to the principled nature of the relief, I am required to consider whether sending the matter back would be utile and consistent with the overarching purpose of the efficient and cost effective disposition of this dispute enshrined in Pt VB of the Federal Court of Australia Act 1976 (Cth).

35    At the end of the day, the real issue is whether the Assessor’s decision is affected by jurisdictional error. As Gageler J recently explained in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 at 724 [34], in judicial review applications conducted by reference to documentary and affidavit material, an appellate court is in as good a position as the primary judge: see also CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150 at [93].

Was the Claim Raised?

36    When one has regard to the appellant’s claim as refined on this appeal, counsel acting for the appellant accepted that the high-water mark of the alleged separate claim advanced, is found in the September submissions, extracted at [6] above (being the reference to the assertion that he would likely suffer harm “on this very point” (AB 315)). The claim is then, it is said, repeated in the October submissions under the specific heading “Protection claims on point 7” (AB 432): see [8] above.

37    The Minister submitted that sending the matter back would be futile because the Assessor dealt with the actual issue raised by the appellant:

…in his decision at AB 518-520 (particularly in the paragraph in the middle of the page at AB 520). The Assessor (at AB 520) found that “the client is not a LTTE supporter and has no political profile within Sri Lanka.” The Assessor, therefore, concluded (at AB 534) that “the client does not run a ‘real risk’ of being tortured or mistreated if detained on arrival in Sri Lanka.”

38    This contention was expanded upon orally. The Minister submitted that the culmination of the appellant’s argument before the Assessor, properly understood, is that which appears in the October submissions, that the appellant, as a “young Tamil male from the north who left Sri Lanka illegally on 3 September 2009 during the Humanitarian Operation … would be suspected of some level of involvement with the LTTE and the Tamil Congress in Sydney” (AB 432). This claim was set out fully in the IOTA at (AB 510) and demonstrates how the claim was made by the appellant and understood by the Assessor. The Assessor proceeded to deal with this claim as raised.

39    Reading the October submissions alone, the aspect of the claim relating to date of departure reads as being contextual and peripheral, and the Minister’s submission that the Assessor dealt with the whole of the claim is convincing. The Assessor’s reasons, as I have outlined above, deal comprehensively with the harm claimed to be feared by reason of the appellant being a young Tamil male from the north who left Sri Lanka illegally.

40    It was accepted by both counsel, that the point of departure between the parties was whether the claim in the October submissions was supplemented or augmented by the relevant portion of the September submissions. In fact, counsel for the Minister conceded fairly (at T22.10-14):

… if your Honour is persuaded that the claim made at 432 in the October submission to the assessor is augmented in the way that my friend says should be read as “by the September submission”, then, candidly, I may well lose this appeal.

41    In SZSJB v Minister for Immigration and Border Protection [2017] FCA 229 at [24], Perry J noted that:

While the ITOA is preparatory only of a decision, nonetheless the parties rightly assumed that any failure by the assessor to consider the appellant’s claims (and their component integers) to fear persecution or harm apparent from the materials before the assessor would constitute a legal error, given that the authorities have held that an equivalent failure by a decision-maker will result in jurisdictional error.

(citations omitted)

42    It is, therefore, useful to consider the relevant authorities which examine the proper role of a decision-maker in relation to claims asserted and made. It is trite that a decision-maker will fall into jurisdictional error where there is a failure to make a finding on a “substantial, clearly articulated argument relying on established facts”: Dranichnikov v Minister for Immigration and Multicultural Affairs  [2003] HCA 26; (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at 17-18 [55], 20-21 [63]. In NABE, the Full Court said at 18-19 [58]:

The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ) … It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

(emphasis added)

43    The Minister submits that his reading of the submissions should be preferred for a number of reasons. First, the context of where the purported claim appears in the September submissions, and in particular the heading under which it appears, “Position of Sri Lankan Government on Tamils”, indicates the claim underneath is a separate point which relates only to “LTTE cadres”. The Assessor found (at AB 520) that the appellant “is not a LTTE supporter and has no political profile within Sri Lanka”.

44    Secondly, although the date of departure is mentioned in the September submissions, it is said that the claim is re-iterated in final form in the October submissions, and a fair reading of all the material before the Assessor is that the submission is relied upon only as it appears in the October submissions. Thirdly, the Minister relies upon the structure of the submissions. The preliminary section of the September submissions identifies the appellant’s “protection claims”. In particular, it is submitted that the submission at AB 315 should be read in the context of claim (b), that the appellant fears he “will be imputed with the political opinion of supporting the LTTE”. Ultimately, it was said that upon a fair reading of all the submissions, the claim in the September submissions relates to what the Sri Lankan Government thinks about the overseas Tamil diaspora generally. There was no claim separately raised about the date of departure, but merely the claim which was expressed clearly in the October submissions, where the date of departure is merely contextual.

45    Despite the admittedly confusing structure of the submissions, I am satisfied that the claim is one which, on balance, was sufficiently apparent on the material before the Assessor, despite not being articulated at the interview or in the October submissions. This is so for a number of reasons.

46    First, excluding the number of documents attached, the September submissions themselves, were not lengthy. The claim constitutes the whole point of one of five sub-headings under “country information”, in the only set of submissions which were not prepared in direct response to information from the Assessor. The inclusion of a summary list of “claims” elsewhere in the submissions does not relieve the Assessor of the obligation to consider all submissions made. Secondly, an ITOA is not a process whereby a hearing occurs and forensic decisions are perhaps made to only argue certain claims. The interview was, by its very nature, directed by the interviewer. The appellant was not legally represented at the interview, and it is not in the circumstances unreasonable to assume the written submissions prepared by a legal representative will be considered carefully. Thirdly, while the Minister submitted that all claims were articulated in the list under the heading “claims made”, the overarching claim, that the appellant will be imputed with the political opinion of supporting the LTTE, was mentioned. As a separately expressed submission based on evidence it constitutes a material integer of that broader claim. Fourthly, the way in which the claim was expressed in the September submissions was not done in a way to conceal the claim among other information that would require the Assessor to engage in “creative activity”: NABE at 18-19 [58]. It was clearly stated: “I respectfully submit that if [the appellant] is forcibly returned to Sri Lanka he will be arbitrarily detained and interrogated on this very point”. Fifthly, the claim was made with direct reference to evidence which was extracted and set out within the submissions. Sixthly, contrary to the Minister’s submission, the claim made in the September submissions was not subsumed or overtaken by the claim made in “point 7” in the October submissions. I have already made mention of the different nature of the September and October submissions, one being in response to contrary country information, and the October submissions should not be read in this case as seeking to replace or refine the submissions made in September submissions.

Did the Assessor Consider the Claim Raised?

47    It is well-established that a decision-maker is not required to refer to every contention or integer of a claim raised by an applicant (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at 604 [46]). In WAEE the Full Court explained (at 604 [47]):

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

(emphasis added)

48    Although the Assessor’s reasons are comprehensive, and deal in detail with the claim that the appellant would be of special interest to the Sri Lankan authorities by reason of his illegal departure, it is significant that there is no mention of the potential significance of the date of departure beyond his repetition of the claim as it appears in the October submissions. As mentioned above, it cannot be said that the claim was subsumed within findings of greater generality. The claim was an integer of that claim which provided a potential new reason as to why the appellant might be imputed with such a political opinion.

Could the Failure to Deal with the Claim have been Dispositive of the Review?

49    The final point to be considered, is whether it can be said that even if the Assessor had had regard to this claim, it would have made no difference to the outcome of the ITOA.

50    The High Court has recently explained that the claim must have been “an essential integer to an applicant’s claim or [one] that would be dispositive of the review”: ETA067 v Republic of Nauru [2018] HCA 46; (2018) 360 ALR 228. It is worth repeating the way in which the Assessor dealt with the appellant’s claim from the October submissions (at AB 520): “I do not accept that the Sri Lankan authorities would impute the client with a political opinion by reason of his asylum seeking in Australia …. I am unable to identify any reason as to how or why he would be differentiated from the thousands of other asylum seekers”. This reasoning demonstrates that had there been another reason as to why the appellant would be differentiated, this had the potential to affect the result of the assessment.

51    It follows that the Assessor has failed to consider an essential integer of the appellant’s claims that he would be imputed with the political opinion of supporting the LTTE and would be of interest to the Sri Lankan authorities.

G    Orders

52    The orders sought by the appellant were as follows:

(1)    An order quashing or setting aside the judgment of the Federal Circuit Court.

(2)    Any other order the Court sees fit.

(3)    Costs.

53    This relief is inapposite for reasons I have touched upon above. The parties should provide short minutes identifying appropriate relief including reflecting any agreement (or competing proposed orders) as to costs.

Associate:

Dated:    25 February 2019