FEDERAL COURT OF AUSTRALIA

AEG16 v Minister for Immigration and Border Protection [2019] FCA 585

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The appellant appeals from a decision of the Federal Circuit Court of Australia delivered on 27 June 2018 and published as AEG16 v Minister for Immigration and Anor [2018] FCCA 1514. By that judgment, the primary judge dismissed the appellant’s application for judicial review of a decision of the second respondent (“Tribunal”) to affirm the refusal by a delegate of the first respondent (“Minister”) of the appellant’s application for a Protection (Class XA) visa.

2    The factual background and an outline of the decision of the Tribunal is set out in the appellant’s outline of submissions. The detail there given provides a sufficient context for the purposes of the issues I need to consider. At [10]-[14] the appellant’s outline states:

[10]    The appellant is a Tamil from the north of Sri Lanka. He claimed to fear persecution, inter alia, on the basis of his imputed political opinion as a presumed supporter of the Liberation Tigers of Tamil Eelam (LTTE), as well as his position as a village leader and a person who has been outspoken to the army and the authorities on Tamil issues and the harassment of Tamil women by the army.

[11]    He further feared harm arising from his status as a returning failed asylum seeker.

[12]    The appellant had been involved in recruitment for the LTTE in a non-combative role. He claimed to have been detained, interrogated and beaten on multiple occasions. He further claimed to have suffered harassment and mistreatment when trying to fish.

[13]    The Tribunal accepted numerous aspects of the appellant's factual claims, including his claim to have been a village leader, to have been involved in a non-combative capacity with the LTTE, to have been outspoken about the army's mistreatment of Tamil women and been threatened as a result. It also accepted that the appellant had been detained and interrogated by Sri Lankan authorities at various times. The Tribunal further accepted the appellant's claim about being made to kneel for extended periods at military checkpoints for forgetting his fishing pass.

[14]    Despite those findings, the Tribunal concluded that the appellant did not have a well-founded fear of persecution and did not satisfy the criteria for complementary protection.

3    It is not necessary to refer to the judgment of the primary judge. The appellant has filed a Draft Amended Notice of Appeal containing two proposed grounds of appeal. The proposed grounds raise issues that were not agitated before the primary judge. Without conceding any merit in the proposed grounds, the Minister did not oppose leave being granted to the appellant to amend his Notice of Appeal in the manner foreshadowed by the Draft Amended Notice of Appeal. I determined to grant the appellant leave to amend his Notice of Appeal and to rely on the new grounds proposed.

4    Those grounds are as follows:

1.    The Federal Circuit Court erred in failing to find that the Tribunal failed to consider whether the treatment of the appellant constituted significant harm in the form of degrading treatment or punishment in accordance with s 36(2A)(e) of the Migration Act.

Particulars

a)    The Tribunal accepted at [32] that the appellant had on multiple occasions been punished for forgetting his fishing pass by being made to kneel for around an hour.

b)    The Tribunal concluded that the punishment did not constitute serious harm for the purposes of the assessment of whether the applicant was a refugee.

c)    The Tribunal failed to consider whether the punishment constituted significant harm for the purposes of complementary protection, specifically degrading treatment or punishment in accordance with s 36(2A)(e) of the Migration Act, and if so, whether there was a real risk that the appellant would suffer such harm upon return to Sri Lanka.

2.    The Federal Circuit Court erred in failing to find that the decision of the Tribunal was based on an irrational finding.

Particulars

a)    The Tribunal accepted at [24] that the appellant may resume a village leadership role upon return to Sri Lanka and may become known to authorities for that reason and that his role would include “speaking up about Tamil issues in a leadership role at the local area.”

b)    The Tribunal at [46] found: “It is not suggested that the applicant has engaged in political or separatist activities of any kind since his departure from Sri Lanka or that he will do so if he returns to Sri Lanka in the foreseeable future.”

c)    The Tribunal's finding at [46] cannot be reconciled with its finding at [24] and is irrational.

Ground 1

5    The appellant submitted, uncontroversially, that at the time of the appellant’s visa application on 21 December 2012, the Migration Act 1958 (Cth) (“the Act”) provided two relevant alternative sets of criteria for the grant of a protection visa as follows:

i.    Pursuant to s 36(2)(a), where the Minister is satisfied that the applicant is a person owed protection under the Refugees Convention (“Refugee Criteria”); and

ii.    Pursuant to s 36(2)(aa), where 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” (“Complementary Protection Criteria”).

6    “Significant harm” was defined in s 36(2A) of the Act to be limited to five types of harm. Relevantly to the appellant's case, those included (emphasis added):

(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.

7    In turn, “cruel or inhuman treatment or punishment” was defined in s 5 of the Act in the following terms:

an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)    pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

 (c)    that is not inconsistent with Article 7 of the Covenant; or

(d)    arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

8    “Degrading treatment or punishment” was defined in s 5 to mean:

an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

 (a)    that is not inconsistent with Article 7 of the Covenant; or

(b)    that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

9    The appellant contended that, prima facie, for a person to be forced by military personnel at a check point to kneel for an hour at a time, on multiple occasions, as punishment for forgetting a fishing pass, met the definition of either or both “cruel or inhuman treatment or punishment”, or “degrading treatment or punishment”.

10    The appellant referred to and relied upon [32] of the Tribunal’s decision, where the Tribunal accepted that the appellant had been “punished” by army personnel at military check points for forgetting his fishing pass, on multiple occasions, by being made to kneel down for around an hour (“the punishment”).

11    The Tribunal went on to conclude that the punishment did not constitute “serious harm”. Although not expressly stated, it is clear from the structure of the Tribunal’s reasons that that conclusion was made by the Tribunal in the application of the Refugee Criteria and not the Complementary Protection Criteria.

12    The appellant contended that the Tribunal’s task required it to assess his claims against both the Refugee Criteria and the Complementary Protection Criteria and that, because the Tribunal failed to consider whether the punishment inflicted upon the appellant constituted “significant harm” for the purposes of the Complementary Protection Criteria, the Tribunal had constructively failed to exercise its jurisdiction. Specifically, the appellant contended that the Tribunal failed to consider whether being made to kneel in the circumstances experienced by the appellant was a form of “significant harm” for the purposes of the Complementary Protection Criteria in that it constituted “cruel or inhuman treatment or punishment”, or “degrading treatment or punishment”.

13    The appellant’s contention was premised on the appellant having made a claim before the Tribunal for complementary protection based on the punishment. As I will shortly explain by reference to authority, the Tribunal is only obliged to address a claim expressly made or which clearly arises from the material before the Tribunal. Therefore, unless the appellant’s premise is made good, ground 1 must be rejected.

14    The parties were at issue as to whether a claim based on the punishment was expressly made and further, if not expressly made, whether the claim clearly arises on the material before the Tribunal.

15    I first turn to consider whether the claim was expressly made. It is clear from the content of [32] of the Tribunal’s reasons that the appellant gave evidence that in the period from mid-2011 until August 2012, he was able to fish for his livelihood, having been given a pass by the authorities. It is also clear that in giving that evidence, the appellant claimed that on some occasions in that period, and at a number of military check points, he was made to kneel for about an hour when he had forgotten his fishing pass. It is apparent then that an articulated claim was made by the appellant that he was, on occasions, forced to kneel.

16    The appellant contended that the articulation of that claim must be regarded as an express articulation of a claim by the appellant that the appellant feared that he would suffer “significant harm” as a necessary and foreseeable consequence of being removed from Australia and returned to Sri Lanka. In other words, an express articulation of a claim which engaged the Complementary Protection Criteria in s 36(2)(aa) of the Act.

17    I accept the appellant’s contention that an applicant for a visa need not expressly refer to the terms of the Complementary Protection Criteria to make an articulated claim which engages that criteria. Much depends on what is said, and the extent of any necessary implication to be made from that which is expressly articulated. For instance, a claim by an applicant that she was tortured and fears exposure to further torture should she be returned to her home country would, without more, sufficiently engage the Complementary Protection Criteria for that claim to be regarded as an articulated claim for complementary protection of the kind provided by s 36(2)(aa). That would be so particularly because the use of the term “torture” engages directly with the definition of “significant harm”.

18    The position may be different where a category of harm referred to in the definition of “significant harm” is not mentioned, but instead, the claim that is articulated merely refers to the treatment claimed to have been inflicted upon the applicant, in circumstances where the treatment is capable of falling within the definition of “significant harm”.

19    That is the position contended for by the appellant here. He contends that the punishment was capable of meeting the definition of “significant harm” and, accordingly, the claim he made should be regarded as an articulated or express claim for complementary protection.

20    In my view, the punishment inflicted on the appellant does not so obviously fall within the definition of “significant harm” as to effectively make express that which may merely be implicit. The extent of implication or inference required from what was expressly articulated by the appellant, deprives what was said by the appellant the character of being a “claim expressly made”: SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [36]. Of course, where the making of a claim is reliant on some implication or inference being drawn, the claim may nevertheless be characterised as a claim which clearly arises on the material before the Tribunal. I turn then to consider whether that was here the case.

21    Relying on the principles discussed by Robertson, Griffiths and Perry JJ in SZSHK at [36]-[37] the Minister contended that no such claim clearly arose on the material. The Minister also relied on AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18] to contend that any claim of a real risk of significant harm on the basis of the appellant having been forced to kneel on various occasions was not one which was “raised clearly or squarely” on the material, so as to be characterised as an unarticulated claim which the Tribunal was required to deal with. In AYY17, Collier, McKerracher and Banks-Smith JJ adopted (at [18]) a distillation of the authorities provided by Barker J in AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 at [67]-[68]. Their Honours said:

…

•    As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

  (a) such a finding is not to be made lightly (NABE at [68]);

(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

(c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

37     While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

38     Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

(d)     while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and

(e)     understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

22    I would add to those authorities the following helpful observation made by Allsop J in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] (an observation endorsed by Mansfield, Gilmour and Foster JJ in Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287) that a claim must:

arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

23    In support of the contention that no claim for complementary protection based on the punishment clearly arose on the material, the Minister relied on the following matters:

•    the appellant’s representation by professional advisers throughout;

•    their articulation of the appellant’s complementary protection claims throughout as limited to arbitrary detention, torture and deprivation of life and not as connected in any way with the appellant’s fishing activities;

•    the appellant’s raising of the matters concerning his fishing past and military checks only in the context of Convention-based claims concerning an inability to earn a livelihood; and

•    the failure to make any post-hearing submissions to reframe the appellant’s case in the way now put for the first time in this Court.

24    On that basis, the Minister contended that the Tribunal was not required to address the evidence of the punishment, under the rubric of a complementary protection claim.

25    As was said in AYY17 at [18], “understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum”. Context is important. In this case there are a number of matters which provided context to the evidence given by the appellant to the Tribunal that he was subjected to the punishment.

26    An important contextual consideration is that the appellant was represented and a written submission was filed on his behalf prior to the Tribunal hearing by Refugee and Immigration Legal Service Inc (“RAILS”). The RAILS submission framed the appellant’s claims. The submission divided the claims made between those made by reference to the Refugee Criteria and those made by reference to the Complementary Protection Criteria. In identifying the appellant’s well-founded fears by reference to the Refugee Criteria, the RAILS submission asserted a claim that the appellant had been denied a livelihood by the Sri Lankan military “as he was threatened at check points which prevented him from working as a fisherman”. The difficulties experienced by the appellant as a fisherman were also the subject of a statutory declaration made by the appellant which accompanied his application for the visa. In that statutory declaration, the appellant stated that he had been subjected to constant checking by the military and denied access to the sea, that the army was stopping him at check points when he went fishing and that he was frightened to come to the army’s attention by forgetting his sea pass.

27    In that part of the RAILS submission headed “Complementary Protection Criteria”, claims made by the appellant engaging that criteria were expressly articulated as follows:

The applicant’s statement [an apparent reference to the statutory declaration which accompanied the appellant’s application] substantiates the real chance of significant harm in the form of being arbitrarily detained, tortured and possibly deprived of their life. Should the applicant be returned to Sri Lanka, there is a real risk of arbitrary detention and possible deprivation of life. Such treatment clearly amounts to significant harm in that it involves significant physical ill treatment.

It is accepted by the appellant that no claim based on the punishment was articulated in the RAILS submission.

28    Consistently with the way in which the RAILS submission had framed the appellant’s claims, the Tribunal assessed the claim made that the appellant had been denied a livelihood as a fisherman, in the context of its consideration of the Refugee Criteria. It seems from the structure of those reasons, and the subject dealt with at [32] (where the evidence of the punishment is referred to) that that evidence was:

(1)    given in the context of the Tribunal assessing the appellant’s claim that he had been deprived of his livelihood as a fisherman; and

(2)    was regarded by the Tribunal as an elaboration of the conduct of the military made in support of that claim.

Those facts are relevant to the question of whether a reasonable Tribunal should have appreciated that a different claim, a claim not previously raised by the appellant, was thereby being raised.

29    Taking into account the subject matter being addressed when the evidence was given; the framing of the appellant’s case made by the RAILS submission and, in particular, that whilst that submission made claims engaging the Complementary Protection Criteria, no claim was made based on the punishment; the fact that no supplementary submission was made after the Tribunal’s hearing adverting to such a claim; the fact that the appellant was not unrepresented; and that the nature of the punishment was not a reasonably clear or obvious instance of “significant harm”; I do not consider that a claim relying on the Complementary Protection Criteria and based on the punishment, clearly emerges from or was raised by the material before the Tribunal.

30    For those reasons, ground 1 must be rejected.

31    There were two alternative contentions put by the Minister which, in the circumstances, may be briefly addressed. The first relied on [59] of the Tribunal’s reasons but it is necessary to set the preceding paragraph as well:

[58]    It is submitted that the applicant faces a real risk of significant harm – in that it involves significant physical ill treatment - if removed to Sri Lanka in the form of being arbitrarily detained, tortured, and possibly deprived of his life.

[59]    For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Sri Lanka now or in the foreseeable future on the basis of his Tamil ethnicity, his imputed political opinion, his membership of a particular social group of ‘Tamil fisherman’, his status as a failed asylum seeker, or the fact that he departed Sri Lanka illegally. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. For the same reasons the Tribunal does not accept that there is a real risk the applicant will suffer significant harm for any of those reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka.

32    The Minister contended that if a claim for complementary protection based on the punishment was made, that claim was subsumed in the Tribunal’s global findings concerning complementary protection set out at [59] of the Tribunal’s reasons.

33    This alternative contention of the Minister is not only premised on the appellant having made a complementary protection claim based on the punishment, but must also be premised on the Tribunal having recognised that such a claim was made. In the absence of the Tribunal being cognisant of the claim it cannot be said that it dealt with it.

34    The findings made at [59] must be read in the context of the introduction given at [58], where the complementary protection claims which the Tribunal was cognisant of are specified by reference to the claims made in the RAILS submission. I do not consider that the Tribunal was cognisant that any claim of complementary protection based on the punishment was made and therefore, in dealing with the claims it recognised to have been made in [59], I do not consider that the Tribunal dealt with a claim for complementary protection based on the punishment.

35    In the further alternative, the Minister submitted that any failure to consider the claim had not been demonstrated by the appellant to be material to the Tribunal’s decision. In that respect the Minister relied on Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [30]. I am not persuaded on the basis of the matters relied upon by the Minister, that the Tribunal’s failure to deal with a complementary protection claim based on the punishment “could have made no difference” to the decision that was made by the Tribunal.

Ground 2

36    In relation to ground 2, the appellant contended that the decision of the Tribunal was based on an irrational finding. The impugned finding is found at [46] of the Tribunal’s reasons as follows:

It is not suggested that the applicant has engaged in political or separatist activities of any kind since his departure from Sri Lanka or that he will do so if he returns to Sri Lanka in the foreseeable future.

37    The appellant contended that that finding was made in stark contrast and in direct contradiction of an earlier finding at [24] of the Tribunal’s reasons, as follows:

The Tribunal also considered if the applicant will face a real chance of serious harm on return to Sri Lanka if he takes on a village leadership role and raises issues that affected the Tamil community with the army and/or authorities, as he did in the past. The Tribunal accepts that the applicant may take on such a role on return to his village in Sri Lanka, or even if he returns to other areas such as where his wife and children currently reside in Jaffna, and that he may become known to authorities once again.

38    To provide context to the findings made at [24], the appellant relied on the Tribunal’s acceptance at [18] of the appellant’s claims to have been a village leader in Sri Lanka and of his involvement with the Liberation Tigers of Tamil Eelam (“LTTE”) in the past “primarily by supporting the political wing recruiting villagers”. Additionally, the appellant relied on the Tribunal’s acceptance (at [19]) that on his return to his village in May 2011 the appellant resumed a leadership role and “in that capacity came to the adverse attention of the army at times, usually after he raised an issue with the local authorities on behalf of the villagers”.

39    The appellant contended that the finding at [24] plainly constituted not only a suggestion that the appellant may engage in “political activities of any kind” if he returns to Sri Lanka in the foreseeable future, but a finding of the Tribunal that such engagement is a real possibility. On that basis the appellant contended that what the Tribunal stated at [46] cannot be reconciled with its earlier findings, particularly that at [24], and that, as such, the Tribunal’s finding at [46] is irrational. The appellant relied upon the principles discussed by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135].

40    The Minister contended that fairly read, the remarks at [46] are concerned with political activity in the form of “anti-government activity” of the kind which is mentioned in the preceding paragraph. Further, the Minister contended that the word “political” used at [46] must be read in context with “separatist” in the phrase “political or separatist activities”. It was then contended that the Tribunal’s earlier finding (at [24]) that the appellant may take on a village leadership role on return to Sri Lanka, was not a finding that the appellant may engage in anti-government political or separatist activity and it followed that there was no inconsistency, let alone irrationality, attending the impugned finding at [46].

41    The word “political” is capable of covering a very broad range of activities. For instance it may mean “engaged in or connected with civil administration”, or alternatively, it may mean “relating to or connected with a political party, or its principles, aims, activities, etc” (Macquarie Dictionary 5th Edition). The context in which the term is used may be expected to throw light on its intended connotation.

42    The word “political” in [46] was used in the context of the Tribunal dealing with the appellant’s claim to fear persecution as a failed asylum seeker. In particular, the Tribunal was assessing the likelihood of whether, on return to Sri Lanka and in being questioned at the airport, a pro-LTTE political opinion would be imputed to the appellant. To put the use of the term in its context it is necessary to set out the whole of [46] as follows:

The Tribunal accepts that upon return to Sri Lanka the applicant is likely to face questioning at the airport as to his activities during the time he has been abroad and that given his Tamil ethnicity, he may also face questioning about any links he may have with the LTTE. However, for the reasons set out above, the Tribunal has found that the applicant does not face a real chance of persecution on the basis of an imputed pro-LTTE political opinion. In these circumstances the Tribunal considers that such questioning at the airport, in conjunction with intelligence, will quickly establish that the applicant did not have elaborate links with the LTTE. It is not suggested that the applicant has engaged in political or separatist activities of any kind since his departure from Sri Lanka or that he will do so if he returns to Sri Lanka in the foreseeable future.

43    In using the term “political” in the context of the assessment being made at [46], it is likely that the Tribunal had in mind the party political connotation of the word “political”. That is so because what was being assessed was the appellant’s actual or imputed links or associations with a political organisation (the LTTE). That conclusion is reinforced by the colour which the word “separatist” provides to the word “political” in the phrase “political or separatist activities”.

44    Furthermore, [24] must also be read in context, including by reference to what is said at [16] in relation to the kind of issues (road repairs, water access) that were raised by the appellant with the military when he held a village leadership role.

45    Accordingly, I consider that in addressing party political activities the subject of [46], the Tribunal was dealing with a different category of activities to the civil administrative activities contemplated by [24]. There is therefore no inconsistency of the kind contended for by the appellant demonstrated, let alone any irrationality.

46    Ground 2 should be dismissed.

47    The Minister put an alternative argument that, if there was irrationality, the materiality of any error was not established. In so far as it is necessary to do so, I reject that contention. The contention assumes that the last sentence of [46] is disconnected from the conclusion earlier reached in that paragraph, to the effect that the appellant did not have elaborate links with the LTTE. I regard the last sentence of [46] as intended to support that conclusion rather than, as the Minister’s contention implies, being immaterial to it.

48    For those reasons, the appeal must be dismissed. The parties accept that costs should follow the event. Accordingly, I will also order that the appellant pay the Minister’s costs of the appeal.

Associate:

Dated:    29 April 2019