FEDERAL COURT OF AUSTRALIA

AGD15 v Minister for Home Affairs [2019] FCA 896

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the First Respondent’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

ANDERSON J:

Introduction and summary

1    The applicant seeks leave to appeal from a decision of the Federal Circuit Court of Australia (Circuit Court). The Circuit Court dismissed the applicant’s judicial review application at a show cause hearing pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCCA Rules) on the grounds that the Court was not satisfied that the application had raised an arguable case. The applicant’s judicial review application in the Circuit Court concerned the review of a decision of the Refugee Review Tribunal (Tribunal) affirming the decision of a delegate of the first respondent (Minister) to refuse the applicant a protection visa (Visa).

2    For the reasons below, the Circuit Court was correct to dismiss the applicant’s judicial review application on the basis that the application did not raise an arguable case. In particular, contrary to the submission of the applicant, there was no failure of the Tribunal to comply with its obligation under s 430(1)(b) of the Migration Act 1958 (Cth) (Act) to set out the “reasons” for its decision. The application for leave to appeal to this Court is accordingly dismissed.

Background

3    The key background facts were set out at [2]-[9] of the reasons of the Circuit Court (FCCA Reasons) as follows:

(1)    The applicant, a Sri Lankan national aged 37 years, first arrived in Australia on 19 July 2012 as an unauthorised maritime arrival;

(2)    On 20 November 2012, the applicant, with the assistance of his migration lawyers, applied for a Visa. In his application, the applicant listed his ethnicity as Singhalese and his religion as Buddhist;

(3)    By his statutory declaration dated 14 November 2012, the applicant set out the basis of his claims for protection. He claimed to fear harm in Sri Lanka from supporters of the Sri Lankan Freedom Party (SLFP) by reason of his stated involvement with the United National Party (UNP). The applicant claimed to have been harassed and assaulted on three occasions by supporters of the SLFP. The applicant also claimed that he could not safely relocate in Sri Lanka and that he feared harm from the Sri Lankan authorities as a failed asylum seeker;

(4)    On 18 September 2013, a delegate of the Minister found that the applicant was not a person to whom Australia owed protection obligations and accordingly made a decision refusing the application,

(5)    On 3 October 2013, the applicant lodged an application with the Tribunal for a review of the delegate’s decision;

(6)    By letter dated 10 November 2014, the applicant was invited to appear before the Tribunal on 18 December 2014 to give evidence and present arguments relating to the decision under review;

(7)    On 13 November 2014, the applicant’s migration lawyers provided written submissions in support of the application; and

(8)    The applicant attended the hearing before the Tribunal and was assisted by his representative and a Sinhalese interpreter.

The Tribunal’s decision

4    On 18 February 2015, the Tribunal affirmed the decision of the delegate not to grant the applicant a Visa. As summarised at [13] of the FCCA Reasons, the key findings by the Tribunal were as follows.

5    Political involvement – The Tribunal accepted that the applicant was a member of the UNP in Sri Lanka but considered him to be a low level supporter: RRT Reasons at [26], [37]. The Tribunal also accepted that an incident in which the applicant had been involved in 2004—when he was caught pulling down opposition political posters—had resulted in his being attack, and that this had resulted in him suffering serious harm: RRT Reasons at [38]. The Tribunal did not regard a second incident, which occurred seven years later, and in which the applicant had been the subject of insults, as constituting serious harm: RRT Reasons at [39]. Nor did it regard the further injuries which the applicant had received several months later as constituting significant harm in circumstances where the applicant had treated his wounds himself and had required no other treatment: RRT Reasons at [40].

6    Assessment of risk – The Tribunal proceeded to consider whether the applicant faced a real chance of serious harm on account of his membership of the UNP, noting country information and acknowledging that there had been some reports of attacks on UNP members. The Tribunal found that the attacks had been on candidates and activists but not low level supporters. The Tribunal concluded that there was no chance that the applicant would be seriously harmed, and that the applicant did not have a well-founded fear of persecution, on the basis of his political opinions or his membership of the particular social group of members of the UNP: RRT Reasons at [41]-[48].

7    Returned asylum seeker – The Tribunal accepted that the applicant would be assumed to be a returned asylum seeker who would be considered by the authorities on that basis. The Tribunal had regard to country information and found that the applicant did not fall within the class of persons who might be at a relevant risk: RRT Reasons at [49]-[56]. It also found that the applicant would likely be fined and granted bail relatively quickly and that the country information did not support a conclusion that he would be treated any more harshly. It did not accept that a short period of remand gave rise to a real risk of significant harm in the form of torture or cruel or inhuman treatment: RRT Reasons at [57]-[71].

8    Intentional infliction of harm – The Tribunal also considered that under Australian law, cruel or inhuman treatment or punishment must be inflicted intentionally and that degrading treatment of punishment must be intended to cause extreme humiliation: RRT Reasons at [72]. It had regard to applicable jurisprudence in doing so and concluded that there were no substantial grounds for believing that the applicant would be significantly harmed as a result of his illegal departure: RRT Reasons at [72]-[75].

9    Cumulative assessment – The Tribunal also addressed the applicant’s claims based upon a cumulative assessment of his circumstances, and was not satisfied that the refugee or complementary protection criteria were made out: RRT Reasons at [76]-[81].

The Federal Circuit Court’s decision

Procedural background

10    On 17 March 2015, the applicant filed an application for judicial review of the Tribunal’s decision not to grant him a Visa. The applicant advanced two grounds of review:

1.    The [Tribunal] did not afford me procedural fairness

2.    The [Tribunal] applied the wrong legal test.

11    On 14 April 2015, the Minister filed a response opposing the orders sought by the applicant on the basis that no arguable case for relief sought was raised.

12    On 24 June 2015, orders were made, by consent, fixing the matter for a show cause hearing. By those orders, the applicant was afforded the opportunity to file and serve any amended application including additional grounds of review with complete particulars of each ground and any written submissions in support of the application. The applicant did not take the opportunity to do so.

13    On 13 February 2017, orders were made in chambers adjourning the proceeding pending the decision by the High Court of Australia in SZTAL V Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362, which was delivered on 6 September 2017.

14    The show cause hearing was held on 7 December 2018. The applicant attended in person.

No arguable case for relief

15    On 18 December 2018, the Circuit Court made an order that the applicant’s judicial review application be dismissed pursuant to r 44.12(1)(a) of the FCCA Rules. For reference, r 44.12(1) provides as follows:

Show cause hearing

(1)     At a hearing of an application for an order to show cause, the Court may:

(a)     if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

(b)     if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

(c)     without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

…

16    The Circuit Court recognised in its reasons that the power conferred by r 44.12 of the FCCA is akin to a form of summary dismissal: FCCA Reasons at [21], citing MZAJQ v Minister for Immigration [2015] FCCA 593 at [13]; SZUTB v Minister for Immigration and Border Protection [2015] FCCA 1383; 298 FLR 6 at [10]. The Circuit summarised the principles relating to a court’s discretion whether to grant summary judgment (FCCA Reasons at [22]-[25]) before outlining that the power conferred by r 44.12(1) has two components:

(1)    lack of satisfaction that the applicant had raised an arguable case; and

(2)    a residual discretion whether or not to dismiss the application.

17    The Circuit Court considered each of the two grounds of review raised by the applicant in that Court, as extracted above at [10]. The Circuit Court rejected the first ground of review on the basis that the applicant had been afforded procedural fairness before the Tribunal: FCCA Reasons at [30]-[40]. In particular, the Circuit Court found that:

(a)    the applicant was on notice from the delegate’s decisional record of the issues that were likely to arise in the merits review of that decision;

(b)    the applicant was invited to a hearing before the Tribunal and afforded a meaningful opportunity to give evidence and make arguments;

(c)    the Tribunal did not decide the judicial review application on a basis that was different from that which had informed the delegate in the decision to refuse the application;

(d)    the Tribunal considered the issues raised by the applicant; and

(e)    the Tribunal engaged in an active intellectual consideration of the application for review.

18    The Circuit Court also rejected the second ground of review—that the Tribunal had applied the wrong legal test: FCCA Reasons at [41]-[43]. This ground was wholly unparticularised and the Circuit Court, from its own examination of the Tribunal’s reasons and the materials comprising the Court Book before that Court, could not identify any failure by the Tribunal to apply the correct legal test.

19    For these reasons, the Circuit Court was not satisfied that the applicant’s grounds of review before that Court would have a reasonable chance of success. Nor was the Circuit Court persuaded that discretionary considerations favoured the conclusion that the show cause application should otherwise be adjourned for a final hearing: FCCA Reasons at [45]. The applicant’s judicial review application to the Circuit Court was accordingly dismissed.

Application for leave to appeal to this Court

20    On 24 December 2018, the applicant filed an application for leave to appeal the decision of the Circuit Court.

21    The applicant requires leave to pursue an appeal in this Court because the decision made by the Circuit Court in this case was interlocutory in nature: s 24(1A) of the Federal Court of Australia Act 1976 (Cth); r 44.12(2) of the FCCA Rules. For this Court to grant leave to appeal from an interlocutory judgment, an applicant must show that the decision at first instance is attended with sufficient doubt to warrant review and, further, that, if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: EPR17 v Minister for Home Affairs [2019] FCA 416 at [25], citing Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.

22    Shortly before the hearing for leave to appeal in this Court, the applicant served a draft amended notice of appeal dated 20 May 2019. The sole draft ground of appeal in the draft amended notice of appeal was articulated as follows:

The decision of the [Tribunal] was affected by jurisdictional error in that the Tribunal acted unreasonably by failing to provide for the conclusions at paragraphs 40 and 46 of its Statement of Directions and Reasons justifying an inference that there was no lawful reason for its conclusions and that the Tribunal failed to consider the claim in a manner consistent with its statutory function.

23    The applicant required leave to rely upon the amended draft notice of appeal. He also required leave to argue the ground of appeal above on the basis that it had not been agitated before the Circuit Court: Coulton v Holcombe (1986) 162 CLR 1; AAD16 v Minister for Immigration and Border Protection [2018] FCA 1433 at [17]-[18]. At the hearing, the Minister, without conceding that there was any merit to the amended ground of appeal, did not oppose these forms of leave being granted to the applicant. I accordingly granted leave for the applicant to rely upon the new ground of appeal set out in the amended draft notice of appeal.

Applicant’s overarching submission

24    On first glance, the language of the applicant’s sole ground of appeal appears to allege that the Tribunal engaged in an unreasonable mode of reasoning or otherwise reached an unreasonable outcome. However, at the hearing, counsel for the applicant eschewed any submission that the Tribunal had engaged in legally illogical or irrational reasoning.

25    The applicant instead put his argument on the basis that the Tribunal, particularly in [40] and [46] of its reasons, failed to provide an adequate statement of “reasons” as it was required to do under s 430(1) of the Act. At the time of the Tribunal’s decision—18 February 2015, s 430 provided the following:

Refugee Review Tribunal’s decision and written statement

Written statement of decision

(1)     Where the Tribunal makes its decision on a review, the Tribunal must make a written statement that:

   (a)     sets out the decision of the Tribunal on the review; and

   (b)     sets out the reasons for the decision; and

   (c)     sets out the findings on any material questions of fact; and

(d)     refers to the evidence or any other material on which the findings of fact were based; and

(e)     unless the decision is given orally—records the day and time the statement is made; and

(f)     if the decision is given orally—records the day and time the decision is given orally.

How and when written decisions are taken to be made

(2)     A decision on a review (other than an oral decision) is taken to have been made:

(a)     by the making of the written statement; and

(b)     on the day, and at the time, the written statement is made.

Note: For oral decisions, see section 430D.

(2A)     The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.

Return of documents etc.

(3)     After the Tribunal makes the written statement, the Tribunal must:

(a)     return to the Secretary any document that the Secretary has provided in relation to the review; and

(b)     give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.

Validity etc. not affected by procedural irregularities

(4)     The validity of a decision on a review, and the operation of subsection (2A), are not affected by:

(a)     a failure to record, under paragraph (1)(e) or (f), the day and time when the written statement was made or the decision was given orally (as the case requires); or

(b)     a failure to comply with subsection (3).

26    The applicant accepted that paragraphs (a) and (c) to (f) of s 430(1) were satisfied by the relevant paragraphs of the Tribunal’s reasons. What was missing, in the submission of the applicant, was satisfaction of s 430(1)(b); the relevant paragraphs did not adequately set out the Tribunal’s “reasons”. In particular, the applicants say that these paragraphs were expressed as bare conclusions without revealing the intellectual process by which those conclusions were reached.

27    Before considering these submissions, it is first necessary to outline some relevant concepts under the Act and the legal principles relevant to the Tribunal’s obligation under s 430(1) of the Act.

Relevant concepts under the Act

28    As will be further detailed, key to the applicant attacks on the Tribunal’s reasons are the concepts of “serious harm” under s 91R(1)(b) of the Act and “significant harm” under s 36(2A) of the Act.

29    “Serious harm” is a key concept under s 91R of the Act, a provision which was repealed with effect from 18 April 2015: see SZULW v Minister for Immigration and Border Protection [2018] FCA 1335 at [8]. However, at the time of the Tribunal’s decision, s 91R of the Act relevantly provided as follows:

Persecution

(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:

…

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

(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.

30    In this context, “serious harm” has been understood as harm which a person cannot be expected to tolerate such that a person’s refusal to return to his or her country of nationality is an understandable choice: Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; 254 CLR 610 at [59]-[60], [70], [89], [98].

31    “Significant harm” is a key concept for the purposes s 36(2)(aa) of the Act, a criterion for the grant of a Visa which was introduced into the Act in 2012 as part of the implementation of the “complementary protection regime”: see generally SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [69]-[79]. That criterion is engaged where, relevantly, the applicant for a Visa is not a non-citizen in Australia to whom Australia owes protection obligations under the Refugees Convention, but 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.

32    “Significant harm” for these purposes is exhaustively defined in s 36(2A) of the Act as follows:

(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.

33    “Cruel or inhuman treatment or punishment”, as referred to in s 36(2A)(d), is relevantly defined by s 5(1) of the Act to mean “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”.

34    “Degrading treatment or punishment”, as referred to in s 36(2A)(e), is relevantly defined by s 5(1) of Act to mean “an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable”.

Section 430(1) of the Act – Relevant principles

35    Upon making its decision, the Tribunal was required to provide a “written statement” addressing the matters set out in s 430(1) of the Act, as set out above at [25].

36    As explained by French CJ and Kiefel in Minister for Immigration and Citizenship v SZUGR [2011] HCA 1; 241 CLR 594 (SZUGR) at [32], s 430(1) presupposes a logical structure to the Tribunal’s reasoning which involves the following steps:

(a)    identification of the relevant evidence or material upon which findings of fact can be based;

(b)    making findings of fact based on the relevant evidence or material; and

(c)    reasoning to the decision by application of the relevant legal principles to findings of fact, both primary and inferential.

37    A key aim of provisions such as s 430(1) is to enable a Court undertaking a process of judicial review to discern the manner in which and the basis upon which the administrative decision was made: Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149; 254 FCR 522 at [34]. See also Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; 187 FCR 362 (SZLSP) at [92], [95]-[96]. It also provides the parties with justification for the Tribunal’s decision. As such, in this case, the discharge of the Tribunal’s duty under s 430(1)(b) was aimed at explaining to the applicant and the Minister why the Tribunal was not satisfied that the applicant did not satisfy a criterion for the grant of a Visa: see SZNNQ v Minister for Immigration and Citizenship [2010] FCA 376 at [28].

38    Section 430(1) entitles a court to infer that any matter not mentioned in the Tribunal’s reasons was not considered by the Tribunal to be material: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599 at [14], citing Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69]. However, s 430(1) does not entitle the Court to infer that such matters were not considered by the Tribunal at all: SZALW v Minister for Immigration [2004] FCA 1690 at [29]; SZUGR at [31].

39    There is no breach of s 430(1)(b) by the Tribunal merely finding that the applicant’s evidence is inadequate to support a conclusion favourable to the applicant: SZIJA v Minister for Immigration & Multicultural Affairs and Refugee Review Tribunal [2006] FCA 1484 at [10]. Section 430(1) does not require an exhaustive refutation of all the evidence. As explained by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405; 168 ALR 407 (Durairajasingham) at [65]:

the obligation to set out “the reasons for the decision” (s 430(1)(b)) will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal.

See also Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 at [102].

Consideration

Paragraph 40 of the Tribunal’s reasons – The bottle attack

40    The applicant first challenges the reasoning set out in paragraph 40 of the Tribunal’s reasons, which relates to what the applicant says was a public attack on him in a park by drunken rival political supporters (bottle attack). The bottle attack was briefly introduced at [31] of the Tribunal’s reasons:

[The applicant said that, after a previous incident in 2011], drunken groups would come to his home and yell insults. They would try to provoke him to retaliate so that they could harm him. They prevented him from parking his three-wheeler in the three-wheeler park. Finally there was an occasion several months later when he was in the park when he was approached by a group of drunken UPFA supporters. They assaulted him by hitting him with a bottle. He could not remember if he retaliated. He sustained an injury to his eye and went to the dispensary to have the wound cleaned. He was asked how the altercation ended, how he got away given that there was a group of them and he said that they were drunk so he was able to get away.

41    The Tribunal turned to the assessment of the applicant’s claims, including by reference to the bottle attack. Paragraph 40 of the Tribunal’s reasons reads as follows:

The applicant claims that several months after he refused to transport the voters he was attacked in the park by a drunken group. As noted by the delegate it is unclear whether this was connected to his failure to transport voters sometime earlier or his UNP profile. In any event although he sustained an injury, other than having the wound cleaned he did not require medical treatment, and he could [not] remember whether he was otherwise injured. The Tribunal is of the view that this was not significant physical ill-treatment or otherwise serious harm within the meaning of s91R(1)(b) of the Act. It was not torture within the meaning of s5 as severe pain and suffering was not inflicted on the applicant and it was not done with the intention of obtaining information. It was not cruel or inhuman treatment of punishment as it was not cruel or inhuman in nature and it was not degrading treatment or punishment as it was not intended to cause extreme humiliation. It therefore was not significant harm within the meaning of s36(2A) or s.5 of the Act.

42    Paragraph 40 contains two principal findings. First, that the injury suffered by the applicant from the bottle attack did not amount to “serious harm” for the purposes of s 91R(1)(b) of the Act. Second, that the same injury did not amount to “significant harm” for the purposes of s 36(2A) of the Act.

43    The essence of the applicant’s complaint is that the Tribunal failed to provide “reasons” for the purposes of s 430(1)(b) of the Act by failing to adequately explain why the injury suffered by the applicant from the bottle attack did not fall within the meaning of “serious harm” for the purposes of s 91R(1)(b) of the Act or “significant harm” for the purposes of s 36(2A) of the Act. In particular, the applicant submits that the Tribunal fails to state why the bottle attack did not constitute “significant physical ill-treatment” under s 91R(2)(c) or other “serious harm” not expressly listed under s 91R(2). Moreover, the applicant submits that the Tribunal rejected each of the relevant heads of significant harm in s 36(2A) of the Act, but failed to explain why the Tribunal concluded that the bottle attack:

(a)    did not cause severe pain and suffering;

(b)    was not cruel or inhumane treatment; and

(c)    was not intended to cause extreme humiliation.

44    The applicant contends that the Tribunal’s finding that the applicant sustained an injury, but that he did not require medical treatment, does not answer the complaint about the lack of reasoning in paragraph 40 of the Tribunal’s reasons. The applicant submits that the Tribunal simply skipped over the rigorous mental discipline required of it to respond to every claim, no matter whether such claim appears to be weak at first blush. Mr Aleksov submitted on behalf of the applicant that the proper question for the Court was whether, having regard to the evidence accepted by the Tribunal, the statement of reasons was sufficient having regard to what he characterised as the “thinness” of that evidence.

45    Mr Watkins, who appeared with Mr Aleksov on behalf of the applicant, submitted that the Tribunal should have drawn an inference that the applicant had suffered humiliation by reason of the fact that the Tribunal had accepted that the applicant was attacked in a public park. Mr Watkins submitted that the Court should infer that others could see the bottle attack and that it would be humiliating to be beaten up by members of an opposing party. Mr Watkins submitted that the Tribunal failed to take these circumstances into consideration.

46    The applicant, however, does not identify any evidence which it contends that the Tribunal should have taken into account but failed to. The applicant has not suggested that there was evidence before the Tribunal which supported a finding that the person responsible for the injury had intended to inflict severe mental pain and suffering by their actions. The applicant has not suggested that there is evidence that the person responsible intended to cause extreme humiliation. The applicant has not suggested that the applicant in fact suffered severe mental pain or suffering or extreme humiliation. For these reasons, Mr Aleksov properly conceded that he could not submit that the Tribunal ignored the evidence or that the Tribunal ignored the test for serious harm under s 91R(1)(b) of the Act. Mr Aleksov instead submitted that the applicant was “not sure why the evidence did not lead to a favourable outcome for the applicant”.

47    The Minister conversely submits that the applicant’s complaint that the Tribunal “fails to explain why” the bottle attack did not constitute significant physical ill-treatment or other serious harm not mentioned in s 91R of the Act invites this Court to engage in an impermissible merits review of the Tribunal’s findings. The Minister contends that, where the Tribunal has made an emphatic finding that the injury did not constitute such serious harm, and where the applicant does not complain about any specific misdirection in arriving at that finding, the only basis for alleging jurisdictional error would properly be on the grounds that the finding was legally illogical or irrational: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611. However, as explained, counsel for the applicant made it clear that it was no part of their submission that the Tribunal’s findings were illogical or irrational.

48    I accept the Minister’s submission. In the absence of the applicant pointing to any fact or circumstance demonstrating that the findings of the Tribunal were legally illogical or irrational, it was open to the Tribunal to find that an injury which required no more than a clean by the applicant, and did not otherwise require medical treatment, was not so serious so as to be intolerable so as to make his refusal to return to Sri Lanka understandable. These were matters of fact, degree and impression for the Tribunal.

49    I am of the view that the Tribunal did provide adequate “reasons” for the finding it made in paragraph 40. The reasoning of the Tribunal in paragraph 40 of its reasons was that:

(1)    although the applicant sustained an injury, other than having the wound cleaned he did not require medical treatment;

(2)    the applicant could not remember whether he was otherwise injured;

(3)    the injury sustained was not significant physical ill-treatment or otherwise serious harm within the meaning of s 91R(1)(b) of the Act as:

(a)    it was not torture within the meaning of s 5 of the Act as severe pain and suffering was not inflicted on the applicant;

(b)    it was not done with the intention of obtaining information;

(c)    it was not cruel or inhumane treatment or punishment as it was not cruel or inhumane in nature;

(d)    it was not degrading treatment or punishment as it was not intended to cause extreme humiliation; and

(4)    the Tribunal concluded for the above reasons that the injury was not significant harm within the meaning of s 36(2A) of the Act.

50    In my opinion, these were findings which were open to the Tribunal to make. In doing so, the Tribunal sufficiently exposed the reasoning behind the findings which it made at paragraph 40 of its reasons and has complied with its obligation under s 430(1)(b) to set out “the reasons for the decision”.

51    In challenging these aspects of the Tribunal’s reasons, the applicant sought to have this Court impermissibly undertake a merits review of the Tribunal’s decision. It is well established that review by this Court of reasons provided by the Tribunal under s 430(1) “does not provide the foundation for a merits review of the fact-finding processes of the Tribunal”: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [117]; see also Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272.

Paragraph 46 of the Tribunal’s reasons – Future attacks based on involvement with UNP

52    The applicant secondly complained about paragraph 46 of the Tribunal’s reasons, which outlined the Tribunal’s conclusion that there is no real chance the applicant would be seriously harmed on account for his support for the UNP.

53    After accepting (at [41] of its reasons) that the applicant had been subjected to serious harm eleven years ago when he was caught tearing down the ruling party’s election posters, the Tribunal turned to whether he would be seriously harmed in the reasonably foreseeable future on account of his support for the UNP. The Tribunal then acknowledged (at [44]-[45]) that there are records of subsequent attacks on UNP supporters, but that these attacks were not on low level supporters such as the applicant. This was the basis for the Tribunals conclusion at [46].

54    Paragraph 46 of the Tribunal’s reasons provided as follows:

These attacks were in the main on candidates and activists and not low level supporters. The applicant’s evidence was that he was not personally aware of any other UNP supporter who had suffered harm as a result of their political activities. Based on the Country information and the applicant’s past experiences the Tribunal finds that the chance of the applicant being the victim of political violence resulting in serious harm is remote. The Tribunal finds that there is no real chance that the applicant would be seriously harmed in the reasonable foreseeable future on account of his low level support for the UNP and that his fear of persecution on this basis is not well-founded.

(Emphasis added.)

55    The applicant complains that the finding emphasised in the passage above is a “bare assertion, rather than reasoning”, which required further explanation in light of the Tribunal’s earlier finding that the applicant has suffered an instance of serious harm on account of being a low level supporter of the UNP (when he was caught tearing down election posters), and in light of country information which reported attacks on the UNP supporters.

56    I do not accept the applicant’s contention that the finding complained of in paragraph 46 was a “bare assertion”. The Tribunal’s finding, as emphasised in the passage above, was predicated on the earlier findings, made at the start of paragraph 46 but also in earlier paragraphs, derived from the relevant country information and the applicant’s past experiences. As can be seen from paragraph 46, the Tribunal was addressing itself to the foreseeability of relevant harm if the applicant were returned to Sri Lanka. And, in light of the country information, which recorded that attacks were targeted only at political candidates and activists, the Tribunal determined that such chances of relevant harm were remote.

57    This path of reasoning was open to the Tribunal and does not evidence a failure to comply with its obligation under s 430(1)(b) to set out “the reasons for the decision”.

Is a failure to comply with s 430(1) a jurisdictional error?

58    Although it is unnecessary to decide the point to determine the current matter, there is a further basis on which this Court may have concluded that the Circuit Court’s decision was not attended with sufficient doubt.

59    It is clear that a jurisdictional error may, in certain circumstances, be inferred from the reasons of the Tribunal provided in accordance with s 430(1) of the Act: SZLSP at [72], [91], [94], [98]; SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; 317 ALR 365; 142 ALD 150 at [81(d)] and the authorities cited therein. However, that is not the basis on which the applicant put his case. The applicant’s sole ground of appeal advanced at hearing was that the conclusions reached by the Tribunal in [40] and [46] of its reasons failed to satisfy s 430(1)(b) of the Act.

60    Even if the matters raised by the applicant had constituted breaches of s 430(1)(b) of the Act, these breaches, in isolation, may not have amounted to an error affecting the Tribunal’s jurisdiction. The argument that a breach of s 430(1)(b) would, in and of itself, not constitute a jurisdictional error is supported by the remarks of McHugh J in Durairajasingham at [68]-[70], as outlined further below, which have been subsequently applied in this Court: see, in particular, SZLSP at [85].

61    The proposition that a breach of s 430(1) does not amount to a jurisdictional error was initially conceded by the applicant at the hearing of the application. As indicated at the hearing, the basis of that concession was the belief of counsel for the applicant that the current form of subsection (2) of s 430 had not been inserted into the Act until after the decision of the Tribunal in this case. However, upon further reflection, it appears that belief was mistaken. The current form of s 430(2) took effect on and after 28 May 2014: Migration Amendment Act 2014 (Cth) s 2(1), item 2. The Tribunal’s decision was made subsequently on 18 February 2015.

62    On 13 June 2019, a couple weeks after the hearing for leave to appeal, the parties provided to the Court a joint note on the relevance of s 430(2) of the Act to this application. Counsel for the applicant raised their mistaken belief and sought leave to withdraw the concession made at hearing, but otherwise did not pursue any new argument concerning the effect of s 430(2). In the same note, counsel for the respondent objected to the attempts of counsel for the applicant to withdraw their concession. He submitted that the application for leave to appeal should be decided on the sole ground of appeal and submissions relied upon by the applicant at the hearing, including the concession that a breach of s 430(1) does not constitute a jurisdictional error. However, counsel for the respondent submitted that, if the Court were to accept the withdrawal of the applicant’s concession, then it was the Minister’s submission that the insertion of s 430(2) does not affect the proposition in Durairajasingham and that a breach of s 430(1) would not amount to a jurisdictional error.

63    The determination of this application for leave to appeal does not rest on the answer to whether or not a breach of s 430(1) of the Act, in its form as at the date of the Tribunal’s decision, amounts to a jurisdictional error. That is because I have held that there was no such breach by the Tribunal, as explained above. As such, I will not present a view as to the answer to that question. However, given the parties have, albeit belatedly, raised their contest about the effect of s 430(2), I wished to briefly canvas the issue for future consideration in an appropriate matter with the aid of full submissions and argument. It is convenient to do so by reference to the decision of McHugh J in Durairajasingham.

64    In Durairajasingham, the Tribunal—then known as the Refugee Review Tribunal—made its relevant decision on 9 April 1996. At the time of that decision, s 430 of the Act provided as follows:

Refugee Review Tribunal to record its decisions etc. and to notify parties

(1)     Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

   (a)     sets out the decision of the Tribunal on the review; and

   (b)     sets out the reasons for the decision; and

   (c)     sets out the findings on any material questions of fact; and

(d)     refers to the evidence or any other material on which the findings of fact were based.

(2)     The Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made.

(3)     Where the Tribunal has prepared the written statement, the Tribunal must:

(a)     return to the Secretary any document that the Secretary has provided in relation to the review; and

(b)    give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.

65    The rationale of McHugh J in Durairajasingham for holding that a breach of s 430(1) would not amount to a jurisdictional error was summarised at [70] of the reasons for his Honour’s decision:

The language of s 430(1) indicates that the requirement that the tribunal give reasons for its decision is not a requirement which goes to jurisdiction. The opening words of s 430(1) presuppose that the tribunal has made a decision: “[w]here the tribunal makes its decision”, and the subsection then goes on to impose requirements to be fulfilled subsequent to that decision being made. This construction of s 430(1) was favoured in the recent decision of the Full Court of the Federal Court in Xu v Minister for Immigration and Multicultural Affairs [[1999] FCA 1741; 95 FCR 425]. The requirements of s 430(1) cannot be said to be “some fact or event a condition upon which the existence of which the jurisdiction of a tribunal . . . shall depend”. The requirements in s 430(1) do not go to the tribunal’s authority to “determine the issues”. Section 430(1) presupposes that the determination has already been made. It requires the tribunal to give a written, but not a lengthy, explanation of the decision already made. The ultimate issue which the tribunal has determined is whether it (as opposed to the minister) has been “satisfied” that the prosecutor was a refugee. Section 430 gives the tribunal no authority to decide the issue of satisfaction. It assumes that the authority has been exercised and that a decision concerning the issue of satisfaction has already been reached. That being so, the prosecutor’s argument that s 430(1) is an “integral part”, or “feeds into” the ascertainment of the minister’s satisfaction such that it is a jurisdictional fact must be rejected.

(Citations otherwise omitted).

66    The form of s 430(2) considered in Durairajasingham was repealed with effect on and from 11 December 1998: Migration Legislation Amendment Act (No. 1) 1998 (Cth) sch 3, item 8.

67    A new subsection (2) of s 430 was inserted into the Act with effect on and from 15 February 2009: Migration Legislation Amendment Act (No. 1) 2008 (Cth) sch 1, item 19. It provided as follows:

A decision on a review (other than an oral decision) is taken to have been made on the date of the written statement.

68    The current form of subsection (2) of s 430, and the form that applied as at the date of the Tribunal’s decision in this case, was substituted into the Act with effect on and from 28 May 2014: Migration Amendment Act 2014 (Cth) sch 1, item 26. The current form of s 430(2), and a new s 430(2A) inserted at the same time, provides as follows:

(2)    A decision on a review (other than an oral decision) is taken to have been made:

(a)     by the making of the written statement; and

(b)    on the day, and at the time, the written statement is made.

(2A)     The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.

69    Further amendments have been made to s 430 since the date of the Tribunal’s decision in this case, although subsection (2) remains in the same form as set out in the preceding paragraph.

70    The central issue raised by counsel in their joint note is whether the substitution of the current form of subsection (2) undermines the rationale underpinning the conclusion of McHugh J that a breach of s 430(1) is non-jurisdictional. For instance, does the fact that “[a] decision on a review … is taken to have been made … by the making of the written statement” materially undercut the remark by McHugh J in Durairajasingham that s 430 “assumes that the authority [of the Tribunal] has already been exercised”? Or does it remain the case that the source of the Tribunal’s authority to decide resides elsewhere and that, to adopt the language in SZLSP at [85], s 430 merely “imposes requirements to be fulfilled by the tribunal subsequently”?

71    A few previous decisions of this Court have applied Durairajasingham in relation to decisions of the Tribunal made at the time that s 430(2) was in the intermediate form set out above at [67]: SZLSP at [54], [85] (I infer the intermediate form of s 430(2) was considered in SZLSP from [80] per Rares J); SZOXR v Minister for Immigration and Citizenship [2011] FCA 897; 122 ALD 346 (SZOXR) at [41]; SZSRT v Minister for Immigration and Border Protection [2013] FCA 1332 (SZSRT) at [13].

72    Given that the intermediate form of s 430(2) is not materially different from the current form of s 430(2), these decisions suggest that the proposition in Durairajasingham continues to apply to the current form of s 430(2). This conclusion is supported by a number of decisions of the Circuit Court, which, in the course of applying the current form of s 430, have applied Durairajasingham: BAJ15 v Minister for Immigration & Anor [2018] FCCA 130 at [65]; BZG17 & Anor v Minister for Immigration & Anor [2018] FCCA 1328 at [32]; BNF15 v Minister for Immigration & Anor [2019] FCCA 236 at [19]; ASG17 v Minister for Immigration & Anor [2019] FCCA 1492 at [86]. However, it does not appear that effect of s 430(2) was raised in those cases to challenge the proposition in Durairajasingham. As such, this Court may be required in the future to consider these matters in greater detail.

73    To recap, however, this debate does not influence the outcome of this case. There was no breach of s 430(1) of the Act by the Tribunal on the current facts.

Conclusion and orders

74    For these reasons, the applicant has failed to demonstrate that the decision of the Tribunal is attended with sufficient doubt to warrant a review. Accordingly, I will refuse leave to appeal from the judgment of the Circuit Court. The applicant will pay the Minister’s costs of and incidental to the application.

Associate:

Dated:        8 January 2020