FEDERAL COURT OF AUSTRALIA

BXH16 v Minister for Home Affairs [2019] FCA 1388

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal from the judgment of the Federal Circuit Court of Australia delivered on 13 July 2018, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the respondent Minister dated 4 February 2014 to refuse the appellant’s application for a Protection (Class XA) visa (protection visa). The Federal Circuit Court judgment has the citation: BKH16 v Minister for Immigration & Anor [2018] FCCA 1890.

Background

2    The appellant is a citizen of Sri Lanka. He arrived in Australia on 24 June 2012 as an “unauthorised maritime arrival”, as defined in s 5AA of the Migration Act 1958 (Cth). On 7 December 2012, he applied for a protection visa. This application was refused by the delegate on 4 February 2014.

3    On 6 February 2014, the appellant applied to the Tribunal for review of the delegate’s decision. On 5 May 2014, the appellant’s migration agent provided written submissions to the Tribunal in support of the appellant’s claims, including country information. The appellant attended a hearing before the Tribunal on 12 November 2015 to give evidence and present arguments, with the assistance of an interpreter. He was represented by his migration agent at the hearing.

4    On 9 May 2016, the Tribunal affirmed the delegate’s decision.

Tribunal’s decision

5    Before the Tribunal, the appellant claimed to fear harm from Sri Lankan authorities on return to Sri Lanka on the basis that he would be imputed with a pro-Liberation Tigers of Tamil Eelam (LTTE) political opinion, including because his parents had provided support to an LTTE cadre in the past by giving the cadre food at their house for a number of years. According to the appellant, this support was the outcome of events in 2000 and 2002. The appellant claimed that, in 2000, following the LTTE’s forcible recruitment of his older sister, his father and brother made an agreement with the LTTE for her to be released if his brother stayed, which he did. The appellant further claimed that his father had negotiated the release of his brother in 2002, on the condition that the family would feed an LTTE cadre when he visited their house. The appellant claimed that his father gave in to this demand after the LTTE threatened to kill family members.

6    The appellant also claimed that the Criminal Investigation Department (CID) had arrested and imprisoned his father on suspicion of supporting the LTTE in September 2008; and that the appellant was also detained for two days in 2008, during which time he was interrogated, beaten and forced to confess that he was an LTTE member. The appellant claimed that his father was eventually released from prison in July 2010 with no charge, on the condition that their family remain in a particular area of Sri Lanka. The appellant claimed that thereafter he, his father and brother continued to experience ongoing problems: CID officers continued to ask whether they were working for the LTTE and beat them on a number of occasions. The last incident was in January 2012, following which the appellant decided to leave Sri Lanka. The appellant claimed that even after leaving Sri Lanka, CID officers had visited his parent’s home asking about his whereabouts, and beat his father and brother on a number of occasions.

7    The Tribunal accepted that the appellant’s father was detained for around one year and 10 months on suspicion of supporting the LTTE and was beaten during his time in prison (at [19]). It also accepted that the appellant was detained for two days in 2008, when he was questioned and beaten by CID officers (at [20]). Significantly, however, the Tribunal noted that: (a) the appellant’s release from detention after two days “does not indicate that they considered him a suspect”; and (b) the fact his father was released without charge or a sentence, only being required to remain in a particular area of Sri Lanka, “indicates … that the [appellant’s] father was not considered an LTTE suspect in general or in relation to the specific allegations” against him, “or [was not] of particular concern or interest to the authorities at the time” (at [20]). The Tribunal expressed the view that the authorities considered that the appellant’s father had provided support to the LTTE cadre by feeding him in the past, “but nothing more” (at [20]).

8    The Tribunal noted at [21] that the appellant had told the Tribunal that “he and his father visited India for a pilgrimage in December 2011, returning in January 2012”. The Tribunal recorded that “[t]hey left Sri Lanka and returned on their own passports issued in their own names and did not experience any problems”. The Tribunal accepted that a temple organised the pilgrimage to India for a number of people including the appellant and his father. It found, however, that this would not have prevented authorities from registering the appellant’s father’s departure from the country (in breach of the condition of his release from prison). Consequently, the Tribunal found that neither the appellant nor his father “was of particular interest to the authorities at that time, or that there was any real consequences to breaching the condition on the [appellant’s] father’s release to remain” in a particular area of Sri Lanka (at [21]).

9    The Tribunal expressed concerns about the appellant’s evidence concerning ongoing harassment and questioning by the authorities after his father was released from prison: it found the appellant’s evidence at the hearing was “vague and lacking in details” (at [22]). On account of these concerns, “combined with the Tribunal’s finding that the [appellant’s] father was not considered an LTTE suspect on release from prison”, the Tribunal did not accept the appellant’s claims that he, his father and brother were questioned, harassed and beaten by the CID between July 2012 and January 2012 (at [22]). The Tribunal similarly found that the appellant’s evidence at the hearing about his parents and brother being questioned and harassed by the CID, and his brother being beaten, in 2014 was “vague and lacking in details” and the Tribunal did not accept the appellant’s claims in that regard (at [23]).

10    Further, noting that “time has passed since [the claimed] events and the situation in Sri Lanka has changed dramatically since the end of the war (in May 2009)”, and having regard to country information regarding the Sri Lankan government’s concerns since the end of the war, the Tribunal did not accept that “the CID or anyone else have enquired about [the appellant’s] whereabouts since he left Sri Lanka, which indicates that he [is] not of particular concern with respect to LTTE links” (at [24]). The Tribunal also noted that nothing has happened to the appellant’s siblings who remain in Sri Lanka (at [24]).

11    The Tribunal accepted that the appellant’s brother was an LTTE member, but noted that his involvement with the LTTE was over 13 years ago and, on the appellant’s own evidence, the appellant did not experience any problems from the authorities because of his brother’s former membership of the LTTE (at [25]). The Tribunal also accepted the appellant’s claim that his brother was detained by the CID for a month in 2008 in connection with their father. The Tribunal emphasised, however, that the detention took place a number of years ago and the appellant did not claim that his brother experienced any further problems from the CID or the authorities (at [26]).

12    Having regard to the above findings, the Tribunal concluded at [28]:

[W]hilst the [appellant] may have been questioned about possible LTTE links and ill-treated by the authorities for a brief period in November 2008 and his father was detained for almost two years … , neither were considered to have had more elaborate links with the LTTE by the authorities at the time of their release or thereafter. The Tribunal therefore finds it remote the chance that the [appellant] would be seriously harmed on return to Sri Lanka by the authorities on the basis of an imputed political opinion because he was questioned and mistreated by the CID over a two day period in 2008, or because his father was detained by the authorities for almost two years … , or because his brother was an LTTE member, or because his brother-in-law has been questioned by police in the past or for any other reason on return to Sri Lanka now or in the reasonably foreseeable future. His fears of persecution on these grounds in isolation or considered cumulatively, attributable to a pro-LTTE political opinion, are not well founded.

13    The Tribunal went on to consider the appellant’s claims that he feared harm on return to Sri Lanka: because of his Tamil race; because he did not remain in the region where the CID had directed him (and his family) to remain; and because he was a member of a particular social group of Tamil jewellers perceived to be wealthy. For the purpose of the present appeal it is unnecessary to set out these claims in any detail. It is sufficient to note that the Tribunal was not satisfied that the appellant would suffer relevant harm on return to Sri Lanka on any of these bases (see at [33], [36], [38]).

14    The Tribunal was also not satisfied that the appellant would face relevant harm on the basis that he would return to Sri Lanka as a failed asylum seeker (at [39]-[48]), or because he departed Sri Lanka illegally (at [49]-[56]). Having regard to the appellant’s submissions and relevant country information, the Tribunal accepted that the appellant may be identified as a person who has unsuccessfully sought asylum in Australia (at [44]) and that he would likely face questioning at the airport on return to Sri Lanka, including questioning about any links he may have with the LTTE (at [46]). Because the Tribunal had found that the appellant did not face a real chance of persecution on the basis of an imputed pro-LTTE political opinion, his Tamil ethnicity, membership of particular social groups, or any other reasons, “the Tribunal consider[ed] that such questioning at the airport, in conjunction with intelligence, will quickly establish that the [appellant] did not have elaborate links with the LTTE” and the Tribunal was not satisfied that standard questioning amounted to serious harm (at [46]). The Tribunal went on to record, also at [46]:

As the Tribunal put to the [appellant] in the hearing, various sources including DFAT, other foreign governments and UNHCR regarding people returning to Sri Lanka as failed asylum seekers and the treatment that they may receive suggests that returned asylum seekers are usually kept at the airport for some hours while their identity is checked and they may be questioned during this period and there is no further interest of persons without any adverse profile such as a criminal record or known involvement with the LTTE. While the Tribunal accepts that the [appellant] as a failed asylum seeker/returnee or Tamil failed asylum seeker/returnee may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka, taking into consideration his particular profile as someone who has no criminal record and claimed to have never been involved with the LTTE or assisted them in any way and the findings above that neither he or any members of his family had been suspected of having any involvement with the LTTE, the Tribunal finds on the country information before it, including the information referred to by the [appellant’s] previous and current adviser in their submissions to the Tribunal, that the [appellant] would be released without further interest and he would not face a real chance of persecution as failed asylum seeker or Tamil failed asylum seeker or because he would be viewed as exposing the persecution of Tamils to the world by fleeing to Australia and seeking asylum.

15    As to the appellant’s claim to fear harm because of departing Sri Lanka illegally, the Tribunal accepted that the appellant will be questioned at the airport on return, that he will likely be charged under the Immigrants and Emigrants Act (I&E Act) for departing Sri Lanka illegally (at [50]), and that he may be held on remand for a period up to several days while awaiting a bail hearing (at [54]). Referring to country information, and in light of the Tribunal’s findings about the appellant’s profile (that he is of no particular adverse interest to the authorities or anyone), the Tribunal did not accept that there was a real chance that the appellant would face serious harm during questioning or while on remand awaiting a bail hearing (at [54]). While the Tribunal accepted that prison conditions in Sri Lanka are generally poor, it considered that the appellant would have “a very brief stay in remand” as part of a lawful process that is applied consistently and without discrimination to those who breach the I&E Act (at [55]). In these circumstances, the Tribunal found that the appellant did not have a real chance of serious harm or a real risk of significant harm due to his illegal departure (at [56]).

16    The Tribunal concluded that, considering the appellant’s claims both individually and cumulatively, it was not satisfied that he had a real chance of suffering persecution on return to Sri Lanka for any Convention reason in the reasonably foreseeable future. It was not satisfied that his fear of persecution was well-founded (at [60]); and, accordingly, the appellant did not satisfy the criterion in s 36(2)(a) of the Migration Act (at [61]).

17    Further, the Tribunal was not satisfied that there was a real risk that the appellant would suffer significant harm if removed to Sri Lanka; and, accordingly, the appellant did not satisfy the complementary protection criterion in s 36(2)(aa) of the Migration Act (at [66]).

Federal Circuit Court proceeding

18    The appellant applied for judicial review of the Tribunal’s decision in the Federal Circuit Court. His application filed on 30 May 2016 contained two grounds of review:

1.     The decision of the tribunal has taken … into account irrelevant considerations.

2.     The Second Respondent erred by failing to consider any integer of the Applicant claim, namely that he would be targeted because of his situation in Sri Lanka.

19    The application was heard on 10 July 2018. The appellant appeared in person before the primary judge, with the assistance of an interpreter.

20    At the hearing, the appellant provided the primary judge with a document entitled “My Claims” containing 8 paragraphs, which the primary judge treated “as the grounds for the application for judicial review” (at [11]). This document reiterated the claims made by the appellant to the Tribunal regarding his claim to fear harm on the basis of an imputed pro-LTTE political opinion. It also stated that:

(4)     I say that the Tribunal failed to consider integral parts of my claim. I say that I have put my claims in detail, however the Tribunal did not understand my claim.

…

(6)    I understand the Tribunal’s perspective that the Sri Lankan country information has changed, however, the UNHCR guidelines confirm that there are still people who are subject to persecution, including those with prior links with the LTTE.

(7)    I submit that the AAT failed to consider and apply the real chance test, as to whether I would be subject to mistreatment by the Sri Lankan authority.

(8)    The Tribunal has erred by applying the wrong test to consider whether I will be subject to ill treatment in the foreseeable future;

(a)    I say that merely country reports do not show exactly the true situation in Sri Lanka;

(b)    My evidence about continuing persecutions of Tamil people in Sri Lanka was not considered and given no weight was given to the same.

21    On 13 July 2018, the primary judge dismissed the application. His Honour outlined the Tribunal’s findings and held that the Tribunal took into account each of the appellant’s claims, including the claims set out in the “My Claims” document (at [12], [42]).

22    The primary judge held that it was open to the Tribunal to prefer the country information in a DFAT report; this material was discussed with the appellant at the Tribunal hearing; and the Tribunal also considered the country information provided by the appellant (at [42]). The primary judge held that the Tribunal applied the “real chance” test (at [43]).

23    Relevantly for the present appeal, the primary judge observed (at [44]-[47]):

[44]    I do note that these are factual findings made by the Tribunal in relation to the questions as to whether the [appellant] faced a real risk of harm because of LTTE connections. Another Tribunal may have differed in its view, particularly given the Tribunal accepted the claims that a number of members of the [appellant’s] family were detained and questioned by authorities, and his father was detained for over a year.

[45]    However, the Tribunal considered those matters in detail and in my view for the court to substitute or make some other finding, in circumstances where the decision is not attended by any apparent irrationality or unreasonableness, would involve the court to engage in impermissible merits review when the Tribunal has comprehensively canvassed and considered all the claims made by the [appellant]. The court appreciates that findings of fact are not immune from review, however in this case no error was apparent.

[46]    I do not think that the decision of the Tribunal is unreasonable in the case that it lacks evident and intelligible justification. Those matters that the [appellant] raises were accepted by the Tribunal (links to LTTE) and found to have occurred at a time of conflict. The most significant feature of the decision is that the Tribunal found that the authorities did not continue to regard the [appellant] or his family as subjects having any involvement in or with the LTTE.

(Footnotes omitted)

Proceeding in this Court

24    By an amended notice of appeal filed on 27 February 2019, the appellant raises the following grounds of appeal:

1.     The Federal Circuit Court at first instance erred in not finding that the Second Respondent (“the Tribunal”) fell into jurisdictional error in that it failed to consider relevant considerations including claims, integers of claims or material question of fact or information before the Tribunal.

Particulars

(a)     The Tribunal did not consider and determine the Appellant’s claim that after his and his father’s return from India in January 2012, two CID officers came to their house, questioned them, suspected them of having gone to India to give information to LTTE members there, and treated them harshly. (Statement of Claims for protection, Court Book at first instance p. 128, [10])

(b)     The Tribunal found that the Appellant’s brother was an LTTE member, and the Appellant said that he had not had problems with the authorities as a result of this because the authorities did not know about his brother’s involvement in the LTTE, but the Tribunal failed to consider whether the authorities may come to know that the Applicant’s brother was in the LTTE, and whether this may cause the Appellant to have a real risk of serious or significant harm.

2.     The Federal Circuit Court at first instance erred in not finding that the Second Respondent (“the Tribunal”) fell into jurisdictional error in that it was unreasonable.

Particulars

(b)     The Tribunal was unreasonable in finding that because the applicant’s father and he were not suspected at the time he and his father were released in 2010, the CID would not have come to see them and question them with beating on a number of occasions from 2010 to 2012;

The appellant abandoned particular (c) to ground 1 and particular (a) to ground 2, as initially appearing in his notice of appeal. He also added particular (b) to ground 2.

25    The appellant filed written submissions on 27 February 2019 in support of his appeal. He was represented by counsel at the hearing on 22 July 2019.

26    The Minister relied on written submissions filed on 5 March 2019, which were augmented by counsel at the hearing.

27    The Court granted leave at the hearing to permit the appellant to amend his notice of appeal and to rely on his new grounds to the extent they were not raised before the primary judge. The Minister did not oppose the grant of leave; and it is well-established that the Court may grant such leave where it considers this to be expedient and in the interests of justice. As the Full Court said in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48], “[t]he Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated”.

Ground 1(a)

Submissions

28    By ground 1(a), the appellant contended that the Tribunal did not consider and determine his claim that after he and his father returned from India in January 2012, two CID officers came to their house and treated them harshly, questioning them on suspicion of having gone to India to give information to LTTE members there. Counsel for the appellant submitted that this was a “discrete claim”, distinct from the appellant’s more general claim about experiencing ongoing problems from the CID. This was evident, so counsel for the appellant submitted, from the separation of the claims in the appellant’s written statement of claims. The appellant submitted that the Tribunal ignored the specific claim regarding the incident after the appellant and his father returned from India, which he said was evidenced by the Tribunal’s statement that they “travelled to India in late 2011, returning in early 2012 with no problems” (at [36]; emphasis added).

29    The appellant contended that this claim was particularly important, as it showed that as recently as a few months before he left Sri Lanka the CID had an interest in, and suspicion of, the appellant and his father having connections with the LTTE. Counsel for the appellant noted that it was also the last incident before the appellant’s decision to depart Sri Lanka and, according to the appellant, the incident which prompted his decision to leave Sri Lanka. As such, counsel contended that the incident “was both proximate in time to his departure and … proximate in logic to his decision to leave”. The appellant submitted that, if accepted by the Tribunal, the appellant’s claim may have been sufficient to affect the Tribunal’s decision as it would have established that he fled Sri Lanka as a person suspected of LTTE connections.

30    As seen above, the error alleged in ground 1(a) was a failure “to consider relevant considerations including claims, integers of claims or material question of fact or information before the Tribunal.” In support of this proposition, counsel for the appellant specifically relied at the hearing on Applicant M190 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1362. At the hearing, counsel for the appellant accepted that the alleged error might also be characterised as a constructive failure to exercise jurisdiction by virtue of the Tribunal failing to consider a claim or an integer of a claim that was clearly articulated or squarely arose on the material, referring to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1.

31    In written submissions the Minister accepted that the appellant’s claim about being questioned and treated harshly by the CID on return from India in January 2012 was clearly advanced by the appellant and, as such, the Tribunal was obliged to make a finding concerning the claim, provided that it was a substantial, clearly articulated argument relying upon established facts, citing NABE at [55]. At the hearing, counsel for the Minister submitted that it was not, however, a discrete claim. Counsel submitted that, putting aside (a) the timeframe; (b) that the appellant alleged this incident was his last interaction with the CID; and (c) that the appellant said it was the reason why he fled Sri Lanka, there was nothing special about what the appellant claimed happened in January 2012 that distinguished it from the appellant’s other claims about his ongoing problems with the CID.

32    Counsel for the Minister also emphasised that the Tribunal at [16] had expressly referred to the appellant’s claim about CID officers visiting in January 2012, and recorded that it was after that incident that the appellant decided to leave Sri Lanka. Counsel contended that it was apparent from that passage that the Tribunal had subsumed this instance of questioning and mistreatment following the appellant’s return from India within “the general allegation of mistreatment and questioning by the CID throughout that approximate two-year period”. Counsel acknowledged that the Tribunal’s reference at [16] to the January 2012 incident did not overlap entirely with the claim made by the appellant. Nonetheless, she submitted that it was a clear indication that the Tribunal was aware of the claim.

33    The Minister further submitted that, reading the Tribunal’s reasons fairly and as a whole, it is apparent that the Tribunal engaged with and considered the claim about the January 2012 incident, “albeit not on its own, [but] as part of the more general allegations in relation to the interactions with the CID” between July 2010 and July 2012. In this regard, the Minister referred to the Tribunal’s reasons at [22], where the Tribunal considered, and did not accept, the appellant’s claims that he and his family were questioned, harassed, and beaten by the CID a number of times from July 2010 to July 2012. The Minister noted that the appellant’s claim about being questioned and mistreated after returning from India in January 2012 fell within that period.

34    The Minister emphasised that, although s 430 of the Migration Act requires that the Tribunal give reasons for its decision, the Tribunal is not required to give reasons in detail with respect to each and every argument advanced by the appellant.

35    In the alternative, in written submissions the Minister submitted that if the Tribunal did not consider the appellant’s claim, then the Tribunal’s findings of fact at [22] that the appellant was not questioned, harassed and beaten by the CID a number of times from July 2010 to July 2012 meant that the appellant’s claim was bound to fail, and therefore any error alleged by the appellant is immaterial, as the facts upon which the claim was based were not established.

Consideration

36    The Tribunal was obliged to deal with any claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review: see NABE at [63]. Citing Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24], the Full Court in NABE further stated (at [55]) that “[w]here the Tribunal fails to make a finding on ‘a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction”: see also Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [44]-[47] and Minister for Immigration and Border Protection v MZYTS 2013] FCAFC 114; 230 FCR 431 at [62].

37    The Tribunal may fail to deal with a claim by misunderstanding or misconstruing the claim, and basing its conclusion on the claim so misunderstood or misconstrued. It may also fail to deal with a claim, and thus fall into jurisdictional error, if it fails to deal with one or more of the component integers of the claim: see Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136 at [42] (Allsop J, with whom Spender J agreed); NABE at [63] (Black CJ, French and Selway JJ).

38    In Applicant WAEE, a Full Court of this Court (French, Sackville and Hely JJ) said (at [45] and [47]):

[45]    … If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.

…

[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.

39    Section 430(1) of the Migration Act provides that, where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that, among other things: sets out the reasons for the decision; sets out the findings on any material questions of fact; and refers to the evidence or any other material on which the findings of fact were based. In discussing the effect of that provision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323, Gaudron J stated (at [35] and [44]):

[35]    The corollary to the construction of s 430(1)(c) of the Act set out above is that it is to be inferred from the absence of a reference to, or, a finding with respect to some particular matter that the Tribunal did not consider that matter to be material. As will later appear, there may be cases where that will indicate error of a kind that will ground review under s 476(1) of the Act or, even, jurisdictional error which will ground relief under s 75(v) of the Constitution. …

…

[44]    It follows from what has been written above that the failure of the Tribunal to make findings with respect to a particular matter may, at the same time, reveal failure to exercise jurisdiction, whether actual or constructive, and, also, failure to conduct a review as required by the Act. And the latter constitutes reviewable error for the purposes of s 476(1)(b) and (c) of the Act.

40    Also in Yusuf, McHugh, Gummow and Hayne JJ stated (at [69]):

It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal’s reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.

(Footnotes omitted; emphasis in original)

41    Before turning to consider whether in fact the Tribunal considered the appellant’s claim that he and his father were subjected to questioning and harsh treatment by CID officers in January 2012, it is convenient to set out how the appellant articulated that claim and to refer to the delegate’s discussion and findings in relation to it.

42    In a document entitled “Statement of Claims” dated 30 November 2012 which accompanied the appellant’s protection visa application, he stated that:

From January 2010 to June 2012 when I fled the country, whenever any form of unrest happened in Colombo, my father, my brothers and I were questioned, harassed and beaten up by the CID. It happened 5-6 times over a period of more than [sic] years. My brother … moved out of the house to avoid the CID harassments.

43    He then went on to make the claim the subject of this ground of appeal. He stated:

The last incident occurred after I came back from India January this year. Two CID officers came to our house in plain clothes. They questioned my father and I about why we had travelled to India. We responded that it was only for pilgrimage purposes. They were not convinced. They suspected us that we had gone to India to pass on information to the LTTE members who are living in India. We denied the allegations. They raised their voice and treated us harshly. We reiterated that the only reason for our travel to India was to worship in a Hindu temple. They subsequently left.

44    The appellant’s migration agent reiterated that claim in written submissions to the delegate of the Minister dated 8 January 2013.

45    The claim was expressly referred to in some detail in the delegate’s reasons for decision. The delegate accepted “that the [appellant] and his father may have been questioned by the CID upon return from India”, but found that it was “more likely … due to general questioning which was occurring during that period of time”. The delegate did not find that the appellant “was genuinely suspected of having LTTE connections.”

46    For the reasons that follow, reading the Tribunal’s reasons fairly and as a whole, and in conformity with the approached approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, I am unable to accept the appellant’s submissions. It seems to me that, when read as a whole, it is apparent that the Tribunal did consider the appellant’s claim that he and his father were subjected to questioning and harsh treatment by CID officers in January 2012 after returning from India. Although there are some difficulties with the Tribunal’s reasons, to which I will refer, in my view, they do not disclose jurisdictional error.

47    First, the Tribunal specifically referred (at [16] of its reasons) to the appellant’s claim that “[i]n January 2012 … CID officers visited their family home … and beat all of them (that is him, his father, and his brother)”, and that “[a]fter this incident he decided to leave Sri Lanka”. Relevantly, the reference to this claim is in a passage of the Tribunal’s reasons summarising the appellant’s claims relating to his questioning and mistreatment by the CID between July 2010 and June 2012 as follows:

[16]    The [appellant] told the Tribunal that they experienced ongoing problems from the CID after their father was released from prison in July 2010. He said they would “come and go”: in total about four or five times from July 2010 until the [appellant] left the country in June 2012. The CID officers would ask whether they were working for the LTTE and if they considered they answered incorrectly or angrily, they beat them. When asked who specifically, the [appellant] said he thinks his father was beaten two or three times, his brother once, and himself twice. In January 2012 he said CID officers visited their family home … and beat all of them (that is him, his father, and his brother). After this incident he decided to leave Sri Lanka. The [appellant] told the Tribunal that after he left Sri Lanka in mid-2012 the CID officers visited his parents … another three or four times, asking about his whereabouts: the first time his mother told them that he had gone to the shop, and the second and third time that he had gone to Jaffna. When asked if his family were ever physically harmed during these visits, the [appellant] said that “once or twice” they beat his father and his brother was beaten too, but he did not know how many times exactly.

48    Paragraph [16] contains relatively few details concerning the claim about the January 2012 incident. Having regard to the way that claim was made, one might have expected the Tribunal to refer expressly to the appellant’s explanation that that particular visit from the CID was a consequence of his and his father’s travels to India, which he said generated suspicion regarding LTTE connections. It should also be noted that statement that the January 2012 incident involved CID officers beating the appellant, his father and his brother did not entirely align with the claim in the appellant’s written statement of claims (see at [44]-[45] above). The claim in this written statement did not specifically refer to the appellant’s brother. This difference was not, however, the subject of argument at the hearing; and even if the Tribunal mistakenly believed that the claim about the January 2012 incident also concerned the appellant’s brother, this would not, in my view, be sufficient to establish that the Tribunal failed to consider the claim as it affected the appellant.

49    Notwithstanding the matters mentioned in [48] above, the Tribunal’s reasons at [16]:

(1)    contain a clear indication that the Tribunal was aware of the claim regarding the January 2012 incident; and

(2)    indicate that the Tribunal construed that claim as part of the appellant’s claims regarding instances of questioning and mistreatment in the period between July 2010 and July 2012.

50    Secondly, I accept that, as counsel for the Minister maintained, the Tribunal further considered the appellant’s claim about the January 2012 incident at [22] of its reasons. Although the Tribunal did not make an explicit finding here with respect to this particular claim, I accept that it addressed the claim in the context of considering (and rejecting) the appellant’s broader claims that he and his family were questioned, harassed, and beaten by the CID a number of times from July 2010 to July 2012. At [22], the Tribunal recorded:

[22]    The Tribunal has considered the [appellant’s] claims about ongoing harassment and questioning from the authorities after his father was released from prison in July 2010. The Tribunal has some concerns with his evidence in this respect for reasons that follow. The Tribunal found the [appellant’s] oral evidence about aspects of his claims of ongoing interest by the CID after his father’s release from prison to be vague and lacking in details. For instance he told the Tribunal that in the period from when his father was released from prison (July 2010) to the time he left Sri Lanka (July 2012) the CID would “come and go” regularly to their house, in total four or five times, and that during those times his father was beaten two or three times, his brother once and himself twice yet he did not provide any particular details or context. Given these concerns, combined with the Tribunal’s finding that the [appellant’s] father was not considered an LTTE suspect on release from prison for reasons set out above, the Tribunal does not accept the [appellant’s] claims to have been questioned, harassed, and beaten by the CID a number of times from July 2010 to July 2012. Nor does it accept that the [appellant’s] father or brother were harassed, questioned or beaten in this period as claimed.

51    As already indicated, I accept that [22] does not expressly mention the appellant’s claim about his father’s and his own questioning and mistreatment after returning from India. One might have expected that the Tribunal would allude to this particular claim, having regard to the fact that the appellant had made specific written submissions about the January 2012 incident. It should be borne in mind, however, that the Tribunal’s reasons at [22] broadly reflect the way in which the Tribunal had earlier (at [16]) characterised the appellant’s claim about the January 2012 incident as subsumed generally within the claims of CID mistreatment between July 2010 to July 2012. This may explain why the Tribunal did not refer more particularly at [22] to the claim concerning the January 2012 incident.

52    Thirdly, in my view, the Tribunal’s findings that the appellant and his father returned from India in 2012 without experiencing any problems (at [21] and [36]) should be understood as relating to their free passage through the Sri Lankan airport during their travels, having regard to the context in which they appear. The Tribunal’s references to the appellant and his father returning from India with no problems might, on their face, seem directly to contradict the appellant’s claim that he and his father did experience problems from the CID after they returned from India. This interpretation of the Tribunal’s reasons does not, however, sit comfortably with the discussion at [21] and [36], which is primarily concerned with the appellant’s and his father’s capacity to travel to and from India, notwithstanding that the appellant’s father’s release from prison was said to be subject to a condition requiring him to stay in his home area. These passages of the Tribunal’s reasons are in the following terms:

[21]    [T]he [appellant] told the Tribunal that he and his father visited India for a pilgrimage in December 2011, returning in January 2012. They left Sri Lanka and returned on their own passports issued in their own names and did not experience any problems. The [appellant] said at hearing that they went with 100 or so other people … . When asked how his father was able to leave the country at that time given he claimed a condition of his release from prison in July 2010 was that his father could not leave [his home area], the [appellant] did not answer the question and instead reiterated that they did not go alone, and that the trip was the responsibility of [a person], who takes people every year. In his written statement to the Tribunal the [appellant] explained that they were part of a large group, their visa was organised and all arrangements made through [the] Temple group who regularly organise group pilgrimages. In his written submission to the Tribunal the representative referred to numerous internet references to the … pilgrimage, noting that it appears to have the support of the Sri Lankan government, as well as a report from the Danish Immigration Authorities regarding the departure of Tamils through Colombo airport in which it is stated that immigration officials told them that further checks on travellers are only carried out in cases where such documents (such as a passport) arouse suspicion, and that it is not possible to check all departing travellers on the basis of lists of wanted persons. It is submitted therefore, that there is no logical basis to assume (as the delegate did) that if the [appellant] and his father were able to leave Sri Lanka they were no longer of interest to the authorities. The Tribunal has had regard to this submission and the relevant country information contained within it. The Tribunal notes the date of the report from the Danish Immigration Authorities about the departure of Tamils through the Colombo airport is not obvious on the webpage cited. The Tribunal accepts that the temple organised the pilgrimage to India for a number of people, including the [appellant] and his father, however this would not prevent the authorities from registering his father’s departure from the country (and from [their home] area in breach of a condition of his prison release). Given these considerations, the Tribunal is of the view that neither the [appellant] nor his father was of particular interest to the authorities at that time, or that there was any real consequences to breaching the condition on the [appellant’s] father’s release to remain in [their home] area.

…

[36]    The Tribunal has considered the [appellant’s] claim that the CID will harm him on return because they told him to stay in [his home area], yet he did not (and his mother told them he was in Jaffna). The Tribunal notes in this regard the [appellant’s] oral evidence that his parents, who were also told to stay in [their home area], moved … in 2014 with no apparent repercussions. Also the [appellant] and his father travelled to India in late 2011, returning in early 2012 with no problems. The Tribunal therefore finds remote the chance the [appellant] would be seriously harmed by the CID because he did not stay in [his home area] on return to Sri Lanka.

(Emphasis added)

53    For the reasons stated, and bearing in mind that “[t]he inference that the Tribunal has failed to consider an issue … 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” (Applicant WAEE at [47]), I would not infer that the Tribunal failed to consider the appellant’s claim regarding the January 2012 incident.

54    In my view, neither the possibility that the Tribunal mistakenly referred to the appellant’s brother, nor the Tribunal’s limited engagement with the details of claim concerning the January 2012 incident, are sufficient to support a finding of jurisdictional error: see Yusuf at [89].

Ground 1(b)

55    As already indicated, the Tribunal was willing to accept the appellant’s claims that his brother was an ex-LTTE member. Noting the passage of time (13 years) and the appellant’s own evidence that he did not experience any problems from the authorities between 2002 and leaving Sri Lanka in 2012 as a result of his brother’s former LTTE membership, the Tribunal found that the chance of the appellant facing serious harm from the authorities on the basis of being imputed with a pro-LTTE political opinion due to his brother’s past LTTE membership was remote (at [25]).

56    Ground 1(b) alleges that the Tribunal failed to consider whether Sri Lankan authorities may in the reasonably foreseeable future come to know that the appellant’s brother was previously an LTTE member and whether this would cause the appellant to have a real risk of serious or significant harm.

57    As already noted, the Tribunal was obliged to deal with any claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review: see NABE at [63]. In NABE Black CJ, French and Selway JJ described the nature of the Tribunal’s obligation to consider claims in the following terms at [55] and [58]:

... Where the Tribunal fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction ... .

…

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. ... 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 ... . It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has as statutory duty to consider it. 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.

(Citations omitted)

58    At [60] the Full Court further observed:

In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17], Selway J referred to the observation by Kirby J in Dranichnikov, at 405, that “[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances”. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548 that “[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made” (at [16]). Selway J however went on to observe in SGBB (at [17]):

But this does not mean the application is to be treated as an exercise in 19th Century pleading.

His Honour noted that the Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49] had said:

The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention “label” to describe his or her plight, but the Tribunal can only deal with the claims actually made.

His Honour, in our view, correctly stated the position when he said (at [18]):

The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.

This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.

59    I accept that, as the Minister submitted, the appellant did not expressly claim or articulate any concern that the authorities would come to know of his brother’s former LTTE connections at some unknown point in the future; and nor did he advance any claim that he had a well-founded fear of persecution on the basis of a possibility that his brother’s past LTTE involvement might be discovered in the future. The Tribunal was therefore only required to consider such a claim if it was apparent on the face of the material before the Tribunal.

60    Counsel for the appellant submitted that the Tribunal’s finding at [25] that there was only a remote chance of the appellant facing harm from the authorities due to his brother’s past LTTE membership did not “grapple with the possibility, or at least the question of whether it was possible and whether it was likely, that the authorities may come to learn about the brother’s membership of the LTTE”. The appellant submitted that the reason he had not previously experienced problems associated with his brother’s former LTTE membership was that the authorities were not aware of his brother’s past involvement in the LTTE. The appellant contended that the Tribunal’s acceptance (at [45]) of evidence from UK Home Office reports of Sri Lanka’s “extensive intelligence system” and that the Sri Lankan “security policy has become increasingly sophisticated since 2009 and is based on intelligence and the comprehensive surveillance of its Tamil citizens as well as monitoring of the Tamil diaspora”, meant that “the question of the possible revelation of the appellant’s brother having been a member of the LTTE” was a material question of fact squarely raised on the material before the Tribunal.

61    Counsel for the appellant further submitted that because the Tribunal had accepted that the appellant’s father had been severely mistreated for providing support to an LTTE cadre, this raised a question as to what the consequences might be if the authorities were to become aware of the appellant’s brother’s actual membership of the LTTE in the past.

62    In my view, it cannot be said that the issue of whether Sri Lankan authorities may in the future discover that the appellant’s brother was previously an LTTE member clearly emerged from the materials before the Tribunal. The Tribunal’s reference to the UK Home Office reports about the Sri Lankan intelligence system and increasingly sophisticated security policy, without more, does not “squarely raise” that issue. There was no evidence directed to whether the authorities would or could or were likely to come to know of the appellant’s brother’s past LTTE involvement.

63    No jurisdictional error is disclosed in the Tribunal’s consideration of whether the appellant would suffer relevant harm on the basis of his brother’s involvement in the LTTE. The primary judge did not relevantly err in holding that the Tribunal’s decision comprehensively canvassed the appellant’s claims.

64    In this context, I also note that the Tribunal expressly found (at [25]) that the chance that the appellant would face serious harm at the hands of the authorities on the basis of being imputed with a pro-LTTE political opinion because of his brother’s LTTE membership in the past was remote. The Tribunal indicated that the basis for its finding here was the passage of time and the fact that the appellant had not experienced “any problems from the authorities as a result”. It is unclear if this meant that the Tribunal rejected the appellant’s explanation that he had had no problem on account of his brother because the authorities did not know of his brother’s former LTTE involvement, or if this meant that it accepted the appellant’s explanation but considered that, even if the authorities found out, this would not affect the appellant, given the passage of time. In this circumstance, I cannot accept the Minister’s submission that it was implicit in the Tribunal’s reasons at [25] that it did, in fact, consider whether the authorities would come to know of the appellant’s brother’s LTTE membership.

Ground 2

65    Ground 2 asserts that “[t]he Tribunal was unreasonable in finding that because the [appellant’s] father and he were not suspected at the time he and his father were released in 2010, the CID would not have come to see them and question them with beating on a number of occasions from 2010 to 2012”.

66     The appellant contended that the finding was unreasonable because:

•    it was based on the implicit assumption that if a person has been questioned once by the CID and allowed to go, then there could not be any possible reason in the future for any further questioning;

•    it lacked any evidence and was contrary to the common experience of the operation of security forces when they received fresh information, as repeated questioning was a commonplace operation of police and similar forces; and

•    the Tribunal’s acceptance that the appellant and his father had connections with the LTTE, together with the CID’s suspicion of the appellant and his father when they returned from India in 2012 and the possible discovery by the authorities of the appellant’s brother’s membership of the LTTE (issues which the appellant submitted were not dealt with by the Tribunal), were cumulative factors which demonstrated the unreasonableness of the impugned finding.

67    It will be recalled that at [22]-[23] of its reasons the Tribunal identified difficulties with the appellant’s evidence as to the CID’s ongoing harassment and questioning of him and family members. Counsel for the appellant submitted that it was unclear what the Tribunal regarded as the defect in the detail or context provided by the appellant. Counsel submitted that:

[E]ven if … it may be open to the Tribunal to have some concern about the level of detail it perceives in some of the evidence, an essential plank in this reasoning … is that … the [appellant’s] father was not considered an LTTE suspect on release from prison … . That … is an unreasonable foundation because it … depends entirely on the implicit assumption that if … at one time you’re not of interest, then it could never happen that the authorities might come after you again.

68    The Minister submitted that the appellant’s complaint of legal unreasonableness and reliance on Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 was misplaced, because although the requirement that an administrative decision-maker act reasonably applies to the exercise of discretionary powers, the finding that the appellant impugned at this point of his argument was the product of a fact-finding exercise, not an exercise of discretion of the kind that would attract the principles in Li.

69    In SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 at [83] McKerracher J (with whom Reeves J agreed) accepted that “unreasonableness” in decision-making does not apply to the fact-finding leading to the exercise of discretionary decisions: see also SZRSS v Minister for Immigration and Citizenship [2014] FCA 137 at [47] (Farrell J). As the Minister accepted, however, a finding of fact can be impugned on the basis that it is illogical or irrational.

70    If, however, “logical or rational or reasonable” minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. This is made clear in the following passage in the joint judgment of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [131]:

The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

71    I am unable to discern anything unreasonable about the Tribunal’s finding at [22], rejecting the appellant’s claims that he and his family were questioned, harassed, and beaten by the CID a number of times after his father was released from prison. I accept that, as counsel for the Minister contended, the appellant’s complaint in ground 2 is based on a misunderstanding of the path of logic that the Tribunal followed. The Tribunal’s reasons at [22] make clear that the Tribunal’s non-acceptance of the appellant’s claim was based, in part, on the Tribunal’s concern that the appellant’s evidence at the hearing was “vague and lacking in details” and that the appellant had not provided “any particular details or context”. It was on this account, together with the Tribunal’s finding that the appellant’s father was not considered an LTTE suspect when released from prison in July 2010, that the Tribunal rejected the appellant’s claim. It was open to the Tribunal to do so.

Disposition

72    For the reasons stated, the appeal should be dismissed, with costs.

Associate:

Dated:    28 August 2019