FEDERAL COURT OF AUSTRALIA

BSD15 v Minister for Immigration and Border Protection [2020] FCA 477

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

KATZMANN J:

1    The appellant claims to fear harm in Sri Lanka, his country of nationality. He is an ethnic Tamil (and a Hindu) from the Eastern Province of the country who arrived in Australia in June 2012. After he arrived in Australia, he applied for a protection visa. The power to grant the visa vested in the Minister who was obliged to refuse the application if he was not satisfied that the appellant fulfilled the criteria laid down by the Migration Act 1958 (Cth) and the regulations made pursuant to the Act. The primary criteria for a protection visa are contained in s 36 of the Act. One, known as the refugee criterion, is that the applicant is a non-citizen in Australia to whom the Minister is satisfied Australia owes protection because he is a refugee (para 36(2)(a)). An alternative criterion, known as the complementary protection criterion, is that the applicant is a non-citizen in Australia to 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 his removal from Australia to a receiving country (here, Sri Lanka), there is a real risk that he will suffer significant harm.

2    The appellant’s visa application was first considered by a delegate of the Minister. The delegate was not satisfied that the appellant satisfied either criterion and therefore refused his application. The appellant applied for review to the Refugee Review Tribunal, (which later amalgamated with the Administrative Appeals Tribunal), but the Tribunal affirmed the delegate’s decision. The appellant then applied to the Federal Circuit Court for judicial review of the Tribunal’s decision, but that application was also dismissed. This is an appeal from that judgment.

The appellant’s claims

3    In a statutory declaration attached to his visa application, the appellant made the following claims.

4    He fears that, if he were to return to Sri Lanka he could be killed by members of the Karuna Group, a splinter group of the Liberation Tigers of Tamil Eelam or LTTE, which the appellant described as a Tamil paramilitary group working for the Sri Lankan Government. He also fears that he is at risk of serious harm from the Sri Lankan authorities because he is a Tamil from the east of the country who fled illegally and claimed asylum in a western country.

5    The reasons he gave for harbouring these fears were as follows.

6    After his father died in around 2002–4, the appellant became responsible for managing his father’s pharmacy business in Batticaloa in the Eastern Province of Sri Lanka. On 26 September 2008 armed members of the Karuna Group entered the pharmacy and demanded goods, promising to pay for them later. The appellant released the goods, but when he attended the Group’s office to collect his money he was beaten and kicked for about thirty minutes. He was admitted to hospital, but discharged himself two days later after he learned that members of the Group had threatened to harm him if he did not do so. On the night of his discharge he was abducted from his home by “masked armed men who spoke Tamil” and released only after his mother and wife paid the Group ₹200,000 and promised to pay another ₹300,000 a month later. On 14 November 2008 he received a letter from the Group demanding that he report to their office the following day. He attended the office in accordance with the demand, but the person in charge was not there at the time. The members of the Group visited his home that morning and threatened to harm him and his family if the promised sum was not paid. On 26 November 2008 he was told by a friend that the friend’s grandfather had been killed by the TMVP (the Tamil People’s Liberation Tigers, founded by Karuna Amman). Immediately thereafter, the appellant fled with his wife and child and remained in hiding until he fled the country on 31 May 2012. He learned through his wife, who had returned to their village while he was in hiding, that the Sri Lankan Army, the Special Task Force, and the Criminal Investigation Department had come to their home searching for him on several occasions, threatening “serious consequences” if he did not report to their offices. He believes that members of the Karuna Group provided false information to the authorities.

7    In an unsigned statutory declaration submitted to the Tribunal, the appellant made the following additional claims. In August 2001 his brother had been arrested, detained by the police on suspicion of being involved with the LTTE, and tortured whilst in detention. In about 2003/4 two members of the LTTE came to the pharmacy for some medicine but fled upon the arrival of the army, leaving their motorbike behind. Acting on the LTTE’s instructions, he went to the police station to retrieve the motorbike, but was arrested on suspicion of supporting the LTTE. He was detained overnight, released on bail, and appeared in court on four occasions. He told the judge that the bike did not belong to him. The judge ordered him not to support, or be involved in, the LTTE. His brother had been managing the pharmacy since 2008, when the appellant went into hiding, and in January 2013 the business was transferred from his name into his brother’s name. The Karuna Group continue to take medicine from the pharmacy and his brother was told that, if he complained, he and his family would be harmed. He explained that he did not report any of these matters previously because he had been confused and was suffering trauma when he arrived.

8    At the hearing before the Tribunal, the appellant said that he could not return to Sri Lanka as he believes he will be tortured and killed. He claimed to have been beaten by the military forces on several occasions. He said he had not mentioned this previously because he had been confused, not knowing what to say and what not to say. He told the Tribunal that he feared the Criminal Investigation Division would arrest him at the airport as he thinks the Karuna Group might have informed the authorities that he had helped the LTTE. Despite country information to the contrary, he claimed that the Karuna Group was still operating in his village.

9    On 9 November 2012 his former migration agent submitted what the Tribunal described as “a general submission” on behalf of 39 clients. After the hearing, two further submissions were lodged with the Tribunal. The first, lodged on 19 March 2015, responded to doubts raised by the Tribunal about the appellant’s claim that he was in hiding for four years before fleeing Sri Lanka in 2012 and to the Tribunal’s query as to why the appellant could not return given the change in circumstances, including the recent change of government. It also advanced additional arguments in support of the appellant’s claims. The second referred to a report published on 22 March 2015 that Colonel Karuna, now a member of parliament, had attacked a person working in a paddy field in Batticaloa and that the victim of the attack was admitted to hospital and the owner of the paddy field had gone into hiding. It included a submission that the appellant was “petrified that if he is forcibly returned to Sri Lanka he will be arrested and tortured by the authorities on suspicion of supporting the LTTE and even if he is permitted to relocate he [cannot] avoid the Karuna from targeting him elsewhere”. The letter purported to annex a certified copy of a police report to the Sri Lankan District Court in support of the claim that the appellant’s brother had been arrested by the police in 2001 and held in custody on suspicion of being an LTTE supporter. The copy in the appeal book, however, is illegible.

10    In the post-hearing submissions of 19 March 2015, reference was made to country information about Tamil asylum seekers forcibly returned to Sri Lanka after being denied asylum overseas and the use of torture by the authorities against people suspected of having links to the LTTE. It was submitted that the appellant “has the characteristics of a person who is at high risk of being arrested at the airport on suspicion of supporting the LTTE and subjected to torture”. The submission identified the method of torture as follows:

[The appellant] is a diabetic and now has microvascular complications of his diabetes. He is on prescribed medication to treat his condition … [The appellant] fears that as a form of torture the authorities will deny him access to his medication and he will die.

The Tribunal’s decision

11    The Tribunal accepted that the appellant was a Sri Lankan citizen, an ethnic Tamil, and hails from Batticaloa in Eastern Province. But it had serious concerns about the truth of significant parts of the appellant’s claims. The Tribunal concluded that the appellant was not a credible witness. Indeed, it considered that he had fabricated significant aspects of his history to enhance his claims for a protection visa. The Tribunal considered that, if they were under serious threat of harm, the appellant’s brother, wife, and mother would not still be living in the village or operating the pharmacy. The Tribunal did not accept that he went into hiding, noting that he was signing business documents throughout the period and regularly visiting churches in the area, and that the pharmacy business remained in his name until several months after he left the country. It attributed his attendance at churches to pray and his otherwise sedentary existence to the probability that he was “recuperating or convalescing for periods due to his ill health”. It did not accept that “any of his past including his court case from years ago or the court case of his brother from many years ago would cause him any ongoing concern or [attract] adverse interest from the authorities on his return to Sri Lanka”. Nor did the Tribunal accept that the appellant was wanted by the Karuna Group or the Sri Lankan authorities.

12    The Tribunal found that neither the appellant nor any member of his family had been involved with the LTTE, noted that he had not claimed that he or any member of his family had ever been subject to roundups by the authorities, and, considering his profile and background, did not accept that the authorities would impute any adverse political opinion to him or suspect him of LTTE membership or sympathies. It did not accept that he had “a level of profile that would cause him to be considered as [a] suspect by the authorities for any matter”.

13    The Tribunal accepted that the appellant had left Sri Lanka illegally, but not because he feared harm. Rather, it found that his departure was “opportunistic”, taken “in the chance [that he would obtain] a permanent migration outcome in Australia”.

14    With respect to the appellant’s claim that he was at risk of harm because he was a Tamil male, the Tribunal observed that the country information was “at times conflicting”. It accepted that, until the end of the civil war in May 2009 and for some time thereafter, Tamils in Sri Lanka were at risk of serious harm from the authorities by reason only of their ethnicity. But the Tribunal said that the country information indicated that the security situation had stabilised and the risk of harm to Sri Lankan Tamils had “substantially reduced”. After considering the country information, the Tribunal was “not reasonably satisfied” that Sri Lankan Tamils now face serious harm because of their ethnicity or that other factors, including being from the north or east of Sri Lanka or being young and male, put them at greater risk of harm.

15    The Tribunal dealt with the complementary protection criterion at [67]–[72] of its decision record. After referring at [66]–[68] to the statutory criterion and the definitions of “significant harm” and its component parts, the Tribunal said at [69]–[70]:

69    The general submissions from the former advisor dated 29 [scil. 9] November 2012 address this issue, including prison conditions. I do not accept that they are of such concern or issue that they are in the nature of or seriousness as is significant harm. As detailed above I find the applicant is not a credible witness I do not accept his claims relating to being of adverse interest to anyone.

70    As detailed above and for the same reasons I do not accept that the applicant has a level of adverse profile such that he is of any adverse interest to the authorities or anyone else in Sri Lanka. I accept he may be arrested on return and held on remand awaiting grant of bail. He will most likely be fined. He may be questioned about where he has been, however I do not accept that anything other than this will happen. I do not accept he had any ongoing issues or concerns in Sri Lanka. I do not accept he is of any adverse interest from the authorities. I do not accept this will cause him any concern on return to Sri Lanka. I do not accept that this is significant harm as meant by section 36 (2A).

16    These passages cannot be read in isolation from any of the Tribunal’s earlier findings, particularly in the light of the opening words to [70].

17    At [59] the Tribunal outlined what it saw as the potential harm facing the appellant if he were to return to Sri Lanka:

I accept that on return to Sri Lanka the [appellant] would be doing so as a failed asylum seeker and that this is from a western country. I accept he would be questioned by the authorities on return. I accept this questioning would include being asked about the arrangements and smugglers involved. It is reasonable to accept he would be arrested and held on remand for a few days while awaiting a court appearance. I accept that the conditions in Negombo prison are cramped and probably unsanitary. I am aware of reports including the Sydney Morning Herald article above (and also see country information referred to in the delegate’s decision) indicating people are detained possibly for 3 days at which time they are bailed for a future court appearance. I accept he will be fined between 50,000 and 100,000 rupees ($880 and $1760). DFAT REPORT: 1478, 28 February 2013 indicates that he will be arrested and charged with illegally departing from Sri Lanka and as detailed in that report the penalty is different than what would be applied if he had attempted the crime.

Negombo prison, I interpolate, is the prison closest to the Bandaranaike International Airport, Colombo’s international airport. Since it is the prison closest to the airport, I infer that the Tribunal considered the appellant would be held there on remand after being arrested at the airport.

18    At [61] the Tribunal said that it had considered the post-hearing submission that the appellant feared he would be denied medication if he were detained. But the Tribunal did not accept that his fear was reasonable. In particular, the Tribunal did not accept that it was reasonable to believe that in the appellant’s circumstances the authorities would deny him medication as a form of torture.

19    At [62] the Tribunal said that it had also considered whether being questioned, detained for a few days, and fined could amount to serious harm within the meaning of s 91R(1)(b) of the Act and found that it was “not of such seriousness”.

The proceeding in the court below

20    The appellant filed an application in the Federal Circuit Court for an order that the respondents show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s 476 of the Act. At that time he was represented by lawyers and the lawyer signified that the application had reasonable prospects of success. Two grounds of review were pleaded.

21    The first read (without alteration):

The Tribunal failed to comply with Ministerial Direction no. 56 in contravention of s 499 (2A) of the Act.

Particulars

a.    At [9] the Tribunal noted Ministerial Direction no. 56 and s499 of the act; and

b.    At [69] the Tribunal failed to take into account the PAM3 complementary Protection guidelines when it made a finding on whether the treatment that the applicant would face on being detained in Sri Lankan was degrading treatment even when the applicant’s representative specifically raised the issue of prison conditions.

22    The second read (without alteration):

The Tribunal erred in making an irrelevant consideration.

Particulars

a.    At [70] the Tribunal did not accept that the applicant had a level of adverse profile such that he is of any adverse interest to the authorities or anyone else in Sri Lanka; and

b.    An “adverse profile” or “adverse interest” is related to the refugee convention test of persecution of individually targeting a person and not part of the definition of complementary protection.

23    Since the time had expired within which such an application could have been filed, the appellant also sought an extension of time.

24    The application for an extension of time was granted, but on a limited basis. The effect of the court’s order was that there was one ground of review. That was the first ground. It related to the Tribunal’s decision that it was not satisfied that the appellant satisfied the complementary protection criterion in para 36(2)(aa) of the Act. It will be recalled that that criterion required that the Minister be satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant’s removal from Australia to Sri Lanka, there was a real risk that he would suffer significant harm.

25    “Significant harm” is defined in s 36(2A). It provides that a non-citizen will suffer significant harm if, among other reasons, the non-citizen will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. Each of these terms is defined in s 5. Each requires the intentional infliction of harm.

26    “Torture” is defined to mean:

an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the person:

(a)    for the purpose of obtaining from the person or from a third person information or a confession; or

(b)    for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)    for the purpose of intimidating or coercing the person or a third person;

(d)    for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

27    “Cruel or inhuman treatment or punishment” is defined as:

an act or omission by which:

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

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

but does not include an act or omission:

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

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

28    “Degrading treatment or punishment” is defined to mean:

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

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

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

29    The reference to the Covenant in each of these definitions is a reference to the International Covenant on Civil and Political Rights (ICCPR).

30    The substance of the ground of review was that the Tribunal failed to take into account PAM3: Refugee and humanitarian — Protection visas — Complementary Protection Guidelines (the Guidelines), in contravention of s 499(2A) of the Act, which requires that any person or body to whom or which the Minister has given directions about the performance of functions or the exercise of powers under the Act comply with such a direction. Direction No 56 required a decision-maker in the position of the Tribunal, when performing its functions or exercising its powers, to take into account the PAM3 Guidelines “to the extent they are relevant to the decision under consideration”. These Guidelines were designed to provide advice and assistance to decision-makers on the law relevant to the assessment of whether Australia owed protection obligations to applicants under the complementary protection provisions of the Act. It was for the Tribunal to determine what parts of the Guidelines were relevant: SZTMD v Minister for Immigration and Border Protection [2015] FCA 150 at [20] (Perram J).

31    The submission made on the subject by the appellant’s former migration agent in the pre-hearing submissions was that the appellant “face[d] a risk of being subjected to arbitrary detention, torture, cruel or inhuman treatment and or punishment if returned to Sri Lanka” because:

(1)    significant harm “should be interpreted as requiring a lower threshold of harm than ‘serious harm’ in s 91R (with respect to persecution)”, “consistent with [Australia’s] international obligations which complementary protection is intended to reflect, as well as international jurisprudence”; and

(2)    there are substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant’s removal from Australia, there is no effective protection against the risk of significant harm “based upon our Applicants’ previous experiences at the hands of the Sri Lankan authorities and given the official nature of the harm suffered.”

(Original emphasis.)

32    The difficulty for the appellant is that the Tribunal did not believe that he had undergone such experiences in the past or that there were substantial grounds for believing he would in the future.

The reasons of the primary judge

33    On the single ground of review, the primary judge held that the Tribunal had not merely mentioned the Guidelines but had “considered the appellant’s claims with the [Guidelines] in mind and used it as a touchstone”. For this reason his Honour held that the fact that the Tribunal did not expressly discuss those claims by reference to the Guidelines was not significant.

34    Despite the limited basis upon which the application was permitted to proceed, in written submissions to the primary judge, the appellant raised two other complaints about the Tribunal decision. One was that the Tribunal had overlooked his claim to fear torture, cruel or inhuman or degrading treatment or punishment upon his return to Sri Lanka. The other was that the Tribunal was biased against him.

35    The primary judge dealt briefly with both these allegations.

36    His Honour described the first allegation that the Tribunal had overlooked the appellant’s claim to fear torture as “unsustainable” in the light of paras 67, 68 and 70 of the Tribunal’s decision in which it referred to the criterion of “significant harm” in para 36(2)(aa) and its definition in s 36(2A) and concluded that the circumstances the appellant would encounter on returning to Sri Lanka did not amount to “significant harm” within the meaning of s 36(2A).

37    With respect to the second allegation that the Tribunal was biased against him, his Honour observed that, since bias had not been pleaded or particularised, it should not have been included in the written submissions. He described the allegation as “vexatious”. In any event, his Honour considered that the allegation was nothing more than a complaint that the appellant’s evidence was not accepted and that was an insufficient basis for a finding of bias.

The grounds of appeal

38    The notice of appeal contains four grounds:

(1)    that the primary judge erred in holding that the fact that the Tribunal did not expressly discuss the appellant’s claims by reference to the Guidelines was not significant;

(2)    that the primary judge “failed to hold the Tribunal’s conclusion that poor conditions [in Negombo prison] did not satisfy s 36(2A)(c)-(e) because those three subsections have an intentional aspect to them”;

(3)    that the primary judge should have held that the Tribunal overlooked the appellant’s claim that he would be tortured whilst on remand; and

(4)    that the primary judge erred in holding that the appellant’s allegation was one of actual bias which had not been pleaded and in failing to consider whether the Tribunal’s decision was affected by apprehended bias.

The foreshadowed additional grounds of appeal

39    The appellant filed no submissions in support of his appeal within the time he was ordered to file them. The day before the hearing, however, he filed submissions in which he proposed that two further grounds be added. The proposed two additional grounds read (without alteration):

1.    The Honourable Federal Circuit Court Judge Cameron was correct to grant extension of time to the applicant however failed to hold that the Tribunal failed to comply with the Minister's Direction PAM 3 in particular that the Tribunal failed to comply with s 424A of the Act in that the Tribunal failed to give notice in accordance with that section of clear particulars of information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review and failed to ensure, so far as reasonably practicable, why the information was relevant to the review.

2.    The Honourable Federal Circuit Court Judge Cameron failed to consider whether there had been a failure to comply with Ministerial Direction No 56 in circumstances where the Tribunal had not mentioned the Guidelines in the 'Relevant Law' section not in the substantiative section where it set out its findings on complementary protection obligations.

40    The submissions addressed the alleged failure of the Tribunal to comply with the Guidelines (PAM 3), but did not explain what that had to do with s 424A.

41    Normally a party is bound by the way the case is conducted at first instance. An appellate court may allow a party to rely on an argument not raised in the court below, but leave is required and leave will only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). The Court must be satisfied that allowing a new point to be argued would not work an injustice to the other party: Summers v Repatriation Commission (2015) 230 FCR 179 at [94] (Kenny, Murphy and Beach JJ).

42    The Minister accepted that, to the extent that these two grounds dealt with the alleged failure by the Tribunal to comply with Ministerial Direction 56 and the Guidelines, he was in a position to meet the allegations, but otherwise objected to the late application. The fact of the matter was that those allegations were not materially different from the matter raised by ground 1 of the notice of appeal. For that reason, it is doubtful whether leave is required. On the assumption that it is, I would grant leave to the appellant to raise the second additional ground, which I will call ground 5. On the other hand, the s 424A point is entirely new and, for the following reasons, I refuse leave to raise it now.

43    First, no explanation was offered as to why the point was not raised below.

44    Second, the application to raise it was made on the eve of the appeal.

45    Third, I am not satisfied that granting leave would work no injustice to the Minister.

46    Fourth and above all, as the Minister submitted, the point has no apparent merit.

47    When I asked the appellant at the hearing what his argument was in relation to s 424A, he replied:

If they’re going to send me back to my country, I will be tortured, and that’s the claim I put in. In the first time – the first time, they accepted it, and in the second time, they refused it.

48    When I pressed him to tell me what that had to do with s 424A, he replied:

I actually described clearly about what happened to me while I was living in my country and – but they haven’t considered everything properly. That’s my allegation.

49    Section 424A imposes an obligation on the Tribunal to give to applicants clear particulars of any information that forms part of the reason for affirming a decision under review. It provides that:

 (1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

 (2)    The information and invitation must be given to the applicant:

       (a)    except where paragraph (b) applies—by one of the methods specified in section 441A; or

       (b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

(4)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

50    “Information” in this context relates “to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190; 235 ALR 609; 96 ALD 1 at [17]-[18]. Neither in his written submissions nor at the hearing did the appellant identify the evidentiary material or documentation that constituted the “information” about which he was not notified in accordance with s 424A. The Tribunal did consider country information. But the obligation does not extend to country information. Information of this kind is expressly excluded by para 424A(3)(a). Having regard to the content of both the written and oral arguments, the reference to s 424A appears to be misconceived.

51    I will now consider the questions raised by the notice of appeal.

Did the primary judge err in concluding that the fact that the Tribunal did not expressly discuss the appellant’s claims by reference to the Guidelines was not significant (grounds 1 and 5)?

52    This is the question raised by ground 1 of the notice of appeal. It is related to the new ground 5 which alleges that the primary judge failed to consider whether there had been a failure to comply with Ministerial Direction No 56. For this reason I will deal with these two grounds together.

53    In his written submissions, the appellant referred to the following passages from the Full Court’s judgment in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [33]–[34]:

33    The Tribunal is required by s 430 [of the Migration Act] to set out its findings on questions of fact it considers to be material, together with the evidence and other material on which those findings were based. In these circumstances, a Court considering a challenge to the Tribunal’s decision is generally entitled to infer that any matter not mentioned in the reasons was, at the very least, not considered by the Tribunal to be material to its review: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 and SZGUR.

34    The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].

54    In substance, the appellant’s argument was that, because the Tribunal had not mentioned the Guidelines in the section of its reasons on “Relevant Law” or in the substantive section containing its findings on the complementary protection criterion, the Court should infer that it had not taken them into account.

55    The Tribunal’s decision record did not include a heading “Relevant Law”. The relevant law was mentioned at the beginning of a section entitled “Claims and Evidence”, which is precisely where the Tribunal referred to the Guidelines. As the primary judge observed, the Tribunal did not just note the Ministerial Direction in its reasons, it referred to the Guidelines and acknowledged that it was required to take them into account.

56    The real question is whether the Tribunal’s failure to expressly advert to the Guidelines later in its reasons in the context of its discussion of the complementary protection criterion signifies a failure to take them into account.

57    The relevant part of the Guidelines was annexed to an affidavit filed by Madeleine Butler, a lawyer in the firm of solicitors acting for the Minister, which was apparently read in the court below. Certainly, the appellant did not suggest that any other part of the Guidelines was relevant. This part deals with lawful sanctions, noting that each of the definitions of torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment excludes acts or omissions arising from, inherent in or incidental to, lawful sanctions not inconsistent with the Articles of the ICCPR. The relevant passage appears under the heading “Imprisonment/Prison conditions”. It begins with the following statements:

Detention is not of itself a breach of Article 7, although particularly harsh conditions of detention may constitute a violation of Article 7. Prison conditions may constitute cruel, inhuman or degrading treatment or punishment if they seriously or systematically deprive a detainee of human dignity.

As with all types of torture and cruel, inhuman or degrading treatment or punishment, a minimum level of severity is necessary in order to breach Article 7. The assessment of this minimum depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical or mental effects and, in some instances, the sex, age, state of health or other status of the victim.

(Emphasis added.)

I interpolate that Article 7 relevantly provides that no-one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.

58    The Guidelines list examples of conditions which have been held to amount to breaches of Article 7:

    “extremely cramped or unsanitary conditions, exposure to cold or inadequate ventilation or lighting”;

    “lack of adequately nutritious food or water, lack of adequate clothing or a separate bed, threats of torture or death, lack of opportunity for adequate exercise”;

    “prolonged solitary confinement or total isolation”;

    “denial of medical treatment”;

    harsh rules of conduct restricting fundamental rights of prisoners;

    the use of harsh punitive measures;

    unfair procedures for deciding on disciplinary measures;

    inadequate protection against reprisals by warders;

    lack of a credible complaints mechanism;

    frequent use of protective measures such as leather handcuffs; and

    in certain circumstances, violent treatment in detention.

59    The Guidelines noted that, while a relatively minor condition such as being kept in a small cell might not be sufficient to breach Article 7, the accumulation of a combination of poor or unreasonably restrictive conditions like “a small cell, overcrowding, prolonged detention and lack of opportunities for exercise” may be enough to elevate the severity of the treatment beyond the necessary threshold.

60    They go on to say:

The assessment of whether particular conduct or conditions amounts to torture, cruel, inhuman or degrading treatment or punishment is subjective, in that it depends on the characteristics of the victim (such as sex, age, state of health). For example, the exploitation of phobias or particular cultural taboos could conceivably amount to cruel, inhuman or degrading treatment or punishment for one person whereas it may not for another person.

If an applicant claims that they face a disproportionately long period of time in prison, this should be considered as a cumulative factor that may render other conditions cruel, inhuman or degrading. For example, overcrowding in a cell for a person detained overnight may not breach Article 7, although it may do so if a person faces a lengthy prison sentence. There are limited circumstances where prolonged detention itself may amount to a breach of Article 7 …

61    The primary judge did not err in concluding that the absence of a reference to the Guidelines in the context of its consideration of whether the complementary protection was satisfied was not significant. That is so for a number of reasons.

62    First, the Tribunal explicitly recognised that it was required to take the Guidelines into account.

63    Second, the Tribunal considered country information about conditions potentially faced by failed Sri Lankan asylum seekers, including Tamils, on returning to Sri Lanka. That information was directed, amongst other things, to the very matters mentioned in the Guidelines. Although the context in which this was discussed was satisfaction of the refugee criterion, the subject-matter was not unrelated.

64    Third, the Tribunal noted in [69] that the submissions made on the appellant’s behalf addressed the issues raised by the complementary protection criterion, including prison conditions.

65    Fourth, its reasons at [57]–[63] and [69]–[70] reflect a consideration of whether the appellant would face conditions of the very kind described in the Guidelines.

66    Fifth, its reference to “cramped and probably unsanitary conditions” at Negombo prison picks up some of the language used in the Guidelines. Like the primary judge, I think that the use of these terms to refer to the prison conditions tends to indicate that the question was being considered through the prism of the Guidelines.

67    In these circumstances, as the Minister submitted and the primary judge accepted, it is reasonable to infer that the Tribunal did indeed have regard to the Guidelines to the extent that they were relevant. The reasons must be read as a whole.

68    In his submissions in reply at the hearing of the appeal, the appellant complained that the Tribunal had only referred to conditions at Negombo and did not report on conditions in other prisons. The obvious reason for that is the Tribunal’s conclusion that the only harm to which the appellant might come is that which he would experience following an arrest at the airport and Negombo prison is the closest prison to the airport. As the Minister put it, since the Tribunal found that the appellant would not otherwise be of adverse interest to anyone, including the authorities, there would be no reason for the Tribunal to consider his potential fate in any other prison.

69    For all the above reasons, grounds 1 and 5 must be dismissed.

Ground 2

70    Ground 2 is difficult to understand and the particulars to it, set out below, do not cast any light on its intended meaning. Consequently, it is impossible to discern the issue it raises. On the face of things, it discloses no arguable error. This is the ground in full, including the particulars:

The Federal Circuit Court Judge Cameron failed to hold the Tribunal’s conclusion that poor conditions did not satisfy s 36(2A)(c)-(e) because those three subsections have an intentional aspect to them.

a)    The Tribunal accepted in respect of prison conditions in Negombo prison were “cramped and probably unsanitary” at [59].

b)    It is clear that the Tribunal certainly turn its mind to the state of Sri Lankan prisons under s 36(2A)(c)-(e). It rejected that claim on the basis that each of s 36(2A)(c)-(e) have an intentional element.

c)    The Tribunal’s conclusion that poor conditions did not satisfy s 36(2A)(c)-(e) because those three subsections have an intentional aspect to them: See SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405 (‘SZTAL’) at 412–413 [26]–[29] per Kiefel CJ, Nettle and Gordon JJ; 432 [103] and 434–435 [112]–[114] per Edelman J.

(Original emphasis.)

71    The appellants in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 were also Sri Lankan asylum seekers. In their cases, the Tribunal found that, if they were returned to Sri Lanka and arrested and charged with offences for leaving the country illegally, they would likely be held in remand for a short period of up to two weeks. In that case, as in this, the Tribunal accepted that prison conditions were poor. It accepted that they may not meet international standards because of overcrowding, poor sanitary facilities and limited access to food. But the Tribunal concluded that the element of intention required by the Act before torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment could be made out was lacking. In the High Court the majority rejected the appellant’s argument that the Full Court erred in holding that the reference to “intentional” infliction of harm in the definitions of cruel or inhuman treatment or punishment, or degrading treatment or punishment required “actual, subjective intention by the actor to bring about the victims’ pain and suffering by the actor’s conduct”. Their Honours held that knowledge or foresight of the consequences of intentional acts or omissions was not enough. The actor must have the aim or purpose of inflicting the relevant harm.

72    In his written submissions in the court below, the appellant also referred to SZWBR v Minister for Immigration and Border Protection [2018] FCA 644 at [14] in which Perram J held that a claim of torture, cruel or inhuman or degrading treatment or punishment (collectively, the ‘torture claim’) was on the table and needed to be dealt with. It appears that particulars (b) and (c) are taken from that judgment. In SZWBR at [13] Perram J said this:

It is clear that the Tribunal certainly turned its mind to the state of Sri Lankan prisons under s 36(2A)(c)-(e). It rejected that claim on the basis that each of s 36(2A)(c)-(e) have an intentional element. It was correct to do so for it has been held that harm to an applicant caused by overcrowding, poor sanitary conditions and limited access to food in the Sri Lankan prison system does not constitute torture, cruel or inhuman treatment or punishment under s 36(2A)(c)-(e) … The Tribunal was correct to conclude that poor conditions did not satisfy s 36(2A)(c)-(e) because those three subsections have an intentional aspect to them: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405 (‘SZTAL’) at 412–413 [26]–[29] per Kiefel CJ, Nettle and Gordon JJ; 432 [103] and 434–435 [112]–[114] per Edelman J.

(Emphasis added.)

73    Critically, the appellant omitted the third sentence, which I have emphasised. If his intention was to allege that the primary judge erred in failing to hold that the Tribunal was wrong to conclude that the conditions in Negombo prison did not satisfy the terms of s 36(2A)(c)–(e), then, for the reasons given by Perram J, this ground was doomed to fail. If he had some other intention, it was obscure.

74    The appellant’s oral submissions bore no relationship to the ground as pleaded. As I understood him, the appellant submitted that the Minister and the Tribunal did not know the “exact situation” and underestimated the risk of torture to which the appellant would be exposed. He said:

The Minister’s lawyer argued last time that the condition in the [prison] is not, like, intentionally – it’s not inflicted on me but I’m saying I have gone through torture, so if I go back, I will be certainly put in jail and I will be tortured and – but they argue that what happened to me – because it’s all their assumption. They really don’t know the exact situation – what’s going on inside the [prison] – because the things that happens inside the [prison] – it has never come out through the media or any other [forum], so it’s very unlikely people here knew about those situations. I would like to emphasise that the first respondent argues that I won’t be tortured if I go back … So, I need some sort of assurance or, like, a proof to say that I won’t be tortured if I’m going to be returned back to Sri Lanka. If I get that assurance from them, then I – whatever they say, I accept, and I am ready to go.

75    This submission indicated two things: first, that his grievance was with the Tribunal’s failure to find that he would or would be likely to come to serious harm in a Sri Lankan prison, not with the legality of the decision, and second, that the appellant did not understand the limited powers of the court to set aside factual findings. It was clear from all his arguments on the appeal that he did not appreciate that, in order to succeed in the court below, it was not enough to persuade the primary judge that the Tribunal had come to the wrong conclusions. As the primary judge pointed out in his judgment, the effect of s 474 of the Migration Act is that the only basis upon which the court could set aside the Tribunal’s decision was for jurisdictional error. Unless the decision was legally unreasonable (as discussed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332), an allegation the appellant did not make in the court below, the court had no power to set the decision aside because the Tribunal came to the wrong conclusion on the merits. As Brennan J explained in Attorney-General v Quin (1990) 170 CLR 1 at 35–36:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

76    Since the Tribunal rejected most of the appellant’s claims and found that, apart from being fined, the only possible harm to which he might come if he were to return to Sri Lanka was that he could be detained for possibly three days in Negombo prison while awaiting bail, where the conditions are cramped and probably unsanitary, its conclusion that there was no risk of significant harm was inevitable. As Perram J explained in SZWBR, as a matter of law, that does not fall within the statutory definition of “significant harm”.

77    The appellant’s submission also indicates that he misunderstood the Minister’s submission.

78    In the court below, the Minister submitted that, in considering the issue of prison conditions for the purpose of the complementary protection criterion, the Tribunal adopted its earlier findings made in the context of the refugee assessment, in concluding that “the prison conditions [the appellant might face if he were returned to Sri Lanka] that it has accepted on the evidence would not constitute significant harm”. The Minister observed that the definition of “cruel, inhuman or degrading treatment or punishment” requires that the harm be intentionally inflicted, citing the High Court’s decision in SZTAL. He argued that the Tribunal’s findings at [60] and [70] “make it clear that it did not consider the experience of detention to constitute intentionally inflicted mistreatment”. He also submitted that, on a fair reading of its reasons, the Tribunal was not satisfied that there was an intentional element to any harm he might experience in detention, as the definition in the Act of “cruel, inhuman or degrading treatment or punishment” requires, citing the High Court judgment in SZTAL.

79    I accept these submissions. As the Minister submitted on the appeal, nothing the Tribunal said in its reasons suggests any misunderstanding or misapplication of the concept of “significant harm”.

80    Ground 2 must be dismissed.

Should the primary judge have held that the Tribunal overlooked the appellant’s claim that he would be tortured on remand (ground 3)?

81    This ground also seems to have been inspired, if not taken, from the judgment in SZWBR in which Perram J concluded that the Tribunal in that case had overlooked a claim that the appellant in that case would be tortured while on remand. It will be recalled that no such allegation was pleaded in the court below. It is therefore doubtful at best whether the primary judge was obliged to deal with the submission at all.

82    These were the particulars of ground 3:

a)    the applicant had a low profile with authorities despite the applicant’s “continuing” imputed opinion as a supporter of the LTTE, why the authorities would have suspected him, arrested him, held him for 2 nights and tortured in detention and, was visited by the Red Cross and visited by his parents and engaged in such clear mistreatment, is a question that remains unanswered by the Tribunal.

b)    Given the finding of this incident, the Tribunal has not engaged intellectually with the claims of the applicant. Failure to engage intellectually with this claim is a jurisdictional error.

c)    Incident and mistreatment occurred, but then hold that the applicant was not of a profile for suspected support for pro-LTTE activities to attract continued interest with authorities lacks an evident and intelligible justification. See Minister for Immigration v Li (2013) 297 ALR at [76].

d)    It was said in Minister for Immigration and Border Protection v SZMTA, “The Tribunal concluded that the applicant was released as he was no longer of any interest to authorities. What was not identified by the Tribunal is the issue as to why authorities suspected the applicant of supporting LTTE. The applicant submits this was required to be considered by the Tribunal as part of its jurisdictional task. Had it done so, the result of the review could have been realistically different”.

83    All these contentions must be rejected.

84    The reference to Minister for Immigration and Border Protection v SZMTA in the last particular is enigmatic. Certainly, the putative quote does not come from the High Court’s decision (Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421).

85    The references in the first particular to the appellant being tortured in detention and visited by the Red Cross and his parents are also vexing. I cannot find an account corresponding to that description anywhere in the appeal book.

86    The Tribunal did say, at [50], that it was “prepared to accept” that there was “an incident concerning [the appellant], a motorbike, the LTTE and a court case from 2003 or 2004”. That incident was described in the unsigned statutory declaration lodged with the Tribunal at the hearing. In that document the appellant said he was gaoled for one night, not two, and did not say that he was tortured. He said that his brother was arrested in 2001 and tortured in detention and that, when his brother was in gaol, the Red Cross visited him and took a message to their parents.

87    In any event, even if the appellant had been tortured in detention in the early 2000s, it did not necessarily follow that there was a real chance he would be tortured if he were to return to the country more than a decade later. That depended on the circumstances that obtained at that time and in the foreseeable future.

88    The appellant’s contentions overlook other parts of the Tribunal’s decision which explain why it concluded that, despite the events of 2003/4, it was not satisfied that the appellant was exposed at the time of the decision and in the foreseeable future to a real chance of serious or significant harm. Earlier in the same paragraph, the Tribunal concluded that, contrary to his explanation, the reason the appellant had not previously mentioned those events and the incident involving his brother in 2001, which it was also “prepared to accept”, was that they were of little or no consequence to him now. Further down, the Tribunal noted that “the incident from 2003 or 2004 is 11 or 12 years ago” and found that “it was resolved” and had no “ongoing consequence”. Those findings are not said to be irrational or unreasonable and are supported by country information to which the Tribunal referred earlier in its reasons. Later in the same paragraph it expanded on these findings:

•    As discussed with the [appellant] the issues of concern raised by him, even if they are true, are long ago. There are many things that have changed since then including the war finishing. I do not accept as reasonable to believe that in the heightened state of security and the authorities actively looking for anyone with significant LTTE ties in the aftermath of the civil war that he would have been able to hide out in his local area for the period as claimed. I do not believe as true that he was hiding during this period at all.

…

•    He fears that the authorities may consider there is a connection with the LTTE through the family pharmacy which operated during the war. I do not accept as reasonable to believe the authorities would now have any concern about his even if true. It is many years ago and as mentioned above much has changed. The authorities actively pursued those people of concern during the war and in the immediate following years. They would be aware of the court case involving him and his brother from years ago. I do not accept that these matters would cause any concern now or in the reasonably foreseeable future.

89    Moreover, the Tribunal did not accept that the incident involving the appellant’s brother in 2001 had had “any consequence previously” or was of any consequence at the time of its decision, either for the appellant or his brother, who, it noted, was still living in Sri Lanka running the family business.

90    I accept that another decision-maker may have come to a different conclusion on the basis of the same material, but it cannot be said that the Tribunal’s reasons lack an evident and intelligible justification or that the Tribunal did not engage intellectually with the appellant’s claim. As Crennan and Bell JJ said in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. 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.

91    In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] Gummow J observed that to describe reasons as “illogical”, “unreasonable” or “irrational” may be no more than an emphatic expression of disagreement with no legal consequence. The appellant’s oral submissions suggest just that. He insisted he had been tortured in Sri Lanka from the time he asked the Karuna Group to pay for the medicines its members took from his pharmacy. He acknowledged that, in substance, his complaint was that the Tribunal fell into error because it should have found as a fact that he would be tortured if he were to return to Sri Lanka. Indeed, he said that that was the basis of all his grounds of appeal.

92    The appellant’s claim that he would be tortured on remand, which is the subject of ground 3, was first made in the post-hearing submissions of 19 March 2015. It related to the appellant’s fear that he would be arrested at the airport and denied medication as a form of torture. The primary judge was correct to conclude that it was not overlooked.

93    While the Tribunal did not mention the word “torture” in [69] or, for that matter in [70] of its reasons, it did state in [69] that prison conditions were not serious enough to amount to significant harm. And it did so immediately after noting in [68] that “significant harm” includes torture. It will be recalled that the Tribunal had earlier indicated that it did not accept that, if the appellant were denied medication, the authorities would do so as a form of torture. In these circumstances, I am not persuaded that the failure to mention the torture claim in the context of its consideration of the complementary protection criterion means that the Tribunal overlooked it. The fact is that it had already rejected that claim. It does not matter that it did not do so again in so many words in the context of the complementary protection criterion.

94    Ground 3 must be dismissed.

Did the primary judge erred in his treatment of the bias allegation (ground 4)?

95    Ground 4 alleged that the primary judge erred in two respects: first, because, contrary to what his Honour said, the point had been “sufficiently pleaded”; and secondly, because bias can be actual or apprehended, the primary judge erred by failing “to focus on the apprehended bias [he] was complaining about in his case”.

96    These allegations must also be rejected.

97    By the expression “sufficiently pleaded”, his Honour was referring to the allegations made in the originating application. No claim of bias, whether actual or apprehended, was made there.

98    In his reasons, the primary judge referred to a submission of the appellant that the Tribunal’s “state of mind [was] so committed to a conclusion already formed as to be incapable of alteration, despite the evidence and arguments presented by the applicant …”.

99    His Honour was not in error in taking this to be an allegation of actual bias. The language used by the appellant derives, albeit without acknowledgment, from the joint judgment of Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]. That was a case in which actual bias was alleged. In the same judgment, their Honours observed that an allegation of bias has to be “distinctly made and clearly proved”. It is beyond question that bias was not distinctly alleged or clearly proved in the present case.

100    The test for apprehended bias is whether a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the relevant conduct, might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the questions to be decided: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 75 ALJR 982; 179 ALR 425 at [27]–[28].

101    The transcript of the hearing in the court below was not included in the appeal book or otherwise provided to the Court. The closest the appellant got to an allegation of apprehended bias in his written submissions in the court below was at [25] where he wrote (without alteration):

In any event it was a response to a tendency to justify and to reinstate the delegate’s decisions dated 30 August 2013 and the reasoning which suggest to the disinterested observer an enthusiasm to reject the applicant’s claims by the Member which may not be wholly warranted.

102    When asked at the hearing of the appeal what he had to say about this ground, he replied:

I have described what really happened to me while I was living there, but the decision was made with – like, they’re not confirming, really, what exactly happened – happening in Sri Lanka or what exactly would happen if I go back. So, it’s all, like, I would say, assumption. Based on that, they come to a conclusion that if I go back, I won’t face any torture or any harm … That’s why … I can’t accept their decision regarding this claims.

103    The decision was not based on assumptions. Necessarily, however, having regard to the questions it was obliged to answer, the Tribunal was engaged in a predictive exercise, based on what it was satisfied had occurred in the past and the information it had before it (and accepted) about the present. It could not give the appellant any guarantee that he would be free from harm if he returned to Sri Lanka. But it was not required to. Its duty, imposed by s 65 of the Act, was to refuse to grant the visa if it was not satisfied that the appellant was at real risk of serious harm in Sri Lanka because of his ethnicity, imputed political opinion, or as a failed asylum seeker who had left the country illegally, or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia, he was exposed to a real risk of significant harm.

104    It is a rare case in which a court will find that a decision is affected by either actual or apprehended bias, based only on a decision-maker’s reasons: Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; 115 ALD 303 at [18] (North and Lander JJ), with which I agreed at [35]. As their Honours observed in that case, “[o]rdinarily a party would need to show some conduct on the part of the decision maker, apart from the decision maker’s expression of the decision maker’s reasons, which would indicate that the decision maker has been guilty of pre-judgment or was in any way biased”. The appellant did not do this in the present case and there is nothing about the present case that takes it out of the ordinary. Where, as here, the bias allegation is based on the decision-maker’s reasons and the reasoning process is not illogical or otherwise legally unreasonable, an allegation of actual or apprehended bias is unsustainable: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59; 77 ALJR 1165; 73 ALD 1 at [4] (Gleeson CJ).

Conclusion

105    None of the grounds of appeal is made out. It follows that the appeal should be dismissed with costs. There will be orders accordingly.

Associate:

Dated:    15 April 2020