Federal Court of Australia

BXK16 v Minister for Home Affairs [2022] FCA 251

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to rely on the document headed “Amended Notice of appeal from the Federal Court of Australia” filed on 17 February 2020; and this document be treated as the amended notice of appeal filed in the proceeding.

2.    The appeal be dismissed.

3.    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 a judgment of the Federal Circuit Court of Australia delivered on 29 June 2018, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant the appellant a Protection (Class XA) visa (protection visa). The appellant is a citizen of Sri Lanka, a Tamil and a Muslim, who sought a protection visa to remain in Australia.

2    The appellant arrived in Australia on 13 August 2012 as an ‘unauthorised maritime arrival’ within the meaning of s 5AA of the Migration Act 1958 (Cth) (the Act). He lodged an application for a protection visa in April 2013. He set out his claims in a statement accompanying this application. A delegate of the Minister informed the appellant that he had refused his application for a protection visa by letter dated 30 September 2013.

3    The appellant applied to the Refugee Review Tribunal for review of the delegate’s decision on 4 October 2013. He attended a hearing before the Tribunal on 13 March 2015, assisted by his migration agent and an interpreter. His agent gave the Tribunal written submissions before and after the hearing.

THE Tribunal’s decision

4    The Tribunal affirmed the delegate’s decision on 28 June 2016, and notified the appellant of the Tribunal’s decision by letter dated 30 June 2016.

5    The Tribunal summarised the appellant’s claims for protection in its statement of decision and reasons (D&R) at [20] as follows:

In summary, the applicant’s claims are his family are originally from Northern province. He was born in an IDP camp in Colombo but later moved to a government run IDP camp in Northwestern province where he grew up with his mother. His father continued to live in Northern province and later remarried. Part of his family land in his father's home village was confiscated by the Sri Lankan navy to build a naval camp. His family received another piece of land in compensation, but it is inadequate due to the size and location of the land. In April 2012, he went with a group of people to participate in a protest against the confiscation of their land. His uncle also attended the protest for part of the time and helped to prepare the protest banners the applicant displayed. The protest lasted for about 8 hours and was at an event attended by the then defence secretary. He, together with the other protesters were rounded up by naval officers. His phone was taken from him and his details recorded. The naval officers told them the land is no longer theirs and that they would be shot if they returned. He was released, but 2 days later, naval officers came to his relative’s home searching for him, the applicant hid and then returned to his mother's home village. Nothing happened again until in June 2012, [when] naval officer[s] again started ask[ing] questions about the applicant in his father’s home village. Since the applicant departed Sri Lanka, the Sri Lankan authorities have continued looking for him in his father's home village.

6    The Tribunal accepted that “the applicant’s family land was confiscated by the Sri Lankan navy and that [he] participated in a protest attended by the defence secretary”, but it did not accept that the Sri Lankan authorities had continued to search for him: D&R at [20]. The Tribunal noted that the appellant’s pre-hearing submissions made “new claims that the Sri Lankan authorities have continued to look for him since he left Sri Lanka”, and that the appellant told the Tribunal at the hearing that the last time the authorities came looking for him was in 2014 at his relatives’ home. The Tribunal found, however, that this evidence was “vague”. The Tribunal noted that it had put to the appellant that “it would not be difficult for the Sri Lankan authorities to find [him as he] lived with his mother in Northwestern province and to look for him there” and that the appellant had apparently agreed with this: D&R at [22]. The Tribunal also noted that the appellant did not know the name of the camp at which the protest occurred nor when it opened: D&R at [23].

7    The Tribunal referred to country information concerning land confiscation, noting that it indicated that there was often dissatisfaction with the compensation given. It observed that the information “indicates people protest about that and the reports do not refer to people being harmed for protesting”: D&R at [24]. The Tribunal specifically said (at [24]) that it discussed with the appellant:

… country information regarding protests by people against the navy confiscating land in other parts of Sri Lanka, including before the defence secretary, but did not find reports about protests from the home village of the applicant’s father.

It added that:

Having regard to the applicant’s earlier evidence his family was compensated with another piece of land in a different location and the country information that there is a naval camp in his father’s home village, the Tribunal was willing to give the applicant the benefit of the doubt the navy had confiscated his family land. It was willing to give the applicant the benefit of the doubt too that there were protests in his father’s home village regarding the navy confiscating land for that camp.

8    The Tribunal found that the independent evidence indicated that there was no real chance that he would have been harmed for attending the protest: D&R at [26]. The Tribunal noted that authorities had not harmed he appellant’s uncle even though he had also participated in the same protest as the appellant: D&R at [27]-[28].

9    Respecting the appellant’s claims concerning his participation in the protest, the Tribunal concluded as follows (at [29]):

The Tribunal accepted above the Sri Lankan navy confiscated part of the land of the applicant's family but is not [satisfied] that give[s] rise[] to a well-founded fear of persecution to the applicant. The Tribunal reaches that finding mindful the applicant’s family may not be satisfied with compensation provided. Despite the Tribunal’s concerns regarding his claims, the Tribunal is willing to accept too that the applicant attended one protest, and that he was questioned about his participation in that protest. However, the Tribunal considers the applicant has then fabricated the claims that the Sri Lankan authorities continued to look for him and he has exaggerated the level of risk of harm to him arising from his attending that protest. The Tribunal accepts as well if he returns to Sri Lanka, there is the possibility the applicant may participate in further protests regarding the level of compensation. The Tribunal is mindful too of the country information regarding instances of intimidation by the Sri Lankan authorities against land owners who complain about their land being occupied. On the evidence before it, the Tribunal is not satisfied however when having regard to the non-exhaustive instances of serious harm in s.91 R(2) that such intimidation would amount to serious harm. Moreover, the balance of the country information indicates a compensation process has been put in place by the Sri Lankan authorities – which is inconsistent with the Sri Lankan authorities targeting former landowners for harm. The Tribunal is willing to accept too that the applicant protesting against the confiscation/adequacy of compensation could be seen as having a political opinion opposed to the government. However, the evidence before the Tribunal is that the applicant’s uncle also attended the protest and continued to live in the same area as the protest without any harm and the Tribunal considers if the applicant returned to Sri Lanka, he would have the same experience as his uncle. The country information does not suggest the Sri Lankan authorities harm people for protesting the confiscation of their land. The Tribunal considers there to be only a remote or speculative chance and therefore not a real chance the applicant will be targeted for harm by the Sri Lankan authorities due to his anti-government political opinion, now or in the reasonably foreseeable future, if the applicant returns to Sri Lanka.

10    After considering the country information, the Tribunal concluded that there was no real chance that the appellant would suffer serious harm if he returned to Sri Lanka because he is a Tamil: D&R at [36]. It did not accept that the appellant “has any profile which would warrant the Sri Lankan authorities to target him for harm”: D&R at [38]. It also found that there was no real chance that he would face serious harm because he is a Muslim or a Tamil Muslim if he returned to Sri Lanka: D&R at [42]-[43].

11    After assessing the evidence and the appellant’s circumstances, the Tribunal found that the appellant would not be “imputed with an anti-government or pro LTTE political opinion because he will return to Sri Lanka as a person who applied for asylum overseas”: D&R at [50].

12    As to whether the appellant would be harmed because he left Sri Lanka illegally, the Tribunal stated at [52]:

Since November 2012, all failed asylum seekers returned to Sri Lanka from Australia who had departed Sri Lanka illegally had been arrested upon return to the airport in Colombo. The returnees were then charged with offences relating to illegal departure under [the Immigration and Emigration Act of 2006 (IEA)] and held on remand until brought before a Magistrate. After a bail hearing, the returnees are granted bail with a personal surety and [are] able to return to their home area. The period on remand varies between a couple of hours to a couple of days, depending on how soon a bail hearing can be held, but there are reports of it taking up to two weeks. The Sri Lankan authorities will investigate the background and identity of each returnee, which can involve contacting the person’s family and the police in their home area. Eventually the returnee will need to return to Court to face the charges. Although the IEA states the penalty for illegal departure is a prison sentence from 1 to 5 years and a fine of 50,000 LKR to 200,000 LKR, the Magistrates are able to use their own discretion in determining the amount of the fine. In practice, Magistrates have been handing out fines between 5,000 LKR and 50,000 LKR. Only returnees suspected of people smuggling offences have been denied bail or given a prison sentence. The most recently available information is the above process is continuing under the new government.

(Emphasis added)

13    The Tribunal found that any harm the appellant would suffer from punishment under Sri Lankan law did not amount to persecution for the purposes of the Act: D&R at [53]. The Tribunal continued at [55] and [57]:

The Tribunal notes the country information that bail is routinely given on the accused’s own recognisance although a personal surety is required. If the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo prison and may remain there for some days until a bail hearing is available. The Tribunal has regard to the decision of the High Court in [Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; 254 CLR 610] that not all detention amount[s] to a threat to a person’s liberty and is an instance of serious harm. The Tribunal accepts that conditions in Sri Lanka’s prisons are poor, they are described so in the DFAT country report. Conditions on remand have been described in media reports as being overcrowded. The Tribunal has considered the available country information in relation to the circumstances of individuals who are held in prison in Sri Lanka and notes the reports of torture and assault. The DFAT country report refers to there being unsubstantiated allegations but is unaware of reports of mistreatment of returnees while on remand. However it considers it is prisoners who otherwise have a profile of being opposed to the current Sri Lankan government profile (such as persons affiliated to the LTTE) who are targeted in this way. There have not been reports that returnees held awaiting bail hearings have been subjected to torture or other forms of deliberate mistreatment. The Tribunal considers any period the applicant spends on remand is as result of the application of the IEA laws, which the Tribunal found above are laws of general application and any period on remand would be a consequence of those laws of general application and therefore not persecution. Furthermore the Tribunal is not satisfied that due to the short-term nature of the imprisonment on remand that the applicant would face a real chance of serious harm while held on remand.

…

There is also the consideration of the applicant facing a jail term for his illegal departure. On the face of the wording of s 45(1)(o) of the IEA states both a fine and a prison sentence are enforced upon conviction for illegal departure. The information from DFAT and the Attorney General Department of Sri Lanka is the Magistrates have discretion to suspend a sentence and that is what is routinely done. This power is found in s 303 of the Code of Criminal Procedure. The Tribunal considers based on the available country information there is only a remote and therefore not a real chance the applicant will be sentenced to a term of imprisonment for his offences under the IEA. The Tribunal considers it highly likely the applicant will be fined not more than LKR200,000 (AUD1,850) and more likely to be LKR50,000 (AUD460). The Code of Criminal Procedure provides for allowing time for payment and for the payment of fines by instalments. The evidence before the Tribunal does not suggest the applicant will be unable to pay that fine or that payment of the fine will cause him hardship. The evidence before the Tribunal too does not suggest he is without any relative able to provide surety. Therefore, the applicant will be able to receive a suspended sentence. As such, the Tribunal considers there is no real chance the applicant will face an extended period of imprisonment arising from his illegal departure from Sri Lanka.

(Emphasis added)

The Tribunal concluded that the appellant did not have a well-founded fear of persecution due to his illegal departure from Sri Lanka.

14    The Tribunal was not satisfied that, on the basis of the appellant’s individual and cumulative claims, he had “a well-founded fear of persecution for any Convention reason or combination of reasons, now, or in the reasonably foreseeable future if he returns to Sri Lanka”. He therefore did not satisfy s 36(2)(a) of the Act: D&R at [60]). For similar reasons, the Tribunal considered that there were no substantial grounds for believing that the appellant faced a risk of significant harm, and he did not satisfy s 36(2)(aa) of the Act: D&R at [66]. The Tribunal accordingly affirmed the decision not to grant the appellant a protection visa.

Federal Circuit Court Proceeding

15    An amended application for judicial review, which was filed in the Federal Circuit Court when the appellant had legal representation, claimed there was jurisdictional error in the Tribunal’s decision because the Tribunal failed to comply with s 425(1) of the Act. This was because the Tribunal’s findings – that the appellant had a relative capable of providing a personal surety for the purposes of being granted bail, and that he would be able to pay any fine imposed by a Magistrate – did not arise from an issue raised at the Tribunal hearing or before the delegate.

16    The Federal Circuit Court ultimately dismissed the application: see BXK16 v Minister for Immigration & Anor [2018] FCCA 1727 (PJ). In his reasons, the primary judge noted (at [35]) that:

There is considerable looseness in the use of the expression “surety” as it is unclear whether, in the relevant law of the country, this is merely a personal undertaking to ensure the applicant meets his bail conditions, providing a secured or unsecured monetary surety, or the lodgement of a sum of money with authorities by way of surety. The applicant’s argument proceeds on the basis that the surety would require a sum of money and that there was no finding that his parents had sufficient funds, nor would provide them.

His Honour also noted (at [36]) that the transcript indicated that the Tribunal put to the appellant “the circumstances likely to flow on his return as a person who had departed illegally” and that, when asked for his comments, the appellant had none. His Honour also noted that these issues were not new but addressed in the delegate’s decision record: PJ [36], [44].

17    The primary judge held (at [46]) that the DFAT country information, as recounted by the delegate, indicated that “surety was not understood to be a surety that required the payment of money” and concluded that the Tribunal “was not required to consider whether the family could pay a surety, simply whether they would agree to be a surety”. The primary judge further held (at [47]) that the Tribunal’s finding “of a relationship with his mother where she was content for him to live with her, in the absence of other evidence, provides a basis for concluding that his mother would provide a surety that did not involve payment of money”.

18    The primary judge added (at [50]) that, when the Tribunal raised the likelihood of a fine at the Tribunal hearing, the appellant did not say that he would be unable to pay it. His Honour observed (at [52]) that the appellant’s written submissions to the Tribunal “specifically addressed the DFAT information about fines” and did not indicate that he would be unable to pay such a fine. The primary judge concluded (at [53]) that, on the evidence, it was open to the Tribunal to infer that the appellant “would be able to pay the fine on terms sufficient to avoid incarceration”. Accordingly, the primary judge held that the appellant had not established jurisdictional error as alleged, and dismissed the appellant’s application.

Appeal TO THIS COURT

19    The appellant filed a notice of appeal within time. Following the appointment of pro bono counsel, the appellant filed an amended notice of appeal. These grounds: (1) challenged the primary judge’s finding that, on return, the appellant would be released either on his own recognisance or would have a relative available to provide a surety; and (2) asserted that the primary judge should have found that the Tribunal failed to give proper consideration to an integer of the appellant’s claim.

20    The first ground resembled the ground considered by the primary judge, save that the appellant’s particulars not only reaffirmed that there had been a breach of s 425 of the Act but, in the alternative, that there was no evidence for the Tribunal’s finding or the finding was irrational. The second ground was self-evidently new. The particulars to it were:

a)     The Tribunal failed to consider the significance of the appellant’s claim that the person responsible for the navy camp that was built on land confiscated from the appellant, and therefore the person at whom the appellant’s protests were directed, was the brother of the Sri Lankan president.

b)     The Tribunal’s consideration of whether Sri Lankan authorities would target the appellant for harm as a consequence of his protests, in the absence of consideration of the significance of the involvement of the president’s brother, did not constitute proper consideration of the appellant’s claim.

21    It may be accepted that the Court may grant leave to raise a new ground on appeal where it considers this to be expedient and in the interests of justice. As the Full Court said in VUAX v Minister for Immigration & Multicultural & 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”. The Full Court added that, “[w]here, however, there is no adequate explanation for the failure to take the point, and it seems of doubtful merit, leave should generally be refused”. 

22    The Minister stated at the outset of his written submission that he did not oppose the grant of leave to raise ground 2. His counsel also indicated at the commencement of the hearing that the Minister did not oppose the extension of ground 1. In substance, the Minister accepted that the appointment of pro bono counsel was an adequate explanation for the new ground 2 and the extension of ground 1.

23    Given the stated position of the Minister (including that he did not oppose the grant of leave to raise a new ground) and that ground 1, as extended, and the new ground 2 are not without merit, I would grant leave to the appellant to rely on the two grounds as set out in his amended notice of appeal.

The parties’ submissions on ground 1

24    The appellant contended that the “specific framing” of the findings about the treatment of individuals in the appellant’s position, their materiality and the relevant evidence distinguished the cases where the court found jurisdictional error and the cases where it did not. In this connection, the appellant contrasted Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 (SZTQS) and ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419 (ABA15) with SZTAP v Minister for Immigration and Border Protection [2017] FCA 1370; 238 FCR 404 (SZTAP) and DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 (DCP16).

25    The appellant submitted that, in the present case, the Tribunal found that the appellant did not face an extended period of imprisonment because he would be able to receive a suspended sentence and a family member would be able to provide surety. The appellant submitted that in this context the causal link between the finding about the provision of surety and the Tribunal’s determination of the appellant’s protection claims was clear. The appellant therefore contended that for this reason the Tribunal’s decision falls “within the factual scenario of SZTQS and ABA15 rather than SZTAP and DCP16”.

26    Citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 (SZBEL) at [35]–[36], the appellant submitted that he was not given an opportunity to give evidence and argument on the surety issue as s 425 of the Act required. In his submission, the surety issue was dispositive of his protection claims and the Tribunal had therefore fallen into jurisdictional error. The appellant submitted that the delegate did not consider the availability of a relative to provide surety, and that the Tribunal did not raise this issue with him. The appellant contended that the Tribunal only put “the issue of the availability of bail” as “part of a long monologue from the Tribunal about country information”, and that the issue of surety had been presented “as one of a ‘personal surety’ that the appellant would return to Court … on the appellant’s own recognisance”. The appellant contended that there was “no mention … of whether or not any family member had the capacity or was willing to provide a guarantee”.

27    The appellant also submitted that, for much the same reasons, the Tribunal’s surety finding was irrational or, alternatively, had no evidence to support it. The appellant submitted that the primary judge erred in holding that the Tribunal’s findings – that the appellant had previously lived with his mother, and would be able to resume living with her upon return to Sri Lanka – provided a sufficient evidentiary basis for its conclusion that the appellant had a relative who would be able to provide a surety. The appellant submitted that there was no evidence before the Tribunal to indicate that the appellant had any relative who had the means to act as a guarantor for his bail, the capacity to travel to Colombo to secure the appellant’s release, and a “willingness to do either of those things”. Accordingly, so the appellant submitted, it was not open to the Tribunal to be satisfied on the evidence that the appellant would not face an extended period of imprisonment. This meant that the finding was irrational (in the sense referred to in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 (SZMDS) at [135]) or without evidentiary support.

28    In response, the Minister submitted that the Tribunal did not fail to comply with its obligations under s 425(1) of the Act. The Minister submitted that the appellant was on notice about the issue of a family member providing a surety. According to the Minister, “the information and claims giving rise to the asserted ‘issue’ were either known to the appellant or had been advanced on the appellant’s behalf”. The Minister cited SZVYG v Minister for Immigration and Border Protection [2017] FCA 955 (SZVYG) at [45] in support of his position. Additionally, the Minister argued that it was for the appellant to raise any claim that he had no relative who was willing or able to provide a surety not involving the payment of money.

29    In his written summary of the background and claims in the case, the Minister noted that the delegate’s decision record set out DFAT country information about the process for bail for returnees charged with offences under the Sri Lankan Immigration and Emigration Act 2008 (IEA). The Minister drew attention to the reference in that country information to “the requirement for a family member to stand as a guarantor” and the subsequent statement that “[t]here is no payment required for bail”. The Minister noted that the appellant’s comprehensive written submissions to the Tribunal also included reference to DFAT country information which “variously and generally refers to the requirement for a family member to act as a guarantor as a condition of bail”.

30    Referring to the transcript, the Minister submitted that the Tribunal had explained to the appellant his likely situation on arrival in Sri Lanka, including that he would be released from remand on the condition that “somebody promises one day that you will go back to court”. The Minister noted that the appellant had confirmed that he understood the Tribunal’s explanation and that the appellant had declined to make further comments or submissions in this connection.

31    Respecting the alternative branches of ground 1, the Minister contended that the Tribunal’s assumption about the ability of the appellant’s mother to provide surety was not unreasonable in the legal sense, or without evidence. In particular, the Minister drew attention to the reasoning of the Full Court in DCP16 at [100]-[101] in distinguishing the decision in ABA15.

32    The Minister concluded his submissions on ground 1 by contending that, even if there had been a definitive finding by the Tribunal about the ability of a relative of the appellant to give surety, such a finding would not be critical because of the Tribunal’s conclusion that the IEA was a law of general application. In this connection, the Minister also cited DCP16 at [97].

33    Furthermore, the Minister submitted that the Full Court’s comments in DCPI6 at [98] were pertinent to this case, in that the issue of surety arose only on “a triply contingent hypothetical”. First, the appellant had to plead not guilty. Second, if he pleaded not guilty, the appellant could be released on his own recognizance, in which event a surety would not be required. Only if he pleaded not guilty and his own recognizance was insufficient would a third situation arise, where a surety was required. The Minister contended that, as in DCP16, “this is in the realm of a hypothetical which the Authority did not need to speculate about or discuss in detail”: see DCP16 [98].

Consideration of ground 1

34    As indicated at [13] above, the Tribunal specifically addressed the possibility that the appellant might face incarceration on return to Sri Lanka because of his illegal departure. It held, at [57], that, if convicted of an offence under the IEA, there was “no real chance” that he would receive a custodial sentence. The Tribunal stated that country information indicated that sentencing Magistrates “routinely” exercise a discretion to suspend sentence: see [57]. It held (at [52]) that “[o]nly returnees suspected of people smuggling offences have been … given a prison sentence”. The Tribunal went on to find that it was “highly likely” that the appellant would be fined for an offence under the IEA, noting that a Magistrate might give time for payment, which might also be done by instalments. The Tribunal considered the position of the appellant in this event, specifically concluding that “[t]he evidence … does not suggest [he] will be unable to pay that fine or that payment of the fine will cause him hardship”. The appellant did not challenge this finding. Rather, the appellant challenged the Tribunal’s finding (at [55]) as to the provision of a surety and, in particular, the Tribunal’s finding that the evidence “does not suggest he is without any relative able to provide surety”.

35    The Tribunal referred (at [52] and [55]) to the provision of a surety in connection with the grant of bail: see [12] and [13] above. The Tribunal found (at [52]) that if charged with an offence under the IEA an individual such as the appellant would be held in remand until granted bail, and that “[a]fter a bail hearing, the returnees are granted bail with a personal surety and [are] able to return to their home area”. It also “noted” (at [55]) “the country information that bail is routinely given on the accused’s own recognisance although a personal surety is required”.

36    The appellant’s case was in substance that he was not given the opportunity “to give evidence and present issues arising in the relation to the decision under review” as contemplated by s 425 and required by law: see SZBEL at [35]-[36]. As the Court said in SZBEL, “the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision” (at [35]); and “unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that dispute” (at [36]).

37    In the present case, the reasons given by the delegate specifically referred to, and indeed quoted from, a DFAT country information report concerning returning Sri Lankans thought to have contravened the IEA by the manner of their departure from Sri Lanka. The delegate noted such individuals would be arrested by the Sri Lankan authorities and, under the relevant Sri Lankan legislation, could be kept on remand up to 24 hours, following which they would appear before a Magistrate who “determines whether ‘the person is to be released on bail, to appear before the court at a later date, or is remanded into custody’”. The delegate also set out the following passage from the DFAT report:

We understand the current process for bail is that all persons are granted bail based on personal recognisance (on their own responsibility), with the requirement for a family member to stand as a guarantor. There is no payment required for bail. However, we note that the court may decide not to grant bail if the returnee is found to be a facilitator/organiser of people smuggling, or the court may grant specific bail conditions if the person is a repeat offender.

In the circumstances of this case, it seems to me that the words “surety” and “guarantor” are used interchangeably: both are intended to indicate the assumption of an obligation by a third person to ensure that the individual to whom bail is granted fulfils their obligation to return to court after their release when required to do so.

38    These reasons, including this passage, put the appellant on notice that the decision-maker was acting on the assumption that the appellant would be eligible for bail if, as seemed likely, he was charged with an offence under the IEA because, amongst other things, he would be able to have a family member stand as guarantor (or surety) for him.

39    The appellant did not contest the information to which the delegate referred in his submissions to the Tribunal, even though his pre-hearing submissions engaged not only with the delegate’s reasons concerning the treatment of failed asylum seekers in Si Lanka, but also engaged closely and at length with DFAT’s advice on this issue.

40    Furthermore, the Tribunal member put to the appellant at the hearing the gist of the country information about the authorities’ treatment of failed asylum seekers thought to have contravened the IEA. The transcript of the hearing shows that the member specifically raised this information with the appellant. The Tribunal drew the appellant’s attention to the fact that it had information that “everybody gets bail unless they’re also charged with people smuggling”. It said to the appellant that he would be released on bail and be free to return to his home village on the condition that “there is a personal surety that somebody promises one day that you will go back to Court”. The appellant, who had a registered migration agent assist him at the hearing, gave a positive indication that he understood the Tribunal member on this point and declined to make any further comment when invited by the Tribunal member to do so. He did not say anything at this point about a possible difficulty for him of having a family member stand as surety.

41    At the hearing of the appeal, the appellant characterised this part of the Tribunal hearing as “a long monologue”. It does not seem to me that this is a fair characterisation: the length of the relevant passage was attributable to the need of the Tribunal member to separate sentences to enable an accurate translation by the interpreter.

42    I reject the appellant’s submission that the Tribunal failed to raise clearly with the appellant that he required a family member to stand as a surety (or guarantor) for a grant of bail. I also reject the appellant’s submission that the Tribunal did not give him an opportunity to address this issue when the Tribunal invited him to comment. Accordingly, I would reject the appellant’s submission that there was a breach of s 425(1) of the Act because he was not on notice of the issue and that the Tribunal did not give him an opportunity to present relevant evidence or argument about it.

43    There remain the alternative branches to ground 1 to the effect that the Tribunal’s finding that the appellant would have a family member to stand as surety was based on no evidence or was irrational. In connection with this the appellant relied on SZTQS, in which Griffiths J dismissed the Minister’s appeal. In SZTQS, the Minister appealed primarily on the basis that the primary judge had erred in finding jurisdictional error in the Tribunal’s decision because it was not open to the Tribunal to assume that the respondent had a family member who would provide surety. In that case, the matter was not in issue before the delegate and the Tribunal did not raise it: SZTQS at [66]. The appellant Minister relied upon evidence that “might tend to indicate wealth” held by the respondent’s family. This included that the respondent’s mother had previously paid a sum of money for his bail before he had left Sri Lanka: SZTQS at [66]-[67] Dismissing the appeal, Griffiths J accepted the respondent’s submission that this evidence was “vague and non-conclusive on the subject of his family’s finances”. There was therefore no appellable error on the part of the primary judge: SZTQS at [71].

44    The present case is different in a number of significant respects. First, as we have seen, the delegate and the Tribunal raised the need for a family member to stand surety as a condition for bail. The appellant was asked to comment, but did not do so. The issue was not addressed in either pre-hearing or post hearing submissions. Further, in this case the Tribunal approached the question of surety on the basis that there would be no requirement for the lodgement of any monetary sum, and it made no assumption about the finances of the appellant’s family. The appellant’s contention that there was “no evidence that the appellant’s family members had the financial capacity to act as guarantors” is simply not relevant here. As to the question of whether the appellant had a relative with the “logistical capacity” or the willingness to provide surety to secure his release from remand, I can discern no error in the primary judge’s finding. The Tribunal found that the appellant had lived with his mother previously and could resume living with her if he returned to Sri Lanka. His Honour found that the Tribunal’s finding about the appellant’s relationship with his mother provided a sufficient basis for its conclusion that his mother would stand as surety for him, where no monetary payment was required, and there was no other evidence. This was not a case of “no evidence”. The case would have been different if there been evidence before the Tribunal that provision of surety involved the lodgement of money, or if the appellant had given evidence about the incapacity or unwillingness of any family member to stand surety. On the material before the Tribunal in the appellant’s case, however, it was open to the Tribunal, acting rationally, to conclude that the appellant would have a family member to stand as surety for his bail.

45    Accordingly, I reject the appellant’s submission that the absence of evidence about the capacity of the appellant’s mother to travel to Colombo meant that there was no evidence for the finding or rendered it irrational in the sense described in SZMDS at [135].

46    It is unnecessary to consider the appellant’s further argument that, if there was a causative link between the Tribunal’s assumption that the appellant’s mother could provide surety and the dispositive finding that the appellant did not face an extended period of imprisonment, then such a link would be irrational in the sense described in SZMDS at [135].

47    For the reasons stated, I would reject ground 1 of the amended notice of appeal.

The parties’ submissions on ground 2

48    The appellant contended that the Tribunal did not deal with a “crucial integer” of his claim, namely, that the navy camp constructed on the confiscated land was under the control of the then President’s brother, Mr Basil Rajapaksa, and that the protest occurred when Mr Basil Rajapaksa was present at the camp. The appellant contended that the Tribunal was obliged to address these matters, relying on Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136 (Htun) at [42]. The appellant contended that the Tribunal ought to have considered the significance of the fact that Mr Basil Rajapaksa controlled the camp and was present at the time of the protest; and, in particular, whether these matters placed his case “outside the usual scenarios described in the country information” and elevated the risk of harm to him. The appellant submitted that the Tribunal’s failure to consider this clearly articulated claim integer amounted to a constructive failure by the Tribunal to undertake its statutory task.

49    Citing Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; 197 ALR 389 (Dranichnikov) at [24] and other cases, the Minister accepted that the Tribunal was obliged to address claims that were “expressly made or articulated, or clearly arose from established facts”, but contended that the alleged matters were not of this kind. The Minister submitted that the appellant did not articulate the basis upon which he said the presence of Mr Basil Rajapaksa at the protest gave rise to a fear of persecution on his return to Sri Lanka. Rather, the Minister submitted that the appellant’s statement about the significance of Mr Basil Rajapaksa’s presence at the camp at the time of the protest were vague and “did not constitute a sufficient claim to require separate consideration by the Tribunal, as opposed to being part and parcel of the overall assessment of the appellant’s case”.

50    Additionally, counsel for the Minister submitted that, to the extent that the appellant suggested that there was some political element because of the presence of Mr Basil Rajapaksa at the camp at the time of the protest, the Tribunal had addressed this. The Minister referred to [20] and [24] of the Tribunal’s reasons and submitted that, although the Tribunal had not mentioned Mr Basil Rajapaksa by name, he did “mention him by his position” when he referred to the fact that the protest was “at an event attended by the then defence secretary”. The counsel for the Minister submitted that one difficulty with the appellant’s case was that he “never explained exactly what the implications of that were”. Counsel noted that the Tribunal addressed the political complexion of the protest at [29] of its reasons.

51    Counsel for the Minister submitted that, even if there had been some misunderstanding about the exact political position held by Mr Basil Rajapaksa, the Tribunal understood that a prominent person whom the Tribunal referred to as the defence secretary had been present at the camp at the relevant time. The Tribunal further understood the appellant’s claim that “this would lead to some extra level of danger for him even though there had been a change of government”. The Minister submitted that if there was anything more specific that the appellant feared, then “he really had to spell that out”.

52    The Minister submitted, in the alternative, that if a sufficiently clear claim had arisen in the review, consideration of that claim was “subsumed” within the Tribunal’s other adverse findings, citing ATO17 v Minister for Immigration and Border Protection [2018] FCA 855 (ATO17) at [29]–[39]. In particular, the Minister noted the Tribunal’s rejection of the appellant’s claims to the effect that the Sri Lankan authorities had continued to look for him in his father’s village, and the Tribunal’s observation that it would not have been difficult for the authorities to find the appellant since he lived with his mother (as the appellant agreed). The Minister also referred to the Tribunal’s findings that no harm had come to the appellant’s uncle, who had attended the same protest as the appellant.

53    Finally, referring to ATO17 at [32] and NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 (NABE) at [63] and [68], the Minister added that a finding that the Tribunal has failed to consider a claim not expressly advanced “is not lightly to be made”. The Minister contended that the Tribunal had addressed any claim by the appellant to the effect that he feared harm because of an imputed anti-government opinion arising from his participation in the protest.

Consideration of ground 2

54    For the reasons set out below, I would also reject the appellant’s second ground.

55    Where a valid review application in respect of a Part 7-reviewable decision is on foot, the Tribunal’s statutory task under s 414 of the Act is to review that decision. Broadly speaking, the duty to review requires the Tribunal to consider all the applicant’s clearly articulated claims as well as those claims clearly arising from the established facts and evidence: e.g., Htun at [14] (Merkel J), [42] (Allsop J, Spender J agreeing); Dranichnikov at [24]; and NABE at [63], [68].

56    The appellant referred to the connection between the navy camp, the protest and Mr Basil Rajapaksa on multiple occasions, including in the statement accompanying his visa application, in his claims before the delegate, and in his written submissions to the Tribunal. For instance, his written submissions to the Tribunal stated:

[The appellant] fears persecution because he has protested against the government of Sri Lanka – in particular, Basil Rajapaksa, a former senior government official and the brother to former Sri Lankan President Mahinda Rajapaksa. He maintains his fear of persecution even though Mahinda Rajapaksa is no longer the President of Sri Lanka.”

57    The appellant’s participation in the protest against the confiscation of land belonging to his family was at the heart of the appellant’s claim to have a well-founded fear of persecution because of his political opinion, if he returned to Sri Lanka (as well as his claim there was a real risk he would suffer significant harm). The appellant’s statements that the land had become a navy camp under the control of Mr Basil Rajapaksa, “a former senior government official and a brother of the then President of Sri Lanka”, and that the protest took place when Mr Basil Rajapaksa was visiting the camp were properly characterised as integers of the appellant’s claim. They not only indicated that the protest was directed against Mr Basil Rajapaksa but also provided a rational basis for the appellant’s claim that an anti-government opinion would be imputed to him because of his participation in the protest. Accordingly, I reject the Minister’s submission that the appellant failed to articulate his claims about Mr Basil Rajapaksa sufficiently well as to require the Tribunal to address them.

58    The Tribunal does not refer to Mr Basil Rajapaksa by name in its reasons. Its reasons did not record that the appellant’s evidence was to the effect that the protest was against Mr Basil Rajapaksa. It does not follow from this, however, that the Tribunal failed to consider an integer of the appellant’s claim. The fact that reasons do not mention a matter does not always mean the decision-maker did not consider it. Much depends on the nature of the matter and its place in the decision-making: sometimes an omission is explicable for another reason: see, for example, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [47].

59    On a fair reading of the Tribunal’s reasons, I would infer that the Tribunal had regard to all the integers of the appellant’s claim, although it did not consider it necessary to refer to Mr Basil Rajapaksa by name; nor did it refer to his asserted connection with a former President. The Tribunal recognised that an integer of the appellant’s claim was that the protest had taken place in the presence of a senior government official responsible for defence. The Tribunal opened its reasons, at [1], with a brief summary of the appellant’s claim, which included the statement that “[he] was threatened by the Sri Lankan authorities after he attended a protest about the land confiscation attended by the defence secretary”. Subsequently, at [20] of its reasons, the Tribunal specifically stated that the appellant claimed that he and his uncle attended the protest “at an event attended by the then defence secretary”: see [5] above. As set out at [7] above, the Tribunal specifically said (at [24]) that it discussed with the appellant “country information regarding protests by people against the navy confiscating land in other parts of Sri Lanka, including before the defence secretary”. Having regard to the submissions and other material before the Tribunal, to which the Tribunal evidently had reference, the term “the defence secretary” should be understood as a reference to Mr Basil Rajapaksa. Whether the Tribunal correctly described Mr Basil Rajapaksa as “the defence secretary” is of little moment in these circumstances, and there was no evidence to show that this title was incorrect.

60    I infer from the Tribunal’s reasons that it clearly understood the appellant’s case to be, in essence, that he would be at risk of serious harm because he had participated in a protest against a senior member of the government, a fact that would have him imputed with an anti-government opinion. There was nothing in the appellant’s claims to indicate that an alleged connection with a former President elevated this risk.

61    In any event, if I am wrong in this latter respect, it is evident that any failure by the Tribunal to address the claimed connection with a former President could not realistically have affected the Tribunal’s ultimate decision. The error, if any, was immaterial in the sense described in Hossein v Minister for Immigration and Border Protection [2018] HCA 34, 264 CLR 123 at [30] and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, 95 ALJR 441 (MZAPC) at [51]. The immateriality of any such error is evident from the way the Tribunal made its decision: compare MZAPC at [38]. Reference to [28]-[29] of the Tribunal’s reasons shows that the Tribunal made various separate findings supporting its conclusion that the appellant did not face a real chance of harm because of his participation in the protest. These included that he that had fabricated his claims that the authorities had continued to look for him, and exaggerated the risk of harm from attending the protest. It found that no such harm had come to the appellant’s uncle who had also attended the protest “and continued to live in the same area as the protest without any harm”; and that the appellant would likely have the same experience as his uncle if returned to Sri Lanka. The Tribunal also found there was no country information indicating that the authorities had harmed people for protesting against land confiscation. Instead, the Tribunal found there was country information that there was a compensation process for land confiscation, which it found was inconsistent with the authorities targeting former landowners. Further, the Tribunal found that that the appellant’s family had been compensated for the confiscation of their land (although it accepted that the family may not have been satisfied with that compensation).

62    Having regard to the Tribunal’s findings, the Tribunal’s failure to address the appellant’s assertion that Mr Basil Rajapaksa was the then President’s brother could not have affected the outcome. If this failure was an error on the Tribunal’s part, it was immaterial, and did not amount to jurisdictional error.

63    For these reasons, I would, as already stated, reject ground 2.

disposition

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

65    The Court would record its appreciation of counsel and the solicitors who represented the appellant pro bono in the appeal. It is appropriate that the Court acknowledge the public service rendered to the Court and to litigants in person by members of the profession who agree to act without fee as solicitor or counsel in the preparation of cases and presentation of argument in order that the interests of justice may be served.

Associate:

Dated:    21 March 2022