Federal Court of Australia

CRG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1567

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is amended to Minister for Immigration, Citizenship and Multicultural Affairs.

2.    The appeal be allowed.

3.    The orders of the Federal Circuit Court of Australia made on 11 March 2020 be set aside and in lieu thereof it be ordered that:

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

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The appellant appeals a decision of the Federal Circuit Court of Australia of 11 March 2020 which dismissed his application for judicial review of a decision made by the Immigration Assessment Authority under Pt 7AA of the Migration Act 1958 (Cth). The Authority’s decision affirmed an earlier decision of a delegate of the Minister to refuse to grant the appellant a protection visa.

Background

2    The appellant is a 35 year old citizen of Sri Lanka of Tamil ethnicity. The appellant arrived in Australia at Christmas Island by boat in October 2012. On 2 January 2013, the appellant attended an irregular maritime arrival entry interview.

3    On 7 March 2016, the appellant applied for a Safe Haven Enterprise visa, a class of protection visa under s 35A of the Migration Act 1958 (Cth). The appellant submitted a statement in support of his application that summarised his claims. By the statement, the appellant claimed to fear that he would be seriously harmed if forced to return to Sri Lanka. That fear was said to be based on a combination of several factors, which were claimed as follows.

4    The appellant’s father owns and keeps a shop in a town located in the Northern Province of Sri Lanka. In the early and mid-2000s, the appellant’s father had been the subject of demands from, and had experienced harassment, arbitrary detention, and beatings by the members of the Sri Lankan army. He had also been the subject of demands from members of the Liberation Tigers of Tamil Eelam (LTTE), and the Eelam People’s Democratic Party (EPDP). Both the LTTE and the EPDP were combatant groups in the Sri Lankan civil war, which was fought from 1983 to May 2009. In particular, the appellant claimed that his father had been subjected to beating in 2005 when he was taken into detention by the SPDP. Further, the appellant claimed that his father had been the subject of forced bribery and extortion by the EPDP. This took the form of attendances on his father’s shop where demands were made for goods, such as soft drinks. It also took the form of a demand for money from his father by the EPDP which his father did not pay. This resulted in the kidnapping of his brother in December 2008 when travelling home from school, and the family has not seen his brother again. This claim had also been raised by the appellant in January 2013 at his entry interview as one of the reasons he left Sri Lanka, stating that his brother had gone missing while he was in Qatar following his father’s refusal to pay a sum of money to the EPDP.

5    The appellant referred to his own experiences in the mid-2000s of harassment, threats, and assault by the Sri Lankan authorities and militia groups. These included an incident in 2006 when the appellant was transporting goods for his father’s shop by boat when the boat was checked by Sri Lankan navy personnel who took some goods. The appellant told them to stop, but they threatened the appellant and told him that they would throw him into the sea. The appellant attributed these threats and the harassment to the fact that he was a Tamil.

6    The appellant then spent three years in Qatar, before returning to Sri Lanka in 2009. The appellant claimed that upon his return from Qatar, he was unduly harassed and then beaten by authorities at the airport, who took his money and some chocolates that were in his possession.

7    The appellant stated that when he arrived at home from the airport, he found out that his brother had gone missing in December 2008 while the appellant had been in Qatar.

8    The appellant stayed in Sri Lanka for two to three weeks after returning from Qatar. During this period, his family experienced demands for alcohol and money from a paramilitary group known as the Karuna group. On one occasion, a member of this group invited the appellant to join it, referring to the kidnapping of his brother and stating, “…you will be safe if you come and join us”. There were frequent occasions when the appellant was approached by members of this group. The appellant refused to join with them but gave money instead. The appellant claimed that he did this out of fear for his own safety because his brother had been taken and disappeared.

9    Following the events described above, the appellant’s father arranged for him to travel to Malaysia, which he did via Singapore in 2010. Upon leaving Sri Lanka, customs officers at the airport questioned the appellant, took his fingerprints, and completed a form about him.

10    While the appellant was in Malaysia in 2010 he was imprisoned for four months because he did not have a valid visa. The appellant stated that he was tortured while in jail, and was threatened with having his throat cut if he informed the UNHCR about the torture. The Malaysian authorities took the appellant’s fingerprints, which the appellant apprehended was a precursor to being deported to Sri Lanka. The appellant then left Malaysia in 2010 and travelled to Indonesia before later arriving at Christmas Island in 2012.

11    The appellant’s fears if he were returned to Sri Lanka were as follows. The appellant had spoken to his father by telephone over the two year period prior to his statement, and his father had advised that the situation in Sri Lanka remained the same with the EPDP and other groups still demanding goods from his father’s shop, and on one occasion had asked about the whereabouts of the appellant. The appellant believed that he would face extortion, bribery, and beatings when he eventually took over his father’s shop because he is a Tamil. The appellant stated that he feared that he would disappear like his brother had. The appellant stated that he could not reside safely anywhere else in Sri Lanka because he would have to register with the police, and would then be identified as a Tamil from the Northern Province and would be targeted by the authorities. The appellant stated that the Sri Lankan government was persecuting Tamils, and that he and his family had been persecuted all their lives in Sri Lanka because they were Tamils. The appellant feared that because of his Tamil ethnicity, he would not be protected by anyone in Sri Lanka, including the authorities.

12    Following the lodgement of his application for a protection visa, the appellant attended an interview with an officer of the Department (the SHEV interview). At the SHEV interview, the appellant provided additional information, including that his father had been a member of a traders’ organisation that was affiliated with the LTTE, and that his father transported goods for the LTTE from 2002 to 2005. The appellant also stated that he had engaged in Tamil separatist activities in Sri Lanka and in Australia, and that he had been active on Facebook. The appellant claimed that he may be harmed upon return to Sri Lanka if this information was identified.

13    As to the continuing involvement of the EPDP in extortion, it was put to the appellant in the SHEV interview that there was little information about the EPDP being involved in extortion directed at Tamil business people in Sri Lanka in general. The appellant responded by explaining that the EPDP was unable directly to engage in extortion, but that the army was involved. In the delegate’s decision record, reference was made to country information about the activities of the EPDP –

Despite having limited political support in Northern Province, the EPDP still maintains close links with the Sri Lankan security forces. Nonetheless, no specific cases of the EPDP themselves being involved in kidnapping for ransom or otherwise could be found in recent years. In a January 2016 report from the International Truth and Justice Projects that examined 20 claimed cases of abductions in 2015, the victims reported that the EPDP brokered their release by the victim’s family paying a ransom in 10 of these cases, a number of abductees being held by the CID or SLA. 31 DFAT stated that while they are aware of reports that the EPDP are still active, including in criminal activities, these reports were difficult to verify. The 2014 and 2015 US State Department Human Rights report for Sri Lanka, covering events in 2013 and 2014, noted that there had been reports of the EPDP being involved in intimidation, violence, extortion and corruption against Tamil civilians in the north. However, the latest US State Department report published in April 2016 makes no mention of the EPDP.

(Footnotes omitted.)

14    On 7 October 2016, a delegate of the Minister refused to grant the appellant the Safe Haven Enterprise visa on the basis that the appellant did not satisfy the criteria for a grant of protection visa under s 36(2)(a) or (aa) of the Act and was not a member of the same family unit as a person who holds such a protection visa. The delegate’s decision was then referred to the Immigration Assessment Authority for review under Part 7AA of the Act. On 8 May 2017, the Authority affirmed the delegate’s decision not to grant the appellant a visa.

The Authority’s decision

15    The Authority’s statement of reasons recorded that in making its decision, the Authority had before it the material given to it by the Secretary of the Department under s 473CB of the Act. The appellant provided additional information to the Authority that was contained in four documents. The Authority determined not to consider that information because it was not satisfied for the purposes of s 473DD of the Act that any exceptional circumstances existed that justified its consideration. No issue arises on this appeal in relation to the Authority’s decision not to consider that information.

16    After summarising the appellant’s claims, the Authority first considered whether the appellant satisfied the definition of “refugee” for the purposes of s 5H(1) and s 36(2)(a) of the Act. The Authority’s reasons focussed on whether the appellant had a well-founded fear of persecution, as defined in s 5J. At [26] in its reasons, the Authority described the harm feared by the appellant as follows –

26.    The applicant states that he fears harm from the Sri Lankan military and paramilitary groups including Karuna and the EPDP. He fears he will be harmed because he is Tamil and he will be imputed to be a supporter of the LTTE. He also fears he will be subjected to beating, bribery and extortion demands from the Sri Lankan military and paramilitary groups because he will be involved in the running of the family business in [the appellant’s home town in Sri Lanka]. The applicant also fears he could be “disappeared” as happened to his brother during the war. In addition, the applicant fears he will be harmed on return to Sri Lanka because the authorities took his fingerprints and other personal details when he departed Sri Lanka in 2009.

17    The Authority accepted many of the main underlying factual elements of the appellant’s claims. One exception was that the Authority did not accept in an unqualified way the appellant’s claim in the SHEV interview that his father had transported goods for the LTTE. The Authority did not accept that the appellant’s father had deliberately transported goods for the LTTE, or that he had regularly assisted the LTTE in this manner. Rather, the Authority stated that the appellant’s father had never been questioned, detained, arrested, or charged on suspicion of transporting goods for the LTTE, and that he continued to live and operate his shop in the family’s home area. The Authority stated that it was satisfied that, even if the appellant’s father had been actively and intentionally supporting the LTTE, this had not been known to the Sri Lankan authorities, and the chances of it becoming known were very remote.

18    In summary, the Authority accepted that the appellant had suffered harm in the past in Sri Lanka, and that this had occurred primarily because he was a Tamil from an area that was dominated by the LTTE during the civil war, and that as such the appellant had been imputed to be a supporter of the LTTE. In particular, the Authority accepted the following–

(a)    if the appellant returned to Sri Lanka, he would take over the family shop business from his ageing father;

(b)    during the war in Sri Lanka, which the Authority stated was fought until May 2009, the appellant and his father were subject to extortion demands by the SLA and the LTTE;

(c)    the appellant’s father was detained and beaten by the SLA in late 2005 in retaliation for the LTTE kidnapping of a naval officer;

(d)    in 2006 the appellant was stopped and threatened by members of the Sri Lankan navy, and that this occurred primarily because he was a Tamil;

(e)    the appellant’s brother went missing during the war and this occurred after the appellant’s father refused to pay money to the EPDP; and

(f)    upon the appellant’s return from Qatar in 2009 he was detained by Sri Lankan authorities at the airport, was beaten, and had his money and other items taken from him.

19    The Authority then turned to consider whether the appellant faced a real chance of harm in Sri Lanka, either at the time of the decision, or in the foreseeable future. In concluding that he did not, the Authority referred to country information, including from DFAT and UNHCR. The Authority stated that Sri Lanka had experienced a change of government in 2015, and that the support of the Tamil population played a significant role in the new government’s election victory. The Authority stated that, according to DFAT and other sources, since the change of government the forced registration of Tamils no longer occurred, most checkpoints had been removed, and the monitoring and harassment of Tamils in their day to day life had generally ceased. According to the sources cited by the Authority, being a Tamil alone no longer gave rise to a well-founded fear of persecution or serious harm in Sri Lanka.

20    The Authority considered that the appellant’s claims of his political convictions in support of a separate Tamil State that were raised in the SHEV interview were vague and unconvincing, and would not bring him to the attention of the Sri Lankan authorities now or in the future. Nor was the Authority satisfied with related claims that the appellant would be regarded as a person who was working towards Tamil separatism, or resurgence of the LTTE, or to destabilise the Sri Lankan state, and therefore be persecuted. In this regard, after setting out categories of persons likely to be persecuted in Sri Lanka according to the UNHCR and the UK Home Office, the Authority concluded that it was satisfied that the appellant’s profile, political opinion, and circumstances were such that he did not face a real chance of serious harm, including kidnapping or poisoning, now and in the foreseeable future in Sri Lanka because he is a Tamil from the Northern Province who would be imputed to be a supporter of the LTTE.

21    In relation to the claims of harm from members of paramilitary groups through extortion, bribery, or forced recruitment, the Authority accepted that the appellant may on his return be subjected to extortion demands, but found that the chance of the appellant being seriously harmed in those circumstances was remote, stating at [48] to [51] –

48.    As stated previously, I accept that the applicant was subjected to extortion on several occasions in the past by members of the Sri Lankan military, paramilitary groups, and also by Sri Lankan authorities at the airport. I accept that in early 2006 this was accompanied by a verbal threat to throw the applicant into the sea, and later in 2006 it involved taking the applicant’s wallet. I note the applicant’s claim that in 2009 members of a paramilitary group tried to force him to join them and he refused to do so but gave them money. I found nothing in the referred material to support this claim including no country information indicating that forced recruitment by paramilitary groups occurs in Sri Lanka. However as stated previously I am prepared to accept the applicant’s claim in this regard. I accept that the applicant’s experiences of extortion, bribery and attempted recruitment by paramilitaries would have been frightening experiences however I do not accept that the applicant suffered serious harm on these occasions.

49.    In assessing the chance of the applicant facing harm now and in the foreseeable future through extortion, bribery and recruitment demands I note that the applicant’s father still runs the family business and although the applicant claims paramilitary groups still demand to be given goods without payment there is no evidence before me to indicate that the applicant’s father has been otherwise harmed during these incidents. The evidence indicates that the applicant’s father has not been physically harmed since 2005 when he was assaulted by men from the Sri Lankan military in retaliation for the LTTE kidnapping of an officer from the SLN. On the evidence before me I do not consider the applicant’s father has suffered serious harm through extortion and bribery demands.

50.    I have also considered country information which indicates that incidence of extortion, bribery and kidnap for ransom has significantly reduced in recent years in Sri Lanka. As stated previously I found no country information in the referred material to support the applicant’s claim of attempted forced recruitment by paramilitaries. Whilst kidnap for ransom, extortion and bribery is still perpetrated by paramilitary groups, country information indicates that the Sri Lankan government is taking action against perpetrators. I accept that, as a person returning from overseas to work in the family business in [the appellant’s home town in Sri Lanka] the applicant may be subjected to extortion demands; however on the evidence before me I find there is not a real chance that this will involve serious harm.

51.    After assessing all the evidence I find that the chance of the applicant being seriously harmed through extortion and bribery demands is remote. I find also that the applicant does not face a real chance of being forcibly recruited by paramilitary groups now and in the foreseeable future in Sri Lanka.

(Emphasis added. Footnoted references to country information omitted.)

22    Referring to country information that was before the delegate, including a report dated 18 December 2015 prepared by DFAT which indicated that the risk of torture or mistreatment for the majority of returnees was low, the Authority found that the appellant would undergo routine processing if he returned to Sri Lanka, but would not otherwise be detained for a long period or be subjected to serious or significant harm on account of being a failed Tamil asylum seeker.

23    The Authority’s consideration of the complementary protection criterion in s 36(2)(aa) of the Act was comparably brief. The statement of reasons largely adopted the findings made in relation to the assessment against the criterion in s 36(2)(a) of the Act –

60.     … As outlined in the preceding pages I have found that the applicant does not face a real chance of serious harm in Sri Lanka in relation to these claims when considered individually and cumulatively.

61.    I note that the “real risk” test in the complementary protection provisions imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear”. As I have found that the applicant does not face a real chance of serious harm in relation to his claims I find also that he does not face a real risk.

62.    After assessing all the evidence I am satisfied that the applicant does not face a real risk of being arbitrarily deprived of his life; of the death penalty; of being subjected to torture or cruel or inhuman treatment or punishment; or degrading treatment or punishment. I find that the procedures the applicant will go through on return to Sri Lanka, as outlined in the above paragraphs, will not involve significant harm to the applicant.

63.    I find that the applicant does not face a real risk of significant harm now and in the reasonably foreseeable future in Sri Lanka.

64.    There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa).

The Federal Circuit Court proceeding

24    On 16 July 2017, the appellant applied to the Federal Circuit Court of Australia for judicial review of the Authority’s decision in the exercise of that Court’s jurisdiction under s 476 of the Act, as in force at that time. By an amended application filed 13 March 2020, which was the subject of a grant of leave by the primary judge and which set out the grounds on which the appellant relied at the hearing, the appellant sought review on four grounds. Having regard to the issues raised on appeal, it is only necessary to set out grounds of review 2 and 4 –

2.    The Tribunal constructively failed to exercise its jurisdiction as it failed to make findings in respect of:

a)    whether there was any convention basis underlying the extortion it found that the applicant might be subjected to on return to Sri Lanka; and

b)    what was likely to happen if the applicant failed to comply with the extortion demands.

…

4.    The Authority failed to make a finding on whether the extortion demands that it accepted the applicant may be subjected to on return to Sri Lanka would amount to significant harm within the meaning of the Act was a constructive failure of jurisdiction by it.

25    The application was heard and determined by the primary judge on 11 March 2020. The primary judge found the matters advanced under ground 2 had been considered by the Authority and were clearly subsumed within the finding of the Authority as to exposure to extortion and bribery demands. In those circumstances, it was not necessary for the Authority to address expressly what might happen if extortion demands were not met. In particular, the primary judge held at [56] that the Authority’s finding that the appellant’s father had not suffered serious harm as a result of extortion and bribery demands clearly subsumed a failure to pay or meet those demands as had been identified in respect of the appellant’s brother’s disappearance. The primary judge held that there was no reason for the Authority in the circumstances of the present case, where the civil war in Sri Lanka had concluded, to make any express finding in respect of what might happen if there was a failure to pay money or otherwise meet demands in the future. For these reasons, the primary judge concluded that appellant’s point was subsumed in the Authority’s finding that the chance of the appellant being harmed as a result of extortion was remote.

26    As to ground 4, the primary judge held that it was open to the Authority to take into account the findings made in relation to assessing whether the appellant was a refugee, in assessing whether he met the complementary protection criterion. The primary judge concluded that the Authority was not required to make express findings on whether the appellant would be subject to significant harm for the purpose of complementary protection by reason of extortion demands. That was because that matter had squarely been included in its findings on whether the appellant met the refugee criterion in s 36(2)(a). The primary judge found that those findings disposed of the appellant’s claims to fear harm.

The appellant’s grounds of appeal to this Court

27    The appellant raised four grounds of appeal in his notice of appeal –

1.    The primary judge erred in concluding that the Immigration Assessment Authority (IAA), had taken into account the threat that underlay the extortion which it accepted that the Appellant may experience on return to Sri Lanka.

2.    The primary judge erred in concluding that there was no error by the IAA in relation to the consideration of whether the extortion which it accepted that the Appellant may experience on return to Sri Lanka was significant harm within the meaning of the Migration Act 1958 (Cth) (Act).

3.    The primary judge should have found that the failure of the IAA to take into account the threat that underlay the extortion which it accepted that the Appellant may experience on return to Sri Lanka in its assessment of the harm that the Appellant faced on return to Sri Lanka was a constructive failure of jurisdiction by it.

4.    The primary judge should have found that the failure of the IAA to assess whether the extortion which it accepted that the Appellant may experience on return to Sri Lanka was significant harm within the meaning of the Act was a constructive failure of jurisdiction by it.

28    Grounds 1 and 3 are complementary, and grounds 2 and 4 are also complementary such that the appeal raises two main issues –

(a)    did the Authority take into account the threat that underlay the extortion that it accepted that the appellant may experience upon return to Sri Lanka?; and

(b)    did the Authority consider whether the extortion which it accepted that the appellant may experience on return to Sri Lanka was “significant harm” for the purposes of the complementary protection criterion in s 36(2)(aa) of the Act?

The submissions    

Grounds 1 and 3

29    Counsel for the appellant submitted that while the Authority assessed whether the extortion demands constituted “serious harm”, the Authority failed to ask itself the question whether the threat of harm underlying the extortion demands constituted “serious harm”: s 36(2)(a); s 5H(1); s 5J(4)(b); s 5J(5). Counsel submitted that the material before the Authority and the Authority’s own findings as to the harm that had occurred to the appellant’s brother were sufficient to raise for the Authority’s consideration the proposition that the appellant would be paying those seeking to extort him to avoid serious harm. Counsel cited SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; 238 FCR 404, DQU16 v Minister for Home Affairs [2021] HCA 10; 388 ALR 363; Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 463 and SZVRQ v Minister for Immigration and Border Protection [2020] FCA 375 in support of the submission, to which I will return.

30    Counsel for the appellant also submitted that the primary judge was in error in inferring that the Authority had taken into account what would happen if the requests for payment were refused because the appellant’s father had not been harmed from extortion and bribery demands since 2005. Such inference, counsel submitted, was not available because there was no claim that the appellant’s father had refused a request for payment since 2005 and it was implicit in the authority’s reasons that the father had continued to pay the amounts demanded of him.

31    Counsel for the Minister submitted that whether particular conduct is sufficiently severe to constitute serious harm is a question of fact and degree for the Authority to determine, citing Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; 254 CLR 610 at [51] (French CJ, Kiefel, Bell and Keane JJ), concerning the corresponding requirement in s 91R(1)(b) (since repealed) of the Act that a well-founded fear of persecution must involve “serious harm to the person”. Counsel submitted that there were different threads to the Authority’s reasons, which had to be read as a whole. One thread was the Authority’s consideration of the situation in Sri Lanka since the appellant’s departure, involving a change of government in 2015 and a reduction of the risk to Tamils generally who do not fall within particular classes of persons to whom a special risk might attach. This led the Authority to make the finding at [47] to which I referred at [20] above that the appellant’s profile, political opinion and circumstances were not such that he faced a real chance of serious harm, including kidnapping or poisoning because he was a Tamil from the northern area of Sri Lanka and would be imputed to be a supporter of the LTTE. Counsel submitted that coupled with these findings it was open to the Authority to accept that the appellant may be subject to extortion demands but not to accept that this in itself was serious harm. Counsel pointed to the Authority’s findings that the appellant’s father had not recently suffered serious harm as a result of extortion demands, to the Authority’s consideration of country information, and to the weight placed on the fact that the appellant’s brother had disappeared during the civil war. Counsel submitted that the finding that the Authority made as to future harm arising from such demands logically encompassed the possibility that the appellant might not comply with those demands.

Grounds 2 and 4

32    Counsel for the appellant submitted that the Authority had incorporated its findings as to whether the appellant would suffer “serious harm” for the purposes of its assessment against the criterion in s 36(2)(a) of the Act into its assessment against the complementary protection criterion in s 36(2)(aa) which invited attention to “significant harm”, and that in doing so the Authority had overlooked a distinction between serious harm and significant harm. Counsel acknowledged that a decision-maker may rely upon the same factual findings to assess whether the requisite likelihood of harm is established for each criterion, i.e. a “real chance” of the harm occurring for s 36(2)(a) and a “real risk” of the harm occurring for s 36(2)(aa). However, in circumstances where there is a finding that a claimed fear of harm will occur, counsel submitted that the claimed fear must be assessed against the different criterion for complementary protection, citing GPC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 297 and DQU16 v Minister for Home Affairs.

33    In response, counsel for the Minister submitted that the primary judge had not erred in rejecting the corresponding argument. Counsel submitted that, given that the definition of “significant harm” in s 36(2A) of the Act involves serious forms of harm (noting the definitions in s 5 of “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”), there was no basis for the Authority to find any of them could be engaged given its previous findings that there was no real chance of the appellant experiencing serious harm from future extortion. Counsel submitted that there was therefore no basis to infer that the Authority had not considered the possibility of future extortion when considering whether there was a real risk that the appellant would suffer significant harm if removed from Australia.

Legislative provisions

34    The primary question for the Authority to determine, and which forms the basis of the present appeal, was whether the applicant met one of the respective protection criteria in s 36(2)(a) or s 36(2)(aa) of the Act–

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

…

Refugee protection – s 36(2)(a)

35    Section 36(2)(a) directs attention to whether an applicant is owed protection obligations because the person a refugee. The term “refugee” is defined in s 5H(1) of the Act –

Meaning of refugee

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)    in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:    For the meaning of well-founded fear of persecution, see section 5J.

(2)    Subsection (1) does not apply if the Minister has serious reasons for considering that:

(a)    the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(b)    the person committed a serious non-political crime before entering Australia; or

(c)    the person has been guilty of acts contrary to the purpose sand principles of the United Nations.

36    Central to the definition of refugee is the existence of a “well-founded fear of persecution.” The three elements which must be satisfied for a well-founded fear of persecution to exist are set out in s 5J(1) –

Meaning of well-founded fear of persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

…

37    Importantly, to satisfy the statutory threshold of a well-founded fear of persecution, the feared persecution must involve “serious harm” to the applicant: s 5J(4)(b). The Act does not define serious harm. However, s 5J(5) provides for the following non-exhaustive instances of serious harm for the purposes of s 5J(4)(b) –

(a)    a threat to the person’s life or liberty;

(b)    significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)    significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

38    It is worth noting that s 5H and s 5J were inserted into the Act in 2014 by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), Sch 5, item 7. These sections largely codify the concept of “refugee” as it exists under the Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees. Prior to the introduction of the 2014 amending Act, the former s 36(2)(a) of the Act had referred expressly to Australia’s obligations under the Convention.

Complementary protection – s 36(2)(aa)

39    Sub-section 36(2)(aa) provides an additional basis for the grant of a protection visa. It applies where an applicant does not fall within s 36(2)(a) of the Act and it engages some, but not all, of Australia’s non-refoulement obligations under the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: DQU16 v Minister for Home Affairs at [12]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [1]-[5].

40    Sub-section 36(2)(aa) requires the Minister to be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The term “significant harm” is addressed in s 36(2A) and (2B) –

(2A)    A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

Consideration

41    This is an appeal by way of rehearing which by reference to the grounds of appeal requires the Court to conduct a real review of the decision of the primary judge. As is ordinarily the case in an appeal from a judgment in a judicial review proceeding, I am in as good a position as the primary judge to determine the matter: AFD21 v Minister for Home Affairs [2021] FCAFC 167; 287 FCR 308 at [40] (Kenny, Kerr and Wheelahan JJ).

Grounds 1 and 3

42    For the reasons that follow, I have determined that grounds 1 and 3 of the notice of appeal are made out.

43    Part 7AA of the Act imposes an obligation on the Authority to review a decision referred to it by the Minister: s 473CA and s 473CC. To exercise its review function lawfully, a decision-maker must correctly construe and consider all claims (and their component integers) made by an applicant or which are apparent on the material before the decision-maker. If a decision is made without having considered all such claims, the decision-maker will have failed to exercise the jurisdiction conferred by the statute, and thereby fallen into jurisdictional error: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]-[25] (Gummow and Callinan JJ, with whom Hayne J agreed at [95]); Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136 at [42] (Allsop J, with whom Spender J agreed at [1]); BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [79] (Rangiah, Perry and Bromwich JJ).

44    It is therefore necessary to consider the claims raised by the appellant in his application. As referred to at [16] above, the Authority in its statement of reasons noted the appellant’s claim that he would be subjected to extortion demands from the Sri Lankan military and paramilitary groups upon returning to Sri Lanka because he would be involved in the running of the family business. The appellant also claimed that his father had been subjected to extortion demands in the past. The appellant claimed that when his father did not comply with those demands in 2008, the appellant’s brother had been “disappeared”, which I understand to refer to being kidnapped and killed. The appellant claimed to fear that he too would be “disappeared” like his brother. These claims were contextualised by the appellant’s own experiences of physical violence and threats of violence in Sri Lanka. The Authority did not reject any of these claims by the appellant. In fact, at [49] in its statement of reasons, the Authority appears to have accepted (or at least not rejected) the claim that, as at the date of its decision, paramilitary groups were continuing to demand goods from the family business without payment –

… I note that the applicant’s father still runs the family business and although the applicant claims paramilitary groups still demand to be given goods without payment there is no evidence before me to indicate that the applicant’s father has been otherwise harmed during these incidents.

45    At [50] of its reasons, the Authority explicitly accepted that the appellant, on returning to work in the family business in his home area, may be subjected to extortion demands.

46    By definition, every instance of extortion is underpinned by a threat that some negative consequence will ensue if the victim does not meet the demand. The appellant’s claims in relation to his fear of extortion or bribery demands, and the history of violence towards the appellant and his family, and the Authority’s acceptance that the appellant may be subjected to extortion demands, raised for consideration by the Authority whether the threat of harm underpinning those demands would be sufficiently serious to give rise to a well-founded fear of persecution. For reasons upon which I will further elaborate, the appellant’s submission that a threat of harm may constitute serious harm for the purposes of the Act should be accepted: Appellant S395/2002 v Minister for Immigration [2003] HCA 71; 216 CLR 473 at [43] (McHugh and Kirby JJ); SZTAP v Minister for Immigration and Border Protection at [17] (Logan J), [61] (Robertson and Kerr JJ).

47    The next question is whether the Authority gave adequate consideration to the appellant’s claim in conducting its review. Again, this directs attention to the Authority’s written reasons. Those reasons should be read fairly and without a rigid focus on particular language or phrasing: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ). Yet, even allowing this beneficial construction, it does not appear that the Authority evaluated whether the threat of harm, which it accepted that the appellant might face on returning to Sri Lanka, constituted serious harm under the Act. The Authority appears to have focused on the absence of recent physical harm to the appellant or his father, rather than turning its attention to the likely seriousness of any threats that might underpin the extortion demands. The nature of the error by the Authority, being a failure to exercise its jurisdiction, means that it is difficult to isolate a particular sentence or finding in the reasons which itself is determinative of the existence of error. Rather, there are several features of the reasons which, considered as a whole, indicate that the Authority either misunderstood or failed to address the appellant’s claim in relation to the threat of harm that he would face on return to Sri Lanka.

48    First, in the section of its reasons under the heading: “Does the applicant face a real chance of harm from paramilitaries through extortion and bribery or forced recruitment?”, after referring to the appellant’s claim that paramilitary groups continued to enter his father’s shop and demand goods without payment, the Authority noted at [49] of its reasons that there was no evidence that the father had “been otherwise harmed during these incidents.” In the next sentence, the Authority stated that: “[t]he evidence indicates that [the appellant]’s father has not been physically harmed since 2005 when he was assaulted by men from the Sri Lankan military...” (emphasis added). The Authority then concluded that “I do not consider that [the appellant]’s father has suffered serious harm through extortion and bribery demands.” The Authority’s reasoning in these passages strongly suggests that it did not consider that anything other than physical harm might constitute serious harm. It appears to have overlooked the possibility that the threats that were made to the father might themselves have constituted serious harm. Had the Authority not been under this misapprehension, one would expect that it would have made findings as to the nature of the threats underlying the demands made to the appellant’s father by the paramilitary groups, or the likelihood that those threats would be carried into effect if he refused to comply. The Authority instead fastened upon the absence of any recent physical harm to the appellant’s father. It is unclear why the absence of physical harm to the appellant’s father should be relevant in the absence of any finding that he had actually refused to comply with recent extortion demands. As Logan J explained in SZTAP at [14]:

The very essence of extortion, if successful, is that the threat made to the victim will not be carried into effect providing that the demand made is satisfied.

49    Second, within the same section of its reasons, the Authority did not refer to the disappearance of the appellant’s brother in 2008. The Authority had earlier accepted that the appellant’s brother had “disappeared” after their father had refused to comply with a demand by paramilitary groups. That incident could be seen as evidence of the seriousness of the threats that underlay the extortion demands faced by the appellant’s father. In fact, it appears to have been the only example before the Authority of what had actually occurred when the appellant’s father had refused to comply with an extortion demand. The Authority accepted at [50] of its reasons that kidnap for ransom, extortion, and bribery demands were still perpetrated by paramilitary groups, and that upon returning to Sri Lanka and taking over the family business the appellant may be subjected to extortion demands. It is a striking feature of the Authority’s reasons that it did not mention the appellant’s brother’s disappearance when assessing the seriousness of the harm that the appellant might face through extortion demands. The Authority’s failure to refer to the disappearance suggests that it did not grasp the potential relevance of this incident when assessing the potential seriousness of the demands that the appellant might face.

50    Third, at [50] of its reasons, the Authority relied on country information which indicated that, although still occurring, the incidence of extortion, bribery and kidnap for ransom had “significantly reduced” in Sri Lanka in recent years. The Authority also noted that country information showed that the Sri Lankan government was “taking action against perpetrators.” The Authority then concluded that, while the applicant may be subjected to extortion demands, there was not a real chance that this would involve serious harm. This aspect of the Authority’s reasons is difficult to follow. In light of the Authority’s specific finding that the appellant may face extortion demands on his return to Sri Lanka, it is unclear how a general reduction in the prevalence of extortion, bribery or kidnapping in Sri Lanka, or that the Sri Lankan government had recently been taking action against the perpetrators of such activities, informed the Authority’s evaluation. I appreciate that the task of this Court on judicial review is solely to identify whether the Authority fell into jurisdictional error, and not to determine whether the Authority could have expressed itself more clearly or completely. However, the process of reasoning undertaken by the Authority indicates that it did not engage with a question raised by the appellant’s claims: whether the threat of harm underlying the extortion demands, which the Authority accepted that the appellant might experience on return to Sri Lanka, was sufficiently serious to amount to serious harm under the Act.

51    Counsel for the Minister submitted that, on a fair reading of its reasons, the Authority should be understood to have concluded that, regardless of whether the appellant would or would not satisfy the extortion demands that he might experience on his return to Sri Lanka, the consequences for the appellant would not rise to the level of serious harm. In other words, the Authority reached a conclusion that encompassed all logical possibilities. This submission largely reflected the findings of the primary judge at [55]–[57] of his Honour’s reasons. I accept that, if the Authority had expressed its conclusion in this way, then the Authority may not have fallen into jurisdictional error. It would have been unnecessary for the Authority to identify specifically what the appellant would have done when faced with extortion demands, or what the consequences of failing to comply with those demands would have been. As the Full Court (French, Sackville and Hely JJ) observed in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [43] is apt –

It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.

52    However, in my view, that is not a fair reading of the Authority’s reasons. I am conscious that the Authority’s reasons should not be construed minutely or with an eye attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). But that does not mean that the reasons should be strained in order to reach an interpretation that would uphold the Authority’s decision: AHX15 v Minister for Immigration and Border Protection [2015] FCA 1183; 68 AAR 98 at [24] (McKerracher J); Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]-[15] (Allsop J). Taking the Authority’s reasons as a whole, the overwhelming impression is that the Authority did not turn its mind to the seriousness of the threats themselves that the Authority found might be made to the appellant, and whether the prospect of those threats satisfied the statutory threshold of serious harm.

53    It is appropriate now to consider the authorities relied upon by counsel for the appellant in support of his submission, which I have accepted, that the Authority was required to direct its attention to the appellant’s claim that the threat of harm that underlay the extortion demands that he might experience constituted serious harm, rather than focusing on the physical consequences of the demands.

54    In SZTAP v Minister for Immigration and Border Protection, SZTAP had applied unsuccessfully for a protection visa based on a claim that, during the civil war in Sri Lanka and thereafter, his mother had to pay sums of money to particular officers of the Sri Lankan Criminal Investigation Department because they had threatened to take SZTAP in the absence of his father, who had been sought by the Department on suspicion of being a member of the LTTE. The Refugee Review Tribunal accepted that SZTAP’s mother had been subjected to extortion in this way, and accepted that if SZTAP returned to Sri Lanka, then corrupt officers from the Department might continue to visit SZTAP’s mother and extort money from her as they had done in the past. However, the Tribunal was not satisfied that the corrupt officers intended to detain or harm SZTAP because they had shown no interest in him. The Tribunal’s reasons for this conclusion included a finding that the officers’ overriding aim was simply to extort money from SZTAP’s mother, and in the absence of any claim that she proposed to stop making payments the Tribunal considered that this situation would continue unchanged and that there was not a real chance that SZTAP would be abducted or otherwise seriously harmed.

55    The Full Court accepted SZTAP’s claim that the decision of the Tribunal was affected by jurisdictional error because it was illogical and amounted to legal unreasonableness. Specifically, Robertson and Kerr JJ held at [56] and [61] that it was illogical for the Tribunal to have reasoned that there was not an objective basis for SZTAP to fear harm when: (1) the absence of harm in the past was referrable to the successful extortion of payments from his mother; (2) the harm that had been threatened in the absence of payment was abduction of SZTAP, and that there was no suggestion that this would not amount to “serious harm” for the purposes of the criterion in the Refugees Convention, which at the time relevant to SZTAP’s application for a protection visa was picked up by s 36 of the Act; (3) it could not be in dispute that the vulnerability of SZTAP and his mother to extortion arose because of their membership of a social group, namely family members of a person identified by corrupt officers of the CID as having suspected links to the LTTE; and (4) although the Tribunal had held that the corrupt officers’ threats were a bluff designed to elicit money from SZTAP’s mother, that conclusion was also infected by the illogical reasoning process which had been identified.

56    The presiding judge, Logan J, agreed generally with Robertson and Kerr JJ, and gave separate reasons. Logan J held at [14] that for the Tribunal to have reasoned that there was no real chance of abduction on SZTAP’s return to Sri Lanka because his mother would continue to make the payments demanded was “perverse”. Logan J stated that the “very essence of extortion, if successful, is that the threat made to the victim will not be carried into effect providing that the demand made is satisfied”. His Honour stated at [15] that extortion-related refugee claims require very particular care in the analysis of the underlying occasion for the claimed extortion because this may reveal that the occasion for the extortion is multi-factorial but nonetheless founded in part in a particular vulnerability to extortion for a Convention-based reason. Logan J held that for the Tribunal to conclude that the overriding aim of the corrupt CID officers was simply to extort money from SZTAP’s mother was to fail to grapple with why SZTAP’s mother was a target for extortion at all: cf, Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317 at [37] (Gageler J). Logan J concluded at [16] that for the Tribunal to reason in this manner disclosed a perversity or want of logicality or rationality in the Tribunal’s reasons.

57    In support of his Honour’s conclusion that the Tribunal had acted outside its jurisdiction, Logan J set out at [17] an extract from the following passage of the reasons of McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs at [43] –

The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many — perhaps the majority of — cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly

(Italics in original.)

58    The High Court’s decision in Appellant S395 concerned a Bangladeshi couple who applied for refugee protection visas in Australia on the basis of a claimed fear that they would be persecuted due to their homosexual sexual orientation if they were returned to Bangladesh. The Tribunal accepted that it was impossible to live openly as a homosexual man in Bangladesh. However, the Tribunal found that, while living in Bangladesh, the applicants had practiced their sexuality discreetly and in a manner unlikely to attract reprisal, and that there was no reason to suppose that they would not continue to do so if they were returned to Bangladesh. For that reason, the Tribunal was not satisfied that their fear of persecution was well-founded. The Court, by a majority (which included McHugh and Kirby JJ, together with Gummow and Hayne JJ), held that such reasoning involved an incorrect interpretation or application of the applicable law, and remitted the matter back to the tribunal for further hearing

59    In DQU16, the Court examined its earlier decision in Appellant S395. DQU16 concerned an application for a protection visa by an Iraqi national who claimed to fear persecution if he returned to Iraq because, while in Iraq, he sold alcohol, which was banned by local law in some parts of the country and considered “immoral” and “un-Islamic” by Sunni and Shi’ite extremists. The Authority affirmed a decision of a delegate of the Minister to refuse to grant DQU16 a protection visa. The Authority found that DQU16 did not face a real risk of harm if he returned to Iraq because he had sold alcohol previously, and that if he returned to Iraq, he would not continue to sell alcohol. DQU16 contended that the Authority committed jurisdictional error in failing to apply the principle in Appellant S395 when considering his complementary protection claim under s 36(2)(aa) of the Act. Specifically, DQU16 submitted that, in deciding the complementary protection claim, the Authority was required, but failed, to consider why he would modify his behaviour by not selling alcohol if he returned to Iraq.

60    By a joint judgment the Court determined at [25] that “the principle in Appellant S395” uniquely applied to claims for refugee protection under s 36(2)(a) of the Act, and could not be applied by analogy to a complementary protection claim under s 36(2)(aa). In reaching this conclusion, their Honours distilled the ratio decidendi of Appellant S395. Their Honours endorsed the explanation of Appellant S395 that had previously been expressed by Gageler J in Minister for Immigration and Border Protection v SZSCA at [36]-[37], stating at [8] –

The principle for which Appellant S395 stands is that “a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution”. The principle “directs attention to why the person would or could be expected to hide or change behaviour that is the manifestation of a Convention characteristic” (emphasis added).

(Footnotes omitted.)

The Court explained the rationale for this principle at [9]–

…a person who would otherwise be entitled to protection under s 36(2)(a) will not, and should not, lose that protection if it can be shown that the person would or could avoid persecution by sacrificing a protected attribute under the Convention. The principle, and its rationale, ensure that “the very protection that the Convention is intended to secure” for those facing persecution because of a protected attribute is not undermined, or surrendered, by requiring such a person to conceal that attribute on return to their home country.

(Footnotes omitted.)

61    In light of DQU16, the jurisdictional error found in Appellant S395 is to be understood to have existed in the Tribunal’s reasoning that the appellants could have avoided harm in their native Bangladesh by hiding their sexual orientation, which was a characteristic protected by the Convention, and which would now be protected under s 5J(1) of the Act, as currently in force: see the reference in DQU16 at [10] to the “fundamental, innate or immutable characteristics” in s 5J(3) of the Act.

62    At the hearing of this appeal, counsel for the appellant submitted that the observations of McHugh and Kirby JJ in Appellant S395 at [43] should be understood to exist as a free-standing obiter dictum statement, independent of the ratio of Appellant S395. Counsel also referred to SZVRQ v Minister for Immigration and Border Protection, a decision of this Court in which Snaden J applied McHugh and Kirby JJ’s observations in similar factual circumstances to both SZTAP and the present case.

63    In SZVRQ, the Tribunal accepted that, as SZVRQ was a member of the Rohingya ethnic group, he would be would be vulnerable to extortion from government authorities if he were returned to his native Pakistan, who may threaten to charge and detain him on allegations of residing in the country illegally. However, the Tribunal found that the threat of extortion did not constitute “serious harm” because SZVRQ would have sufficient funds to pay whatever “low level” bribes were demanded of him, so the risk that he would actually be arrested or detained by the authorities was remote. The Tribunal also found that the amounts demanded from the authorities would not rise to a sufficient level to threaten SZVRQ’s capacity to subsist in Pakistan. Snaden J held that the Tribunal fell into jurisdictional error by incorrectly directing its attention to what SZVRQ could do to avoid persecutory harm if he were returned to Pakistan (at [35]-[38]). The Tribunal did not make any finding as to whether SZVRQ in fact would pay any amounts demanded from him, and so failed to consider “the central question…namely, what will happen to the appellant if he returns to Pakistan and why?”

64    Snaden J went on to consider, for completeness, whether the appeal should be allowed even if his primary conclusion was incorrect, and the Tribunal’s reasons should properly be read as encompassing an implicit finding that SZVRQ, upon returning to Pakistan, would (as opposed to could) pay whatever extortion demands were made of him. At [39], his Honour stated that he would still allow the appeal in those circumstances. His Honour observed that the facts of the case bore an “overwhelming resemblance” to those that were before the High Court in Appellant S395. Snaden J cited the previously extracted passage at [43] in Appellant S395 per McHugh and Kirby JJ and reasoned as follows–

To adapt the observations of McHugh and Kirby JJ: to determine the issue of whether there was a real chance that the appellant would be persecuted as he feared without determining whether his likely conduct in Pakistan (namely, meeting whatever extortionate demands were made of him) was influenced by the threat of harm (relevantly in the form of arrest and detention) is to fail to consider that issue properly.

65    I accept the appellant’s submission that the obiter comments of McHugh and Kirby J in Appellant S395 describe a general principle, illustrated by the decisions of this Court in SZTAP and SZVRQ, which has not been overtaken by DQU16. That principle is that the serious harm feared by an applicant for the purposes of a refugee claim under the Act may consist in the threat that the applicant will be subjected to some harmful consequences if the applicant does not modify his or her conduct in a certain way. For example, by not engaging in certain activity or by paying bribes or satisfying other extortionate demands.

66    Of course, the outcome of any application for judicial review must turn on the facts of the case and an analysis of the unique reasoning of the relevant decision-maker: SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [35] (Robertson, Griffiths and Perry JJ). The circumstances of the present appeal are materially different from those that existed in SZTAP or SZVRQ in which it was determined that the decision-maker reasoned illogically or unreasonably. Here, the error lay in the Authority’s failure to engage with the appellant’s claim that by reason of his Tamil ethnicity he would suffer serious harm in the form of the threats to which he claimed he would be subjected. The error was material and therefore jurisdictional because if the Authority had engaged with this aspect of the appellant’s claims, realistically its evaluation could have been different. Accordingly, the primary judge erred and grounds 1 and 3 of the notice of appeal should be upheld.

Grounds 2 and 4

67    I now turn to grounds 2 and 4.

68    I accept the appellant’s submission that significant harm is a different statutory concept to serious harm, as demonstrated by the different terms of s 5J(5) of the Act, which provides for non-exhaustive instances of “serious harm”, and s 36(2A) which defines “significant harm”. The High Court addressed the differences between claims seeking to invoke s 36(2)(a), and claims seeking to invoke s 36(2)(aa) in DQU16 at, inter alia, [10]-[17], referring to the Conventions to which the respective provisions give effect. At [20], the Court stated –

Another important difference arising from the different statutory text and purpose of the inquiry under s 36(2)(a) and s 36(2)(aa) is that the nature of the harm at which each provision is directed is different. The Convention will be satisfied by persecution which may fall well short of death, torture or irreparable harm. Non-refoulement obligations under the ICCPR are directed at irreparable harm of the specific kinds contemplated in Arts 6 and 7 of the ICCPR, which include being arbitrarily deprived of life or subjected to the death penalty; subjected to torture; subjected to cruel or inhuman treatment or punishment; or subjected to degrading treatment or punishment.

69    The elements of “significant harm” listed in s 36(2A) of the Act are generally narrower than the statutory concept of “serious harm” which includes the matters provided for by s 5J(5), but is otherwise not defined. However, that is not to say that it is impossible for a particular instance of harm, in theory at least, to constitute significant harm without also rising to the level of serious harm. In other words, a finding that particular harm is not serious harm does not logically necessitate a corresponding finding that it is not significant harm. By way of contrast, the standard of “real chance” in s 36(2)(a) does impose the same test as the standard of “real risk” in s 36(2)(aa): Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [245]-[246] (Lander and Gordon JJ), [297] (Besanko and Jagot JJ), [342] (Flick J).

70    Bearing in mind the distinction between serious and significant harm, the appellant sought to focus on the second sentence of [61] in the Authority’s reasons as demonstrating that the Authority had conflated the two concepts of harm –

I note that the “real risk” test in the complementary protection provisions imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear”. As I have found that the applicant does not face a real chance of serious harm in relation to his claims I find also that he does not face a real risk.

(Footnote omitted).

71    That argument might carry weight if the impugned sentence were viewed in isolation. However, when read against the context of the preceding sentence and its surrounding reasons, I interpret the Authority to have equated only the “real risk” and “real chance” tests which, as noted above at [69], are the same. The Authority’s reasons show that it did appreciate the distinction between serious harm and significant harm and that it assessed the appellant’s claims against each unique criterion. At [59] of its reasons, the Authority listed each of the elements of significant harm under s 36(2)(aa) of the Act. The Authority then, at [60], recounted several of the appellant’s claims, including his fears of extortion, and referred to its previous finding that the appellant did not face a real chance of serious harm in relation to any of those claims. The Authority did not necessarily fall into error merely by referring to its previous findings in relation to the refugee protection criterion: DQU16 at [27]; SZSHK at [32]. Although the concepts of serious harm and significant harm are distinct, there is clear overlap between the two. So it makes sense that the Authority relied on the same factual premises to conclude, as it did at [62] of its reasons, that the appellant did not face a real risk of significant harm. The fact that the Authority again set out each of the elements of significant harm in s 36(2)(aa) at [62] of its reasons before expressing this conclusion further supports the conclusion that it assessed the appellant’s claims against the unique criterion of significant harm. It did not merely follow the type of ipso facto reasoning alleged by the appellant.

72    For these reasons, the primary judge did not make the errors the subject of grounds 2 and 4 of the notice of appeal.

Conclusion

73    I will order that the appeal be allowed with costs. The primary judge’s orders will be set aside. In lieu thereof, I will order that a writs of certiorari and mandamus issue by which the Authority’s decision will be quashed and requiring the Authority to review the Minister’s decision according to law. The appellant should also have the costs of the proceeding in the Federal Circuit Court

.

Associate:

Dated:    22 December 2022