ATI15 v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATI15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 8

Catchwords:
MIGRATION – Application for Protection (Class XA) visa – whether tribunal identified all claims clearly available on material before tribunal – where tribunal did not deal with claim clearly arising on the material – jurisdictional error established.

Legislation:

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, Schedule 5, items 7 and 28

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553

Applicant:

ATI15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

BRG 416 of 2015

Judgment of:

Judge Jarrett

Hearing date:

7 October 2015

Date of Last Submission:

7 October 2015

Delivered at:

Brisbane

Delivered on:

11 January 2016

REPRESENTATION

Counsel for the Applicant:

Mr Steele

Solicitors for the Applicant:

Allens

Solicitor for the First Respondent:

Mr Hawker

Solicitors for the First Respondent:

Sparke Helmore

The second respondent entered a submitting appearance.

ORDERS

The name of the second respondent be substituted with the name “Administrative Appeals tribunal (formerly known as the Refugee Review tribunal)”.
A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 9 April, 2015.
A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 15 July, 2013 according to law.
The first respondent pay the applicant’s costs of and incidental to the application, including reserved costs, if any fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 416 of 2015

ATI15

applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant has applied to review the decision of the second respondent, made on 9 April, 2015 which affirmed a decision of the first respondent’s delegate to refuse to grant a Protection (Class XA) visa to the applicant.
The first respondent opposes the application. The second respondent enters a submitting appearance.
The applicant has filed an amended application on 14 August, 2015 in which he specifies his grounds of review. Both parties have delivered comprehensive written submissions.

Background

The applicant is a national of Sri Lanka. He is of Tamil ethnicity and of the Catholic faith. On 24 June, 2012 he entered Australia when he arrived by boat at Christmas Island. He was 14 years old at that time.
On 22 October, 2012 the applicant applied for a protection visa. He claimed to have a well-founded fear of persecution because he was Tamil and because of his father’s earlier difficulties with the Sri Lankan army.
In his protection visa application, the applicant claimed that:
a)his father had trouble from the Sri Lankan Army and Singhala people as he is Tamil and from Mannar;
b)his mother told him that the Army took his father in 2009 and although he was not an LTTE member or supporter the Army suspected him purely because he was a Tamil, his birth place and where he lived;
c)in 2009 he “had a problem with the Army” and they said that because he father was Tamil he was Tamil too. They would stop him on the way to school and make him buy them cigarettes. On one occasion a Priest said the army had stopped him and the Priest was slapped;
d)the Army also stopped him on the way home from School on 3 or 4 occasions and took him to their camp and made him clean;
e)the Army would come to his house at night and ask about his whereabouts;
f)on one occasion in 2011 they watched his sister showering, the applicant did not warn her as he was hiding from the Army. He said that because he could not help his sister “I tried to kill myself by drinking garden poison from a bottle” but that his mother stopped him;
g)in August, 2011 a greaseman came to his house and grabbed his sister. The man ran out of the house as a result of the screams and he was seen going to the army camp;
h)On 30 May, 2012 the army detained him for three days and tortured and sexually abused him. His mother arranged for him to leave after this incident.
He further claimed that he was suspected by Sri Lankan authorities of involvement with the LTTE.
He also claimed before the first respondent’s delegate to have been bullied by Sinhalese students at school because of his Christian faith. In his entry interview, conducted on 27 July, 2015 the applicant claimed that in his village there were only a few Christians and the other people bullied them. He was bullied at school and his church priest was beaten by the non-Christians. When he was asked, during that entry interview, “how would they bully you?” the applicant said:
They are Buddhist people actually the Singhalese people. You know in the evening time we can’t go walking on the road. The people who have the grease man problem you can’t walk on the road it is very scary. One time the police called a boy and arrested him and asked him why he was walking on the road at this time and my friend got caught at this time. I am very scared to walk on the road also. I have a sister and she can’t walk on the road and I have taken her to my grandparents place.
In his “Statement in Support of application for a Protection Visa”, dated 22 October, 2012 the applicant said that he left Sri Lanka because:
Once when the Army stopped me the Priest from our church saw me and tried to help me. He said they should release me because I am just a small boy, they refused to do so and they slapped the Priest as well.
On 9 November, 2012 the applicant’s representative provided written submissions to the first respondent’s delegate in support of his visa application. The submissions provided that: “in summary, our client fears persecution because Sri Lankan Government security agencies and affiliated paramilitary organisations suspect that he is linked with the LTTE”. The representative submitted that “the essential and significant reasons why our client fears persecution are his Tamil race, his membership of particular social groups comprising Sri Lankan Tamils and Tamils from the North or East of Sri Lanka and his real and imputed political opinion arising from his race and due to his father’s links to Mannar, a predominantly Tamil region. His fear is exacerbated because he is a member of a particular social group of Tamils who have fled Sri Lanka illegally and have unsuccessfully made claims for asylum in Australia”.
On 15 July, 2013 the first respondent’s delegate refused the applicant’s application for a protection visa. On 25 July, 2013 the applicant applied for review of the delegate’s decision by a refugee review tribunal. He was represented by lawyers.
A tribunal was constituted and the applicant was invited to a hearing before the tribunal to give evidence and present arguments. The applicant appeared before the constituted tribunal on 22 December, 2014 and again on 2 February, 2015. He was 17 years old on each occasion. He was assisted by an interpreter at each hearing and he had a representative present, by telephone, at each. The representative’s appearance by telephone was permitted upon the request of the applicant’s representative for the appearance to be by telephone.
On 9 April, 2015 the second respondent affirmed the decision of the first respondent’s delegate to refuse to grant the applicant a protection visa.
The tribunal delivered written reasons for its decision. Recorded in the written reasons are the tribunal’s findings. The tribunal:
a)found that the applicant was not a witness of truth and had fabricated his claims;
b)did not accept his father had disappeared or been killed or taken by the authorities. It found the applicant’s evidence about his father’s disappearance vague, inconsistent and lacking in detail and whilst it accepted he may have had little contact with his father it did not accept he had little contact because of any disappearance and that his school records showing his father listed as his guardian were inconsistent with his claims of his father’s disappearance;
c)did not accept that he was forced to do labour at the army camps or that the army came to his house or watched his sister shower. In relation to those claims the tribunal considered the applicant’s account of the events were vague, lacked details and seemed cursory and rote learned;
d)accepted that the applicant may have been harassed by soldiers to buy them cigarettes however did not accept that amounted to serious harm and as he is no longer a schoolboy and the conflict had ended it did not accept he faced a real chance of serious harm in the future;
e)did not accept that a greaseman entered his home or choked his sister as he had provided inconsistent accounts and further did not accept that he faced any harm from the greaseman if he returns to Sri Lanka;
f)did not accept that the applicant was detained, slapped or tortured, sexually abused or otherwise harmed. It considered the applicant’s description of the detention lacked details and was repetitive and that the claimed motivations for the detention were not consistent with what he claimed the army said to him;
g)found that the applicant made up the story of people asking his mother for details about him after he had left for Australia;
h)did not accept that he would be imputed with anti-government or suspected pro LTTE connections upon return or that he faced any real chance of harm upon return;
i)did not accept that he faced a real risk of serious harm or stigmatism because of his mother and father’s mixed marriage;
j)did not accept that “Sinhalisation” amounted to serious harm or that he would suffer any harm as a result of “Sinhalisatio” of Tamil areas in the reasonably foreseeable future;
k)did not accept that he faced a real chance of serious harm in terms of his education, employment or livelihood or monitoring and did not accept “his future will be spoilt” if he were to return;
l)was not satisfied that there was a real chance of serious harm, including any denial of access to health and education, or the ability to subsist, or any denial or social or economic rights as a result of the applicant’s ethnicity (being a Tamil, a young male Tamil or from a mixed marriage, or having a father from a particular area or any other reason) or any other reason or reasons, in the reasonably foreseeability future;
m)was not satisfied the applicant had a real chance of being persecuted should he return as a failed asylum seeker or due to his extended presence in Australia or for any imputed political opinion;
n)accepted the applicant departed the country illegally as he came by boat not through an authorised airport or a port and without a passport. It accepted the applicant would be subjected to such processes on return, being charged, bailed and fined up to 50,000 rupees. It did not accept that the applicant’s family would not be in a position to pay the fine or act as guarantor of payment of a fine as both his mother and sister work, the grandmother owns the family home. It was not satisfied that payment of the fine amounts to serious harm;
o)was satisfied that, in any event, the Sri Lanka departure laws are laws of general application and the enforcement of the laws does not amount to persecution and that the applicant did not face a well-founded fear of persecution due to his illegal departure;
p)was not satisfied that the applicant satisfied the criterion set out ins 36(2)(a) of the Act;
q)was not satisfied the applicant satisfied the criterion set out ins 36(2)(aa) of the Act.

The grounds of review

The amended application specifies
1. The decision of the second respondent was affected by jurisdictional error because:
a. the applicant was not afforded a proper hearing on 22 December 2014 because:
i. he was 17 years of age at the time;
~~ii. his support person was not present or available;~~
iii. his migration agent appeared only by telephone, and was not otherwise able to provide support; and
iv. the applicant was for that reason not in a position to properly present his case.
b. the second respondent failed to consider whether the applicant faced a real risk of serious harm as a result of:
i. his religion; or
ii. his membership of a particular social group, namely Catholic Tamils in Sri Lanka.
c. the finding at paragraph [112] of the second respondent’s reasons for decision that a fine imposed on the applicant does not constitute serious harm was:
i. made without, or with insufficient, evidence; ~~and~~
ii. irrational or unreasonable; and
iii. failed to take into account relevant considerations, including:
1. the length of time which may be needed to repay a fine;
2. whether the applicant’s family would chose to assist him in paying a fine;
3. the burden to the applicant, and his family, in having to repay a fine;
4. the harm which may arise to the applicant from a lengthy period being required to pay a fine;
5. the harm which may arise to the applicant, or to members of his family, in circumstances of default.
d. in considering whether the applicant was in a position to pay a fine, the second respondent did not consider:
i. the length of time which may be needed to repay a fine;
ii. whether the applicant’s family would choose to assist him in paying a fine;
iii. the burden to the applicant and his family in having to repay a fine;
iv. the harm which may arise to the applicant from a lengthy period being required to pay a fine;
v. the harm which may arise to the applicant, or to members of his family, in circumstances of default
By those grounds of review, the applicant contends that the second respondent fell into error in three ways:
a)the second respondent did not consider the applicant had a well-founded fear of persecution because of his religion or his membership of a particular social group (being Tamil Christians);
b)the second respondent erred in its reasoning in the finding that a potential fine payable by the applicant or his family did not constitute serious harm; and
c)the applicant was not afforded a proper hearing on 22 December 2014, because of his youth and because his migration agent was only available by telephone.

Ground 1a. – failure to afford a proper hearing on 22 December, 2014

The applicant contends that an error arises in the way that the hearing on 22 December, 2015 was conducted because the applicant’s legal representative was not personally present at the hearing. It was not enough, the applicant says, that his representative was present by telephone.
He argues that given:
a)his age;
b)the fact that much of the hearing was conducted with an interpreter; and
c)what he claims are some apparent misunderstandings between the tribunal and his representative, his representative ought to have been available in person. That would have helped to prevent misunderstandings, and given the applicant a proper opportunity to confer with his representative in relation to particular issues of concern raised by the tribunal.
The applicant’s review by a refugee review tribunal was instituted by a legal representative on his behalf. It was that legal representative who responded to the tribunal’s hearing invitation. In the response to the hearing invitation the applicant’s legal representative requested permission to appear by telephone. The tribunal granted that request.
The difficulties and misunderstandings that the applicant suggests occurred during the course of the hearing on 22 December, 2014 have been set out more fully below. They are relevant to another ground agitated by the applicant before me. I will not set them out here because the content of those misunderstandings is not relevant to this ground of review. The applicant argues that if his representative had been personally present, some of those difficulties may have been avoided, because his representative would have been in a position to confer with the applicant and take proper instructions. The applicant argues that his ability to take and convey proper instructions was necessarily limited by the fact that he was not present and because the applicant was relying to a large extent on an interpreter.
The applicant directs my attention to the decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553, where the Court said at [37]:
The statutory obligation upon the tribunal to provide a “real and meaningful” invitation exists whether or not the tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804; BC200203400. They also include circumstances where the fact or event resulting in unfairness was not realised by the tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate.
In the present case, it was the applicant, through his own legal representative, that requested that his legal representative appear by telephone, rather than in person. The applicant was assisted by an interpreter even though according to the tribunal’s observations the applicant spoke English fluently. He was also assisted by a support person who was personally present at the tribunal hearing.
There is nothing to which I have been taken which suggests that the applicant and his legal adviser were prevented from conferring privately by telephone. I was taken to no request for that to happen either by the applicant or his legal representative that was refused by the tribunal. That tends to indicate that neither thought it necessary for such consultation to occur. There is nothing in the material to which I have been taken which would suggest that had such a request been made of the tribunal, it would have been refused.
The applicant raised no issue with the tribunal at the hearing on 22 December, 2014 or at any point following the hearing and before the tribunal’s decision in relation to his lawyer appearing by telephone.
In my view, the applicant was afforded a hearing at which he was able to give, and did give, evidence and present arguments relating to the issues arising in relation to the decision under review. I cannot accept the applicant’s submission that even though there is no suggestion that the personal absence of the applicant’s legal representative in this case was in any way the fault of the tribunal, his absence nevertheless in this case prevented the applicant from receiving a proper hearing.
In my view, this ground does not reveal jurisdictional error.

Ground 1b. – failure to consider the applicant’s claim based upon his religion

The applicant points out, correctly, that:
a)save for one reference to the applicant being Catholic in paragraph 6 of the tribunal’s reasons for decision, there is no direct reference to the applicant’s religion in the tribunal’s reasons;
b)the tribunal set out the applicant’s claims for protection at paragraph 7 of the reasons for decision and in paragraph 7(d), after stating that the applicant’s mother had begged the army for his release, the tribunal noted that “[o]nce the army stopped him and the priest tried to help him but they slapped the priest.”; and
c)the tribunal did not otherwise refer to any claim by the applicant based upon his religion, difficulty between Christians and Buddhists or the bullying he claimed he experienced at school at the hands of Buddhist students.

The tribunal does appear to have considered particular social groups into which the applicant may have fallen. The groups considered included “Tamils”, “mixed marriages” and “mixed parentage”, “failed asylum seeker” and persons who had departed Sri Lanka illegally. But there was no reference to the applicant’s Catholicism. Consequently the applicant argues that the tribunal did not consider whether protection obligations were owed to him as a result of his religion.
There is no dispute that the tribunal is not required to consider a claim not made, nor one which cannot be said to clearly arise on the material before the tribunal. It is also not contentious that the applicant did not expressly make a claim to the tribunal that he faced a real risk of serious harm as a result of his religion. So much appears from the oral submissions made for the applicant before me and paragraph 39 of the applicant’s written submissions before me:
39. That is, the applicant’s concern about being mistreated because of his religion, whether by students, soldiers, or the Sinhalese population generally, was articulated by him on numerous occasions, including when he arrived in Australia and before the Minister’s delegate. The claim that the applicant might suffer serious harm because of his religion was one that arose clearly on the material before the Tribunal. In those circumstances it was necessary for the Tribunal to consider the possibility of such harm, even if the applicant did not directly raise the concern during the hearing.
(my emphasis)
The issue then is whether such a claim – the risk of harm arising from the applicant’s membership of a social group that has as a feature his Catholic religion – clearly arose on the material before the tribunal even though the applicant did not expressly articulate a claim on that basis.
The applicant argues that I should conclude that such claim clearly arose on the material before the tribunal because his concern about being mistreated because of his religion, whether by students, soldiers, or the Sinhalese population generally, was articulated by him on numerous occasions, including when he arrived in Australia and before the Minister’s delegate. The first respondent argues that I should not draw that conclusion. The applicant relies upon four examples to support his argument.
First, in his entry interview on 27 July, 2012 the applicant said that there were “only a few Christians” in his village, and that they were bullied. Later in the interview he was asked about the bullying and he said “You know in the evening time we can’t go walking on the road” and that “I am very scared to walk on the road also”. The applicant suggests that those answers were in direct response to a question about how Christians were bullied.
However, the first respondent argues that to the extent the applicant referred to being scared to walk on the road, this was in the context of “the grease man problem”. This fear was not by reason of his religion but rather by reason of the “greaseman”.
The relevant exchange as recorded in the applicant’s entry interview is as follows. I have emphasised those direct references to religion:
My father is missing in the war time. My mum has varicose veins in her leg. My grandmother have diabetes and heart problems and things like that. We are from very poor family and I do the labour job and I have to look after my family. In our village there are only a few Christians and the other people bully some. When I go to the school they do some bully things.
You know the grease man problem in Sri Lanka. At the time they said that the grease man was breaking into the house and taking people’s property and then other people are using that to be the grease man and break into people’s house and take people’s property.
My church priest they beaten him also. When we go to the school also there is fear in there because when we walk on the path they will ask why we are going to school going by the secret and this they will ask us. You know there is a man in the village who is a child molester I already talked about this in mental health, the man he took me and removed the bicycle parts and tried to misbehave with me.
You mentioned because you are one of the few Christians they would bully you, how would they bully you? They are Buddhist people actually the Singhalese people. You know in the evening time we can’t go walking on the road. The people who have the grease man problem you can’t walk on the road it is very scary. One time the police called a boy and arrested him and asked him why he was walking on the road at this time and my friend got caught at this time. I am very scared to walk on the road also. I have a sister and she can’t walk on the road and I have taken her to my grandparents place.
On balance, I am inclined to think that the reference to being scared to walk on the road at night was indeed a reference to the “greaseman” problem rather than it being a reference to the bullying towards Christians. However, the applicant also clearly claimed that:
a)there were a few Christians in his village;
b)other people bully some;
c)his priest was beaten
d)the Buddhist or Singhalese people do the bullying.
Second, the applicant also said that his priest was beaten. I have set out the first reference to that above. The rest of the relevant reference from the applicant’s entry interview is as follows:
When was your church priest beaten? This year in January.
Why was he beaten? This time they had the buddhist people and the christian people and they had some problem and the preist (sic) came and he wanted to do some peace talk and they wanted to beat him.
How did they beat him? With the stick.
Who beat him? 2-3 people fat, big people.
Third, in this statement of claims dated 22 October, 2012 the applicant repeated his claim that his priest had tried to protect him from the Army. He said:
Once when the Army stopped me the Priest from our church saw me and tried to help me. He said they should release me because I am just a small boy, they refused to do so and they slapped the Priest as well.
Fourth, the first respondent’s delegate had appreciated the applicant’s claim that he was bullied because he was a Christian. At page 7 of the delegate’s decision, the following us recorded:
The applicant stated he was bullied at school by Sinhalese Buddhist students because he is Christian and there were not many Christian school students. He discussed his beliefs as a Christian at interview. He did not give a lot of detail about his religion at interview, stating that he does not know the difference between Catholic and Christian but he attends Church, listens to Father read the bible and then receives communion. Approximately seven per cent of the population in Sri Lanka are Christian with equal parts Tamil and Sinhalese. I accept that a person can follow a particular religion without knowing a lot about it and I am satisfied based on the applicant’s basic responses at interview that he is Christian. Given the inter-religious tension that exists particularly towards religious minorities including Christians from the Buddhist majority I accept the applicant was bullied at school by Sinhalese Buddhist students because he is Christian.
Later, at page 11 of the decision, the first respondent’s delegate recorded:
Findings of fact summary
…
The applicant was bullied at school by Buddhist students because he is Christian.
The first respondent argues that a claim based upon the applicant’s religion did not clearly arise on the material before the tribunal. However, I disagree. I think such a claim did clearly arise on the material before the tribunal. The applicant clearly referred to difficulties between Christians and Buddhists or Singhalese. He claimed that he was bullied at school because he was Christian. His entry interview also referred to his membership of a religious group namely Christians at items 4 and 7 of Part C.
Further, that such claims arose on the material put forward by the applicant was apparent to the first respondent’s delegate. That, of course, binds neither me nor the tribunal, but it is an indicator of the clarity with which the claims arose on the applicant’s material.
In my view, it is not to the point that to the extent the applicant referred to bullying at school, there is no evidence that he feared serious harm in this regard or that he feared such harm on his return, precisely because the applicant was no longer a schoolboy by the time the tribunal heard the matter. However, that does not deal with the underlying claim that springs from the material, namely that Christians are at real risk of harm from Buddhists in that area in which the applicant lived. That claim was not addressed at all by the tribunal and it was incumbent upon the tribunal to consider the possibility of harm from that source.
The first respondent argues that, in any event, the tribunal:
Clearly identified the relevant law and that ‘Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. It noted Article 1A(2) relevantly defines a refugee as any person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, member of a particular social group, or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it’ (emphasis added).
The tribunal went on to state that it was not satisfied that there was a real chance of serious harm as a result of the applicant’s ethnicity or, relevantly, “any other reason or reasons, in the reasonably foreseeable future”.
However, whilst the tribunal recorded the test that it had to apply, I am not satisfied that the tribunal applied that test to the claim that arose out the material concerning the applicant’s religion. In particular, the tribunal’s reasons contain no examination or consideration of those claims at all. There are no relevant findings about those claims.
I accept the applicant’s contention that the tribunal’s failure to consider his claims based upon his Christianity, a claim not articulated by him but which arose clearly on the material before the tribunal, amounts to a constructive failure to exercise jurisdiction, and thus jurisdictional error.

Grounds 1c. and 1d. – findings that a fine imposed upon the applicant would not amount to serious harm

These grounds were dealt with together by the parties. I will do the same.
One of the grounds upon which the applicant suggest he would face serious harm if he returned to Sri Lanka was that he would be dealt with by the Sri Lankan judicial system for having left Sri Lanka illegally.
The tribunal accepted that the applicant departed Sri Lanka in breach of Sri Lankan domestic law. It accepted that, on the basis of the country information to which the tribunal had regard, the applicant would be subjected to legal processes on return, would likely be charged with an offence, bailed and fined up to 50,000 rupees.
However, the tribunal concluded that the imposition of such a fine would not amount to serious harm for the purposes of the Act. The tribunal found:
112. The applicant and agent indicated it would be difficult or unable to pay off the fine as they did not earn a lot. The tribunal discussed with the applicant the payment of the fine and possibility of using the family home, owned by his grandmother, as collateral. He said they would not be able to afford the mortgage payments. The tribunal does not accept that the applicant’s family would not be in a position to pay the fine or at act as guarantor of payment of a fine as both his mother and sister work, the grandmother owns the family home. While the tribunal accepts it may take some time to pay off the fine, the tribunal finds he and his family could pay the fine. Further, given the applicant has worked before in Sri Lanka and has furthered his education there is no reason why he could not again find work to help pay off the fine. Further, given the applicant’s mother was able to afford to make arrangements and send him to Australia, the tribunal does not accept that the family would not be able to pay the fine or provide a guarantee. The tribunal is not satisfied that payment of the fine amounts to serious harm.
The applicant argues, however, that the tribunal did not, anywhere in its reasons, consider:
a)the value of the applicant’s grandmother’s house, or the value of homes in that part of Sri Lanka generally;
b)the procedure to be adopted in Sri Lanka in attempting to obtain a mortgage, including whether a mortgage would be granted to secure payment of a fine;
c)the likely income of the applicant, his mother, his sister, or his grandmother;
d)other expenses or obligations that might be owed by the applicant, his mother, his sister, or his grandmother;
e)how long it might take the applicant, or some other member of his family, to pay a fine of 50,000 rupees;
f)whether Sri Lankan authorities allow other persons to “guarantee” payment of fines; or
g)whether Sri Lankan authorities allow fines to be paid in instalments, or otherwise allow time to pay.
Further, the applicant argues that there was no evidence referred to by the tribunal, and none apparent on the record, to support a finding that his grandmother, sister or mother would agree to assist the applicant in payment of any fine, even if they were otherwise in a position to do so. The evidence that the mother might be persuaded to do so (but not that she was actually in a position to do so) was limited and circumstantial only, drawn only from her earlier actions in selling jewellery to allow the applicant to leave Sri Lanka. There was no evidence that she would actually be in a position to pay a fine on her son’s behalf.
There is a transcript of the tribunal’s hearing on 22 December, 2012 before me. At pages 23-24 of the transcript the applicant and his adviser canvassed a number of difficulties the applicant and his family would likely face in relation to a 5,000 rupee fine. The following exchanges occurred (at page 24 of the transcript):
“Interpreter: And there I think you need to work more than a year to save 5,000 rupees.
It would be very hard because we don’t have that type of money and we’re not rich.
…
We live in a really old house. It used to belong to my great great grandfather.
…
Tribunal: So you might be able to raise money from a mortgage?
Interpreter: If he we mortgaged that…how would we pay the mortgage because we don’t have any money to pay mortgage. There might be more trouble from the mortgage person. They’ll come and give you trouble if you can’t pay them.
Mr Vrachnas: [inaudible] mortgage
Tribunal: No, no. But his mother might do that, yeah. Okay, sorry.
Mr Vrachnas: I think the issue is whether he can raise the money to pay the fine and if he can’t will he be detained and if he’s detained will he encounter cruel, inhuman or degrading treatment or will he be harmed because he is a Tamil.
Tribunal: I think the country information from DFAT is that you don’t personally have to pay the fine. Often what you do find is that relatives often come and pay the fine.
Mr Vrachnas: I don’t think that answers the question. I think in this case he said he can’t afford the fine and that answers your question.
Tribunal: They can’t afford to mortgage…if they had to mortgage, they wouldn’t be able to pay the mortgage.
Mr Vrachnas: Well I think the question was where would they get the money and he said they couldn’t get it, and then you suggested they could mortgage their house, and his answer was how would they pay the mortgage. They don’t have the money.
Tribunal: Mmhmm.
Mr Vrachnas: I think that raises the issue of what you need to consider if you can’t pay a fine, then he’s jailed.
As the applicant points out, the discussion I have just set out was in the context of a potential fine of 5,000 rupees. The tribunal noted at paragraph 111 of its reasons that the relevant fine could be up to 50,000 rupees. The tribunal did not in its reasons deal with the matters canvassed during the hearing about the fine, other than briefly in paragraph 111 and in paragraph 112, as set out above.
The applicant argues that the tribunal failed to first identify what it was that was potentially the serious harm that might arise out of the imposition of a fine upon the applicant for his illegal departure. The applicant argues that the relevance of properly identifying the serious harm arises from s.5J(4)(b) of the Act which provides that persecution must “involve serious harm to the person”.
The term “serious harm” is defined in s.5J(5) in the following way:
(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
However, s.5J of the Act was introduced into the Act by item 7 of Part 2 of Schedule 5 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. By item 28 of Part 4 of Schedule 5 of the Amendment Act, item 7 applies in relation to an application for a protection visa that is made on or after the day item 28 commences. That day was 16 December, 2014. The applicant made his application for a protection visa well before that date, on 22 October, 2012. Section 5J of the Act had no application to the applicant’s visa application and the tribunal was not obliged to consider it.
Notwithstanding that view, it is apparent that the tribunal’s conclusions expressed in paragraph 112 of its reasons proceed on the assumption that the applicant or his family would be able to pay, or assist the applicant to pay, any fine imposed upon him for his illegal departure from Sri Lanka. The tribunal records that it discussed that with the applicant and his representative but that it did not accept that the applicant’s family would not be in a position to pay the fine or act as guarantor of payment of a fine as both his mother and sister work and his grandmother owns the family home.
To approach the matter on that basis, however demonstrates error in my view. There was no basis in the evidence for the assumption that underpins the tribunal’s assumption that the applicant’s family would be able to pay, or assist him to pay, any fine that might be levied upon him for his illegal departure from Sri Lanka. There was no evidence to support any finding that any member of the applicant’s family would be, or could be prevailed upon to, assist him in paying any fine.
Having raised the proposition that a fine might be paid by his family or by a loan secured on mortgage over the applicant’s grandmother’s house, the tribunal gave the applicant the opportunity to respond to the tribunal’s proposition. The applicant’s responses did not satisfy the tribunal that his family could not or would not assist him. But the applicant’s responses to those inquiries provide no basis for a finding or a conclusion that the applicant or his family could or would pay a fine or assist the applicant to do so. In my view there was simply no evidence upon which the tribunal could reach the conclusion that the family would be able to pay the fine or provide a guarantee for the payment of such a fine, a finding that the tribunal must have made, notwithstanding the way in which the tribunal has phrased paragraph 122 of its reasons for decision. In that sense then, the tribunal’s reasoning is illogical. Having assumed a certain state of things, the tribunal asked the applicant to respond. His responses provided no support for the assumption, but nonetheless, the tribunal proceeded on the basis that assumption was good. The applicant’s responses could have supported the assumption, falsified the assumption or perhaps, been neutral. His responses falsified the assumption, at least in part because he said that he would not be able to afford mortgage repayments. The tribunal nonetheless, determined the matter on the basis of the assumption.

As a consequence of the tribunal’s approach to this issue, the tribunal did not consider the consequences of the applicant being unable to pay a fine. His representative had clearly made a submission during the hearing on 22 December, 2014 that if the applicant could not pay the fine “will he be detained and if he’s detained will he encounter cruel, inhuman or degrading treatment”. That submission was not dealt with by the tribunal.
However, the tribunal concluded that, regardless of whether any fine imposed under Sri Lankan amounted to serious harm, the relevant Sri Lankan law was a law of general application, such that the fine could not constitute ‘persecution’ for a Convention reason. That finding was, in my view, sufficient to dispose of the matter because any serious harm imposed upon the applicant by the carrying into effect of the relevant law (ie., the imposition of a fine for example) would not be harm that was imposed for a Convention reason and would not attract Australia’s protection obligations.
Thus, notwithstanding the illogical approach to the question addressed by the tribunal in paragraph 112 of its reasons for decision, not jurisdictional error is ultimately revealed by the third and fourth grounds of review advanced by the applicant.

Conclusion

In my view, the applicant demonstrates that the tribunal’s decision is affected by jurisdictional error as I have sought to explain above. The tribunal’s decision should be quashed and the application remitted to a tribunal to be dealt with according to law.
The parties both submitted that costs should follow the event.
I order accordingly.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 11 January, 2016.

Associate:

Date: 11 January 2016

[2016] FCCA 8

11 January 2016

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction