MZAJE v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAJE v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2313

Catchwords:
MIGRATION – Application for judicial review – protection visa – whether Tribunal failed to consider claims or integers of claims made by Applicant – jurisdictional error found.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 414

Cases cited:
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration and Border Protection v MZYTS(2013) 136 ALD 547
Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81
SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121
S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630

Applicant:

MZAJE

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1556 of 2014

Judgment of:

Judge Jones

Hearing date:

25 September 2015 and 13 May 2016

Date of Last Submission:

13 May 2016

Delivered at:

Melbourne

Delivered on:

6 September 2016

REPRESENTATION

Counsel for the Applicant:

Ms Burt

Solicitors for the Applicant:

Ambi Associates

Counsel for the Respondents:

Mr Wood

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The name of the Second Respondent be amended to the ‘Administrative Appeals Tribunal’.
A writ of certiorari issue, directed to the Second Respondent quashing the decision of the Second Respondent dated 28 June 2014.
A writ of mandamus issue, remitting the matter to the Second Respondent and requiring it to determine the matter according to law.
The First Respondent pay the Applicant’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1556 of 2014

MZAJE

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This decision concerns an application for judicial review of a decision by the then Refugee Review Tribunal ( “the Tribunal”) made on 28 June 2014, to affirm a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) to refuse to grant the Applicant a Protection (Class XA) visa (“the visa”).
The Applicant is a Sri Lankan national, of Tamil ethnicity and Hindu religion. He was born on 21 August 1985 in Kaluvanchikudy, Batticaloa. His wife remains living in Sri Lanka. Between 2006 and 2008, he worked as a driver of three wheeled vehicles and, from April 2009 to May 2012, he was self-employed in the construction industry. It is relevant to note that the Applicant has two male siblings. One brother, Mr T, is a citizen of France having been recognised as a refugee in France, in December 2000, on the basis that he was a member of the LTTE. The other brother, Mr N, also applied for a protection visa in Australia, which was refused by a delegate of the Minister. On review by the same Tribunal member who reviewed the Applicant’s application, Mr N’s matter was remitted, by Orders made 23 June 2014, for reconsideration, with a direction that Mr N satisfies s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”). Before Mr N’s application for a protection visa was reconsidered by a delegate of the Minister, Mr N left Australia on 18 October 2015 to return to Sri Lanka for personal reasons.
The proceedings in this matter have, to say the least, been lengthy. At the final hearing scheduled on 25 September 2015, the Applicant’s Counsel informed the Court that she had only that morning become aware of the fact, that there had been a favourable decision by the same member of the Tribunal that heard the Applicant’s application for review, in relation to his brother, Mr N. Counsel for the Applicant advised the Court that, having considered decision of the Tribunal in relation to Mr N, it may be that the Applicant would seek to raise additional grounds. The hearing on 25 September 2015 (“the first hearing”) proceeded in relation to the Applicant’s Second Amended application for judicial review. Ultimately, the Applicant sought leave to file two additional grounds of judicial review by way of a Second Amended Application filed 10 November 2015. This was not opposed by the Minister. A further hearing was scheduled for 18 May 2016 (“the second hearing”), leave having been granted to the Applicant to file the two additional grounds.

Grounds of Judicial Review

At the first hearing, Counsel for the Applicant informed the Court that the Applicant had abandoned grounds two and three of judicial review identified in the Amended Application filed on 27 July 2015.
Ground one of judicial review identified in the Amended Application is as follows:
a. The Second Respondent erred by failing to consider submissions and claims made by the Applicant in the submission dated 31 March 2014. In particular:
i. The Second Respondent failed to consider the submissions and country information that indicated Tamil people were at risk of sexual violence in custody.
Particulars
(a) The Applicant, through his adviser submitted pre-hearing submissions dated 31 March 2014.
(b) That submission contained material, which stated that Tamils in custody were at risk of sexual violence in custody.
(c) That material was not acknowledged, or considered by the Second Respondent.
ii. The Second Respondent failed to consider the claim that Tamils are discriminated in Sri Lanka.
Particulars
(a) The Applicant, through his adviser submitted pre-hearing submissions dated 31 March 2014.
(b) That submission contained material, which stated that Tamils in Sri Lanka are discriminated against in (sic) number of significant respects.
(c) That material was not acknowledged, or considered by the Second Respondent.
iii. Further, the Second Respondent failed to consider the claim made that the Applicant may lose his land as part of a “Singhalisation” process.
Particulars
(a) The Applicant, through his adviser submitted pre-hearing submissions dated 31 March 2014.
(b) That submission contained material, which stated that Tamils in Sri Lanka are at risk of losing their land because of government sponsored “Singhalisation” process.
(c) That material was not acknowledged, or considered by the Second Respondent.
Two additional grounds were identified by the Applicant in his Second Amended Application as follows:
b. the Second Respondent erred by failing to consider a relevant consideration, namely that the Applicant’s second brother was recognised as a refugee in Australia on 23 June 2014.
c. By failing to have regard to the fact that the Applicant’s second brother was recognised as a refugee in Australia the Second Responded erred in that the Second Respondent failed to consider integers of the Applicants claim specifically the impact on the Applicant by virtue of the fact that the Applicant may be targeted with an imputed political opinion.[1]
[1] Ground c. specified in the Second Amended Application was amended (to avoid repetition) by Counsel for the Applicant at the second hearing.
I will refer to the first additional ground as ground two of the Applicant’s judicial review application and the second additional ground as ground three of the Applicant’s judicial review application.
Grounds one and three allege that the Tribunal failed to consider claims made by the Applicant. I should note that Counsel for the Applicant described the claims in ground one as integers of claims arising substantially from country information contained in a submission dated 31 March 2014, made on the Applicant’s behalf by his Migration Agent. In that submission (CB 173-205), the Applicant’s claims were described as follows (CB 173-174):
(c) Our client fears that if he is returned to Sri Lanka he will suffer persecution by the paramilitary groups, including Karuna, and the Sri Lankan Army and authorities including the CID. Our client fears threats and extortion, abduction, arbitrary detention, torture, enforced disappearance and other forms of significant physical mistreatment or being killed on account of:
(i) his race as a Tamil;
(ii) his actual and/or imputed political opinion of being opposed to these paramilitary groups, namely the Karuna group and the Sri Lankan government as a result of his:
·       support and involvement with the Tamil National Alliance (TNA) and the candidate, [Mr A], during the 2010 Parliamentary elections;
·       ongoing association with the TNA Parliamentarian, [Mr A], regarding the Hindu temple opening in November 2010;
·       refusal to allow Karuna Group members to use his van in December 2010 after several weeks of having money and goods forcibly taken from his shop by the Karuna Group;
·       perceived support of and links to LTTE, especially given his brother’s forced involvement with the LTTE be between 1993 – 1997; and
·       illegal departure from Sri Lanka and act of seeking asylum in Australia.
(iii) His membership of a particular social group, namely:
·       Tamils with familial links to persons suspected of associating with or supporting the LTTE;
·       Tamil men who are suspected of associating with or supporting the LTTE; and
·       Tamil failed asylum seekers who have left the country illegally.
The Tribunal’s findings regarding the Applicant’s claims can be summarised as follows:
a)the Tribunal did not accept that the Applicant had ever been harmed on account of being a Tamil from Batticaloa, or that there was a real chance that he would harmed in the reasonably foreseeable future for this reason (CB 240 at [24]);
b)the Tribunal found that the Applicant had ‘only had limited involvement with the TNA’ (CB 240 at [26]), and ‘at most was a very low level supporter of the TNA who helped for a several months during one election campaign period during 2010’ (CB 242 at [39]);
c)the Tribunal did not accept that the Applicant would have a profile that would lead to Karuna or other groups targeting him (CB 242 at [39];
d)the Tribunal found that ‘there is no real chance that the applicant would be seriously harmed in the reasonably foreseeable future for reasons of his minor involvement in a TNA election campaign and any fear of persecution on this basis is not well founded.’ (CB 244 at [51);
e)The Tribunal found that ‘there is no real chance that the applicant would be seriously harmed in the reasonably foreseeable future on account of being regarded as connected to the LTTE’ and for the same reasons the Tribunal was satisfied that ‘there are no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka there is a real risk that he will suffer significant harm on this basis.’ (CB 245 at [55]);
f)in relation to the Applicant’s ‘illegal departure’ and ‘failed asylum seeker’ claims, the Tribunal accepted that the Applicant would be questioned about his illegal departure on return (CB 247 at [61]) but was not satisfied that the Applicant fell within certain categories of persons who might be at risk on return to Sri Lanka (CB 247 at [62]). The Tribunal accepted that the Applicant might be prosecuted under the Immigrant and Emigrants Act of 1948 for leaving Sri Lanka illegally (CB 250 at [70]). The Tribunal was not satisfied that the law would be ‘discriminatorily applied, implemented or enforced against the applicant for a Convention reason’ (CB 251 at [74]). Based on country information, the Tribunal was satisfied that the Applicant would be held in remand for a short period ‘from between one day to several days’ if charged (CB 252 at [75]), but found that, if the Applicant were to be remanded for such a short period of time, it would not give rise to a real risk of suffering significant harm (CB 253 at [81]). The Tribunal found that the risk of him ultimately being sentenced to prison upon conviction was ‘remote and not a real risk’ (CB 253 at [83]).

Consideration of Claims - Legal Principles

In Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, Merkel J said at [7]:
While it may be convenient for the Tribunal to deal separately with each element of the claim, that does not relieve it of the task of addressing, cumulatively, all of the essential elements of the claim raised by the material or evidence. In that regard, the Tribunal, in conducting its review of the decision of the delegate under s 414 of the Migration Act 1958 (Cth), is under a duty to address or deal with the case (ie the claim) actually raised by the material or evidence: see Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 and Minister for Immigration and Multicultural Affairs v Sarrazola (2001) 107 FCR 184 at 196, Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294.
Allsop J (as his Honour then was) described the Tribunal’s error in this way (at [41] to [42]):
41. The Tribunal, on a fair and straight-forward reading of its reasons, did not deal with the claim made by the appellant in his application for review by the Tribunal and supported by objective evidence that:
“Due to my participation with Karen community and political groups I have made a number of friends, some of whom are members of the Karen National Liberation Army.”
42. The “participation in the Karen community and the political groups” could be said to have been dealt with by the Tribunal dealing with the appellant’s activities in Australia. The friendships (of the appellant, as a Karen) with people in organisations such as the KNLA were not. This is not merely one aspect of evidence not being touched. It is not a failure to find a “relevant” fact. The Tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. See also Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act, eg ss 54, 57, 65, 414, 415, 423, 424, 425, 427 and 428 and the express reference in Regulation 866 to the “claims” of the applicant eg 866.211, make it clear that the Tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant. If there is a sur place claim made in addition to a claim based on conduct or experiences elsewhere both must be dealt with. If the sur place claim is, or is to be seen as, based on more than one foundation – that is, what has been done by way of political activity and also because of friendships made with other Karen people of arguably seriously subversive background, both bases of the claim must be dealt with. The Tribunal did not deal with the latter basis of the appellant’s sur place claim based on imputed political opinion. It was not a failure merely to attend to evidence, even probative evidence, and by such route commit a factual error. It was a failure to deal with one part of the claim for asylum on the basis of his imputed political opinion. It is true that when called on at the hearing to articulate orally his fears he did not expressly identify his friendships as distinct from his activities in Australia. However, given the clarity of the expression of this fear in his application for review and the existence of objective material put forward by him to support it, I do not see this basis for the claim as having been abandoned. Conceptually, and in a common sense way, it was quite distinct from his claim based on his activities of the kind referred to earlier.
This statutory obligation on a Tribunal was repeated by the Full Court in SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121 where it said at [52]:
“…in order to discharge its statutory review function, the Tribunal was required to consider the appellant’s claims and their integers.”
The Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 (NABE) relevantly considered in detail the authorities relevant to this matter as follows:
Failure to Deal with a Claim - Express and Implied Claims
55. Although the discussion in S20 did not set any precise limit upon the scope of factual error which may amount to or indicate jurisdictional error there is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on ‘... a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction – Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act…
…
58. The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
…
It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]):
‘If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.’
…
68. Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, ‘a substantial clearly articulated argument relying upon established facts’ in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal…

The Minister relies on the decision in Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287 at [70] where the Full Court approved the following statement by Allsop J in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 (NAVK) at [15]:
[T]he statutory task of the Tribunal is to assess the claims by reference to all the material not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but have not been, and then subjecting them to further analysis to assess their legitimacy.
The Minister also urges the Court to have regard to the caution expressed by Gleeson CJ in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1]:
There is a risk that criticism of the reasoning of a decision-maker at an earlier stage might overlook the forensic context in which such reasoning was expressed; a context that may have changed almost beyond recognition. Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process.
(footnotes omitted)
The Applicant relied on the decision of the Full Court in Minister for Immigration and Border Protection v MZYTS(2013) 136 ALD 547 (MZYTS). Counsel for the Applicant pointed out that, in MZYTS, the Applicant alleged that the Tribunal failed to consider and engage in a post-Tribunal hearing submission containing the most recent country information relevant to the risks facing the Applicant on return to Zimbabwe and, thereby, failed to consider an integer of the Applicant’s claim to fear persecution if he returned to Zimbabwe. The Full Court said, of the characterisation of the alleged jurisdictional error and the task confronting the Tribunal in a review under s.414 of the Act, the following at [32] to [36]:
32. The Tribunal’s task on review under s 414 of the Migration Act is to form, for itself and on the material before it, the requisite state of satisfaction under s 65 of the Migration Act in respect of the criterion (or criteria) for a visa in issue before it. Relevantly, and almost uniformly for the Tribunal (putting complementary protection to one side), the criterion is the one set out in s 36(2)(a) of the Migration Act, which picks up Art 1 of the Refugees Convention.
33. The occasion on which the application of this criterion is to be considered is the prospect that a person currently in Australia will be returned to her or his country of nationality, the risks if any she or he might then face, and the reasons she or he may face those risks. It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 571-573.
34. Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.
35. The determination of whether there is an objective basis for the person’s fear is the central part of the predictive or speculative task referred to in Chan and Guo. It can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person’s country of nationality at the time the person is likely to be returned there…
36. In that sense, to say there has been a “failure to consider recent information” or a “failure to consider a claim” may be no more than descriptions or explanations of the manner in which the Tribunal’s task has miscarried, but it is the miscarriage of the task which constitutes the jurisdictional error.
The Applicant also relies on SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81 where the Full Court, referring to MZYTS, said at [23]:
…the Refugee Review Tribunal cannot discharge its statutory review task without ‘a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the tribunal an accurate picture of the on-going circumstances on the ground’ …

Ground one

Submissions

Counsel for the Applicant emphasised that the first ground of review focused solely on claims advanced by the Applicant, that he would be harmed as a Tamil man. There seems to be no doubt that at various points in his statutory declaration attached to his application for a protection visa (CB 62 at [39]), the interview with the delegate (CB 96), the Applicant’s second statutory declaration (CB 165-169) and in the written submissions by the Applicant’s Migration Agent made to the Tribunal on his behalf (CB 175), the Applicant claimed that he feared harm as a Tamil from Batticaloa. So much was recognised by the Tribunal, where it said (CB 240 at [23]):
It was submitted that the applicant claimed that he feared harm as a Tamil from Batticaloa an area formerly under the control of the LTTE. The applicant’s agent submitted that prior to 2007 Batticaloa was under the control of the LTTE and the Tribunal accepts that this was the case. The UNHCR Guidelines state, “Originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection in the sense of the 1951 Convention and its 1967 Protocol.”
(footnotes omitted)
The Tribunal’s finding with respect to this claim is as follows (CB 240 at [24]):
The Tribunal does not accept that the applicant has ever been harmed in the past on account of being a Tamil from Batticaloa and the Tribunal finds that there is no real chance that the applicant would be persecuted in the reasonably foreseeable future for reason of being a Tamil from Batticaloa or Tamil and any fear of persecution on these bases is not well-founded.
The Applicant alleges that, on the face of the decision record, the Tribunal failed to identify and engage in a consideration of the Applicant’s integers of claim, arising from his claim of being a Tamil from Batticaloa, which arose from the material before the Tribunal as contained in the submissions dated 31 March 2014 made on the Applicant’s behalf. Consequently, the Applicant submits that the Tribunal failed to complete its statutory task.
It is appropriate to first repeat the specific integers of claims which it is alleged the Tribunal failed to consider. These are that:
a)Tamil people were at risk of sexual violence in custody;
b)Tamils are discriminated against in Sri Lanka; and
c)the Applicant may lose his land as part of a “Sinhalisation” process.
In support of the Applicant’s allegation that the Tribunal failed to consider the submissions and claims that indicated Tamil people were at risk of sexual violence in custody, Counsel for the Applicant relied on the following country information contained in extracts from submissions made by the Applicant’s Migration Agent.
Firstly, reliance is placed on a reference in the submissions to the country information which is located under the heading “Perceived or Imputed LTTE Support” as follows (at CB 193):
The current UNHCR Eligibility Guidelines on Sri Lanka state, amongst other things, about persons suspected of having links to the LTTE:
…
Information has been published documenting cases of mistreatment and torture of women and men in detention (police custody or other forms of detention), for reason of their or their family members’ alleged former links with the LTTE. Killings have been reported which appear to be politically motivated, targeting persons believed to be LTTE sympathizers. Sexual violence, including but not limited to rape, against Tamil men in detention has also been reported recently, including reports of cases perpetrated in the post-conflict period. Sexual harassment of former LTTE the combatants in rehabilitation centres has also been reported.
The Applicant submits that this extract from country information raises an integer of claim that, if he was incarcerated, he may be subject to sexual violence. He further submits that, in the context where the Tribunal member accepted that the Applicant would be held in detention for a term of between one day to several days and questioned when he was returned, and further accepted there were significant issues with prison conditions, this information, if considered, may have led the Tribunal to accept that there was a real risk of harm for the Applicant on return to Sri Lanka. The Applicant concedes that the assessment of risk of sexual violence is one for the Tribunal to make and that the Tribunal, if it had considered the claim, may have decided the risk was remote. However, the Applicant argues, the real issue is whether the Tribunal consciously considered this risk in the context of its other findings about detention and prison conditions. In the Applicant’s Outline Of Submissions, it is argued that (at [33]):
In order to have an accurate current understanding of the risks posed to the applicant, the submissions of the Applicant about sexual violence ought to have been taken into account. There was no process of weighing the country information provided by the Applicant against the country information relied on by the Second Respondent.
Counsel for the Applicant conceded that the particular extract arose in the Migration Agent’s submission, which dealt with the Applicant’s claim to perceived or imputed LTTE support, and accepts that this claim of imputed political opinion was rejected by the Tribunal. Counsel for the Applicant nevertheless submitted that once the Tribunal found that the Applicant would be detained (a finding that the Applicant did not know would be made), the Tribunal was obliged to consider the risks to the Applicant in custody of sexual violence. This was, Counsel submitted, because the Applicant had made another claim, which was that he feared harm because he was a Tamil. Counsel submitted that it was evident on the material before the Tribunal that these were risks for Tamils in custody. Thus, the decision-maker ought to have been attuned to those issues having read the submission, and ought to have dealt with them in some way by preferring other information or by rejecting the information out of hand, but not by completely failing to engage with the detailed information before it.
With respect to the Applicant’s allegation that the Tribunal failed to consider the claim that Tamils were discriminated against, the Applicant also relies on country information referred to in the submissions made on his behalf as follows:
a)the US Department of State 2013 Country Report on Human Rights Practices – Sri Lanka, dated 27 February 2014, which according to the submission “summarises the current appalling human rights situation in Sri Lanka.” (CB 181). That part of the report relied on by the Applicant states (CB 182):
Discrimination against persons with disabilities and against the ethnic Tamil minority continued, and a disproportionate number of the victims of human rights violations were Tamils.
(emphasis contained in the submission)
b)a report by Freedom House, ‘Countries at the Crossroads 2012 – Sri Lanka, dated 20 September 2012’ where it states (CB 182):
Tamils travelling to Sinhalese areas are routinely required to register with the police. No such registration requirements exists for Sinhalese citizens. In both Jaffna and Batticaloa, police registration of travelling Tamils began in 2011. As part of this registration process, the security forces have been interviewing Tamils in the north and east about their relatives living outside of the country.
(emphasis contained in the submission)
c)An extract from the same report which states (CB 182):
Among other things, the regulations, along with the PTA, allowed the unrestricted arrest and detention of terrorist suspects, powers that were applied disproportionately to Tamils. Despite the fact that the most draconian of the wartime laws, the PTA, was left in effect and continues to allow arrest and detention without charges…
(emphasis contained in the submission)
d)another extract from the US Department of State 2013 'Country Report on Human Rights Practices – Sri Lanka, dated 27 February 2014, which states (CB 187):
Tamils throughout the country, but especially in the north and east, reported that security forces and paramilitary groups frequently harassed young and middle-aged Tamil men.
(emphasis contained in the submission)
e)a report by Tamils Against Genocide entitled: ‘Sri Lanka’s White Van – Dual Criminality of the Sri Lankan State and Rajapakse Administration’, dated 18 July 2012, which states (CB 191):
…[t]he network of white van rings enables the Sri Lankan State to systemically deprive or undermine in fact de jure Tamil fundamental constitutional liberties, such as due process, writ of habeas corpus, and free speech, which in turn substantially constrict the ability of the Tamil community to participate in democratic political processes.
Counsel for the Applicant submits that, in the country information contained in the submissions made on the Applicant’s behalf, there was information relating to police registration of Tamils being implemented in Batticaloa. This information included people being asked specific questions about relatives outside Sri Lanka; regulations allowing unrestricted arrest and detention that were applied disproportionately to Tamil people; security forces and paramilitary groups frequently harassing young and middle-aged Tamil men and that the network of white van rings enabled the Sri Lankan state to systemically deprive and undermine in fact du jure Tamil fundamental constitutional liberties and democratic rights. Counsel for the Applicant submitted that this country information established a wealth of information regarding the question of Tamil people being discriminated against and gave rise to a strong claim of discrimination by the Applicant, which the Tribunal failed to have regard to.
With respect to the alleged claim of dispossession by the process of “Sinhalisation”, the Applicant relies on the submissions made on his behalf as follows, under the heading “Batticaloa” (CB 185):
…Since the end of the civil war in May 2009, Batticaloa remains highly militarized and there are ongoing abuses in the east by paramilitary groups. Tamils also face dispossession of land, forced registration and a “Sinhalisation” of the area. An article posted on TamilNet on 28 March 2013 entitled “SL military steps up militarisation of Batticaloa, new camp at Tsunami settlement” states:
The occupying Sri Lanka Army is constructing a new army camp in Ma’nmunai-North DS division of Batticaloa district, at a site where Tsunami affected people are settled.
…
The sheer extensiveness and the intensity of SL militarization and Sinhalicisation of the predominantly Tamil district in the East, are not even taken up for any discussion by the so-called international community that ‘hailed’ the ‘liberation’ of the East by genocidal Sri Lanka in 2007, Batticaloa Tamil activists said.
The Applicant also relies on the part of the Migration Agent’s submissions where it refers to Karuna activity, based on country information, and goes on to state (CB 189):
Their activities included “ballot rigging,” intimidation and violence during elections in the Ampara and Batticaloa districts (ibid); extorting money, abducting citizens and occupying land (Denmark Oct. 2010, 35); and killing and assaulting citizens (US 8 Apr. 2011, Sec. 1a). For example, TamilNet reported Batticaloa district residents as alleging that armed men from both factions were responsible for abductions and house robberies in villages on the outskirts of the district (16 Sept. 2010).
(emphasis contained in submission)
The Applicant also relies on the part of the submissions headed “Occupation of Land” where it states (CB 190):
In September 2010, the Secretary of the Aaraiyampathi Social Development Organization in Batticaloa, cited in a TamilNet article, said that both Karuna and Pillayan are helping government authorities to appropriate Tamil lands and redistribute them to Sinhala and Muslim people…
(emphasis contained in submission)
Counsel for the Applicant submitted that the Applicant’s submissions to the Tribunal contained comprehensively research and specific information about the dispossession of land from the Tamils to the Sinhalese, which gave rise to an integer of claim of the Applicant’s claim that he will be persecuted because of his Tamil ethnicity. Counsel for the Applicant argues that the Tribunal failed to engage with those submissions altogether.
In oral submissions, Counsel for the Minister conceded that there was not a detailed, express or specific engagement with some of the information in the Applicant’s submissions. However, he submitted that what was crucial to the resolution of these grounds of the application for judicial review, was how the information was used by the Applicant’s Migration Agent.
It was submitted that the question before the Court is whether the Applicant’s claim to fear harm because of his race as a Tamil was relied on, in the written submissions, as a distinct claim that survived and enlivened the country information, independent of the Applicant’s part of the claim based on links to the LTTE.
Counsel for the Minister pointed to the written submission made by the Migration Agent, where it was stated (CB 178):
Our client has experienced several forms of serious harm in the past in Sri Lanka directed at him because of race and his actual and/or perceived political opinion….in the form of:
·   threats of physical harm;
·   extortion;
·   abduction and arbitrary arrests;
·   interrogation and physical harm;
given that he has an adverse profile as a Tamil male who supported the TNA, had a close association with a TNA Parliamentarian and has familial links to someone who was involved, albeit forcibly, with the LTTE.
The Minister argues that it is clear that this articulation of the Applicant’s claim to fear of harm is put in a cumulative way, so that it is most appropriately read as “I fear harm because I will be perceived as pro-LTTE.” Read in context, the Minister submits that the Applicant’s fear of harm is not couched as one made separately from his claim to be perceived as someone with links to the LTTE or with links to family members who have connections with the LTTE. Counsel for the Minister noted that the extracts from country information relied on by the Applicant, are extracts under the heading “6. - Independent Country Information”, after which follows 20 pages of extracts from country information, with commentary by the Migration Agent inserted at various points.
Counsel for the Minister took the Court to the first occasion it is alleged that the Migration Agent, in the written submissions, comments on the country information as follows (CB 185):
We submit that country information, including that cited above, supports our client’s claims that he has been the victim of intimidation and threats, extortion, abduction and serious physical abuse by the Karuna Group and CID because of his strong and public support of the TNA and it’s candidate, [Mr A], during the 2010 parliamentary elections, as well as because of his ongoing association with him. We submit that although our client was not a member of the TNA, the fact that he transported [Mr A] during and after the elections and offered the use of his van made him a prime target for the Karuna Group and CID…

Counsel for the Minister argues that, in this analysis, the Migration Agent did not seek to apply the country information for the purpose the Applicant now seeks to raise.
Counsel for the Minister submits that the next engagement with the country information comes under the heading, “Perceived or Imputed LTTE Support” and is as follows (CB 193):
There is a plethora of country information which supports that Tamils are physically mistreated, tortured and killed by the Sri Lankan authorities and security forces, as well as the paramilitary groups associated with them, if perceived or suspected to be a supporter or member of the LTTE. Country information is clear that such suspicions often arise because of the person’s political activities and/or familial links to persons who have been connected (sic) the LTTE and inexorably linked to their Tamil ethnicity. We submit that such factors are present in our client’s case given his recent disclosure that his brother [Mr T] was forcibly recruited by the LTTE when he was 16 years old in 1993, escaped four years later, fled Sri Lanka in December 1997 and has subsequently been granted refugee status in France.
Emphasising this point further, Counsel for the Minister referred to the next engagement by the Migration Agent with the country information in the written submissions where it is said (CB 194):
We submit that the country information cited, as well is a plethora of other country information… strongly support our client’s claims that there is a real chance he will be persecuted if returned to Sri Lanka on account of his familial links to and perceived support of the LTTE… We submit that our client has a risk profile given these past events, coupled with his brother’s forced LTTE recruitment for almost four years and subsequent grant of refugee status in France… We submit that our client fits the profile of individuals identified as eligible for international protection in the current UNHCR Guidelines for Sri Lanka.
Counsel for the Minister points out that, in the written submissions, in the context of describing the harm the Applicant would be subject to on return to Sri Lanka as a non-voluntary returnee, the submission is made that there are “a number of risk factors that may lead to disclosure by the authorities in his local area that they are interested in him given his support for the TNA and suspected links to the LTTE” (CB 201).
The Minister submits that no claim or integer of claim can be said to have arisen from the material before the Tribunal that male Tamils were at risk of sexual violence in remand or custody. The Minister submits that the Applicant’s reliance on one sentence within country information referred to in the Applicant’s submission simply takes that reference out of context. The Minister argues that the extract from country information referring to reports of sexual violence against Tamil men in detention or custody (CB 193), occurred at the point in the submission where the Applicant’s migration agent was addressing the Applicant’s claim that he would be perceived to be an LTTE supporter.
The Minister submits, that the Applicant’s submission that an integer of his claim that upon return and being taken into detention or remand for illegal departure, he would be at risk of sexual violence, is no more than a creative reconstruction of a ‘claim’ that the Courts have frequently warned against. The Minister argues that the Applicant did not, with the clearness required as explained by authorities, including NABE, advance any such claim.
The Minister argues that, for the same reason, no claim or integer of claim arose squarely from the materials provided to the Tribunal that the Applicant would be discriminated against on the basis of his Tamil ethnicity. As to the asserted claim or integer of claim of dispossession by the “Sinhalisation” process, the Minister repeats his earlier submissions and points out that the “creativeness” of the submission is illustrated by the fact that there is no evidence that the Applicant owns land in Sri Lanka.

Consideration

There are two questions to be determined:
a)firstly, whether each of the claims or integers of claims (which is the basis upon which these claims are put by the Applicant) alleged in ground one can be said to be claims or integers of claim in the sense articulated by the authorities discussed above at [10] to [18]; and
b)secondly, if the answer is “Yes”, did the Tribunal consider the claims or integers of claims so that it can be said it completed its statutory task.
I turn firstly to consider whether the alleged claims or integers of claims were apparent on the face of the material before the Tribunal: NABE.
There is no doubt that the Applicant claimed to fear harm expressly for a reason of his race as a Tamil. However, I agree with the Minister, that when the Migration Agent’s written submissions are read as a whole, the claim to fear harm because of his race as a Tamil is generally treated as part of his claim to fear harm because he will be perceived to be a Tamil supporter or because of his familial links with the LTTE. This much, in my view, is evident from the analysis made by the Migration Agent in his written submissions in relation to the country information (see [35] to [39] above). It is apparent from the analysis made, that the focus is clearly on the Applicant’s imputed political opinion and that his claim to fear harm for reasons of his race as a Tamil is, to use the words of the Migration Agent, inexorably linked to his claim based on imputed political opinion (CB 193).

Tamil males are at risk of sexual violence in custody

I am not satisfied that such a claim or integer of claim can be said to have been apparent on the material before the Tribunal.
The exercise of deciding whether a claim or integer of claim is apparent on the face of the material requires, in my opinion, that the material be read in context. This is so, because the basis on which the material is put to the Tribunal, must be understood by the Tribunal in performing its function. The Tribunal clearly could not engage in this process if it considered the material outside of the context in which it was put. Otherwise, the Tribunal would be under an excessive burden of considering line by line whether the material gives rise to a claim or integer of claim: NAVK (supra).
The Applicant relies on an extract from the UNHCR Eligibility Guidelines in relation to sexual violence of Tamil men, which falls under the heading “Perceived or Imputed LTTE Support” of the submissions made by the Migration Agent on the Applicant’s behalf. The opening paragraph begins (CB 193):
There is a plethora of country information which supports that Tamils are physically mistreated, tortured and killed by the Sri Lankan authorities and security forces, as well is the paramilitary groups associated with them, if perceived or suspected to be a supporter or member of the LTTE.
(my emphasis)
In my opinion, there can be no doubt, taking into account the heading and the opening paragraph, that the reliance on country information referred to after the opening paragraph, relates to Tamils who are perceived or suspected to be supporters or members of the LTTE. The sentence introducing the country information emphasises this point, where it states (CB 193):
The current UNHCR Eligibility Guidelines on Sri Lanka state, amongst other things, about persons suspected of having links to the LTTE.
(my emphasis)
Indeed, the actual extract of country information (from the UNHCR Eligibility Guidelines) can only be read as referring to mistreatment of Tamils, including sexual violence of Tamil men in detention, where the authorities believe that they, or their family, have connections with the LTTE, or were LTTE sympathisers or former LTTE combatants.
The extract is as follows (CB 193):
Information has been published documenting cases of mistreatment and torture of women and men in detention (police custody or other forms of detention), for reason of their or their family members’ alleged former links with the LTTE. Killings have been reported which appear to be politically motivated, targeting persons believed to be LTTE sympathisers. Sexual violence, including but not limited to rape, against Tamil men in detention has also been reported recently, including reports of cases perpetrated in the post-conflict period. Sexual harassment of former LTTE combatants in rehabilitation centres has also been reported.
(my emphasis)
It simply cannot be said that it would be apparent that, upon the material, the Applicant was referring to the risk of sexual violence in custody generally for Tamil males. Mistreatment of this type is clearly raised in relation to Tamils who are suspected of links with the LTTE.
I reject the contention that the Tribunal, having rejected the Applicant’s claim to fear harm for an imputed political reason, was obliged to consider the risks to the Applicant of sexual violence when held on remand for a short period of time.

Tamil people are discriminated against in Sri Lanka

I am not satisfied that such a claim or integer of claim can be said to have been apparent on the material before the Tribunal.
The extracts relied on by the Applicant to support his argument, that an integer of his claim was discrimination against Tamil people (see [24] above), falls under a major heading “Independent Country Information”. The introductory paragraph begins (CB 181):
A synopsis of the country information supports a finding that despite improvements in the overall security situation following the end of the civil war, the human rights situation in Sri Lanka remains appalling and one in which widespread and systematic violation of human rights occur including arbitrary arrest and detention, abductions, extortion, disappearances and the “endemic” use of torture of those perceived to be politically opposed to the Sri Lankan government and/or of Tamil ethnicity. These violations occur with regularity and official impunity, where political and racial elements of such persecution are inexorably interlinked.”
(my emphasis)
It is manifestly clear from this paragraph, that the Applicant’s focus is human rights violations that occur in Sri Lanka based on grounds of Tamil ethnicity. It is not, in my view, a claim that Tamils are discriminated against. Rather, it is a claim that Tamils have suffered, and continue to, suffer human rights violations in Sri Lanka. I accept that human rights violations for reasons of a persons’ race/ethnicity may well constitute discrimination. It is also apparent that one extract from the country information expressly notes that discrimination against ethnic Tamil minority continues and that they suffer a disproportionate number of human rights violations (CB 182, also see [24] above). There are further extracts relied on; one referring to the fact that Tamils travelling to Sinhalese areas are required to register with the police (CB 182), one referring to the disproportionate application of terrorist suspect laws to Tamils (CB 182), one referring to the harassment of young and middle-aged Tamil men by security forces and paramilitary groups (CB 187) and finally, the use of “white vans” to subvert the ability of Tamils to participate in the democratic political processes (CB 191).
However, in my opinion, it could not be said that it was apparent on the material that the Applicant’s fear of harm because of his race as a Tamil, included the integer that the Tamil ethnic minority in Sri Lanka were discriminated against. It seems to me that, once again, the Applicant’s argument rests on an acceptance by this Court that the Tribunal was obliged to forensically examine the submissions of the Applicant, and treat the references in five extracts from country information as a coherent whole establishing the integer of claim so pressed.
I do not accept that the extracts from the country information which refer to harassment of Tamil men, the continued militarisation of Batticaloa, ballot rigging and harassing citizens during elections, can remotely be said to be material from which it is apparent that an integer of the Applicant’s claim to fear harm because of his race, was that Tamils in Sri Lanka are discriminated against.

Loss of land as part of “Sinhalisation” process

I am not satisfied that such a claim or integer of claim can be said to have been apparent on the material before the Tribunal.
I agree with the Minister that the foundation for the allegation that there was such an integer of claim is missing. I can see no material which establishes that the Applicant owned any land which could be misappropriated by a process of Sinhalisation.
In circumstances where there was no evidence to the effect that the Applicant owned land in Sri Lanka, it is, in my opinion, completely implausible to assert that the references to the process of Sinhalisation constituted material from which it would be apparent that an integer of the Applicant’s claim to fear harm because of his Tamil ethnicity was that he would lose his land as part of the process of Sinhalisation.
I find that no jurisdictional error arises from the Applicant’s ground one of judicial review.

Ground three

This ground is as follows:
By failing to have regard to the fact that the Applicant’s second brother was recognised as a refugee in Australia the Second Responded erred in that the Second Respondent failed to consider integers of the Applicants claim specifically the impact on the Applicant by virtue of the fact that the Applicant may be targeted with an imputed political opinion.
This claim relates to the Applicant’s claim that his second brother, Mr N, was recognised as a refugee. Counsel for the Applicant accepts that Mr N was not granted a protection visa. However, the Applicant relies on the fact that the Tribunal was satisfied that Mr N met the criteria specified in s.36(2)(a) of the Act, and that Mr N’s application for a protection visa was remitted to the Minister’s delegate for reconsideration on the basis that he satisfied s.36(2)(a) of the Act.
I see no difficulty in treating the reference in ground three, to the second brother being recognised as a refugee, as a reference to the Tribunal satisfying itself that the second brother met the criteria contained in s.36(2)(a) of the Act. Accordingly, I will consider this ground in these terms.
At the second hearing, Counsel for the Applicant submitted that the additional two grounds were put in the alternative. She stated that the best characterisation of the Applicant’s grounds is as an integer ground, which is the third ground that is prosecuted by the Applicant. The focus of her oral submissions was on ground three.
In addition to further written submissions filed for the second hearing, the following three affidavits were also filed for the purpose of the second hearing:
a)an affidavit affirmed by Mr N, filed on 10 November 2015, in which he states that he attended a hearing before the Tribunal on 29 May 2014. He identifies the name of the Tribunal member and says that the Tribunal made its decision on 23 June 2014. He also identifies the name of the lawyers who assisted him with his protection visa application. He annexed to his affidavit a copy of the Tribunal decision (“Tribunal decision dated 23 June 2014”);
b)an affidavit affirmed by Aaron Michael Day, solicitor for the Minister, filed on 4 May 2016, in which he deposes that he received instructions from his instructing officer that Mr N was never granted a protection visa and only ever held bridging visas. He annexed relevant records regarding Mr N’s visa status; and
c)an affidavit affirmed by the Applicant, filed on 12 May 2016, which relevantly deposes that Mr N’s young son passed away in October 2015 after the Tribunal decision dated 23 June 2014, but before his brother’s application for a protection visa was reconsidered. He deposed that his brother left Australia for Sri Lanka on 18 October 2015 to be with his wife and only daughter, who still resided in Sri Lanka.
Before I consider the submissions of the parties in relation to this ground, it is appropriate to set out the agreed matters in relation to the circumstances of the Applicant’s review application before the Tribunal and the Tribunal decision dated 23 June 2014. These are that:
a)the same Tribunal member heard and determined both the Applicant’s and Mr N’s application for review;
b)the Tribunal member made a decision with respect to Mr N’s application for review on 23 June 2014, and made a decision with respect to the Applicant’s application for review on 28 June 2014;
c)the Applicant and Mr N made distinct claims of fear of persecution although there was some overlap in the claims, such as their relationship with their brother, Mr T, who was involved in the LTTE and who resides in France having been granted refugee status, and their involvement with the TNA;
d)the Applicant and Mr N were assisted by different Migration Agents;
e)the Tribunal member was aware that the Applicant and Mr N were brothers;
f)the Tribunal member drew to Mr N’s notice during the Tribunal hearing that his brother, the Applicant, had provided through his Migration Agent, material “which establish the familial relationship and documents which showed that [Mr T] was recognised as a refugee in December 2000 on the basis that he was a member of the LTTE” (Tribunal decision dated 23 June 2014 at [51]); and
g)the Tribunal did not refer, in its decision record in relation to the Applicant’s application for review, to its finding that the Applicant’s brother, Mr N, satisfied s.36(2)(a) of the Act.
In the Tribunal decision dated 23 June 2014, in relation to Mr N, the Tribunal accepted the following claims (at [48]):
a)Mr N was Secretary of the Eastern Province Unemployed Graduates Association between 2006 and 2012, was involved in protests that the association organised and had meetings with parliamentarians;
b)the association worked together with the TNA;
c)the association refused to support the Chief Minister [Mr C] in the September 2012 elections; and
d)Mr N and the President of the association were abducted and bashed but managed to escape.
Relevant to this decision is the Tribunal’s later observation that Mr N claimed that one TNA member, [Mr A], was a friend of his father and that Mr N had helped in his election campaigns: “[t]he applicant said he was not a member of the TNA as he was afraid to be a member” (Tribunal decision dated 23 June 2014 at [30]).
In the Tribunal decision dated 23 June 2014, having considered the material which had been provided by the Applicant’s Migration Agent for the purpose of his application for review in relation to his brother, Mr T, the Tribunal stated (at [52]):
Based on this material the Tribunal accepts that the applicant’s brother was a member of the LTTE however given that he left Sri Lanka in or around 1997 and the applicant claimed that the family had no problems from the Sri Lanka authorities in the interim as a result of his brother’s involvement the Tribunal does not accept that this on its own would lead to a real chance that the applicant would be persecuted in the reasonably foreseeable future.
The Tribunal made the following relevant findings (at [37], [60] and [61] to [62]):
37. …[Mr N] was involved in an organisation that had connection (sic) with the TNA…
…
60. Based on [Mr N’s] evidence the Tribunal accepts that [Mr N] falls within the risk category of persons suspected of certain links with the LTTE because the he is related to a former LTTE member however as noted above this has not caused [Mr N] any problem in the past.
61. …[Mr N] would continue to be involved in political activities that advance the rights of Tamils in the future on return to Sri Lanka. The Tribunal accepts that as a result of his illegal departure he would be interviewed in (sic) return to Sri Lanka and this scrutiny may lead to investigations in his home area which would result in his past political activity is becoming known.
62. The Tribunal finds that as a result of a combination (of) his past political activities, his opposition to the Chief Minister [Mr C], the fact that he has a brother who was a member of the LTTE and that he left illegally and would return as a failed asylum seeker that the chance to (sic) his being harmed is not remote or farfetched. Therefore, the Tribunal is satisfied that there is a real chance that [Mr N] would be persecuted in the reasonably foreseeable future on account of his actual and imputed political opinions and that his fear of persecution is well-founded.

The Applicant submitted that it is apparent, from his statutory declaration attached to his application for the protection visa, subsequent submissions made on his behalf and a second statutory declaration, that a claim or integer of claim to fear harm made by him was an imputed political opinion arising from his familial relationships. Counsel for the Applicant concedes that the Applicant did not make a specific claim that he would be targeted because his brother, Mr N, was found to be a refugee in Australia or because of his political opinion. However, it is submitted that this claim became apparent at the time the Tribunal found that the Applicant’s brother, Mr N, satisfied s.36(2)(a) of the Act and, consequently, was recognised as someone to whom Australia owed protection obligations.
Counsel for the Applicant submitted that, in the absence of an express reference to its findings regarding the Applicant’s brother, Mr N, in circumstances where the Tribunal dealt with the issue of the Applicant’s brother who lives in France, the Court would be entitled to infer that the Tribunal failed to consider this integer of claim. Reliance is placed on the decision of the Full Court in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47] where the Full Court said:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
Counsel for the Applicant accepts that the facts of this case are somewhat unusual, as the integer of claim is said to arise because the same Tribunal member made both decisions and was, thereby, clearly aware of information in relation to Mr N, which was relevant to the determination of his brother’s claim, the Applicant in this case. This relevance, Counsel asserts, may be best appreciated from the overlapping claims by the Applicant and Mr N, regarding an imputed political opinion because of their relationship with their brother, Mr T, who lives in France.
Counsel for the Applicant points out that, in respect of Mr N, the Tribunal found that his relationship with his brother, Mr T, was not sufficient on its own. However, taken in combination with other matters, such as Mr N’s past political activities, his opposition to the Chief Minister and the fact he left Sri Lanka illegally and would return as a failed asylum seeker, it found that Mr N satisfied s.36(2)(a) of the Act. Counsel for the Applicant submits that, had the finding in relation to Mr N been considered together with Applicant’s relationship with his brother, Mr T, the Tribunal may have concluded, in dealing with the Applicant’s claim of imputed political opinion, that the Applicant’s risk of harm was heightened such that there was a real chance he may be targeted on return to Sri Lanka for the reason of his imputed political opinion.
In the First Respondent’s Supplementary Submissions, the Minister states (at [15]):
Importantly, there can be no suggestion that the applicant made a claim in his case to the effect that he feared suffering serious or significant harm in Sri Lanka on the basis that [Mr N] had been ‘recognised’ to be a ‘refugee’ (or any like claim). Nor, despite the applicant’s submissions, is there any support for the proposition that the applicant made a claim in his case to the effect that he may be ‘targeted with an imputed political opinion in that his [Mr N’s] political views may be imputed to him’ or that he may be ‘targeted as a person who has two brothers living outside Sri Lanka as recognised refugees’. Nor did any such claims arise squarely on the materials before the Tribunal. (Of course, the applicant did make a claim based on his other brother (Mr T) having connections to the LTTE (CB 164, 169, 178, 194, 206, 220, 230); and the Tribunal dealt with that claim ([52]-[59]).)
(footnotes omitted)
Counsel for the Minister firstly traversed the Tribunal decision made on 23 June 2014, for the purpose of distinguishing the findings of the Tribunal in relation to Mr N, and its subsequent decision in relation to the Applicant. Counsel emphasised that the Tribunal found Mr N’s evidence cogent, detailed and consistent, and made findings accepting Mr N’s level of involvement in political activities in Sri Lanka. This, it argued, is in contrast to the credibility findings regarding the Applicant and his lack of political involvement and activity in Sri Lanka.
Counsel for the Minister argues that the Applicant’s claims with respect to his familial links, were only in relation to familial links to someone involved with the LTTE; namely, his brother, Mr T. The Applicant’s claims based on familial links were not, the Minister argues, put on a general basis of links with family members with an active political profile in Sri Lanka. In making this submission, the Minister emphasised that the authorities make it clear that a relevant factor, when considering whether an implied claim arose from the material, is whether the Applicant was legally represented. The Minister argues that the fact that the Applicant was represented and no reference was made in the submissions with respect to Mr N’s claims to fear harm, suggest that the Applicant’s claims based on familial links did not extend to Mr N’s claims regarding his political activities in Sri Lanka. The Minister submits that it is relevant that both brothers, the Applicant and Mr N, relied only on their relationship with their brother, Mr T. The Minister concedes that both brothers (the Applicant and Mr N) referred to some involvement with the TNA but submitted that neither brother claimed that any association between the two of them would give rise to a claim to fear harm.
Counsel for the Minister submitted that, the mere fact that the same Tribunal member made a favourable decision in relation to a review of an application for protection visa of a relative of an applicant, does not oblige that Tribunal member to refer to or deal with that decision when considering the applicant’s application for review of his or her application for a protection visa.

Consideration

There is no doubt that a Tribunal, in conducting a review under s.414 of the Act, is not obliged to refer in its decision record to an earlier decision made following a review under s.414 of the Act in relation to a relative of the review Applicant. Whether or not a Tribunal has completed its statutory task under a review pursuant to s.414 of the Act must depend, at the very least, on a correct understanding of the basis (or bases) on which the Applicant says she or he has a fear of persecution: MZYTS (supra). This is, as I understand it, the essence of the submission of the Applicant; namely, that an integer of the Applicant’s claim to fear harm for the reason of his imputed political opinion is his familial links. The Applicant concedes, appropriately, that he did not make an express claim in relation to his brother, Mr N. However, he argues that the Tribunal’s finding that his brother satisfied the refugee criteria crystallised an implied integer of claim based on his familial links. This, it is argued, is supported by the fact that although the Applicant and Mr N made separate and distinct claims, they also made overlapping claims, in relation to their brother, Mr T, and their alleged connection to the TNA.
The first step, therefore, in considering ground three, is to identify what claims or integers of claims were made based on familial links.
In discerning the claims, materials and submissions which were made or provided to the Tribunal in relation to familial links, I have borne in mind the caution expressed by the superior courts about exposing an implied claim based on constructive or creative activity: NABE (supra), and the necessity to consider, on judicial review, a decision of a Tribunal in light of the basis upon which the application was made: S395 (supra).
In his statutory declaration attached to his application for a protection visa, the Applicant relevantly stated (CB 58 to 59):
6. My family and I have been staunch supporters of the Tamil political party TNA… for several years.
7. Though the TNA has been operating as a Tamil political party the Sri Lankan government perceive this Tamil party to have close links with the LTTE. Therefore the members and supporters of the TNA have been targeted by the Sri Lankan authorities and other armed Tamil paramilitary groups who work with the government.
8. … a close friend [Mr A] of my father who at the time was a member of parliament (a TNA MP)…
It is plain, in my opinion, having regard to the statutory declaration made by the Applicant at the time he lodged his application for the visa, that he made a claim that, because his family had been staunch supporters of the TNA, which the Sri Lankan authorities believed had close links with the LTTE, he and his family would be imputed as having links with the LTTE. This was his general claim. He also claimed he was involved actively with the TNA and that his father had a close friend in the TNA. It is apparent that another component of his claim to fear harm because of his familial links was the fact that his brother, Mr T, was involved in the LTTE. This claim was repeated in substance in the Applicant’s second statutory declaration (CB 165-169).
In the written submissions made on the Applicant’s behalf dated 31 March 2014, the Migration Agent expressly identified the Applicant’s claims to fear harm, as including his imputed political opinion because of his involvement with the TNA and the Applicant’s brother’s, Mr T’s, previous involvement with the LTTE. The submission also expressly identified the Applicant’s familial links to persons suspected of associating with or supporting the LTTE (see [8] above). In context, where the Applicant had earlier said in his first statutory declaration that those involved with the TNA were suspected by the authorities as having links with the LTTE, this characterisation of the Applicant’s claim is a general one and not to be confined to the Applicant’s relationship with his brother, Mr T.
Under the heading “3. The Applicant’s fear of persecution”, the Migration Agent identified in his written submissions, the reasons for the Applicant’s fear of persecution as his “adverse profile as a Tamil male who supported the TNA, had a close association with a TNA parliamentarian and has familial links to someone who was involved, albeit forcibly, with the LTTE” (CB 178).
It is plain that, throughout the written submissions made on his behalf by the Migration Agent, reference was repeatedly made to his familial links with his brother, Mr T. I do not accept, however, that this overwhelmed the general familial links the Applicant asserted as a basis to fear harm in his first statutory declaration, and which was repeated by the Migration Agent as claims made by the Applicant.
I am satisfied that, having regard to the evidence and material before the Tribunal, the Applicant maintained at all times a claim to fear harm because of his familial links (see for example extracts from the written submissions set out at [38] to [39] above). I reject the Minister’s argument that this familial link was limited only to the Applicant’s relationship with his brother, Mr T.
With respect, it is, in my view, disingenuous to refer to the written submissions made by the Migration Agent on the Applicant’s behalf and assert that, because there was no reference to the Applicant’s brother’s, Mr N’s, political activities, there was no claim made by the Applicant based on Mr N’s political activities and consequently, the Tribunal was not obliged, in conducting its review under s.414 of the Act, to address or consider the familial links as between the Applicant and his brother, Mr N.
The review process is inquisitorial rather than adversarial: NABE. Whilst it may be accepted that a relevant factor in considering whether a claim arose from the material before the Tribunal is whether an Applicant was legally represented. In this case, the Applicant and his brother, Mr N, had different lawyers/Migration Agents representing them. There is no reason to suggest that their respective representatives knew, or were aware of, the details of each of the other brother’s claims or the material relied upon. Indeed, it is apparent from the Tribunal decision dated 23 June 2014, that Mr N’s Migration Agent was unaware of the material that the Applicant’s Migration Agent had provided to the Tribunal regarding their brother, Mr T.
In the circumstances of this case, it seems more likely that only the Tribunal member was aware of the details of each of the brother’s claims, and the material relied upon. In the case of the Applicant’s brother, Mr N, the Tribunal found that the association with which he was actively involved, was connected with the TNA and that Mr N’s familial link with his brother, Mr T, put him in the category of risk because of imputed political opinion (although it noted that this had caused Mr N no problem in the past). The Tribunal ultimately found that, cumulatively, given Mr N’s political activities in Sri Lanka, the fact that he has a brother who was a member of the LTTE (together with his status as a failed asylum seeker or person who departed Sri Lanka illegally), it was satisfied that there was a real chance that Mr N would suffer harm because of his actual or imputed political opinion upon return Sri Lanka.
In the circumstances, the Tribunal was obliged, in my opinion, in deciding whether the Applicant’s fear of harm because of familial links was objectively well-founded, to consider in its decision, the Applicant’s relationship with his brother, Mr N, particularly in light of its findings about Mr N’s political activities. The Tribunal’s findings regarding Mr N’s claims, and the impact of his political activities, were matters which were within the Tribunal member’s knowledge. The Tribunal member’s decision in relation to Mr N was made only a few days prior to its decision in relation to the Applicant.
It may well be, that the Applicant’s familial link to Mr N, in light of the Tribunal’s finding regarding Mr N, may have persuaded the Tribunal that the Applicant’s fear of harm because of this familial links was objectively well-founded. On the other hand, the Tribunal may not have been so persuaded. This is clearly a decision to be made by the Tribunal and not the Court.
I am satisfied that, in the absence of any reference by the Tribunal in its decision record to the circumstances of the Applicant’s brother, Mr N, I can infer that the Tribunal did not deal with this issue: WAEE (supra).
The only question for the Court is whether the failure of the Tribunal to address the circumstances of the Applicant’s brother, Mr N, in its decision in relation to its review of the Applicant’s application for a visa, resulted in the Tribunal failing to consider a claim or integer of a claim made by the Applicant. For the reasons set out above, I find that the Tribunal failed to do so and thereby failed to complete its statutory task of review under s.414 of the Act.
I find this failure gives rise to jurisdictional error.

Ground two

Whilst Counsel for the Applicant did not expressly abandon this additional ground at the second hearing, she made it clear that the focus of the two additional grounds was on the failure of the Tribunal to deal with a claim or an integer of claim.
In light of my reasoning and findings with respect to ground three it is, in my opinion, unnecessary to consider this ground of the Applicant. As observed in MZYTS, a failure to consider a relevant consideration may be no more than descriptions or explanations about the manner in which a Tribunal miscarried its task.
As I understand the submissions of Counsel for the Applicant, the Applicant asserts that the Tribunal erred in considering a relevant consideration because that consideration formed part of the Applicant’s integer of claim. So understood, I am satisfied I have addressed this ground of review in considering the additional ground three above.

Conclusion

Having found that the Tribunal’s decision was affected by jurisdictional error, I will make orders quashing the Tribunal’s decision and remitting the matter for reconsideration according to law. I will also order that the First Respondent pay the Applicant’s costs.

I certify that the preceding one hundred and two (102) are a true copy of the reasons for judgment of Judge Jones

Date: 6 September 2016

[2016] FCCA 2313

6 September 2016

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction