MZZZM v Minister for Immigration and Anor and; MZAFB v Minister for Immigration and Anor

[2014] FCCA 2665

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZZM v MINISTER FOR IMMIGRATION & ANOR and
MZAFB v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2665

Catchwords:  
MIGRATION – Application for protection visas by father, mother and daughter – father applied under s.36(2)(a) and (aa), mother and daughter applied under s.36(2)(b) and (c) – delegate refused to grant visas – two decisions made by Tribunal in relation to application for review: one in relation to father and daughter, the other in relation to mother – Tribunal affirmed delegate’s decision in relation to father, daughter and mother – application for judicial review made by father and daughter and separately by mother – mother’s application for judicial review out of time – proceedings dealt with together – whether consideration of the applicant daughter’s claim for protection visa should be confined to the basis upon which she filed a valid application for a protection visa – whether Tribunal completed its statutory task under s.414 of the Act - whether claim made that eight year old daughter will suffer persecution or significant harm if returned to Sri Lanka – whether Tribunal considered applicant daughter’s claim – Tribunal failed to consider claim thereby failing to complete its statutory task – jurisdictional error – mother’s application for extension of time – Tribunal failed to consider claim she would be persecuted or suffer significant suffer harm if returned to Sri Lanka – jurisdictional error – extension of time granted – writs issued.

Legislation:

Migration Act1958 (Cth), s.36(2)(a) and (aa), s.36(2)(b) and (c), s.414, s.477(2), s.477(1), s.65, s.414

Migration Regulations 1994, cls.866.21, 266.211, 266.224, 140(1)

Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR
Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FR 28
Soondur vMinister for Immigration and Multicultural Affairs (2002) 122 FCR 578
SZGME vMinister for Immigration and Multicultural Affairs [2008] FCAFC 91
MZWDG v Minister for Immigration and Citizenship [2006] FCA 497
SZLGF v Minister for Immigration [2008] FCA 1369
SZGME v Minister for Immigration and Citizenship (2008) FCAFC 91
SZOVB & Ors v Minister for Immigration and Citizenship (2011) 125 ALD 38
NABE v Minister for Immigration (No. 2) (NABE) (2004) 144 FCR 1
SZLWI v Minister for Immigration (2008) 171 FCR 134
SZLGF v Minister for Immigration [2008] FCA 1369
SZOSQ v Minister for Immigration [2011] FMCA 873
MZZKA v Minister for Immigration and Border Protection [2014] FCA 633
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 16
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
SZPZJ v Minister for Immigration and Citizenship [2012] FCA 18

Applicant: MZZZM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 112 of 2014

Applicant: MZAFB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1074 of 2014

Judgment of: Judge Jones

Hearing date: 8 August 2014

Date of Last Submission: 8 August 2014

Delivered at: Melbourne

Delivered on: 19 November 2014

REPRESENTATION

Counsel for the Applicants in MLG 112 of 2014: Ms Grinberg

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondent: Mr Hill

Solicitors for the Respondent: Australian Government Solicitor

Counsel for the Applicant in MLG 1074 of 2014: Self - represented

Solicitors for the Applicant: Self - represented

Counsel for the Respondent: Mr Hill

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

Proceeding MLG 112 of 2014

1. A writ of certiorari issue directed to the Second Respondent in quashing the decision of the Second Respondent dated 20 December 2013.

2. A writ of mandamus issue remitting the matter to the Second Respondent and requiring it to determine according to law the application made to it by the applicants for review of the delegate of the First Respondent’s decision.

3. The First Respondent pay the applicants’ costs fixed in the sum of $6,646.

Proceeding MLG 1074 of 2014

1. Pursuant to s.477(2) of the Migration Act 1958, the time in which the mother may make her application for judicial review is extended to 5 June 2014.

2. A writ of certiorari issue directed to the Second Respondent in quashing the decision of the Second Respondent dated 20 December 2013.

3. A writ of mandamus issue remitting the matter to the Second Respondent and requiring it to determine according to law the application made to it by the applicants for review of the delegate of the First Respondent’s decision.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 112 of 2014

MZZZM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

MLG 1074 of 2014

MZAFB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This decision concerns two separate proceedings in which applicants from the same family unit seek judicial review of decisions of the Refuge Review Tribunal (“the Tribunal”).

2. In proceedings MLG112 of 2014, the applicants seek  judicial review of a decision of the Tribunal dated 20 December 2013 affirming a decision of a delegate  of the Minister for Immigration and Border Protection (“the Minster”) not to grant the applicants Protection (Class XA) visas (“protection visa”). The first applicant is the father whom I shall refer to in this decision as the father. The second applicant is the daughter, whom I shall refer to in this decision as the daughter.

3. In proceedings MLG1074 of 2014 the applicant is the mother and she seeks judicial review of a decision of the Tribunal dated 20 December 2013 affirming a decision of a delegate of the Minister not to grant her a protection visa (“Supplementary Court Book”). I shall refer to the applicant in this proceeding as the mother. The mother in her application filed 4 June 2014 asked that her application be dealt with together with proceeding MLG112 of 2014. As there was no opposition to this application I have dealt with both proceedings simultaneously.

4. It should be noted that, as the mother filed her application on 4 June 2014, she did not file within the 35 day time period permitted under s.477(1) of the Migration Act 1958 (“the Act”) for the making of an application for judicial review. The result is that in respect of the mother’s application, the Court must first decide whether, in the administration of justice, it should grant an extension of time under s.477(2) of the Act.

5. Any reference in this decision to the Court Book (CB) is to the Court Book filed by the Minister in proceedings MLG 112 of 2014.

Background

1. The father, mother and daughter are citizens of Sri Lanka and of Tamil ethnicity and Hindu religion.

2. The applications for protection visas were made on 20 June 2012 by the father, mother and daughter (CB1). The father applied for a protection visa in his own right (CB10) and completed Form 886C (CB12 – 37). The mother and daughter applied as members of the family unit (CB10) and completed Form 866D (CB38 – 90). The delegate, in her decision record dated 27 July 2012, found that the father was not a person to whom Australia owed protection obligations under s.36 of the Act. Consequently, the delegate refused to grant the father a protection visa. She also decided, as the mother and daughter applied as members of the family unit, to refuse to grant them a protection visa (CB116 -137).

3. The father, mother and daughter applied to the Tribunal for a merits review on 3 August 2012 (CB132-144).

4. On 9 October 2012, the Tribunal affirmed the decision not to grant the applicants a protection visa (CB218). Consent Orders were made on 18 July 2013 by this Court quashing that Tribunal’s decision. The parties agreed that the Tribunal had failed to consider an integer of the father’s claim with regard to his membership of a particular social group of young Tamil males born in LTTE controlled areas (CB241). The matter was remitted to the Tribunal for determination according to law.

5. The father, mother and daughter were invited to and attended a hearing of a differently constituted Tribunal on 21 October 2013. As the mother gave evidence, which the Tribunal considered to be of a sensitive nature, separate decisions were issued by the Tribunal in relation to the father and daughter’s application (CB378 – 402) and the mother’s application. The decision of the Tribunal in respect of the mother’s application for review was attached to the mother’s application for judicial review. I will first consider the application for judicial review in MLG 112 of 2014.

MLG 112 of 2014

Grounds of Judicial Review

1. By amended application for judicial review in proceeding MLG 112 of 2014, the grounds for judicial review are:

   1.   The Tribunal’s decision dated 20 December 2013 is affected by jurisdictional error because the Tribunal failed to complete its jurisdictional task.

   Particulars

   The Tribunal failed to consider a claim that arose clearly on the findings and materials before it. The Tribunal found that the first applicant, the father, would be detained for up to 2 weeks if returned to Sri Lanka.

   The Tribunal accepted that conditions of detention in Sri Lanka are poor and overcrowded.

   Material before the Tribunal referred to the position of children and juveniles in detention in Sri Lanka, to children being returned to Sri Lanka without adequate care arrangements.

   The Tribunal failed to consider whether there is a real chance that the secondary applicant, an 8-year-old girl, will suffer persecution or significant harm upon return to Sri Lanka, either while in detention herself or while the primary applicant, her father, is detained for up to two weeks.

Applicants’ Claims

1. The father’s claims in his statutory declaration attached to his application for a protection visa  are in the form of a narrative and can be summarised as follows (CB32 – 36):

   ·     he was born in Veppankulam, Trincomalee, Sri Lanka, he is a Tamil and his religion is Hindu;

   ·     he left Sri Lanka because of his Tamil ethnicity and imputed political opinion of being perceived of being involved with the LTTE;

   ·     in 1999, he and his younger brother were bathing in the sea in Sampour with a group of 4 or 5 men and a Sri Lankan Navy gunboat fired on them. His brother was killed and he suffered injury to his leg and lost a small part of his foot;

   ·     after he recovered from his injuries he worked as a farmer on his uncle’s farm in Pattithedal for around 2 years. There were no LTTE activities in this area and he lived there without incident;

   ·     in 2001 he went to Trincomalee town and worked as a labourer in a cement factory. He met his wife here. In 2003 they moved to Jaffna to marry as their families did not agree to the marriage;

   ·     at the end of 2005, after the birth of their daughter, they returned to Trincomalee town. During this time there had been peace talks between the LTTE and the Sri Lankan government;

   ·     in 2006, he started working as an Auto Rickshaw driver. Protests were organised by the LTTE of Tamil people in heavily populated Tamil areas. Their demands were for separate land. He felt obliged to join in the protests otherwise his society would think he was against Tamils;

   ·     the protest he attended was filmed by the Sri Lankan government and after the war started in 2006, the Sri Lankan government assumed that anyone who participated in these protests was either a member of the LTTE or strong supporters of the LTTE. His photograph was taken;

   ·     his parents lived in Sampour which was not controlled by the Sri Lankan army, however, Trincomalee town was. Whenever he crossed the border to visit his parents the army would note down his ID number and his Auto Rickshaw number-plate;

   ·     during the war there was heavy fighting in the LTTE controlled areas, including Sampour. His mother was killed in the shelling, his father was killed in the crossfire and his sister and her baby were also killed;

   ·     his other sister and brother came to live with him in Trincomalee town;

   ·     one day he was caught in a roundup by the army, he was identified by a masked man as being associated with the LTTE, he was taken along with 21 other men to a police station, he was accused of being a member of the LTTE, he was made to sign a document which had been written in Singhalese and he was placed in a cell. He stayed in this cell for 41 days;

   ·     he was tortured every day. He was interrogated about the LTTE. He told them he was a family man who drove a rickshaw. He was told by them that all Tamils are part of the LTTE, that he had participated in a protest and that he had taken LTTE members in his rickshaw and had provided food for the LTTE. He denied this but he was not believed;

   ·     after 10 days he was taken to Court, he was warned not to tell the Judge that he had been beaten and when he was asked by the Judge whether he had been beaten, he responded “No”;

   ·     the Judge said there was a suspicion that he had been involved in LTTE activities and sentenced him to be imprisoned for 100 days. He ended up serving 41 days because, after they made enquiries, they found out that he did not have any involvement with the LTTE;

   ·     on the day of his release he was warned by a Tamil speaking Muslim police officer to leave the country as soon as possible otherwise he might be shot;

   ·     he was scared and confused but started to drive his Auto Rickshaw again. He received calls from unidentified numbers. The callers spoke in Tamil but he could tell this was not their mother tongue. The calls were made at strange times and he was given addresses. He never went because there had been incidents of Tamil rickshaw drivers being killed;

   ·     one day while driving his rickshaw a white van pulled him over. He could see there were already 5 men in the van. He was let go but heard the next day that the men in the van had been killed;

   ·     after this incident his wife would not let him go out OF the house, she was scared for his safety, he was not working as he had to remain in hiding;

   ·     he decided he could not continue to live like this and made arrangements with a people smuggler for his family to go to India and then to Australia;

   ·     he fears if he returns to Sri Lanka he will be tortured and killed by the Sri Lankan authorities and Sri Lankan army for his suspected involvement with the LTTE because he has already been imprisoned;

   ·     the fact that he escaped from Sri Lanka will make the authorities even more suspicious that he was involved with the LTTE;

   ·     he fears other armed groups;

   ·     he fears persecution and significant harm because he is Tamil and has already been imprisoned and tortured for his ethnicity and imputed political opinion;

   ·     he cannot relocate to anywhere in Sri Lanka because it is the same everywhere, the same army and same government.  

2. The father provided, with his application form, letters of support (CB 96-98) and a copy of a detention order issued in 2006 by the Additional Secretary, Ministry of Defence, which stated in part “there are reasons to suspect that the father’s father is involved in the commission of the offences under the above regulation by aiding and abetting the LTTE terrorist activities by disrupting the life of the general public in Trincomalee area.” (CB101). The father also provided a Detention Attestation which stated that he was visited by the International Committee of the Red Cross (“ICRC”) between the dates 22 December 2006 and 17 January 2007 and that he was released from the Uppeveli Police Station on 23 January 2007 (CB110).

3. In her Form 886D, the mother stated that she was born in Anbuwall, Trincomalee, Sri Lanka, that she was Tamil and her religion was Hindu. The Form 886D completed for the daughter stated that she was born on 29 July 2005 in Jaffna, Sri Lanka, that she was Tamil and her religion was Hindu.

4. For the purposes of the review conducted by the Tribunal, the father’s legal representatives sent to the Tribunal, by correspondence dated 6 September 2012, a submission together with a statutory declaration by the father and documents translated by a qualified interpreter in the English and Tamil languages (CB186 - 213). The documents were in relation to the  father’ s father’s detention and his release and included:

   ·a document from the Uppuveli Police station that noted the father’s father had been suspected of being involved in terrorist activities. The investigations were completed and there was no objection to the release of the suspect.

   ·a document dated 2 January 2007 headed, Information to Magistrate, which stated the police were making further inquiries into the terrorist the father’s father and requested the court to grant an adjournment.

   ·a document from Uppuveili police station dated 30 January 2007 that stated on 17 December 2006 the father’s father was arrested for questioning on suspicion. He was produced before the court on 23 January 2007 and released.

5. In the submission, the father’s claims were identified as fearing serious harm from the Sri Lankan authorities and government–sponsored organisation, if he returned to Sri Lanka, for the reasons of his; Tamil ethnicity, Imputed political opinion as an LTTE supporter, Membership of a particular social group of young Tamil males born in LTTE controlled areas and Membership of a particular social group of failed returned asylum seekers from the West (CB189).

6. The submission referred to various international reports on the circumstances of Tamils in Sri Lanka, including extracts from the United Kingdom Border Agency Operational Guidance Note: Sri Lanaka, April 2012 in relation to unlawful detention practices of Tamils, especially those perceived to support the LTTE (CB191).

7. In his statutory declaration, declared 12 September 2012, the father claimed (CB203-205):

   ·     young Tamil men who were born in areas under the control of the LTTE continue to be suspected of being LTTE key members or sympathisers by the Sri Lankan government;

   ·     during the period 2007 to 2012, the Criminal Investigation Department (CID) and Karuna came to his wife’s vegetable shop around 20 times inquiring about his whereabouts. His wife told them that he was abroad. They replied that when he returned to Sri Lanka, they will be there waiting for him;

   ·     during this time he was constantly scared for his life;

   ·     he was released because the ICRC visited him in detention and persuaded the Sri Lankan authorities to let him go. Many detainees who were released because of the ICRC’s influence on Sri Lankan authorities, are kidnapped, go missing and found killed after resuming their normal lives. He believed this would happen to him if he remained in Sri Lanka;

   ·     the Sri Lankan authorities continue to harass his family about his whereabouts, they have gone to his mother-in-law’s house looking for him about three times, the last time they came to his house was in August 2012;

   ·     if he returned to Sri Lanka, he would not only be risking his life but his family’s lives too.

8. In a further submission dated 30 September 2012, the father’s legal representative submitted that the father “has a well-founded fear of harm due to his Tamil ethnicity, his imputed political opinion as perceived LTTE supporter, his membership of two particular social groups, namely young Tamil men, and failed returned asylum seekers from the West. If (the father) were to return to Sri Lanka, he would likely suffer serious harm in the reasonable (sic) perceivable future on account of these identified Convention-related grounds.” (CB250)

1. A statutory declaration by the father dated 14 October 2013 was provided to the Tribunal. The father declared that he was still of interest to the Sri Lankan authorities. He claimed he called his sister a month earlier and she advised him that people in civilian clothes, whom she believed to be the CID, came to her house looking for him. They asked about his whereabouts and she replied she had not seen him for 6 years. His sister asked them why they were looking for him and they replied that they were taking possession of his motorbike (registered under his name) as they had records of it being used by the LTTE.

2. The father says he bought the motorbike in Jaffna in April 2005 and gave it to the LTTE because the LTTE forced people who were living in the area to contribute such things for their operation. He says he only gave the motorbike to the LTTE out of fear (CB271).

3. Various articles, country information and a transcribed television interview was provided to the Tribunal (CB274-304). At the request of the Tribunal following the hearing on 21 October 2013, the father’s legal representative provided the Tribunal with a copy of the Report of UNHCR  on advice and technical assistance for the Government of Sri Lanka on promoting reconciliation and accountability in Sri Lanka (CB310-316).  Further copies of country information were also submitted on 12 November 2013 by the legal representatives, following the hearing, regarding failed returned asylum seekers (CB 317-373).

Tribunal Decision

1. The Tribunal described the claims of the applicants as follows (CB382-383):

   ·In 1999 his brother was shot and he was injured.

   ·He regularly travelled between government and LTTE controlled areas.

   ·In 2006 he participated in protests.

   ·At the end of 2006 relatives were killed when the war resumed.

   ·He was detained.

   ·He was released and in hiding.

   ·He faced continuing threats.

   ·The LTTE commandeered his motorcycle and it has been recently found by the authorities.

   He fears persecution due to:

   ·his Tamil ethnicity

   ·being accused of supporting the LTTE (imputed political opinion as a supporter of the LTTE)

   ·being a young Tamil male born in LTTE controlled areas

   ·being a young Tamil male

   ·being a failed asylum seeker from the west

   It was submitted that attributes which increase the real chance that the applicant would be persecuted are:

   ·He comes from the north

   ·He has visible scars and the UK home Office Report 2011-2012 indicated this was a risk factor

   ·He has been targeted in the past

   ·He is a member of the particular social group of 3 wheel drivers (as country of origin information indicates that the LTTE used such people)

   ·He claimed asylum in a western country with a pro LTTE diaspora that is still active

   ·He left illegally and the Immigration and Emigrants Act provides for 5 years gaol

   ·He carries a national ID that indicates that he was born in Kottipulam which is regarded as the home of the tigers

2. The Tribunal considered the claims and evidence of the father. A summary of findings was set out as follows (CB393 [98]): 

   ·The applicant, his wife and daughter are Tamils and they follow the Hindi religion.

   ·That the applicant was born in the Sampour area which was an area that was controlled by the LTTE until September 2006. He left Sampour in 2000.

   ·In 1999 the applicant was injured and his brother was killed when the navy fired on them.

   ·That between 2002 and 2006 the applicant regularly travelled between a Sri Lankan government controlled area and a LTTE controlled area and when he passed through checkpoints his details were noted.

   ·In 2006 the applicant participated in a LTTE celebration in Jaffna together with thousands of others.

   ·At the end of 2006 the applicant’s father, mother, sister and her baby were killed as a consequence of the fighting that was occurring at the time.

   ·The applicant was also detained in a round up as he was suspected of engaging in LTTE activities. He was detained under a law that allowed him to be held for 100 days without charge. He was investigated, interrogated and beaten. After 38 or 41 days he was released as the Sri Lankan authorities were satisfied that he was not connected to the LTTE.

   ·There was at least one occasion when he was telephoned and asked to collect passengers in his Auto Rickshaw in remote areas but he did not go.

   ·In 2008 he attended a family rehabilitation centre for counselling for trauma relating to the deaths of his family members.

   ·From the time he was released until he left Sri Lanka the applicant was working and the authorities were not looking for him.

   ·There was no incident where people attempted to abduct him in a white van.

   ·The authorities have not come making inquiries about his motorbike.

3. The Tribunal expressed some concerns about the father’s evidence in relation to detention as a result of “the confusion in the applicant’s time frame regarding his detention and the dubious nature of the documents he has provided”. It was prepared to “extend to the applicant the benefit of the doubt and accept that he was detained in a random sweep and accused of being involved in LTTE activities or being a member of the LTTE but that after that he was investigated the authorities in Sri Lanka were satisfied that he was not involved in LTTE activities  and he was released” (CB388 [65]).

4. The Tribunal did not accept that, after the father was released from detention, he was sought by the Karuna group or other the authorities (CB389 [72]):

   “72.Due to the applicant’s failure to mention in his protection visa application the fact the authorities continued to look for him after he was released, the fact there would be no reason for them to look for him immediately after releasing him, they were satisfied he was not associated  with the LTTE and had no interest in him, the Tribunal does not accept that after he was released the authorities were looking for him or that they had any further interest in him or believed that he was associated with, or supported, the LTTE. The Tribunal does not accept that he was sought by the Karuna group or other groups. The country information provided by the applicant’s agent indicates that suspected LTTE supporters were harmed and disappeared in custody at this time so the Tribunal does not accept that it was their modus operandi to release people so they could harm them”.

5. The Tribunal found that the applicant had fabricated his account regarding the white van (CB391[83]). The Tribunal did not accept the father and mother’s evidence regarding people coming and searching for him or that he stopped work during this time. The Tribunal accepted that the father and mother gave consistent evidence but found the evidence to be “implausible as there would be no reason for the authorities to be looking for the applicant as they had investigated him and released him and the fact that  his documentary evidence indicated that he was working” (CB392 [90]).

6. The Tribunal did not accept the father’s claim that around September 2013, the Sri Lankan authorities came to his sister’s home regarding a motor bike he claims he purchased in 2005 and then gave to the LTTE. The Tribunal found the claim to be implausible and one only raised before the Tribunal as presently constituted (CB392 [96] to 97]).

7. Under the general heading “What does the applicant fear on return and why?” the Tribunal proceeded to consider the claims it identified the father had made. One of the claims considered was “Failed asylum seeker.” The Tribunal stated (CB 396 [111]:

   “111.     The Tribunal accepts that the applicant left Sri Lanka illegally without a passport and if he returned to Sri Lanka it would be with a travel document issued in Australia and in these circumstances, coupled with the publicity that Sri Lankan asylum seekers have received in the Australia (sic) media, the Sri Lanka authorities would be aware that he had applied for asylum in Australia.”

8. The Tribunal stated that it had considered carefully the material provided by the applicant’s adviser including the UK Border Agency Operational Guidance Note: Sri Lanka, April 2012 and a March 2012 article from Tamilnet relating to persons suspected of supporting the LTTE (CB 396 [112]). The Tribunal also considered alternative country information which did not support the applicant’s claim that Tamil returnees had been harmed on return to Sri Lanka (CB 396 [113]). The Tribunal stated (CB 397[116]):

   116.  The Tribunal acknowledges that a Tamil is more likely to be suspected of having links to the LTTE but in the applicant’s case the Tribunal it (sic) satisfied that he has been investigated and cleared of any association with the LTTE. The applicant does not possess other characteristics (such as having a record as a suspected or actual LTTE member (he has been cleared and thus is no longer suspected), identified as having relatives in the LTTE, possession of the criminal record for having had an arrest warrant issued in respect of him) which are referred to in the UK Border Agency Bulletin as having anecdotally suggested risk.

9. Under the heading “Illegal departure” the Tribunal stated (CB 398 [120]) (footnotes omitted):

   “120.    The Tribunal acknowledges that the applicant might be prosecuted under the Immigrant and Emigrants Act of 1948 for leaving without a valid travel document or leaving from a place other than approved place of departure. The country information indicates initially this provision was not being enforced against failed asylum seekers unless they were regarded as people smugglers. However since November 2012 persons in the applicant’s situation have been charged with offences under this Act. Whilst the Immigrant and Emigrants Act of 1948 provides for the penalty of imprisonment, the courts have discretion to suspend the sentence of imprisonment or conditionally discharge an offender without conviction. As discussed at the hearing even if the applicant was to be persecuted under these provisions the likely outcome would be a fine…”

10. The Tribunal then set out extracts from DFAT advice dated 22 October 2012. It noted that bail is available for those charged under the Immigrant and Emigrants Act and that country information suggested bail is granted relatively quickly (CB 399[122]). The Tribunal found  that (CB 399 [123]) (footnotes omitted):

    “123.    Country information indicates that prison conditions in Sri Lanka may not meet international standards. Concerns include overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence. Prison conditions in Sri Lanka have been reported as likely to have breached Article 3 of the European Convention on Human Rights which prohibits “inhuman or degrading treatment or punishment”.

11. The Tribunal found that even if the father were to face prosecution under the Immigrant and Emigrants Act it would not be persecution within the meaning of the Convention as it would amount to enforcement of a law of general application. The Tribunal stated the evidence did not indicate that the father would be treated more harshly in relation to these offences for a Convention reason or that the laws would be discriminatorily applied implemented or enforced against the applicant for a Convention reason (CB399 [124]).

12. The Tribunal stated it placed weight on the DFAT advice and was consequently satisfied that (CB 399 [125]):

    “…the applicant will be held in remand for a short period, from between one day to several days, if he is charged with an offence under the Immigrant and Emigrants Act. The Tribunal has considered whether a short period of remand gives rise to a real risk he will suffer significant harm”.

13. The Tribunal then stated (CB 400  [130]):

    “130.    The Tribunal accepts that prison conditions in Sri Lanka are poor and overcrowded and that the applicant may suffer discomfort whilst in prison. The applicant will be remanded for a short period of time, between one night to several nights possibly up to two weeks. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant or amounts to an act which could reasonably be regarded as cruel or inhuman. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission which is intended to cause extreme humiliation which is unreasonable.”

14. The Tribunal concluded with respect to the father’s claim (CB 401 [136]):

    “136.    The Tribunal finds that the applicant does not face a real chance of serious harm in Sri Lanka as a member of a particular social group or either failed asylum seekers or returnees or persons who left Sri Lanka illegally. The Tribunal also finds that the applicant status as a failed asylum seeker or a returnee who may be charged with improperly departing Sri Lanka does not give rise to substantial grounds for believing that there is a real risk he will suffer significant harm upon being returned to Sri Lanka."

15. With respect to the daughter’s application, the Tribunal stated (CB401  [139]):

    “139.    The second named applicant does not have her own independent claims and is relying on her membership of the family unit but as the applicant has been found not to be owed protection obligations she cannot satisfy the requirements of paragraph 36(2)(b) or(c).”

Statutory Context

1. The statutory provisions governing the grant of a protection visa are relevantly as follows.

2. S.65 of the Act provides that the Minister, after considering a valid application for a visa, is to grant the visa if so satisfied of certain specified matters, including relevantly, “other criteria for the visa prescribed by the act or regulations”.  If the Minister is not so satisfied he or she is to refuse to grant the visa.

3. S.36 of the Act relevantly provides:

   36 Protection visas

   (1) There is a class of visas to be known as protection visas.

   …………………………………..

   (1A) An applicant for a protection visa must satisfy:

   (a) the criterion in subsection (1B); and

   (b) at least one of the criteria in subsection (2).

   (1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act1979).

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

   (a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

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

   (b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

   (i) is mentioned in paragraph (a); and

   (ii) holds a protection visa; or

   (c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

   (i) is mentioned in paragraph (aa); and

   (ii) holds a protection visa.

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

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

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

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

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

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

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

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

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

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

   …………………………………..

   Protection obligations

   (3) Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.

   (4) However, subsection (3) does not apply in relation to a country in respect of which:

   (a) the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

   (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.

   (5) Subsection (3) does not apply in relation to a country if the non‑citizen has a well‑founded fear that:

   (a) the country will return the non‑citizen to another country; and

   (b) the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

   (5A) Also, subsection (3) does not apply in relation to a country if:

   (a) the non‑citizen has a well‑founded fear that the country will return the non‑citizen to another country; and

   (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the other country.

4. Schedule 2 to the Regulations set out the criteria for the grant of a Subclass 866 Protection visa. The criteria are relevantly:

   866.21—Criteria to be satisfied at time of application

   866.211

   (1) One of subclauses (2) to (5) is satisfied.

   (2) The applicant:

   (a) claims to be a person to whom Australia has protection obligations under the Refugees Convention; and

   (b) makes specific claims under the Refugees Convention.

   (3) The applicant claims to be a member of the same family unit as a person who is:

   (a) mentioned in subclause (2); and

   (b) an applicant for a Protection (Class XA) visa.

   (4) The applicant claims to be a person to whom Australia has protection obligations because the applicant claims that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

   (5) The applicant claims to be a member of the same family unit as a person who is:

   (a) mentioned in subclause (4); and

   (b) an applicant for a Protection (Class XA) visa.

   866.22—Criteria to be satisfied at time of decision

   866.221

   (1) One of subclauses (2) to (5) is satisfied.

   (2) The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.

   Note: See paragraph 36(2)(a) of the Act.

   (3) The Minister is satisfied that:

   (a) the applicant is a person who is a member of the same family unit as an applicant who is mentioned in subclause (2); and

   (b) the applicant mentioned in subclause (2) has been granted a Protection (Class XA) visa.

   Note: See paragraph 36(2)(b) of the Act.

   (4) The Minister is satisfied that the applicant:

   (a) is not a person to whom Australia has protection obligations under the Refugees Convention; and

   (b) is a person to whom Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.

   Note: See paragraph 36(2)(aa) of the Act.

   (5) The Minister is satisfied that:

   (a) the applicant is a person who is a member of the same family unit as an applicant mentioned in subclause (4); and

   (b) the applicant mentioned in subclause (4) has been granted a Protection (Class XA) visa.

   Note: See paragraph 36(2)(c) of the Act.

Applicant’s submissions

1. The applicants make the following submissions:

   a)the Tribunal is obliged under s.414 of the Act to consider all the claims of the applicant in making its decision, otherwise it fails to complete the exercise of the jurisdiction embarked on: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR at [42] per Allsop J (Htun);

   b)the Tribunal’s function is inquisitorial. Consequently it is required to determine the substantive issues raised by the material and evidence before it, not merely the case articulated by the applicant: Htun per Merkel J at [13]; Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FR 28 at [63];

   c)the Tribunal is required to consider the claim of a secondary applicant in circumstances where an independent claim arises on the findings or material before the Tribunal in relation to that applicant. The Act and the Migration Regulations 1994 (“the Regulations”) provide for consideration of claims of a secondary applicant both on the basis of the secondary applicant’s claims to be a refugee and claims as a member of the same family unit as someone in respect of whom Australia has protection obligations: Soondur vMinister for Immigration and Multicultural Affairs (2002) 122 FCR 578 at [33]; SZGME vMinister for Immigration and Multicultural Affairs [2008] FCAFC 91 (SZGME ) at [91], [86] and [106] per Black CJ and Alsop J ;

   d)the Tribunal found that upon returning to Sri Lanka, the father will be detained for up to 2 weeks for failing to comply with Sri Lankan Immigration and Emigration laws. The Tribunal did not consider what would happen to the daughter either in detention or while the father was being detained. Such considerations raise different issues and needs to be considered separately to the harm that might be faced by the father on return to Sri Lanka;

   e)the Tribunal’s only consideration of the daughters’ position was to state that she did not have her own independent claim and relied on her claim as a member of the family unit;

   f)the Tribunal did not discharge its obligation to consider the applicants’ position simply by making reference to the terms in which the applicants articulated their claim: MZWDG v Minister for Immigration and Citizenship [2006] FCA 497 at [38] per Young J;

   g)the material before the Tribunal clearly gave rise to a claim in relation to the treatment the daughter applicant would face upon return to Sri Lanka:

   i)country information referred to by the Tribunal indicated that prison conditions in Sri Lanka may not meet international standards by reason of overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence; and

   ii)the UK Border Agency Operational Guidance Note: Sri Lanka, April 2012 refers in part to the situation of children, stating that in some cases juveniles are not held separately from adults, that pre-trial detainees often were not held separately from those who were convicted and that minors can only be returned when they have family to return to or where there are adequate reception or care arrangements: paragraphs 3.9.3 and 4.3.1.

2. The applicants submit that a consideration of the authorities in relation to the obligation on a Tribunal to consider claims of a secondary applicant, both on the basis of the secondary applicant’s claims to be a refugee and claims as a member of the same family unit, is assisted by reference to the history of amendments to the Regulations specifying the criteria for protection visas (Reg.886). The applicant submits that substantive amendments were effected to the criteria specified in the Regulations for a protection visa on 9 November 2009. These, they submit, had the effect of clarifying that once an applicant made a valid application under either basis at the time of application, there was nothing to prevent the applicant changing that basis at the time of decision.

3. Counsel points out that the criteria to be satisfied under the current Regulations, cl.266.211 – Time of Application – and under cl.266.221 – Time of Decision – are similar. Significantly, it is said, there is no linking between the requirements under Time of Decision with Time of Application criteria.

4. By comparison, Counsel points to the criteria which applied prior to amendments in 2009 (which introduced the criteria under cl.866.211 and 866.222 substantively in their current form). Schedule 2, Subclass 866 then relevantly provided:

   866.21 Criteria to be satisfied at time of application

   866.211 The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and:

   (a) makes specific claims under the Refugees Convention; or

   (b) claims to be a member of the same family unit as a person (the claimant) who:

   (i) has made specific claims under the Refugees Convention; and

   (ii) is an applicant for a Protection (Class XA) visa.

   ……………………………………………………………..

   866.22 Criteria to be satisfied at time of decision

   866.221 The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.

   866.222 In the case of an applicant referred to in paragraph 866.211 (b):

   (a) the Minister is satisfied that the applicant is a member of the same family unit as a claimant referred to in that paragraph; and

   (b) that claimant has been granted a Protection (Class XA) visa.

5. Counsel argued that there were clear linkages between the criteria at the Time of Decision with those specified at the Time of Application. If a person applied as a member of the family unit they were required to satisfy different criteria at the Time of Decision than at the Time of Application. The effect of the 2009 amendments, they submit, was to consolidate two separate clause under the one criteria; namely that, “The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention or the Minister is satisfied that the applicant is a member of the same family unit of an applicant mentioned above who has their own specific claims.” (T9).

6. Reliance is placed on the Explanatory Statement accompanying the amendments where it is stated with respect to the amendments to the Principal Regulations:

   “Interchange of status between an applicant who makes specific claims for protection and an applicant who relies on the claims of the primary applicant will be allowed in the case of an applicant for a Subclass 866 (Protection) visa lodged by a member of the family unit of a primary applicant ” (p.1)

   and

   “The purpose of this amendment is to clarify that regardless of the protection visa applicant’s status at the time of the application, at the time of decision the protection applicant can be either a person who satisfies the Minister that they are a person to whom Australia has protection obligations under the Refugees Convention, or they can be a member of the same family unit of such a person if that person has been granted a protection visa.”

7. The applicants submit that the decision of Graham J in SZLGF v Minister for Immigration [2008] FCA 1369, which is relied upon by the Minister, should be distinguished on the basis that it was made in the context of the Regulations which applied prior to the 2009 amendments.

8. Counsel referred the Court to two decisions of the Federal Court. Counsel submitted that the decision of the Full Court in SZGME v Minister for Immigration and Citizenship (2008) FCAFC 91 (SZGME) at [86] and [90] stands for the proposition that all an applicant for a protection visa is required to do is file a valid application for a protection visa. An applicant is not limited to completing one particular basis for protection (namely, protection in his/her own right or as a member of a family unit). Further, once a valid application is made, the applicant is not limited to the basis upon which he or she made her application (namely, protection in his/her own right or as a member of a family unit) provided claims were made in relation to the changed basis.

9. Counsel submits that the decision of Katzman J in SZOVB & Ors v Minister for Immigration and Citizenship (2011) 125 ALD 38 (SZOVB), stands for the proposition that an applicant’s claim for a protection visa, which the Tribunal is required to consider on review, is not confined to claims which fall within the basis or bases upon which the applicant made their application for a protection visa. 

10. Counsel submits that the authorities clearly establish that the Tribunal’s obligations to consider the applicants claims extend beyond those clearly articulated by the applicant for a protection visa: NABE v Minister for Immigration (No. 2) (NABE) (2004) 144 FCR 1 at [58].

11. It is submitted that a natural consequence of the inquisitorial process is that the Tribunal must consider the case that arises from the evidence before it, regardless of how that is specifically put by the applicant: MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs (MZWDG) [2006] FCA 497. In MZWDG his Honour, Justice Young held at [39] that:

    “39. On the authorities, the Tribunal is obliged to consider at least three types of claims; first, those that are explicitly put by the applicant; secondly, those that are implicit in the material before the Tribunal; and thirdly those that emerge from the Tribunal’s findings or conclusions”.

12. The applicants submit there was a clear claim that arose as a result of the evidence before the Tribunal, and the findings made by the Tribunal and that claim was left unresolved. It is argued the claim relates to the daughter applicant who was 8 years old at the time of the Tribunal decision. The evidence and findings which it is argued gave rise to a claim by the daughter that she feared persecution or significant harm if returned to Sri Lanka is identified as follows:

    a)the Tribunal accepted that the applicant left Sri Lanka illegally without a passport and that, if he returned to Sri Lanka, he would be with a travel document that had been issued in Australia and that in these circumstances the authorities would know he applied for asylum in Australia;

    b)the undisputed evidence was that the daughter never had a passport (CB 46);

    c)the Tribunal found that the father might be prosecuted under the Immigrant and Emigrants Act of Sri Lanka (CB 398 at [120]) and that that Act was one of general application. The applicants state that it is to be presumed that that law would be applied to the daughter who left in the same circumstances as the father;

    d)the Tribunal found that although the father would likely be fined under the Immigrant and Emigrants Act of Sri Lanka, he would likely be detained in jail for a period of up to 2 weeks (CB 400 at  [130]);

    e)the Tribunal found that prison conditions in Sri Lanka may not meet international standards because of concerns which included overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence (CB 399 at [123]);

    f)the material contained in the UK Border Agency Operational Guidance Note: Sri Lanka, April 2012, in relation to children (see [41(g)] above).

13. The applicants submit that the evidence before the Tribunal and findings of the Tribunal gave rise to a clear claim; namely, whether the daughter would be persecuted or suffer significant harm if returned to Sri Lanka.

Minister’s submission

1. The Minister submits that there was no obligation on the Tribunal to consider whether there was a real chance the daughter would suffer persecution or significant harm on her return to Sri Lanka by reason of being detained herself or while her father is detained because:

   a)the applicants expressly and consistently put their case on the basis that the father claimed to be a person in respect of whom Australia owes protection obligations under s.36(2)(a) and s.36(2)(aa) of the Act and the daughter only had claims as a member of his family unit;

   b)the particular claim now asserted did not arise clearly from the material before the Tribunal as the evidence before the Tribunal was that the daughter has family on both the father and mother’s side living in Sri Lanka and therefore has family support on her return. Moreover, the Tribunal found that the most likely result for breach of the immigration laws would be fine, not imprisonment. Further, it was not claimed that the daughter as distinct from her father could or would be prosecuted for breach of this law.

2. The Minister submits that the applicable principles in relation to claims made by applicants for protection visas are:

   a)the Tribunal is not required to deal with claims which are not articulated and which do not clearly arise from the materials before it. A claim does not clearly arise if it depends for its exposure on constructive or creative activity by the Tribunal: NABE v Minister for Immigration (No. 2) (NABE) (2004) 144 FCR 1[58], [60] to [61]; Minister for  Immigration v SZRMA [2013] FCAFC 161 at [70];

   b)the Tribunal is not required to consider criteria for an application never made: NABE v Minister for Immigration ( No.2) (2004) 144 FCR 1 (NABE) at [62] referring to Re Minister for Immigration; Ex Parte Applicants S134/2002 (2003) 211 CLR 441 at [31] to [32] (S134/2002)

   c)the Tribunal is not obliged to speculate on claims that did not squarely arise on the material before it and it is not open for an appellant to reformulate his or her claims on an ex-post facto basis: SZLWI v Minister for Immigration (2008) 171 FCR 134 at [23].

3. The Minister submits that the issue in this proceeding is not one of considering the ambit of claims made by an identified claimant, such as in NABE, but whether the daughter has made any claim at all. Counsel for the Minister drew the Court’s attention to the observation in NABE at [68] that a claim not expressly advanced is not lightly to be made. The claim must emerge clearly from the materials before the Tribunal.

4. Counsel submitted, with respect to the observation of Justice Young in MZWDG that the Tribunal is obliged to consider at least three types of claims, including, ”those that emerge from the Tribunal’s findings or conclusions”, that the claim must clearly arise from the findings .

5. The Minister accepts that a person can be both a primary applicant under s.36(2)(a) or (aa) and a secondary applicant under s.36(2)(b) and (c) and that a person who makes a valid application for a protection visa under one criterion specified in s.36 may, before the applications’ final determination, change the basis of that application: SZGME at [73], [86] to [87]. [90], [93].

6. The Minister submits, however, that a person may also simply apply as a family member of a person who claims to satisfy the protection obligations under s.36(2)(a) or (aa). That is, a person may simply apply for a protection visa under s.36(2)(b) and (c). The Ministers argues that the Regulations require an applicant for protection visa complete form 866 (Sch 1, cl.140(1)), which comprises form 866B (“persons included in this application”), form 866C (“application for an applicant who wishes to submit their own claims for protection”) and form 866D (“application from member of the family unit”).

7. The Minister relies on the decision of Graham J in SZLGF v Minister for Immigration [2008] FCA 1369 (SZLGF). In this case the husband ticked the relevant box in the form stating he did have his own claims to be a refugee and then filled out Pt C of the application form. The wife ticked the box stating she did not have her own claim to be a refugee and completed Pt D of the application form. His Honour stated that “in the circumstances, the wife’s claim for a protection visa had to rise or fall with the success of the (husband’s) claim to be a refugee within the meaning of the convention.” (At [43])  The Minister notes that the High Court refused an application for special leave in SZLGF.

8. The Minister also relies on the decision of Federal Magistrate Lloyd-Jones (as His Honour then was) in SZOSQ v Minister for Immigration [2011] FMCA 873 (SZOSQ). In this case the applicants were represented by a migration agent. The wife was the primary applicant, whereas, the husband and son both completed form 866D, there was no separate claim made by them in respect of being persecuted and seeking protection. In his decision his Honour held that the application of the husband and son had to rise or fall on the success of the mother’s application(at[38]):

   
   
   

   “38.  In this matter clearly the first applicant’s husband and son have not articulated any claim for protection and in the words of his Honour Graham J in SZLGF their “claim for a protection had to rise or fall upon the success of the first applicant’s claim to be a refugee within the meaning of the convention”.  The situation would have been distinctly different if the second and third applicants had completed form 866C and either advanced their own claim or referred to the primary applicant’s statement of claim and indicated that they would also be persecuted because of their relationship with the primary applicant.  That has not been done upon the informed advice of the registered migration agent.  The submissions being made to the Court are in effect asking both the delegate of the Minister and the Tribunal to speculate as to the nature of a claim not articulated by either the second applicant or third applicant.”

9. Counsel submitted that the Regulations cannot alter the fundamental structure of the relevant provisions of the Act; namely, section 36 which prescribes that applicants for protection visas satisfy s.36(2)(a) or (aa) - a claim for protection in their own right; or s.36(b) and (c) - a claim for protection as a family member. Counsel argued that the question, fundamentally, is whether a person has applied only as a family member or are they applying with claims in their own right. The question is, the Minister submits, a question of fact. The correct question the Court should ask is: looking at the application made, as a matter of substance, has the daughter made her own claims or has she applied only as a family member.

10. The Minister submits that the applicant daughter has made no claims in her own right. The Minister submits that the circumstances in this case are analogous to those in SZLGF where Justice Graham was well aware that the forms are decisive. The Minister submits that it relies on SZLGF for the proposition that, if the Court is satisfied that a person applies only as a family member, the application for a protection visa rises or falls with the success of the applicant in their own right (T 23). Counsel for the Minister submitted that in SZOVB there was material (in the form of statutory declarations and statements by the applicants) from which it could be said that the husband and children (who indicated in their application for a protection visa that they applied as a member of the family unit) made claims in their own right.

11. The Minister concedes that, given the age of the daughter at the time of the review by the Tribunal, if there were claims to be made by her, they would have to have been made by either parent on her behalf.  

12. The Minister submits that the Court cannot be satisfied that (either expressly or by reference to the material before the Tribunal) there were claims made by or made on behalf of the daughter for protection visa in her own right because:

    a)in the father’s statutory declaration attached to the application for a protection visa (declared 20 June 2012), the father stated that both his wife and daughter do not have separate claims and are secondary applicants (CB 32);

    b)the daughter and his wife completed form 866D (CB 45);

    c)although in his statutory declaration (declared 12 September 2012) attached to submissions sent to the Tribunal, the father stated that if he returned to Sri Lanka he “would not only be risking my life, but my family’s lives too” (CB 205), this was a claim that the family fears persecution by reason of their connection with him and not a claim that they have any reason to fear persecution in their own right;

    d)the Tribunal was not obliged to consider the whole of the UK Border Protection Agency Guidance Note: Sri Lanka, April 2012 to search for extracts from that document which were not specifically drawn to the Tribunal’s attention by way of submissions made on their behalf to the Tribunal. Such a requirement amounts to a requirement that the Tribunal undertake an independent analytical exercise for the discovery of claims which have not been made: see NAVK cited in NABE at [58];

    e)there was no material before the Tribunal as to whether the Immigrant and Emigrants Act applied to minors. It is a presumption made by the applicants in their submissions that this law would so apply. However, given Sri Lanka has Commonwealth connections it is more likely that such a law would not apply to minors. The Minister relies on a decision of Bromberg J in MZZKA v Minister for Immigration and Border Protection [2014] FCA 633, wherein his Honour held that the appellant’s contentions called upon the Tribunal to make various assumptions about Sri Lankan law (at [16]);

    f)the information contained in the UK Border Agency Operational Guidelines: Sri Lanka, April 2012, regarding children returning to Sri Lanka without family support is not relevant in this case. The evidence before the Tribunal is that there is family support in Sri Lanka; that being, the maternal grandmother, the paternal grandmother and the father’s sister (CB 205 and CB 252)

Consideration

1. The Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (MZYTS) observed that descriptions such as “failure to consider evidence” may explain a path of legal analysis leading to jurisdictional error. However:

   “the error itself is a failure to perform the statutory task imposed on the Tribunal by the relevant provisions of the Act.” (at [32]).

2. The Full Court held that Tribunal’s task on review under s.414 of the Act is to form, for itself and on the material before it, the requisite state of satisfaction under s.65 of the Act in respect of the criterion (or criteria) for a visa in issue before it (at [32]). The formation of the state of satisfaction for the purposes of ss.36(2)(a) and 36(2)(aa) of the Act involves two steps:

   …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.

3. In Htun, Allsop J (as his Honour then was) held that the requirement of the Tribunal to review a decision of delegate of the Minister to grant or not to grant a protection visa under s.414 of the Act “requires the Tribunal to consider all the claims of the applicant. To make a decision without having first considered all the claims is to fail to complete the jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act…” at [42]. In Htun Merkel J observed (at [7]) that the Tribunal must address, cumulatively, all of the essential elements of the claim or claims raised by the material or evidence.

4. The Tribunal’s task in considering the claims (articulated or otherwise) of applicants made under s.36 of the Act was considered by the Full Court in Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 16 at [70]:

   70.    In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088, Gummow and Callinan JJ at [24] (with whom Hayne J agreed at [95]) said that the Tribunal is obliged to address “a substantial, clearly articulated argument relying upon established facts”. In NABE v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, the Court at [58] said:

   “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] FCA 1901; (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] FCA 1693; (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (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] FCA 263; (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] FCAFC 120; (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”.

   And Allsop J (as he then was) said in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCA 1695 at[15]:

   “Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the 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 which have not been, and then subjecting them to further analysis to assess their legitimacy”.

5. The Minister correctly submits that a finding that a claim was made by an applicant for a protection visa, not on the basis that it was expressly made, but arising from the material must not be lightly made: NABE. This much was made clear by the Full Court in NABE when it referred to, with approval, the observations made by Allsop J (as his Honour then was), in NAVK that a common sense approach requires the unarticulated claim to “arise tolerably clearly” from the material itself.

6. I am further satisfied that, with respect, the common sense approach identified by Chief Justice Allsop should equally be adopted where a claim is to be identified by reference to the findings of the Tribunal in the sense identified by the Justice Young in MZWDG. That is, the claim should arise tolerably clearly from the findings made by the Tribunal. I note here, although an argument was not put to this effect by the Minister, that I do not take Justice Young’s identification of the different bases from which claims may arise to be cast as alternatives. In other words, the claims of an applicant for a protection visa may arise from each of the bases cumulatively.

7. The Tribunal may fall into error if it fails to correctly understand the basis, or the bases, upon which an applicant claims a well-founded fear of persecution. The jurisdictional error, in such a case, is the failure of the Tribunal to perform the statutory task imposed on it by the relevant provisions of the Act: MZYTS at [31].

8. The Tribunal’s consideration of such material must be “real or active”: MZYTS at [39]. As Kirby J said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (at 595):

   …the judge, reviewing the decision which is impugned, must look beyond the inclusion in the reasons of the decision-maker of the relevant statutory provisions, the citation of relevant authority or the assertion that these have been taken into account. The judge must assess whether a real, as distinct from a purported, exercise of the power has occurred. Where it has not, there is a constructive failure to exercise jurisdiction which will constitute an error of law authorising the provision of relief.

9. As the Full Court emphasised in MZYTS, the task for a Court on review is not to assess the quality of the Tribunal’s reasons, but rather to consider what the Tribunal’s reasons, as they are, reveal about the Tribunal’s performance of its statutory task (see MZYTS at [57]).

10. In SZPZJ v Minister for Immigration and Citizenship [2012] FCA 18 Nicholas J stated at [62]:

    “It is accepted by the first respondent that the Tribunal is obliged to consider claims which, while not expressly advanced, are apparent on the face of the material before the Tribunal: NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58].”

    And at [68]:

    “It (the Tribunal) was not required to consider theoretical possibilities that were not adverted to by the applicant and which had no support in any of the material before it.”

11. The issues which the Court must determine are:

    a)Is the statutory task of review by the Tribunal with respect to the daughter’s claims for a visa protection confined to the basis upon which she made her application for a protection visa;

    b)If not, was a claim made on an alternative basis; namely under s.36(2)(a) or s.36(2)(aa) and what was the nature of the claim made;

    c)Did the Tribunal consider the claim.

    d)Was the Tribunal required to consider, in completing its statutory task of review, whether the daughter would:

    i)Suffer persecution whilst she was in detention or, alternatively whilst her father was in detention: s.36(2)(a); or

    ii)Suffer significant harm whilst she was in detention or, alternatively whilst her father was in detention: s.36(2)(aa).

12. It is to be noted that the Minister concedes that if the Court finds that the Tribunal fell into jurisdictional error on the grounds claimed by the applicants in these proceedings, then it follows that the Tribunal committed the same error in reviewing the mother’s application (MLG1074 of 2014).

13. I turn to consider the first issue; namely, whether the Tribunal was required to consider the daughter’s claim only on the basis she identified in the application made for a protection visa.

14. The circumstances in SZGME were that a family unit applied for a protection visa. In Pt D of the application all members of the family unit answered questions about the basis of their application. The daughter ticked the “yes” box indicating she had claims to be a refugee and completed a form C (protection in her own right). The mother (SZGME) and father ticked the “no” box in response to the question, “Do you have your own claim to be a refugee?” but did not complete form D (member of a family unit), as instructed to do by the text of Pt B. (at [56]). In their application for review before the Tribunal both the mother and father completed form C. The Court was required to consider whether the mother made a valid visa application. The Court held there was substantial compliance and consequently a valid application was made.

15. Black CJ and Allsop J, observed in their joint judgment that the relevant form for the subclass 866 visa and regulation 866 at that time, which set out the criteria for protection visa, made clear that someone is an applicant for a protection visa even if he or she is a member of the same family unit as someone who makes specific claims under the refugees convention (at [72]). Their Honours stated at [73]:

    “If there was a valid application for a protection Visa by the mother as a family unit member, it was refused by the delegate. The refusal of this application was sought to be reviewed. In such circumstances, it is difficult to see why SZGME could not, before the Tribunal, change the basis for her claim to such a visa from being a member of the family unit to her own fears of persecution.”

16. Their Honours further noted (at [90]) that there was no reason “why an applicant could not apply for protection visa under both bases.”

17. The applicants submit that the decisions of Graham J in SZLGF and Lloyd-Jones J in SZOSQ should be distinguished as they were made prior to the amendments to the Regulations in November 2009.

18. If these decision are relied on for the proposition that the statutory task of the Tribunal to review decisions under s.414 is confined to a consideration of claims (either expressly made or arising from the material before the Tribunal) only so far as they relate to the particular basis upon which the application was made, then this must be rejected on the basis that it is contradictory to SZGME and SZOVB. In any event, I am not satisfied that the Minister relies on these decisions for this proposition.

19. In SZOVB, the appellants were the wife, husband and two children. The wife completed her application for a protection visa on the basis of a fear of persecution for a convention reason (the criteria set out in s.36(2)(a) of the Act), whereas the husband and two children applied on the basis of being a member of a family unit (the criteria set out in s.36(2)(b)of the Act). The issue the Court was required to determine was whether the Tribunal had considered a component integer of the appellant’s claim. In the Minister’s Notice of Contentions, the Minister contended that the husband and children did not make any claims before the Tribunal to be refugees in their own right. Katzmann J stated at [28]:

    “…This contention is made on the basis that only the first appellant completed a form 866C – “application for an applicant who wishes to submit their own claims to be a refugee”. The other members of the family completed forms 866D – applications for members of the family unit who do not have their own claims to be a refugee.”

20. Although it was not necessary to deal with the notice of contention, his Honour proceeded to indicate why he considered it unsound. His Honour stated at [62] to [63]:

    “[62] The Minister accepted that applicants do not need to complete 866C forms in order to have their refugee claims considered. He also accepted that applicants who complete 866D forms may change the bases of the application before the Tribunal: see SZGME … But the Minister contended that the Federal Magistrate erred when he found … that the second, third and fourth appellants made their own claims for protection. He submitted that there was nothing to indicate that they expressly indicated that they wish to make claims in their own right and the declaration that formed part of their visa applications suggested otherwise. He conceded that “to some extent” the statutory declarations they made detailed incidences of harm perpetrated by local youth (upon them) but he submitted that they are properly viewed as evidence in support of the first appellant’s claims rather than evidence of a separate claim for protection.

    [63] I reject the contention. In my view it is based on a preference for form over substance. Each of the appellants claimed that he or she feared persecution for convention reason. The Tribunal was bound to consider their claims: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1; 219ALR 27; [2004] FCA SC 263 at [58] and the cases referred to in there).”

21. There appears to be no dispute, and I am satisfied, that a person who makes a valid application for a protection visa may make claims he or she fears persecution for a convention reason or significant harm and/or make claims as a member of a family unit. An applicant is not confined, at the time of decision to the basis upon which he or she made claims in his or her application for a protection visa. Claims can be made prior to and at the time of decision, on an alternative basis.

22. A Tribunal reviewing a decision of a delegate of the Minister under s.414 of the Act is obliged, in completing its statutory task, to consider all claims made, irrespective of the basis on which the application for the protection made: SZGME.

23. The question then becomes, were claims made on an alternative basis; namely under s.36(2)(a) or s.36(2)(aa) of the Act.

24. Having regard to the authorities considered above, it can be said that the Tribunal, if it is to complete its statutory task (and hence avoid falling into jurisdictional error) is required to consider claims that are articulated by the applicant or which arise tolerably clearly (adopting the approach identified by Alsop CJ in NAVK and approved by the Full Courts in NABE and SZRM.A) from the material before the Tribunal or from the Tribunal’s findings of fact.

25. I am satisfied that, by reason of his statutory declaration, declared on 12 September 2012, the father claimed that his daughter (and wife) would suffer significant harm if they returned to Sri Lanka. The particulars of the significant harm his daughter would suffer on return to Sri Lanka were not identified.

26. The father claimed (CB205) :

    “If I return to Sri Lanka, I would not only be risking my life, but my family’s lives too.”

27. In my opinion, read fairly, this was a claim made by the father, on behalf of his wife and daughter, that if they returned to Sri Lanka, their lives would be at risk; they would suffer significant harm. It may well be a claim connected to the father or arise independently from him. This does not, in my view affect the fact that the father articulated a claim of fear of significant harm on behalf of his wife and daughter if they returned to Sri Lanka.

28. The statutory task of the Tribunal in relation to s.36(2) is a predictive one. In MZYTS the Full Court stated at [33]:

    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] HCA 62; (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571-573.

29. The Tribunal was obliged to consider the claim that the daughter will suffer significant harm if the family returned to Sri Lanka and engage in a predictive exercise regarding the circumstances on the basis of the material before it. The Tribunal did not do so.

30. I find, therefore, that the Tribunal having failed to consider the claim made that the daughter’s life would be at risk if the family returned to Sri Lanka, failed to complete its statutory task and fell into jurisdictional error.

31. The Tribunal referred to the following material and made the following relevant material findings of fact in relation to the father’s claim that he would be persecuted or suffer significant harm, if returned to Sri Lanka,  as a consequence of leaving Sri Lanka illegally or as a failed asylum seeker:

    a)The father departed Sri Lanka illegally and without a valid passport;

    b)The father may well be prosecuted under the Sri Lankan Immigrant and Emigrants Act of 1948 for departing Sri Lanka, however, he is likely to  be granted bail relatively quickly;

    c)The father would likely be remanded in a Sri Lankan jail for a short period of time, from one day to up to two weeks;

    d)Prison conditions in Sri Lanka may not meet international standards because of overcrowding, poor sanitary facilities, limited access to food and other factors.

32. The daughter, like the father, did not have a passport, left Sri Lanka illegally and would return to Sri Lanka with documentation identifying her as a failed asylum seeker.

33. The Tribunal stated it had carefully considered the information provided by the father, including the UK Border Agency Operational Guidance Note: Sri Lanka, April 2012.[1]

    [1] A copy of the UK Border Agency Operational Guidance Note: Sri Lanka April 2012 is contained in Annexure A to the affidavit filed by Alexandra Jannetto, Solicitor, Victorian Legal Aid

34. The Guidance Note deals with prison conditions in Sri Lanka. As the applicant points out, the Guidance Note observes that in some cases juveniles are not held separately from adults [section 3.9.3].  It concludes [at section 3.9], based on country information, “Conditions in prisons in police custody are very poor and taking into account the levels of overcrowding, unsanitary conditions, lack of food and incidence of torture, are likely to reach the Article 3 threshold …”

35. The Guidance Note also cautions, in relation to Minors claiming in their own right, that [at 4.3.1]:

    At the moment we do not have sufficient information to be satisfied that there are adequate reception, support and care arrangements in place for minors with no family in Sri Lanka…”

1. The Tribunal considered and referred to extracts from the Guidance Note which were not expressly referred to in submissions made by the applicant’s legal representatives.

2. The Tribunal considered, having regard to the material before it whether there would be a real risk he would suffer significant harm if he were detained for a short period of time under Sri Lankan law and decided he would not.

3. The Minister submits that there was no obligation on the Tribunal to read the whole of the Guidance Note but only those parts of the Guidance Note which were specifically drawn to the Tribunals attention by way of submissions or evidence during the hearing. The Tribunal referred to extracts from that Guidance Note which were not specifically referred to by the applicants in the submissions to the Tribunal made on their behalf: cf CB191 – 192 with CB399 [123]. It can be safely inferred that the whole of that Guidance Note was material before the Tribunal and that the Tribunal read it in its entirety. I reject the Minister’s submission, therefore, that the Tribunal is being asked to conduct an independent analytical exercise by the applicants.

4. The Minister submits that the applicant’s submissions entail an assumption regarding the application of the Immigrant and Emigrants Act of 1948 to the daughter.

5. The Minister relies on the decision of Justice Bromberg in MZZKA. The context in which his Honour made his observations was the submissions by the appellant that he had raised a claim about the potential activation of a suspended sentence imposed on him for attempting to leave Sri Lanka illegally. His Honour set out the background to the alleged claim (at [11] to [12]):

   11.“The Tribunal accepted by reference to a translated copy of a Court order (the Court Order) that the appellant was fined Rs.20,000 with three months’ imprisonment in default of payment. The Court Order, so far as is relevant, was in the following terms:

   According to this 06 months imprisonment with heavy work. I withhold this for five years. I hereby impose a penalty of Rs.20,000/- (Twenty thousand only) failure to pay the fine he will be sentenced for three (03) months.”

   12.“The Court Order was provided to the Tribunal by the appellant after the Tribunal’s hearing. Other than providing the Court Order, the appellant did not suggest to the Tribunal that he was the subject of a suspended sentence which would be activated on his return to Sri Lanka. “

6. The appellant had conceded that an express claim had not been made before the Tribunal but submitted it arose from the material before the Tribunal. His Honour held that the claim was not raised either expressly or on the material before the Tribunal (at [16]):

   16.The potential punishment, including the potential for imprisonment, which the appellant feared on return to Sri Lanka was a matter which was directly raised during the hearing before the Tribunal. Despite that, the existence of a suspended sentence or its potential activation was not raised. Further, the text of the Court Order relied upon is ambiguous as to whether a suspended sentence was imposed. Additionally, the appellant’s contention called upon the Tribunal to make various assumptions about Sri Lankan law, including as to the circumstances in which a suspended sentence would be activated.

7. I do not find that the circumstances of that case and his Honour’s findings assist the Minister’s submissions regarding the assumptions required of the Tribunal in relation to the application of the Immigrant and Emigrants Act to the daughter. 

8. In this matter, the Tribunal gave detailed consideration to the application of the Immigrant and Emigrants Act generally (CB398 [120] to [122]) and found that it was a law of general application (CB399 at [124]). Having regard to this analysis, the Tribunal went on to find that the applicant would likely be detained for a period of up to two weeks. It was in the context of this law and the country information before it in relation to Sri Lankan prisons, that the Tribunal proceeded to determine whether the father met the criteria under s.36(2)(a) and (aa). As the Tribunal clearly had before it applicable legislation, including the Code of Criminal Procedure Act (No. 15 of 1979) (see footnote 9, CB398), it is most unlikely the Tribunal would have been required to make assumptions about the application of the legislation to the daughter. It is more probable than not that that information was before the Tribunal. Even if the Tribunal found that the Immigrant and Emigrants Act did not apply to minors, there nevertheless remained the question of the circumstances of the daughter during the period the father was detained.

9. I am satisfied, having regard to the material before the Tribunal and its finding of facts that a component integer of the claim made that the daughter would suffer significant harm on return to Sri Lanka was that the daughter would suffer significant harm whilst she was in detention or, alternatively, whilst her father was in detention: s.36(2)(aa).

10. The Tribunal did not consider this component integer of the claim made that the daughter would suffer significant harm on return to Sri Lanka.

11. Having failed to complete its statutory task under s.414, the Tribunal fell into jurisdictional error.

12. Consequently I would order that a writ of certiorari issue quashing the decision of the Tribunal dated 20 December 2013 and order the Tribunal  determine the application made by the applicants according to law.

MLG1074 of 2014

1. Pursuant to s.477(1) of the Act the mother was required to file her application for judicial review within 35 days of the date of the delegates decision (20 December 2013). As the mother filed her application on 4 June 2014, she clearly did not file her application within time.

2. Section 477(2) provides:

   “(2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”

3. The non-exhaustive list of factors to be considered by the Court in determining whether an extension of time is “in the interests of the administration of justice” include:

   a)the extent of the delay;

   b)the reasons for it;

   c)any prejudice to the respondent;

   d)the impact on the applicant if time is not extended;

   e)the interests of the public at large;

   f)any exercise of the Court’s discretion, and

   g)the merits of the proposed substantive application.[2]

   [2] HuiyangLi v Minister for Immigration & Anor [2011] FMCA 12 at para.35 per Nicholls FM; WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at para.7 per Judge Lucev (“WZASC”).

4. The mother has not filed an affidavit setting out the reasons why the Court should grant her an extension in time. Nor, it must be said, was the question of the Court granting her an extension of time subject to submission by the mother and the Minister. This was largely because the Minister accepted in oral submissions that if the Court found that the  Tribunal’s decision in MLG112 of 2014 was affected by jurisdictional error, then it would follow that the Tribunal’s decision in relation to the mother was likewise affected.

Tribunal Decision

1. The Tribunal noted in its decision record, regarding the mother’s application for review (at [4] and [5] of the Supplementary Court Book):

   4. The applicant made no claims for protection and did not complete a part C. However due to the sensitive nature of the evidence she provided to the Tribunal which could be construed as including a claim for protection it has provided her with a separate decision record.

   5. The applicant appeared before the Tribunal on 21 October 2013 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an Interpreter in the Tamil (Sri Lankan) and English languages.

2. The Tribunal in its “Consideration of Claims and Evidence”, identified the father’s claims as (at [23]) to [25] Supplementary Court Book):

   ·In 1999 his brother was shot and he was injured

   ·He regularly travelled between government and LTTE controlled areas

   ·In 2006 he participated in protests

   ·At the end of 2006 relatives were killed when the war resumed

   ·He was detained

   ·He was released and in hiding

   ·He faced continuing threats

   ·The LTTE commandeered his motorcycle and it has been recently found by the authorities.

   He fears persecution due to

   ·His tamil ethnicity

   ·Being accused of supporting the LTTE (imputed political opinion as a supporter of the LTTE)

   ·Being a young Tamil male born in LTTE controlled areas

   ·Being a young Tamil male

   ·Being a failed asylum seeker from the west

   It was submitted that attributes which increase the real chance that the husband would be persecuted are:

   ·He comes from the north

   ·He has visible scars and the UK home office Report 2011-2012 indicated this was a risk factor

   ·He has been targeted in the past

   ·He is a member of the particular social group of 3 wheel drivers (as country of origin information indicates that the LTTE used such people)

   ·He claimed asylum in a western country with a pro LTTE diaspora that is still active

   ·He left illegally and the Immigrants and Emigrants Act provides for 5 years gaol

   ·He carries a national ID that indicates that he was born in Kottipulam which is regarded as the home of the tigers

3. As can be seen this identification of the mother’s claims is substantially the same as  that in the Tribunal’s decision made with respect to the father’s and daughter’s application for review.

4. Likewise, an identical summary of findings was made: (Supplementary Court Book at [96] and CB 393 at [98]).

5. Identical findings were made with respect to the father’s claims as a failed asylum seeker and person departing Sri Lanka illegally: See Supplementary Court book at [109], [110], [128].

6. The Tribunal dealt with the mother’s evidence that (Supplementary Court Book [139] to [143]):

   ·after the father’s release in 2007 from detention to February 2012, the authorities came looking for him;

   ·pushed her with a gun butt, used vulgar words and attempted to attack her violently.

7. The Tribunal disbelieved the mother’s account and found, that even if the mother had suffered a violent attack it was an isolated incident which occurred during a war which was characterised by violence to women (Supplementary Court Book at [148] to [150]).

8. Consequently it found the mother did not meet the criteria under s.362(a) or (aa).

9. It also found that the mother did not satisfy s.36(2) on the basis of being a member of a family unit.

Extension of Time

1. The delay in the mother applying for judicial review is not insignificant and no reasons are advanced for the delay. No prejudice to the respondent is identified. The impact on the mother if time were not extended would only be adverse if the chances of success in her substantive case were reasonable.

2. Turning to the merits of the mother’s case. The issues for determination can be summarised as:

   a)Is the statutory task of review by the Tribunal with respect to the mother’s claims for a visa protection confined to the criteria under s.36 of the Act specified in her application for a protection visa;

   b)If not, was a claim made on an alternative basis; namely under s.36(2)(a) or s.36(2)(aa) and what was the nature of the claim made;

   c)Did the Tribunal consider the claim.

3. With respect to the first issue I rely on the reasoning set out in [79] to [88] above in this decision.

4. I am satisfied for the reasons set out at [92] to [95] that by reason of his statutory declaration, declared on 12 September 2012, the father claimed that his wife would suffer significant harm if she returned to Sri Lanka. The particulars of the significant harm his wife would suffer on return to Sri Lanka were not identified.

5. For the purpose of completing its statutory task under s.414 of the Act, the Tribunal was required to identify all claims or integers of the claims made by or on behalf of the mother, both those made expressly and those which arose on the materials and from its findings. The claims must be tolerably clear and not involve creative thinking or speculation. Once done, the Tribunal was required to deal with the claims or a component integer of any claim.

6. The Tribunal did consider the mother’s claim that she had suffered harm from acts of violence inflicted on her.

7. I am satisfied that a component integer of the claim that the mother would suffer significant harm if she returned to Sri Lanka was she would suffer significant harm whilst she was in detention. I do so, having regard to the reasoning set out at [97] to [107]. The mother, like the father, did not have a passport, left Sri Lanka illegally and would return to Sri Lanka with documentation identifying her as a failed asylum seeker. The Immigrant and Emigrants Act of 1948 would apply to her. She would likely be detained like the father for up to two weeks. Country information before the Tribunal indicated that prison conditions in Sri Lanka may not meet international standards because of overcrowding, poor sanitary facilities, limited access to food and other factors.

8. The Tribunal was obliged to consider the claim that the mother will suffer significant harm whilst she was in detention and engage in a predictive exercise regarding the circumstances on the basis of the material before it. The Tribunal did not do so.

9. Consequently, the Tribunal fell into jurisdictional error.

10. Given my conclusion as to the mother’s substantive claim, I am satisfied that in the administration of justice I should extended the period in which the mother may make her application for judicial review. Further, I would order that a writ of certiorari issue quashing the decision of the Tribunal dated 20 December 2013 and order the Tribunal  determine the application made by the applicant according to law.

I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date: 19 November 2014