SZWBJ v Minister for Immigration

[2016] FCCA 2927

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWBJ v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2927

Catchwords:
MIGRATION – Application for review of Tribunal decision – whether Tribunal erred in assessing complementary protection claims – whether Tribunal failed to deal with or identify a particular social group – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 476

Cases cited:

WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 824; (2001) 233 FCR 136
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Dranichnikovv Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
SZTAL v Minister for Immigration & Border Protection [2016] FCAFC 69
SZTAL v Minister for Immigration & Anor [2015] FCCA 64
SZTFL v Minister for Immigration & Anor [2014] FCCA 1620
SZTFL v Minister for Immigration and Border Protection [2015] FCA 1323

Applicant: SZWBJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 276 of 2015

Judgment of: Judge Nicholls

Hearing date: 6 October 2016

Date of Last Submission: 6 October 2016

Delivered at: Sydney

Delivered on: 15 November 2016

REPRESENTATION

Counsel for the Applicant: Mr Kumar

Solicitors for the Respondents: Mr A Keevers of Sparke Helmore

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The leave sought to amend the application on 6 October 2016 is refused.

3. The application made on 4 February 2015 is dismissed.

4. The applicant pay the first respondent’s costs set in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 276 of 2015

SZWBJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 4 February 2015 seeking review of the decision of the former Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 20 January 2015, which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.

2. In evidence before the Court is a bundle of relevant documents filed by the Minister, and tendered by the applicant (“the Court Book” - “CB”, “AE1”).

Background

1. The applicant is a citizen of Sri Lanka and, is of Tamil ethnicity and Catholic religion (CB 25).  The applicant arrived in Australia on 2 August 2012 as an “irregular maritime arrival” (CB 1 to CB 10).  He applied for a protection visa, which was received by the Minister’s department on 6 December 2012. He was assisted by a firm of registered migration agents (CB 11 to CB 90).

2. The applicant’s claims to protection were set out in a Statutory Declaration made by him on 3 December 2012 (CB 69 to CB 72).  The applicant attended an interview with the delegate on 5 June 2013 (CB 102.6).  The delegate refused the grant of the visa on 23 July 2013 (CB 95 to CB 119).  The applicant subsequently applied for review of the delegate’s decision to the Tribunal on 25 July 2013 and was again assisted by the same firm of migration agents (CB 120 to CB 126).

3. On 22 May 2014, the applicant’s representative sent detailed written submissions, a statement from the applicant obtained with the assistance of a “telephone interpreter”, and the applicant’s signed declaration to the Tribunal via email (CB 130 to CB 160). 

4. On 10 December 2014, an email sent to the applicant’s representative, attached an invitation to attend a hearing before the Tribunal on 13 January 2015 (CB 161 to CB 165).  The applicant and a representative attended the hearing before the Tribunal on this date (CB 171).  Through his representative, the applicant also supplied detailed post-hearing submissions to the Tribunal via email on 13 January 2015 (CB 175 to CB 192).  The Tribunal affirmed the decision of the Minister’s delegate on 20 January 2015 (CB 196 to CB 212).

5. The applicant claimed to fear harm from the Sri Lankan Criminal Investigation Department (“CID”) and other Sri Lankan authorities on the basis of imputed political opinion as he was a Tamil from an area formerly controlled by the Liberation Tigers of Tamil Ealam (“LTTE”), and as a failed Tamil asylum seeker who left Sri Lanka illegally (see the applicant’s Statutory Declaration made 3 December 2013 (at CB 69 to CB 72) and the applicant’s “RRT Statement” made on 26 February 2014 at CB 157 to CB 158). 

6. The Tribunal accepted as credible a “narrative of evidence” given by the applicant ([8] at CB 198 to [16] at CB 199).  The narrative involved the applicant having been moved between three different camps, where he had been mistreated by the Sri Lankan authorities, which included the applicant being held at gunpoint, slapped while being questioned about any involvement with the LTTE and accusations that he had given haircuts to LTTE members ([8] at CB 198 to [11] at CB 199).

7. The Tribunal accepted that the applicant returned to his village in November 2011 before leaving Sri Lanka in late June 2012.  During this time, the applicant worked as a barber and also stated that his family owned land upon which they were growing coconuts to derive further income.  When questioned by the Tribunal as to difficulties he faced with Sri Lankan authorities during this period, the applicant stated that “he was not called for anything and did not encounter difficulties” ([14] at CB 199).

8. When asked by the Tribunal why he left Sri Lanka in 2012, the applicant stated that he was “fearful that something would happen to him”, and when asked what that was, he replied that “it was difficult to say”.  The applicant stated that he was afraid that the authorities might take him and question him about the “haircut issue”, and that they could shoot him.  He then stated that he did not fear harm on any other ground ([15] at CB 199).

9. The applicant claimed to have been told by his family in Sri Lanka that the CID had come to the family home asking about him.  However, due to inconsistencies in the applicant’s own evidence, the Tribunal did not accept that the CID had enquired at his family home as to his whereabouts after he left Sri Lanka, or the further claim that this occurred again approximately one year later ([17] at CB 199 to [24] at CB 201).  

10. The Tribunal considered country information and drew inferences from such information which were then put to the applicant for comment ([25] at CB 201 to [36] at CB 205).  The Tribunal considered that victims of human rights abuses in Sri Lanka were likely to be “people with a certain profile” and that “being a Tamil from a certain part of Sri Lanka does not per se place an applicant within the profiles” or “lead to a real chance the applicant will suffer serious harm” ([30] at CB 203 to CB 204).

11. The Tribunal considered that on return, Tamil returnees who had left illegally and been applicants for asylum are held in custody by the Sri Lankan authorities, but are brought before a Magistrate at the earliest opportunity, and any period of time spent in detention would be the result of a law of general application.  The Tribunal considered that although prison conditions are poor in Sri Lanka, this was due to a lack of resources, and allegations made about returnees being harmed after arriving back in Sri Lanka have not been substantiated.  Accordingly, the Tribunal considered that the risk of a Tamil returnee suffering serious harm when re-entering the country and being brought before a Court was remote ([31] at CB 204).

12. The Tribunal then considered that the chance of a custodial sentence being imposed for leaving Sri Lanka illegally was also remote as fines are usually imposed, which does not amount to serious harm.  Country information indicated that it was only individuals with an identified profile or those who had been involved in people smuggling that were at a heightened risk of human rights abuses or maltreatment on return ([32] at CB 204).

13. The Tribunal put the country information, and inferences it drew from it, to the applicant, including that the risk of him suffering harm because he was a Tamil male from a formerly LTTE controlled area who left the country illegally was remote.  In response the applicant said that the “reality in Sri Lanka was different” ([33] at CB 204).  The Tribunal stated that despite having been held in camps in the past, the applicant “nevertheless was able to resume his life taking up employment and re-establishing the family home once released” ([35] at CB 205).  The Tribunal concluded that the applicant “was of very minor significance” to the Sri Lankan authorities and the risk the applicant would suffer serious harm appeared “remote” ([36] at CB 205).

14. The Tribunal also considered the submissions made by the applicant’s representative, both written and oral.  The Tribunal summarised the submissions into “themes”.  One such claim put forward by the applicant’s representative was that the applicant “would be perceived as a wealthy person because he had land on which he was growing coconuts and paramilitary groups … will extort money from him” ([40] at CB 206).

15. The Tribunal identified that at no time had the applicant been a victim of extortion (apart from having to pay “taxes” to the LTTE), and also that he had made no claim that once released from the army camp he was harmed or extorted by paramilitary groups.  It also seemed “highly unlikely” that a person who “worked as a barber but had some land on which he was growing coconuts would be perceived as wealthy and the target of extortion”.  Accordingly, the Tribunal found the risk in this regard to be “remote” ([40] at CB 206 to CB 207).

16. The last theme related to further claims about the applicant being a failed asylum seeker.  The representative indicated that returnees can be suspected of links to the LTTE, and the risk of harm to the applicant was increased because he did not have valid travel documents.  The Tribunal dealt with the country information supplied by the representative, and the Tribunal identified that it provided “scant” detail about the background of the people that it was claimed had been held in prolonged periods of detention.  Where any meaningful information was provided, it was clear that the individuals “had prior involvement with the LTTE” or had some other profile of interest to the Sri Lankan authorities. 

17. The applicant had previously stated that “no member of his family had ever supported or been involved with the LTTE” ([16] at CB 199),  and the Tribunal concluded that although the applicant had been held in various camps and questioned on “an isolated number of occasions”, he had been of no interest to the Sri Lankan authorities since that time, and accordingly, the risk of the applicant suffering serious harm as a failed asylum seeker was remote ([44] – [45] at CB 208).

18. The Tribunal also considered post-hearing submissions provided to it by the applicant’s representative.  It considered them to be “highly speculative” and relied on the country information it previously referred to in rejecting all of the submissions ([46] at CB 208 to [56] at CB 210).

19. The Tribunal also dealt with “residual claims”.  It indicated that the applicant’s representative had submitted that the applicant belonged to “various particular social groups”.  The Tribunal stated that “there was no need to determine whether or not these particular social groups exist[ed]”.  The Tribunal had assessed the applicant upon the characteristics that he held and found that the risk of him suffering serious harm if he returned to Sri Lanka was remote ([57] at CB 210 to [58] at CB 211).

20. With regard to the complementary protection criterion, the Tribunal used its previous findings of fact to determine that the only “risk factors” on which the applicant was to be assessed with respect to complementary protection was the fact that he was a “Tamil man from an area formerly controlled by the LTTE who left the country illegally and will return there as a failed asylum seeker”.  The Tribunal considered the country information to which it had earlier referred in its decision record to determine that whether the factors were considered “singularly or cumulatively” the risk of the applicant suffering significant harm was “remote” ([59] - [60] at CB 211).

21. As previously identified, country information indicated that returnees were brought before a Magistrate at the “earliest opportunity” and are “only held in prison should they arrive in Sri Lanka on a day when a magistrate is not available”.  The Tribunal considered that any period of time spent in prison would be brief, and although the conditions in Sri Lankan prisons are poor (itself caused by inadequate resources), this does not amount to significant harm ([62] at CB 211 to CB 212).

22. The country information also indicated that applicants received a fine for illegal departure and any custodial sentence would be remote.  The Tribunal explicitly rejected a submission made by the applicant’s representative that “the provision for a jail sentence in Sri Lankan law for illegal departure amounts to significant harm” ([63] at CB 212).  Accordingly, the applicant also did not meet the complementary protection criterion for the grant of the protection visa.

The Application Before the Court

1. The application before the Court was filed on 4 February 2015 and is in the following terms:

   “Ground 1

   The Tribunal erred when assessing complementary protection that short time detention would not amount to ‘significant harm’ (s 36(2A)) or ‘serious harm’ (s 91R(2)) of the Migration Act and thereby committed jurisdictional error and / or failed to consider complementary protection for consequences of illegal departure.

   Particulars

   (i) The Tribunal stated in its findings (at para 31) that the Applicantw would be held in custody for illegal departure. The Applicant is likely to be detained in poor conditions: The Tribunal accepted the Applicant having left the country [Sri Lanka] illegally he would detained… …[Negombo prison being crowded and in poor conditions) (RRT dec pp 8-9 at [28] – [29]; [31] – [32]). This constitutes ‘serious harm’ pursuant to (s 91R(2)(a) – (c)) of the Act.

   (ii) Short term detention for illegal departure was not considered under Complementary protection nexus (or if so was considered generally). The short term detention constitutes ‘significant harm’ pursuant to (s 36(2A)), (a), (d) and (e)) of the Act.

   (iii) Although there would be law of general application, it is disproportionate to the offence.

   Ground 2

   The Tribunal failed to deal with identify and the particular social group. The Tribunal committed jurisdictional error (and denied procedural fairness) when it failed to consider the Applicant’s membership of a particular social group a Convention nexus specifically claimed by the Applicant.

   Particulars

   (i) The Applicant claimed particular social group with attributes such young Tamil men from Sri Lanka who left illegally and who would imputed with pro-LTTE opinion. The Tribunal has not made any assessment of a particular social group claim (RRT dec at [57]).

   (ii) The Tribunal committed jurisdictional error when it failed to properly identify, assess and address the risk of harm in respect of the Applicants’ particular social group did not deal with the particular social group advanced by the Applicant.”

   [Errors in original.]

2. At the final hearing of the matter on 6 October 2016, the applicant was represented by counsel and the Minister was represented by a solicitor.  Written submissions were filed with the Court by both parties.

Consideration of the Grounds

1. Ground one of the application asserts that the Tribunal fell into jurisdictional error when assessing complementary protection. While the ground refers to “significant harm”, it is difficult to see how the further reference in the particulars to “serious harm” is explained in the context of complementary protection.

2. At best, on its face, and having regard to the particulars, ground one having been drafted at least as at 4 February 2015 (the date of filing of the application) appears to seek to rely on the reasoning of Justice North in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (“WZAPN”), to assert that the Tribunal in this case fell into the same jurisdictional error as His Honour identified in WZAPN and explained in his reasoning in that case. The applicant confirmed this in his written submissions.

3. This reasoning was the subject of consideration by the High Court on appeal in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610. As the Minister submits, the reasoning of Justice North was “overturned”.

4. In his written submissions, and at the beginning of the hearing before the Court, the applicant’s counsel appeared to accept that the High Court judgment had “overturned” the decision of Justice North. Nevertheless, counsel submitted that “detention is an issue”. Ultimately this was explained as follows. The reasoning in WZAPN arose from a claim made by the applicant in that case, a claim also said to be made in the current case, of a fear of harm for reason of being detained on return to Sri Lanka.

5. Initially the applicant appeared to contend that the mere reference to the word “detention” in his ground was sufficient to say that the ground also pleaded, what he subsequently agreed, was nonetheless a different argument which then led to his asking for leave to amend the ground.

6. The following can be said about the applicant’s ground one. First, the ground as pleaded does not succeed. It is dependent on the reasoning of Justice North which, following the High Court judgment, is not correct in law.

7. Second, the applicant, who has been legally represented since he made his application, was unable to explain, let alone proffer any evidence to explain, why he did not seek to amend his ground at any earlier time rather than during the final hearing. That is, at some reasonable time after the High Court handed down its judgment in the appeal from the judgment of Justice North on 17 June 2015.

8. Third, the applicant’s written submissions on this proposed ground did not immediately provide the necessary specificity to enable an understanding of the exact assertion of legal error.

9. During the hearing I nonetheless gave the applicant, through his counsel, the opportunity to fully explain his proposed argument. No actual or express articulation of a proposed ground, or amended ground, was offered. I reserved my decision on the grant of leave, so as to consider it in the totality of the applicant’s case. That consideration is as follows.

10. During the hearing the applicant’s counsel explained as follows:

    “HIS HONOUR: Thank you. Mr Kumar, what is the proposed ground?

    MR KUMAR: Well, your Honour, the – whatever – my proposed ground would be that the – in this case there was – it was raised that the applicant feared whilst in detention that there will intentional harm to the applicant which is the SZTAL argument. But what we say, your Honour, is in this case it was specifically raised at the – by the applicant that the – there will be intentional harm in the sense that he had claimed that the agents of the Government of Sri Lanka would harm him. And what we say, your Honour, is that is a jurisdictional error because we say that the tribunal has glossed over that point. It has not addressed the applicant’s claim. It has used country information about – but the applicant says – I have taken your Honour to paragraphs 95 to 97 of the SZTAL. That’s the extent of my argument, your Honour,  that it was raised and it was raised as a - - -

    HIS HONOUR: So what was raised? That he was would be harmed by the authorities?

    MR KUMAR: Harmed by the authorities.

    HIS HONOUR: While he is detention?

    MR KUMAR: That’s correct your Honour.”

1. From the applicant’s written submissions, and subsequent oral submissions, the following elements of the proposed ground appear to have emerged.

2. The applicant claimed in submissions to the Tribunal that he would suffer serious or significant harm while held in detention by the Sri Lankan authorities.

3. Before the Court, the applicant directed attention to his then representative’s written submissions to the Tribunal of 13 January 2015 (CB 175 to CB 192), made after the hearing, particularly at CB 186:

   “More recently, in the UK Upper Tribunal GJ and Others

   
   

   (post-civil war: returnees) Sri Lanka CG v. Secretary of State for the Home Department, [2013] UKUT 00319 (IAC) of 3 July 2013 undertook a detailed assessment of available information centered on the risks faced by Sri Lankan asylum seekers. Within the decision was reference to various reports by different organisations and experts who referred to the incidences of torture, particularly against Tamil detainees, by GoSL agents including at formal prisons. The Tribunal concluded in the decision as part of its country guidance for assessing risks for Sri Lankan  asylum seekers that “If a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection.”

   [Emphasis added; footnotes omitted.]

4. The submission was that the applicant, through his representative, thereby made a claim that he feared suffering intentionally inflicted serious, or significant harm, while in detention in Sri Lanka. The argument was that the Tribunal “glossed over” this claim. The argument should be understood as an allegation that the Tribunal did not properly deal with the applicant’s claim.

5. Before the Court, the applicant made no reference to relevant authorities, but it is still the case that a failure to consider a claim to fear harm expressly made, or clearly arising, from the circumstances presented may result in jurisdictional error (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 824; (2001) 233 FCR 136 and WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593).

6. Further, the Tribunal is obliged to deal with a substantial, clearly articulated argument, relying upon established facts (Dranichnikovv Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (“Dranichnikov”)). Such an argument may arise in submissions made by or on behalf of an applicant (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317).

7. The applicant’s counsel before the Court made no reference to relevant authorities concerning the question of jurisdictional error arising from a failure to deal with a claim. However, as the authorities make clear what is required is some expression or clear indication of a fear of harm relevant to the applicant. As mentioned above, and as the High Court, in my respectful view, made clear in Dranichnikov, what is required is a substantial, clearly articulated argument that relies upon established facts.

8. As set out above, the applicant’s counsel relied on country information referred to by the applicant’s representative to base his attack on the Tribunal’s decision. Such information may possibly have formed the basis for some chain of reasoning that may have led to some “established facts” to be relied upon. However, in the circumstances of this case, no such reasoning is evident in the representative’s submissions to the Tribunal.

9. It must also be said that the circumstances of this case also illustrate what has also emerged as common in matters of this type, and as can also be seen from the various bundles of relevant documents filed by the Minister in such matters. That is, the general references by migration agents/representatives that have represented applicants before the Tribunal, to large amounts of country information in submissions provided to the Tribunal, usually expressed in similar terms, without making any satisfactory attempt to explain, or to link the country information to each individual applicant’s circumstances and specific fears of harm.

10. It is clear, as the Minister submits, that what the applicant’s counsel now seeks to describe as a claim, was simply a part of the large volume of country information presented to the Tribunal by the applicant’s representative. There is nothing in the representative’s written submissions to relate this information to the applicant, such that it can be said that this was an express claim, or a claim clearly arising, in that the applicant feared any such harm for the reasons set out in that part of the country information.

11. The Tribunal recognised this specific point when it addressed the representative’s submissions (at [44] – [45] at CB 208):

    “[44] The Tribunal has considered the country information referred to by the representative to support these submissions. The difficulty with these sources is that they basically contain allegations of returnees being mistreated or held for prolonged periods of detention but provide scant detail about the backgrounds of these people which would enable the Tribunal to be certain that these people were mistreated solely because they were Tamils, from an area formerly controlled by the LTTE, who left the country illegally and sought asylum overseas. Where any meaningful detail is provided, it is clear that the people concerned had prior involvement with the LTTE or had some other characteristic that made them people of concern to the government such as participation in political activities abroad. In addition, DFAT has stated that the number of allegations considered in the context of the number of Tamils who have returned to Sri Lanka is relatively small and they have not been substantiated.

    [45] While the Tribunal accepts that the applicant was questioned on an isolated number of occasions by the CID in an army camp prior to November 2011 he had no actual involvement with the LTTE and has not been of interest to the authorities since that time (that interest, at any rate, being minimal). Accordingly, the Tribunal remains of the view, that the risk of  the applicant suffering serious harm (including for the essential and significant reason of a Convention ground) because he left the country illegally and will return there as a failed asylum seeker is remote. That is also the case notwithstanding he has been in Australia since 2012 and did not have a valid travel document when he left the country. Those factors do not increase the risk for the applicant of suffering serious harm.”

12. In short, the Tribunal found that the country information submitted by the applicant’s representative was not relevant to the applicant’s circumstances given its findings, which were reasonably open to it on what was before it, that the applicant had not been involved with the LTTE, and was not of interest to the Sri Lankan authorities.

13. Although not explained in oral submissions to the Court, apart from the general reference to “intention”, the applicant’s written submissions assert that the Tribunal erred in its consideration of “intention” to inflict harm. The complaint appears to be that the Tribunal should have considered that while being held on remand on return to Sri Lanka, whether the “suffering” inflicted on the applicant might be “intentionally inflicted” within the meaning of that term as set out in the relevant definitions at s.5(1) of the Act.

14. It would appear the applicant may have sought to rely on the following sections of the Act (see [20] of the applicant’s written submissions):

    1)Section 36(2A) of the Act:

    “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.”

    2)Section 5(1) of the Act:

    “cruel or in human treatment or punishment means an act or omission by which:

    (a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c) that is not inconsistent with Article 7 of the Covenant; or

    (d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.”

    3)Section 5(1) of the Act:

    “degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a) that is not inconsistent with Article 7 of the Covenant; or

    (b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.”

15. The argument appears to be that what the applicant’s representative said in written submissions (at CB 186 and see also above), was a claim that while held on remand, the harm suffered by the applicant would be “intentionally inflicted” by the Sri Lankan authorities, and the Tribunal subsequently failed to address this.

16. In his written submissions to the Court, the applicant submits (at [22]) that in SZTAL v Minister for Immigration & Border Protection [2016] FCAFC 69 (“SZTAL (Full Federal Court)”) the Full Federal Court recognised that in “certain circumstances the consideration of ‘intention’ would arise”. The argument appeared to be that what the applicant claimed before the Tribunal was that there would be “intentional acts” by the Sri Lankan authorities while he was held on remand, and that would result in harm to him.

17. SZTAL involved a Sri Lankan national who had departed Sri Lanka illegally, and would be detained on return for that reason. At first instance, the Federal Circuit Court considered whether the Tribunal, in that case, fell into jurisdictional error in making the finding that poor prison conditions were not “intentionally inflicted” by the authorities such as to bring about the harm feared by the applicant (SZTAL v Minister for Immigration & Anor [2015] FCCA 64).

18. On appeal, the Full Federal Court upheld the reasoning of this Court, and found that the concept of “intentionally inflicted” involves the existence of an “actual substantive intention” to bring about the harm by this conduct on the part of the person from whom harm is feared (SZTAL (Full Federal Court)).

19. It must be said now, that the applicant’s argument before the Court again appears to be borne out of hope, rather than with reference to the actual evidence before the Court. To the extent that the argument seeks to rely on the representative’s written submissions to the Tribunal, what is set out above in that regard is again relevant here. For the remainder, and as is also set out above, the Tribunal did consider the applicant’s representative’s written submissions of 21 March 2014 (see [37] at CB 205 to [45] at CB 208) and of 13 January 2015 and oral submissions made to it ([46] at CB 208 to [56] at CB 210).

20. In essence, and having regard to these submissions, the Tribunal found that those who face a risk of harm are returnees with a pro-LTTE opinion, or link to the LTTE, or who were imputed with such an opinion. The Tribunal found that the applicant’s circumstances did not give rise to a real risk of harm. This was open to it on what was before it. The applicant’s argument now fails to reveal an arguable case in that light.

21. The applicant’s reference in written submissions to SZTAL (Full Federal Court) remained without any satisfactory explanation at the hearing of this matter. In any event, nothing in the Full Federal Court judgment in SZTAL provides a basis to say that the circumstances of this case, as presented to the Tribunal, give rise to the “consideration of ‘intention’”.

22. In all, the proposed argument to support the oral application for leave to amend the application to the Court lacks merit, let alone sufficient merit, to warrant the grant of the leave in the interests of justice. The leave sought to amend the ground is refused.

23. Ground two asserts jurisdictional error on the part of the Tribunal because it failed to consider the applicant’s claim to have been a member of a particular social group, and to fear harm for this reason.

24. The particulars to the ground assert that the particular social group claimed was “with attributes such as young Tamil men from Sri Lanka who left illegally and who would be imputed with pro-LTTE opinion.”

25. Attention is directed in the particulars to ground two, to the Tribunal’s decision record at [57] (at CB 210 to CB 211):

    “The representative submitted that the applicant belongs to various particular social groups.[1] There is no need for the Tribunal to determine whether or not these particular social groups exist. The Tribunal has assessed the risk of the applicant suffering serious harm based on the characteristics it accepts the he holds and finds that the risk is remote. Although the applicant was questioned on isolated number occasions about support for the LTTE the Tribunal does not accept that this actually makes him someone associating with or supporting the LTTE (as that is described in the UNHCR guidelines). In written submissions the representative incorrectly said that the applicant suffered harm for being a Tamil fisherman and that he had brothers who left Sri Lanka and found citizenship somewhere else. The applicant made no such claims to the department or the Tribunal.”

    [Footnotes renumbered.]

    [1] Tamil failed asylum seekers who left the country illegally; young Tamil men who are suspected of associating with or supporting the LTTE; Tamils with links to persons suspected of associating with or supporting the LTTE; people held in camps for a long time who came to Australia; people from a former LTTE area (including Mullaitivu) and Tamil failed asylum seekers.

26. Again, as with ground one, there was a difference between the ground as pleaded, and as it was “explained” in written submissions, and then different again to the oral submissions before the Court.

27. Ground two as pleaded does not succeed. In fact it lacks merit. At [57] (at CB 210 to CB 211) as seen from what is set out at [61] above, the Tribunal did address the claims relating to particular social groups as those claims were made on the applicant’s behalf by his representative in written submissions (see the submissions at [2.6] at CB 134, [2.7] at CB 134, [7.12] at CB 139, [7.26] at CB 141 and [7.30] at CB 142).

28. On the evidence, the Tribunal did identify in its decision record the particular social groups referred to in the representative’s written submissions. However, the Tribunal found it was not necessary to consider whether the social groups existed in circumstances where it found that the risk of harm to the applicant on the basis of characteristics it accepted he had, and common to all the proposed groups, was remote (see SZTFL v Minister for Immigration & Anor [2014] FCCA 1620 at [33] and SZTFL v Minister for Immigration and Border Protection [2015] FCA 1323).

29. The applicant’s written submissions in relation to ground two raise a different argument. The complaint appears to be as follows. The applicant’s family owned land on which it grew coconuts. The Tribunal did not reject the fact that the family owned the land. The applicant also worked as a barber. The applicant had been subject to extortion by the LTTE, and while it was now a “spent force”, he would be subject to extortion by other paramilitary groups. The applicant’s “claim of extortion had a Convention link”.

30. The submissions do not specify the characteristics of the particular social group in any recognisable form. It would appear the particular social group for which the submissions contend can be summarised as, land owning coconut growers who are also barbers who would be perceived to be wealthy, who were subject to extortion by the LTTE, and now would be subject to extortion by the paramilitaries.

31. This appears to derive from submissions made by the applicant’s representative to the delegate. The Tribunal reports this at [40] of its decision record (at CB 206 to CB 207):

    “To the delegate the representative also submitted that the applicant would be perceived as a wealthy person because he had land on which he was growing coconuts and paramilitary groups like the EPDP will extort money from him for which he would receive no protection from the authorities. At no stage was the applicant a victim of extortion apart from having to pay taxes to the LTTE. He made no claim that once released from the Army camp he was extorted or harmed by paramilitary groups. Further, it seemed highly unlikely to the Tribunal that someone who worked as a barber but had some land on which he was growing coconuts would be perceived as wealthy and the target of extortion. The Tribunal finds that risk to be remote.”

32. Yet again, as with ground one, the applicant’s submissions did not relate to the ground as pleaded or particularised. The applicant did not formally seek leave to amend this ground. However, leave would have been refused because this complaint is also without merit.

33. The basis of the claimed particular social group is that the applicant would be subject to extortion because he would be perceived to be wealthy. The part of the Tribunal’s decision record relied on now by the applicant ([40] at CB 206 to CB 207) is part of the Tribunal’s report of the representative’s submissions of 21 March 2014, and oral submissions to the delegate (see CB 205.8).

34. As set out above, the representative’s written submissions, although making reference to the matter of extortion, do not do so in the context of a claim relating to any particular social group. Nor does the delegate’s decision record report any such submission in relation to particular social groups (see CB 105.7 in particular CB 105.9).

35. The Tribunal therefore dealt with the claim of the fear of extortion in the way that it was put by the applicant’s representative. That is, that the applicant would be perceived to be wealthy because he had land on which he grew coconuts.

36. The Tribunal considered this claim and found for reasons given that the risk of harm was remote ([40] at CB 206 to CB 207). This conclusion and the findings that informed it were reasonably open to the Tribunal on what was before it.

37. Before the Court, the oral submissions took on yet a different complaint. The applicant’s counsel said he was relying on a “cumulative submission”. As best as this submission could be understood it appears that the explanation was that the applicant’s representative before the Tribunal listed a number of claimed particular social groups at [2.6] (third dot point) (at CB 134), and the Tribunal failed to deal with all of the characteristics listed in respect of each group on a cumulative basis.

38. The applicant’s complaint here also lacks merit. As is clear, the representative made no claim that the applicant also feared harm on a cumulative basis. The particular social groups were presented as separate and distinct groups and were considered by the Tribunal on that basis.

39. In any event, even if the groups were to have also been presented as a claim to fear harm on a cumulative basis, what is common to each group is “Tamil men with links or suspected of having links with the LTTE” and “Tamil failed asylum seekers”.

40. The Tribunal found that the applicant did not have links to the LTTE, and would not be perceived to have had, or have, such links. This was so even given his Tamil ethnicity, and that he had come from a formerly pro-LTTE key area. The Tribunal found at [54] (at CB 210):

    “Again, the Tribunal can only acknowledge all of these claims but remains of the view that Tamils for whom there is a real chance of suffering serious harm in view of all of those matters are those who come within the risk profiles described by UNHCR. The Tribunal considers that suspicion of links to the LTTE arises as described by the UNHCR and does not arise (notwithstanding an assertion made by Amnesty International to the contrary) merely from ethnicity, place of residence, illegal departure and a failed asylum application.”

1. Further, the Tribunal also found that the risk of the applicant suffering harm as a Tamil who had left illegally was remote ([52] at CB 209).

2. It was therefore not necessary for the Tribunal to have proceeded to consider all of the particular social group claims in any cumulative sense in light of these critical findings.

3. In all, ground two as pleaded, and as variously sought to be explained in submissions, is not made out.

Conclusion

1. The grounds of the application as pleaded do not reveal jurisdictional error in the Tribunal’s decision. The applicant’s attempt to seek leave to amend ground one is without merit and leave is refused. The applicant’s attempt to “expand” or alter ground two, does not reveal jurisdiction error. If leave to amend ground two had been sought it would have been refused. In all, the application to the Court should be dismissed.  I will make an order accordingly.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 15 November 2016