FEDERAL COURT OF AUSTRALIA AVU15 v Minister for Immigration and Border Protection [2017] FCA 608 Appeal from: AVU15 v Minister for Immigration and Anor [2016] FCCA 3065 File number: VID 1459 of 2016 Judge: BROMBERG J Date of judgment: 1 June 2017 Catchwords: MIGRATION – Protection (Class XA) visa – appeal from the Federal Circuit Court of Australia – whether the primary judge erred in failing to find jurisdictional error because the Refugee Review Tribunal ("Tribunal") failed to consider a claim – whether the claim asserted to have been made to the Tribunal was made – where the reasons of the Tribunal adverted to the claim but did not expressly engage with in – whether the claim was the subject of genuine and proper consideration – appeal allowed Legislation: Migration Act 1958 (Cth) ss 36, 430, 474 Cases cited: Alexander v Australian Community Pharmacy Authority (2010) 233 FCR 575 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 AVU15 v Minister for Immigration [2016] FCCA 3065 Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713 Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 Minister for Immigration and Citizenship v SZJSS (2011) 243 CLR 164 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 Date of hearing: 19 May 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 24 Counsel for the Appellant: Mr A Aleksov Solicitor for the Appellant: WLW Migration Lawyers Counsel for the First Respondent: Mr L Brown Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting a notice, save as to costs ORDERS VID 1459 of 2016 BETWEEN: AVU15 Appellant AND: MINISTER FOR IMMIGRATON AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BROMBERG J DATE OF ORDER: 1 June 2017 THE COURT ORDERS THAT: 1. The appeal is allowed. 2. Order 2 of the orders of the Federal Circuit Court of Australia dated 29 November 2016 is set aside and, in lieu thereof, there be an order in the nature of certiorari to quash the decision of the second respondent made on 4 May 2015 in case number 1319661. 3. A writ of mandamus be issued, directed to the second respondent, requiring that it hear and determine according to law the application of the appellant for review of the decision of a delegate of the first respondent made on 17 December 2013 to refuse to grant the appellant a Protection (class XA) visa. 4. The first respondent pay the appellant's costs of the appeal. 5. Order 3 of the orders of the Federal Circuit Court of Australia dated 29 November 2016 is set aside and, in lieu thereof, there be an order that the costs of the appellant's application for judicial review before the Federal Circuit Court of Australia in case number SYG 1436 of 2015 be paid by the first respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BROMBERG J: 1 The appellant is a citizen of Sri Lanka of Tamil ethnicity. He left Sri Lanka by boat without authorisation and arrived in Australia on 1 July 2012. The appellant's application for a Protection (Class XA) visa was refused by a delegate of the first respondent ("Minister") on 17 December 2013. The appellant then applied to the Refugee Review Tribunal, now a division of the Administrative Appeals Tribunal ("Tribunal"). On 4 May 2015, the Tribunal affirmed the delegate's decision not to grant the appellant a protection visa. The appellant then sought judicial review of the Tribunal's decision in the Federal Circuit Court of Australia. The subject of this appeal is the primary judge's dismissal of that application on 18 October 2016. The primary judge's judgment is published as AVU15 v Minister for Immigration [2016] FCCA 3065. 2 The primary judge's task was to determine whether the Tribunal's decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) ("Migration Act"); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. The task of this Court is to determine whether the primary judge's judgment is affected by appellable error: SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ). 3 Before the primary judge the appellant pressed two grounds of review. Whilst two grounds of appeal were included in the appellant's Notice of Appeal in this Court, the appellant, who was legally represented, pressed only the second ground of appeal. That ground mirrors the second ground of review dealt with by the primary judge. That appeal ground is as follows: 2. The primary judge erred in finding that the decision of the Tribunal was not affected by jurisdictional error on the basis that the Tribunal failed to consider, in the sense of have genuine and active intellectual engagement with, the applicant's claim, or submission, or argument, or evidence, that being detained for any period of time in a Sri Lankan prison may amount to serious or significant harm. 4 Before the Tribunal, the appellant was represented by the Refugee and Immigration Legal Centre Inc ("RILC"). In support of the appellant's review application, RILC made submissions including a written submission of some 40 pages. Much of that submission and much of the Tribunal's deliberations concerned the appellant's claim, which the Tribunal rejected, that he was a member of the LTTE and the Sea Tigers, and that the Sri Lankan authorities would seek to cause him harm for that reason. As I will explain, the appellant also claimed that he left Sri Lanka illegally and that if he was returned to Sri Lanka, he would suffer harm for that reason. Over some nine pages of its submissions, RILC addressed the appellant's illegal departure from Sri Lanka. By reference to various country information reports and other material, RILC contended that if returned to Sri Lanka, the appellant faced a real risk of significant harm. Under a sub-heading "Whether Punishment Constituted Significant Harm", the submission said this (errors in original, footnotes omitted): While we concede that under Australian law, prison conditions alone may not amount to cruel or inhuman treatment or punishment or degrading treatment or punishment without an intention element, we emphasise that the fact of Imprisonment may led to a real risk of further significant harm, as it gives rise to a risk of that person being tortured. The fact that the remand period may be short does not mitigate against this risk. Intention may be inferred from the circumstances when it is evident from the facts that it was evident that pain or suffering was or may be knowingly inflicted. The RRT Complementary Protection Training Manual instructs in this regard: By contrast, the intent requirement for 'degrading treatment or punishment' is an intention to cause 'extreme humiliation which is unreasonable'. Demonstrating the intention of an unrepresented actor in a future act of ill-treatment in a legal proceeding is inherently difficult. In the context of a complementary protection claim, the evidence of intention will be circumstantial and almost certainly based on imputation. As such, the intention requirement should be liberally applied into the act of which the applicant is at 'real risk'. 5 The submission then referred to various country information reports recording the mistreatment, including by torture, of persons detained or imprisoned or in police custody. RILC referred to a number of reports which addressed the conditions in prisons and in detention centres in Sri Lanka, concluding that conditions remained poor taking into account the levels of overcrowding, unsanitary conditions, lack of food and incidence of ill-treatment, including torture. 6 The relevant dispositive reasoning of the Tribunal is set out in the following paragraphs of the Tribunal's reasons: [105] The Tribunal summarised to the applicant paragraphs [5.22] to [5.33] of the Department of Foreign Affairs and Trade Country report on Sri Lanka dated 16 February 2015 (the DFAT country report) and said that it accepted that he had left Sri Lanka illegally and that CID may interview him when he returns home. The Tribunal has taken into account the representative's written and oral submissions. It prefers the recent DFAT assessment. It does not accept that there is a real chance that the applicant will suffer serious harm, or a real risk that he will suffer significant harm if he returns to Sri Lanka as a Tamil failed asylum seeker or as a Tamil failed asylum seeker from the north of Sri Lanka. It does not accept that he will be imputed to be a supporter of the LTTE for any one or more of those reasons or for reasons of his claims considered above which the Tribunal has found are not credible. [106] In making those findings, the Tribunal has accepted that the applicant will go through the process at the airport as summarised in the DFAT country report, which will involve questioning and checking. It accepts that he will be charged under the Immigrants and Emigrant Act and may be detained or gaoled for up to a few days before being taken before a magistrate who will impose a fine of between 5,000 and 50,000 Sri Lankan Rupees and be granted bail on his personal recognisance with a family member acting as guarantor. He may have to wait until a family member comes to court to collect him. The Tribunal has also considered the conditions of detention or imprisonment for a brief period. [107] The Tribunal has also taken into account the Department of Foreign Affairs and Trade Thematic Report People with Links to the Liberation Tigers of Tamil Eelam dated 3 October 2014 which it finds supports its findings. The applicant does not have a profile that would cause him to come to the attention of the Sri Lankan authorities. 7 The primary judge's reasons for rejecting the appellant's second ground of review are succinct. It is convenient that the dispositive reasoning be set out here in full (emphasis added): [27] The Tribunal addressed the question of detention at the end of paragraph 106 of its reasons for decision, saying: The Tribunal has also considered the conditions of detention or imprisonment for a brief period. [28] The applicant argued that: … the applicant made detailed written submissions to the effect that conditions in prison in Sri Lanka were such that imprisonment for any period of time may amount to serious or significant harm … [29] In fact, the applicant's written submission to the Tribunal at CB219 said: While we concede that under Australian law, prison conditions alone may not amount to cruel or inhuman treatment or punishment or degrading treatment or punishment without an intention element, we emphasise that the fact of imprisonment may lead to a real risk of further significant harm, as it gives rise to a risk of that person being tortured. The fact that the remand period may be short does not mitigate against this risk. [30] That is, the applicant acknowledged that prison conditions alone did not amount to significant harm. The point in the written submission was that being held on remand may then expose a person to the risk of torture. [31] However, as counsel for the applicant acknowledged at the hearing, there was nothing in the material that suggested that simply being a Tamil in remand in Sri Lanka led to a risk of torture. The information about torture related to people with particular profiles, such as LTTE support, which the Tribunal found the applicant did not have. [32] The ground that the applicant is attempting to argue now is actually contrary to his own concession before the Tribunal, namely, that prison conditions alone would not amount to significant harm, because there is no intention element. The applicant did not expressly seek to resile from that concession. Even if the applicant had sought to resile from that concession, it would not have assisted him. That is because the concession was correct in law. [33] In all the circumstances, including the applicant's concession, I consider that the Tribunal's brief reference to prison conditions was sufficient. There is no reason to doubt the Tribunal's statement that it had considered prison conditions. This ground is not made out. 8 The emphasised passage was said to constitute error. The passage was only faintly defended by the Minister. With respect to the primary judge, a fair reading of that part of the RILC submission referred to above at [4] and [5] requires a conclusion that there was no concession made of the kind that the primary judge relied upon. Whilst the submission made by RILC conceded that intention was a necessary element for establishing inhuman or degrading treatment or punishment, the submission should not have been taken to have conceded an absence of such an intention in relation to the circumstances upon which the submission relied. What was contended for by the submission was that the relevant intention "may be inferred" from those circumstances. 9 I accept that the erroneous characterisation by the primary judge of the nature of the concession fed into the primary judge's ultimate conclusion at [33] that the Tribunal had considered the claim that prison conditions in Sri Lanka were such that detention (even for a short period) amounted to significant harm ("impugned claim"). But, as the appellant recognised, that error is not of itself sufficient. For the appellant to succeed on the appeal, this Court needs to be persuaded that the Tribunal failed to consider the impugned claim and that the Tribunal's failure to consider that claim should have been identified by the primary judge. The bulk of the submissions made by the parties focused on that issue as well as the Minister's anterior submission that the impugned claim was never made by the appellant. Before addressing those two issues I will first set out the principles relevant to whether a claim has been made, and to whether a claim, if made, has been properly considered. 10 The statutory task of the Tribunal was to consider the claims expressly made by the appellant or which clearly arise on the material before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [61]–[63] (Black CJ, French and Selway JJ). An apparent claim includes a claim in fact appreciated by the Tribunal: NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] (Allsop J). 11 It is not in contest that the valid consideration of a claim required the Tribunal to give it proper, realistic and genuine consideration (Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713 (Gummow J)), however in making any such assessment a Court must exercise caution that its scrutiny does not slip into impermissible merits review: Minister for Immigration and Citizenship v SZJSS (2011) 243 CLR 164 at [26]–[33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). What was required was a genuine and active intellectual engagement by the Tribunal with the claim: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 at [49] (Lindgren, Rares and Foster JJ). 12 If the Tribunal's written reasons had grappled with the contentions put in support of the claim and, in accordance with the requirements of s 430 of the Migration Act, set out the findings on material questions of fact and the evidence or other material on which those findings were based, it could not have been doubted that the claim was duly considered. However, the inverse conclusion does not necessarily follow. The fact that the reasons of a decision-maker fail to grapple with contentions and evidence addressing a claim or issue do not lead to the automatic conclusion that the claim was not considered. As I explained in Alexander v Australian Community Pharmacy Authority (2010) 233 FCR 575 at [84]–[89], it may be the case that inadequate reasons reflect an inadequate recording of what was considered rather than establish that the claim was inadequately considered. All of the circumstances need to be taken into account. 13 The choice between competing inferences will be influenced by the statutory context in which the decision was made and the reasons prepared. Where, as here, the decision-maker was required by law to provide reasons, the statement of reasons "generally will (subject to a contrary finding of fact), be taken to be a statement of those matters adverted to, considered and taken into account; and if something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account": NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [16] (Allsop CJ and Katzmann J) citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [5] (Gleeson CJ), [37] (Gaudron J), [69], [89] (McHugh, Gummow and Hayne JJ) and [133] (Kirby J). 14 In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593, French, Sackville and Hely JJ recalled (at [46]) that it is unnecessary for a tribunal in its written reasons to refer to every piece of evidence and every contention made, and that a tribunal is not a court and that its reasons are not to be scrutinised with an eye keenly attuned to error. At [47] their Honours said this: The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 15 Dealing with the particular circumstances of that case, their Honours (at [49]) determined that although the tribunal had recounted the impugned claim early in its reasons "its failure to consider the evidence and the contention [led] to the inescapable conclusion that it failed to address the issue". 16 MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 is a further authority of relevance. In that case, despite the decision-maker's reasons referring to the claim as part of its dispositive reasoning, Flick, Jagot and Yates JJ determined that the claim had not been considered or resolved. Flick and Jagot JJ held (at [19]) that the decision-maker's reference to the claim was made in the context of recording a submission and that the resolution of the submission was left unstated. Their Honours concluded at [20] that issues relevant to the assessment of the claim were not taken into account. Yates J (at [38]) concluded that although the decision-maker's reasons stated that the submission was "considered", it had, in fact, been "simply side-stepped". 17 Paragraphs [105]–[107] of the Tribunal's reasons contain the Tribunal's dispositive reasoning in relation to separate but related claims made by the appellant. Although some factual matters overlapped, those claims are dealt with disjointedly. Whilst it is not clear, it seems to me that the whole of [105], the first sentence of [106] and all of [107] are addressing claims that the appellant will suffer persecution under the Refugee Convention as a member of a particular social group comprising Tamil failed asylum seekers or Tamil failed asylum seekers from the north of Sri Lanka. Whether the appellant faced a risk of significant harm, including cruel, inhuman or degrading treatment or punishment, because he left Sri Lanka illegally and will be charged, remanded, convicted and/or incarcerated by reason of having contravened the Immigrants and Emigrants Act (Sri Lanka) seems to be dealt with in part in the first sentence of [105], and then in the second, third and fourth sentences of [106]. 18 What is there said must be understood in the context of the submissions made to the Tribunal and, in particular, the written submission of RILC at pages 32–40 under the heading "Illegal departure". Those submissions were primarily and understandably directed to establishing that the appellant would likely be convicted and incarcerated for contravening the Immigrants and Emigrants Act. However, the submissions also refer to the prospect of the appellant being held on remand for several days and possibly for weeks or months (at pages 33–34; 35 and 37). Although the submissions could have been clearer, in the context of the references made to remand and under the sub-heading "Whether Punishment Constitutes Significant Harm", it was submitted that torture and mistreatment of detainees was widespread (at page 37) and that lack of space and other inadequate prison conditions such as lack of sanitation and food amounted to inhuman or degrading treatment (at pages 39–40). 19 Read fairly and in its entirety, the submission made by RILC was sufficient to have raised the claim that as a consequence of his illegal departure, the appellant, if remanded, may face the risk of significant harm as a consequence of prison conditions in Sri Lanka and that the complementary protection criteria specified in s 36(2)(aa) of the Migration Act were thereby engaged. As I will explain, the Tribunal's reasons, when read in the context of the submissions made by the appellant, acknowledge the making of that claim. I am satisfied that the impugned claim was made. 20 Returning to the last four sentences of [106] of the Tribunal's reasons, read against the background of the submissions, I take the Tribunal in the first three of those sentences to have accepted the appellant's claim that he will be charged and convicted under the Immigrants and Emigrants Act, but to have rejected the appellant's primary submission that he will be sentenced to incarceration. Instead, the Tribunal determined that the appellant would likely be convicted and fined but acknowledged that prior to that the appellant "may be detained or gaoled for up to a few days". In other words, the Tribunal accepted that the appellant may be detained on remand for up to a few days. Having said that, the Tribunal then said this: The Tribunal has also considered the conditions of detention or imprisonment for a brief period. 21 That sentence, it appears to me, acknowledges the Tribunal's understanding that the conditions of detention, if the appellant were to be remanded, were claimed by the appellant to constitute significant harm. That understanding is not inconsistent with [81] of the Tribunal's reasons, where the Tribunal summarised the appellant's submissions to include "claimed complementary protection because of … [d]egrading treatment or punishment". 22 The last sentence of [106] is to be understood as the Tribunal stating that the impugned claim was considered. Although not expressly stated, given that the Tribunal affirmed the delegate's decision not to grant the appellant a protection visa, the sentence must also be taken as intending to record the Tribunal's rejection of the claim. Given its placement within the Tribunal's dispositive reasoning, the last sentence of [106] may be fairly read as saying that the Tribunal has considered the conditions of detention for a short period but does not accept that there is a real risk that the appellant will suffer significant harm for that reason. Nothing else is otherwise said in the Tribunal's reasons about the impugned claim. Subject to one suggested explanation given by the Minister to which I will return, why the claim was rejected is left unexplained. Not only do the reasons fail to demonstrate that the claim was grappled with intellectually, the reasons also fail to recount either the evidence or the contentions made in support of the claim. The claim may have been subsidiary to the primary claim that the appellant would be sentenced to imprisonment, but it was not dependent on or subsumed by the primary claim such that the rejection of the primary claim necessitated the rejection of the subsidiary claim, and the submissions in support of it were not so insubstantial or so obviously untenable as to be deserving of dismissal without some explanation. There is no fact that the Minister has pointed to which provides a contrary indication to the inference available on the face of the reasons that the impugned claim was not the subject of proper and genuine consideration. On balance, the preferable inference, taking into account the importance of the issue in question, is that the claim was not considered in a manner consistent with the Tribunal's statutory task. That suffices to demonstrate jurisdictional error. 23 In arriving at that conclusion, I do not accept the Minister's contention that the last sentence of [106] implies the basis for the rejection of the claim. The Minister contended that the reference to "a brief period" of detention should be understood as giving the Tribunal's reason for concluding that the appellant did not face a risk of significant harm caused by the conditions of detention in Sri Lanka. That is, because detention for "a brief period" is insufficiently severe to amount to significant harm. That is a strained reading of the sentence in question. On an ordinary or plain reading, the sentence sets out the nature of the claim said to have been considered rather than the basis for its rejection. Whilst it is appropriate to read the Tribunal's reasons generously and whilst the brevity of any detention may have been a rational basis for the rejection of the claim, in the face of the language actually utilised by the Tribunal, the Minister's contention is simply speculative. That is illustrated by the fact that a number of variables, including the severity or nature of the harm or the presence of the necessary intention, may each be determinative of a finding that claimed harm does not amount to "significant harm". As I have said, I accept that the sentence does more than simply advert to the making of the claim. Implicitly, the sentence must be read as a rejection of the claim. That explains its placement in the dispositive reasons of the Tribunal. However, the Minister's suggestion that that placement is supportive of providing the reason for the rejection overstates the inference available to be drawn. 24 For those reasons, I have concluded that the Tribunal's decision is affected by jurisdictional error which the primary judge failed to identify. The appellant has, on that basis, demonstrated appellable error. I will make orders allowing the appeal and remitting the matter for redetermination by the Tribunal. The parties are agreed that costs should follow the event and, accordingly, I will make an order that the Minister pays the appellant's costs of the appeal and the costs incurred before the primary judge. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate: Dated: 1 June 2017