FEDERAL COURT OF AUSTRALIA ARM15 v Minister for Immigration and Border Protection [2018] FCA 184 Appeal from: ARM15 v Minister for Immigration & Anor [2017] FCCA 108 File number: VID 98 of 2017 Judge: BEACH J Date of judgment: 28 February 2018 Catchwords: MIGRATION – protection visa – failure to take into account relevant considerations – appeal from Federal Circuit Court – appeal dismissed Cases cited: Minister for Immigration and Border Protection v SZTQS (2015) 148 ALD 507; [2015] FCA 1069 Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28; [1998] FCA 1693 SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405; [2017] HCA 34 Date of hearing: 26 February 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 53 Counsel for the Appellant: Mr A Krohn Solicitor for the Appellant: Ambi Associates Counsel for the First Respondent: Mr A Aleksov Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice. ORDERS VID 98 of 2017 BETWEEN: ARM15 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BEACH J DATE OF ORDER: 28 February 2018 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BEACH J: 1 The appellant is a non-citizen of Australia who on 23 November 2012 applied to the first respondent (the Minister) for a protection visa. A delegate of the Minister refused that application. The appellant then applied to the then Refugee Review Tribunal (the Tribunal) for a review of the delegate's decision, but the Tribunal on 13 April 2015 affirmed the delegate's decision. The appellant then applied to the Federal Circuit Court for judicial review, but that Court dismissed that application on 25 January 2017. The appellant now appeals to this Court from the decision of the Federal Circuit Court. 2 For the reasons that follow, I would dismiss the appeal. Background 3 The appellant is a citizen of Sri Lanka who arrived in Australia by boat on 20 June 2012. He is of Tamil ethnicity and is also a Hindu. 4 Before the Tribunal, the appellant claimed that he was threatened, beaten and detained by the Karuna group (a pro-government paramilitary force) in 2006 and forced to work for them as an electrician on various occasions. He also claimed that his family supported the Liberation Tigers of Tamil Eelam (LTTE) but did not fight for them. 5 He claimed that he and his family supported the Tamil National Alliance (TNA) and that he had campaigned in (and 6 months prior to) the 2010 election campaign for a TNA candidate. During this campaign and because of his political opinions, he and other TNA supporters were apparently harassed, threatened and beaten by members of the Karuna group. 6 Apparently, after the occasion when the appellant and other TNA supporters were harassed, threatened and beaten, the appellant was twice threatened with death by the leader of the local Karuna group, once in his house and once at a cricket ground. 7 The appellant claimed that he subsequently went into hiding, first at the house of the MP whose election he had supported, and then in Colombo. Whilst in Colombo, apparently he received on his mobile telephone a number of threats from the leader of the Karuna group, although the Tribunal expressed doubts as to this. Apparently, the appellant went home briefly three times during his time in Colombo; he was discreet about his visits. 8 Before the Tribunal the appellant claimed to fear harm from the leader and others of the Karuna group, and that there was nowhere that he could safely live in Sri Lanka. The appellant also claimed to fear harm as a person who had left Sri Lanka illegally to go to Australia and feared harm as a failed asylum seeker. 9 Generally, before the Tribunal the appellant claimed to fear harm from the government and from paramilitary groups for reasons that included the following: (a) first, because of his race as a Tamil; (b) second, for his political opinions (actual or imputed) in support of the TNA and for opposition to the Karuna group; (c) third, for being a member of the social group of wealthy Tamils; and (d) fourth, for membership of the social group of returned asylum seekers. 10 The Tribunal accepted that the appellant had suffered harassment and that his labour had been exploited (to say the least) on a Karuna construction site. The Tribunal also accepted that he had been the subject of threats and beatings in connection with his work for the TNA, as well as being threatened at gunpoint by the leader of the local Karuna group because of his activities in support of the TNA. 11 Accordingly, the Tribunal accepted that the appellant if he returned to his village had a real chance of suffering serious harm at the hands of the Karuna group and its leader in the appellant's home area because of a combination of his work for the TNA during the 2010 election and his personal disputes with the leader. But the Tribunal found that it was possible for the appellant to relocate to Colombo and that it was reasonable in all the circumstances for him to do so. 12 The Tribunal also considered the appellant's claim to fear harm as a returned asylum seeker. It noted that prison conditions in Sri Lanka were poor, but did not accept that if the appellant spent a brief period in prison as a person who had illegally departed from Sri Lanka, this would relevantly amount to a real risk of serious harm. Generally, the Tribunal was not satisfied that any harm that the appellant might suffer in prison would be "significant harm" within the meaning of s 36(2A) of the Migration Act 1958 (Cth) (the Act) nor would it be relevantly intentional such as to give rise to a right to complementary protection under the Act. Ultimately, the Tribunal found that the appellant was not a person to whom Australia owed protection obligations. 13 The appellant sought judicial review before the Federal Circuit Court. Various grounds of review were raised and rejected by the primary judge. Before me those same grounds have been repeated as grounds of appeal, save that some have now been abandoned. Rather than discussing the brief reasoning of the primary judge at [17] to [23], the preferable approach is to directly proceed to consider those same grounds again by reference to the Tribunal's reasoning, and to consider whether jurisdictional error of the Tribunal has been established. Grounds of Appeal 14 The grounds of appeal that have continued to be pressed before me are grounds 1, 2 and 3 (a), (b), (d) and (f). It is convenient to set these out: 1. The Federal Circuit Court at first instance erred in not finding that the second respondent ("the Tribunal") erred in law and fell into jurisdictional error in failing to take into account the appellant's political views and their ongoing expression. Alternatively, the second respondent erred in failing to have regard to why the appellant was being 'discrete' in relation to his political views. The second respondent erred at law, in that it failed to properly apply S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 and Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132. 2. The Federal Circuit Court at first instance erred in not finding that the Tribunal erred in law and fell into jurisdictional error in that the second respondent failed to take into account a relevant consideration in determining whether relocation was reasonable, specifically the societal discrimination against Tamils. This failure was jurisdictional because the second respondent found that the appellant would be harmed in his home area and so the issue of relocation was a critical one. 3. The Federal Circuit Court at first instance erred in not finding that the Tribunal erred in law and fell into jurisdictional error in that the Tribunal failed to consider relevant considerations by failing to consider claims, or integers of claims, or information required by the Act and the law to be considered. Particulars (a) The appellant claimed and the Tribunal found that the appellant had been a supporter of the Tamil National Alliance ("TNA") and had been beaten, slapped and threatened (Decision Record [36]-[37]), but the Tribunal failed to consider whether the appellant had well founded fear of persecution for reason of political opinion, or a real risk of significant harm, by reason of any future activity by him in support of the or by reason of a future perception of him as a supporter of the TNA, including during or because of any future election campaign. (b) The Tribunal found that the appellant may experience scrutiny as a Tamil if he were to relocate from his home area to Colombo (Decision Record [48]-[49]), but failed to consider whether this scrutiny may cause the appellant to have well founded fear of persecution, or a real risk of significant harm, by reason of: (i) any future activity by him in support of the TNA, including during or because of any future election campaign; or (ii) a future perception of him as a supporter of the TNA; or (iii) as a victim of the Karuna Group or other paramilitary group; or (iv) societal discrimination against Tamils. … (d) The Tribunal noted but failed to make any findings about the appellant's claims that four persons from his village were persecuted in detention on return to Sri Lanka and about the significance of this for the risk to the appellant. (Decision [60]) … (f) The Tribunal failed to consider whether there was a person in the appellant's family willing and able to be guarantor for his bail, and the consequence of this for the length of time he may spend in detention and whether his treatment in this time may amount to persecution or significant harm. … 15 It is now convenient to first address some general propositions raised by the appellant and then to address the specific grounds. 16 The appellant contends that the Tribunal was required to consider each necessary and relevant consideration and integer of the claim. The appellant also contends that the Tribunal had to consider any material question of fact squarely raised by the material before the Tribunal, and that a failure to do so was a jurisdictional error. 17 Further, it was also said (in the most general of terms I might add) that a failure to have regard to information before the Tribunal was a jurisdictional error because of the Tribunal's task as an inquisitorial tribunal under the Act. It was said that the Tribunal "must act according to substantial justice and the merits of the case" (s 420(b)), has the power to seek information (s 424), has an obligation to give particulars of information (ss 424A & 424AA), and has to invite an applicant to a hearing to give evidence and to present arguments. It was said that an error made by the Tribunal about information before the Tribunal or a failure to have regard to information, can be an error of law and "is a sign of" jurisdictional error. 18 Now I accept of course that the Tribunal has to consider the appellant's claims, their component integers, other relevant considerations, relevant arguments and the evidence put before the Tribunal. Moreover, the Tribunal is bound to set out its findings on what it considers to be material questions of fact necessary to address the claims and the component integers. 19 I also accept that inferences may be drawn from a statement of reasons including from what is said and what is not said. The reasons may justify an inference that some claim, integer or important evidence was not considered. But the Tribunal is not required to refer to every piece of evidence or every submission made to avoid a negative inference of the kind suggested by the appellant. As the Minister correctly submits, a submission or evidence may have been peripheral or unimportant, or the Tribunal may have made factual findings which render specific mention to that submission or evidence otiose. Whether any such inference should be made turns on the importance of the matter said to have been overlooked. I would also note more generally that it is well accepted that reasons should not be scrutinised over-zealously. 20 Let me now turn to the specific grounds. Grounds 1 and 3 (a) 21 The appellant contends that the Tribunal accepted that the appellant was a (low level) supporter of the TNA, involved in campaigning during the 2010 election, and that his level of commitment was such that it resulted in him being beaten, slapped and threatened. It is said that the appellant claimed, and the Tribunal did not reject this claim, that he and other members of his family had been active supporters of the TNA for years. It is said that this distinguished them from a large number of their neighbours who may have supported the TNA but were not willing to be active because they did not want to risk harm by political opponents such as the Karuna group. 22 The appellant contends that the work he did in the campaign was required only in the campaign period. 23 The appellant contends that the Tribunal noted that the appellant had not been politically active since the 2010 elections, but failed to consider the "obvious" question of what may be the risk of harm to the appellant when further elections occurred and he was again active in the campaign. The appellant contends that the Tribunal said "He did not claim that he had any intention of pursuing political activities at any level in the future", but that there was no finding by the Tribunal that the appellant had abandoned his political commitment to the TNA. The appellant contends that given his explanation that the kind of political work he did was needed only during election campaigns, and the Tribunal's finding that the appellant's commitment to the TNA had in the past led to him being attacked, beaten and threatened, it was necessary for the Tribunal to consider the risk to the appellant because of his political opinions (whether expressed or repressed by fear) in the future, especially during election campaigns. 24 The appellant contends that the evidence raised for the Tribunal the probability that he would be involved in every future election campaign, and therefore the question of harm from such involvement. The appellant contends that even a small chance of such harm, if a real chance rather than a remote possibility, would be sufficient for the appellant to be a refugee or entitled to complementary protection. The appellant contends that it was therefore necessary for the Tribunal to consider whether his political commitment might cause a risk of harm to him if, as the Tribunal considered was reasonable, he relocated to Colombo. The appellant points out that the Tribunal's focus was on the appellant's "past support for the TNA" when it said "There is no information … to suggest Tamil supporters of TNA in Colombo have been subjected to harm". 25 Now I have difficulty with this ground. 26 First, the appellant did not claim that he had any intention of personally and actively pursuing political activities in the future. In those circumstances it is difficult for the appellant to suggest that the Tribunal ought to have considered that prospect and the consequences of such a resumption. The appellant was given a real chance to present his case before the Tribunal and did not suggest at all that he had such an intention. His statutory declarations of 7 November 2012 and 8 January 2015 and letters on his behalf from the Refugee Advice and Casework Service dated 17 April 2013, 8 and 30 January 2015 to the Minister's department and then the Tribunal are silent on the point. Given that the appellant failed to put a case based upon future political activities, that is hardly a failure that should be sheeted home to the Tribunal. As Merkel J pellucidly explained in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28; [1998] FCA 1693 at 63, even accepting that the Tribunal has an inquisitorial function and is required to determine the substantive issues raised by the material and evidence before it, as well as in some cases pursuing its own enquiries, nevertheless as a matter of reality the Tribunal "is entitled to be guided by the issues that the parties [have chosen] to put before it for its consideration". The Tribunal is not required to engage in some sort of constructive or creative activity to fashion an argument for the appellant that has not been squarely raised by the appellant or does not squarely arise from the material before the Tribunal. 27 Second and in any event, in one sense the Tribunal did turn its mind to the question. It found that there was no claim by the appellant that he would resume political activities (see at [43]). It also noted that the appellant had no involvement with the TNA after moving to Colombo. This ground of appeal must be rejected. Ground 2 28 The appellant contends that the Tribunal failed to consider relevant matters when determining whether relocation was reasonable. 29 It was said that having found that the appellant had a real chance of serious harm in his home area, the Tribunal "considered whether it was reasonable for the applicant to relocate" to another part of his country. It is said that in considering whether it was reasonable for the appellant to relocate, the Tribunal considered some aspects of his situation but failed to take into account societal discrimination against Tamils in Colombo. It was said that the Tribunal found that "Tamils continue to face a level of societal discrimination in Sri Lanka", and that this was arguably a consideration whose effect would be the greater for the appellant because he did not have family members who could assist him. It was said that the Tribunal considered the absence of family connections in Colombo as a discrete matter, but did not consider it as possibly reinforcing the difficulty of societal discrimination. 30 The appellant submits that the Tribunal did note the question of discrimination against Tamils in assessing whether the appellant had a well founded fear of persecution, and concluded that it fell short of persecution. But it was submitted that this was a separate question from the assessment of discrimination of Tamils for the purpose of assessing whether relocation to Colombo would be reasonable for him. 31 Accordingly, so the appellant submitted, the question of the effect on the appellant of discrimination against Tamils was a necessary part of the Tribunal's task in determining the reasonableness of relocation, and that failure to consider this question was therefore a jurisdictional error, and one which may have affected the Tribunal's decision. 32 I would reject this ground as well. 33 As the Minister pointed out, the Tribunal considered the submissions about the reasonableness of relocation as put by the appellant (at [69]), but found for detailed and cogent reasons (at [70] to [74]) that it was reasonable for the appellant in his circumstances to relocate. I would also note that part of the context that the Tribunal had before it was that the appellant had in fact re-located to Colombo and had lived there for 2 years before coming to Australia. That actual experience and evidence thereof no doubt partly informed the Tribunal's considerations. 34 Further, as accepted by the appellant, the Tribunal was aware of the position of Tamils in Colombo. The Tribunal at [47] accepted that Tamils continued to face a level of societal discrimination in Sri Lanka, but found that this had improved. The Tribunal noted that the appellant had not claimed to have faced racially motivated harm in Sri Lanka generally, or in Colombo specifically. The Tribunal in making its finding at [72] accepted that the appellant could be identified as a Tamil from the east of the country and might be subjected to a level of scrutiny. But by reference to its earlier findings, which in my view can be taken as including those at [47], the Tribunal concluded that it was not satisfied that this would render relocation to Colombo unreasonable. 35 I see no error in the Tribunal's approach or its considerations in dealing with the arguments as put by the appellant and the material before it. And the Tribunal was not obliged to go further. Ground 3 – Particulars (a), (b), (d) and (f) Whether the appellant had a well founded fear of persecution by reason of his political opinions, or a real risk of significant harm, by reason of any future activity – particular (a) 36 The appellant's contentions and my response are set out above discussing ground 1. Whether scrutiny of the appellant as a Tamil may cause the appellant to have a well founded fear of persecution, or a real risk of significant harm – particular (b) 37 The appellant submits that although the Tribunal found that the appellant may experience scrutiny as a Tamil if he were to relocate from his home area to Colombo and said that it "does not accept that the [appellant] has a profile that would put him at risk of serious harm for the reason of his actual or imputed political opinion or any other reasons if he was subjected to scrutiny", the Tribunal failed to consider whether this scrutiny may cause the appellant to have a well founded fear of persecution, or create a real risk of significant harm, by reason of the separate or cumulative effect of: (a) any future activity by him in support of the TNA, including relating to any future election campaign; (b) a future perception of him as a supporter of the TNA; (c) being a person already with the profile of being an opponent and a victim of the Karuna group or other paramilitary group; or (d) societal discrimination against Tamils. 38 I reject this ground. 39 I agree with the Minister that the matters set out in [37(a)], [37(b)] and [37(c)] above can be taken to be subsumed within the Tribunal's consideration of the appellant's political profile (at [41] to [46]). And the matter set out in [37(d)] above was considered by the Tribunal and found not to amount to serious harm (at [48]). 40 Now the appellant does not challenge the finding that he may face scrutiny as a Tamil relocating to Colombo, but appears to suggest that this fact, when combined with other facts, formed bases (or claims) to fear persecution. But he has not pointed to any express submission to the Tribunal to this effect. But in any event, it seems to me that the Tribunal's detailed reasons concerning relocation at [40] to [53] implicitly reject such a case. And as I have noted, [37(a)] above was not put to the Tribunal. I am satisfied that no jurisdictional error was made on the relocation question. Whether four persons from his village were persecuted in detention on return to Sri Lanka – particular (d) 41 The appellant submits that the Tribunal noted but failed to make any findings about his claims that four persons from his village were persecuted in detention on return to Sri Lanka and about the significance of this for the risk to the appellant. 42 The appellant submits that it was obviously relevant to his claims of differential treatment for Tamils on return to Sri Lanka, and risk to Tamils, that he said that friends from his own village were arrested, beaten, persecuted and put in gaol. 43 The appellant submits that whether and why this treatment may have occurred, and thereby indicated a differential risk to the appellant, was a relevant matter raised on the material before the Tribunal. 44 I reject this ground as well. 45 Now it is accepted that the appellant advanced evidence of this kind, but the appellant's evidence did not identify the nature of any profile that his friends may have possessed or their precise circumstances. It is to be noted that the Tribunal found, based on country information, that it was only persons of certain profiles that were likely to face a risk of harm in Sri Lanka. The Tribunal was aware of the evidence (at [26] and [60]). I have little doubt that the Tribunal considered this evidence, but did not think that it assisted the appellant's case, particularly because no detail was provided by the appellant as to the precise circumstances or profiles of the individuals concerned. Whether there was a person in the appellant's family willing and able to be guarantor for his bail – particular (f) 46 The appellant submits that the Tribunal failed to consider whether there was a person in the appellant's family willing and able to be guarantor for his bail, and the consequence of this for the length of time he may spend in detention and whether his treatment in such a time may amount to persecution or significant harm. 47 The appellant submits that the Tribunal noted evidence from the Australian Department of Foreign Affairs and Trade (DFAT), including evidence that a family member as guarantor was required for a returned failed asylum seeker to be released on bail, but the Tribunal failed to consider whether a member of the appellant's family would be willing and able to act as guarantor for his bail on his return to Sri Lanka, and, if not, the implications for the length of time he may stay in prison and the risk of him suffering serious harm amounting to persecution, or significant harm, by the length of time he was deprived of liberty in poor conditions in prison, or by ill-treatment in prison. 48 The appellant submits that the Tribunal noted advice by DFAT, which it accepted, and noted two conditions for bail, namely, "All persons are granted bail on personal recognisance, with the requirement for a family member to act as guarantor", but failed to consider whether the second condition for release on bail would be or may be met, namely: "… the requirement for a family member to act as guarantor". 49 The appellant submits that this question of whether the appellant had a family member able and willing to act as guarantor for his bail was a necessary question raised for the Tribunal on the material it had determined to accept. If there was no family member able and willing to act as guarantor, then it was a question for the Tribunal whether bail might be denied, or at least delayed. Denial or delay of bail would mean a longer period in prison. But the appellant submits that the brevity of the period which the Tribunal accepted that the appellant would spend in prison, and therefore the availability of a family member to act as guarantor was, as in Minister for Immigration and Border Protection v SZTQS (2015) 148 ALD 507; [2015] FCA 1069, a "crucial link" in the Tribunal's reasoning that he would not suffer persecution or significant harm during this process of detention, questioning and remand in prison. 50 The appellant submits that the Tribunal therefore failed to have regard to a necessary question in the Tribunal's own chain of reasoning, and an essential part of its determination that it was not satisfied that the appellant met the requirements for protection under the Act. It was therefore a jurisdictional error. 51 I reject this ground of appeal. There are a number of difficulties for the appellant. First, the appellant never submitted to the Tribunal nor was there any material put before the Tribunal suggesting that it was a realistic possibility that there was a difficulty in a family member acting as a guarantor. Second, there is no material suggesting that the findings made by the Tribunal at [65] to [67] including the finding at [66], namely, that any period of detention would be short and confined to at most a few days, were not open. Moreover, the appellant had the opportunity to consider and to controvert those matters, but did not avail himself of that opportunity. Third, relevant country information was put to the appellant and accurately characterised by the Tribunal (see at [64]). The appellant does not suggest to the contrary. Fourth, Minister for Immigration and Border Protection v SZTQS (2015) 148 ALD 507; [2015] FCA 1069 is of little assistance to the appellant given that in that case the relevant finding turned on a debate as to the quality of the evidence before the Tribunal (see at [71]). But in the present case, relevant information was put to the appellant which was not controverted or sought to be questioned in any way. Fifth, to the extent that this ground tangentially (if at all) also relates to complementary protection, there was nothing in the material before the Tribunal to establish the requisite subjective intention in any event of the type discussed in SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405; [2017] HCA 34 at [26] to [29] per Kiefel CJ, Nettle and Gordon JJ. Conclusion 52 None of the grounds of appeal have been made out. The asserted jurisdictional errors made by the Tribunal have not been made good. Accordingly, the primary judge was not in error in failing to find any such jurisdictional error. 53 The appeal will be dismissed with costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach. Associate: Dated: 28 February 2018