Federal Court of Australia ATL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 770 Appeal from: ATL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 14 File number(s): VID 548 of 2021 Judgment of: MCELWAINE J Date of judgment: 7 July 2023 Catchwords: MIGRATION – appeal from primary judge's decision in Federal Circuit Court affirming a decision of the Immigration Assessment Authority to affirm the refusal of a Safe Haven Enterprise Visa – whether primary judge misconstrued, misunderstood or misapplied what is meant by membership of a particular social group at s 5L of the Migration Act 1958 (Cth) – whether "wealthy Tamil land owners who acted contrary to the interests of powerful politicians" is a particular social group – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 5J 5L, 36 Federal Court Rules 2011 (Cth) r 36.01 Cases cited: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 ATL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 14 Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30 Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; [2000] HCA 19 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Huber v CellOS Software Ltd (in liq) (No 2) [2023] FCA 459 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497; [2022] HCA 17 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 30 Date of hearing: 20 June 2023 Solicitor for the Appellant: Mr RT Selliah of Rasan T Selliah & Associates Counsel for the Respondents: Mr M Hosking Solicitor for the Respondents: Australian Government Solicitor ORDERS VID 548 of 2021 BETWEEN: ATL17 Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent order made by: MCELWAINE J DATE OF ORDER: 7 July 2023 THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant is to pay the first respondent's costs of the appeal as agreed or in default of agreement as assessed by a Registrar of this Court in a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MCELWAINE J: 1 The appellant is a citizen of Sri Lanka who arrived in Australia by boat on 10 September 2012. Thereafter on 30 November 2015 he was invited to apply for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa (SHEV). He accepted the invitation and applied for the latter in February 2016. He provided various documents in support of his application including two statutory declarations dated 7 September 2013 and 28 January 2016. He attended an interview to discuss his application on 10 May 2016. A delegate of the Minister, on 2 September 2016, decided to refuse to grant the SHEV on the ground that the appellant and did not satisfy the criteria at s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Act). 2 On 12 September 2016, the delegate's decision was referred to the Immigration Assessment Authority (IAA) for review. More information was provided to the IAA. The IAA affirmed the delegate's decision for reasons published on 9 February 2017 (IAAD). The appellant, on 22 February 2017, then applied for judicial review of the IAA decision to the Federal Circuit Court of Australia, as it then was. Subsequently he amended the grounds of his application. On 7 September 2021, the primary judge dismissed the review application: ATL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 14 (PJ). On 27 September 2021, the appellant filed a notice of appeal in this Court. 3 The appellant contended before the primary judge that the IAA committed jurisdictional error in that it misconstrued, misunderstood or misapplied what is meant by membership of a particular social group at s 5L of the Act; made a finding that was legally unreasonable, illogical or irrational when considering that issue and failed to consider or make a finding on a claim (or an integer of a claim) that arose expressly or was clearly identified on the information before it. The notice of appeal to this Court in substance repeats those contentions. 4 I heard the appeal as a single judge exercising the appellate jurisdiction of the Court pursuant to s 25(1AA)(a) of the Federal Court of Australia Act 1976 (Cth). Mr R T Selliah, solicitor, appeared for the appellant and Mr M Hosking appeared for the Minister as first respondent. I have concluded the appeal must be dismissed. The claim to protection 5 Central to the appellant's case are his related claims that he meets the criteria for a protection visa within the meaning of s 36(2)(a) or (aa) of the Act because he has a well-founded fear of persecution based on his membership of a particular social group: ss 5H, 5J and 5 L of the Act. The particular groups that he identifies with are "wealthy Tamil land owners and Tamil[s] who acted contrary to the interests of powerful politician[s]", much of which turns on acceptance of the appellant's evidence as to a dispute about the building of a petrol station without permission on land owned by his family by individuals associated with the paramilitary group known as the Tamil Makkal Viduthalai Pulikal (TMVP). 6 The IAA made findings of fact and reasoned as follows. Construction of the petrol station commenced in or around June 2009, funded by a wealthy member of the TMVP. Despite protestation by the appellant (and members of his family), including representations to local politicians, the construction work proceeded without consent. In 2011, members of the local police force attended the appellant at his home and told him that he should not interfere with the construction of the petrol station. Shortly thereafter the work proceeded to the extent of occupying approximately 25% of the appellant's land. Despite engaging a lawyer, the appellant was unable to prevent the progress of the works. In April 2012, the appellant was visited by an individual from the Special Intelligence Division of the Sri Lankan Army (SLA) who informed him that he was the subject of an investigation. The investigator accused the appellant of providing funding to the Liberation Tigers of Tamil Eelam (LTTE). Later he was threatened by men from the TMVP and the SLA to the effect that if he refused to give up his land for the building of the petrol station, they would inform the government that he had supported the LTTE and that in consequence he would be imprisoned. There were subsequent visits by members of the TMVP and, at the suggestion of the appellant's mother who feared for his safety, he left Sri Lanka. 7 Members of the appellant's family were friends with a member of the Tamil National Alliance (TNA). Although the appellant has not been and does not wish to become involved politically, he is from a prominent family and in consequence is perceived as being a supporter of the TNA. Former members of the LTTE are now associated with the TMVP. In particular, the IAA summarised the appellant's fear of persecution at IAAD [6]: The applicant fears he will be beaten, tortured, abused, and / or killed by the SLA, CID, Police, and harmed / mistreated by the TMVP if he returns to Sri Lanka. This will happen because he is Tamil; because of his imputed political opinion as pro-LTTE and a TNA supporter; because of his membership of a particular social group "failed asylum seekers" and "failed asylum seekers imputed with links to the LTTE" and "wealthy Tamil land owners" and "Tamils who act contrary to the interests of powerful politicians" 8 The IAA did not accept that the appellant faced a real chance of serious harm based on his past experiences with the LTTE, the SLA or the Indian Peace Keeping Forces (IPKF) reasoning at IAAD [15]-[17]: In assessing the chance of the applicant facing harm in the future as a result of these events I note that they occurred during the war in Sri Lanka which ended in May 2009 when the Sri Lankan military effectively decimated the LTTE as a fighting force. I note that the IPKF are no longer present in Sri Lanka and have not been in Sri Lanka for many years. I also note that more than 15 years have passed since the applicant's home was broken into by the STF and the threat was made to harm the applicant and that the applicant has not been harmed by the STF in the time since the threat was made. As noted by the delegate there has been a change of government in Sri Lanka since the applicant's departure from Sri Lanka and, according to DFAT, under the new government of Maithripala Sirisena the forced registration of Tamils no longer occurs, most checkpoints have been removed, and the monitoring and harassment of Tamils in their day to day life has generally ceased. I accept that the applicant's past experiences would instil fear, however after assessing all the evidence I find that, given the time that has passed, and the significant change in circumstances in Sri Lanka, in particular the departure of the IPKF, the end of the war and demise of the LTTE, the applicant does not face a real chance of serious harm in the future in Sri Lanka from the LTTE, the IPKF, the SLA and the STF. (Footnotes omitted.) 9 Next the IAA considered the appellant's claims of future harm because of his Tamil ethnicity and imputed political opinion as a supporter of the LTTE and the TNA. It accepted that Tamils faced a level of discrimination, including monitoring and harassment by members of the security forces. However, the internal war ended in 2009 and with a subsequent change of government, the harassment of Tamils in their day to day life had generally ceased. Accordingly, the IAA concluded that the appellant did not face a serious risk of harm because of his Tamil ethnicity and in consequence his fears of persecution were not well-founded: IAAD [22]. The same conclusion was reached on the question of whether the appellant faced a real chance of serious harm in Sri Lanka for reasons related to an imputed political opinion as a supporter of the LTTE: IAAD [33]. 10 The IAA then gave detailed consideration to the petrol station incident and the appellant's claim that if returned to Sri Lanka, certain powerful politicians were likely to inflict harm upon him because of the land ownership dispute and the building of the petrol station. As this claim is central to the appellant's appeal, I set out the reasoning of the IAA more comprehensively. The appellant's basal fear is summarised at IAAD [34]: I note the applicant's claim that as a result of the building of the petrol station on land owned by his family he fears that men from the SLA and TMVP will inform the government that he supported the LTTE and have him put in jail or will harm him in other ways. 11 The IAA accepted the appellant's factual account of the land ownership and petrol station construction dispute. However, in assessing the degree of risk of harm the IAA concluded that it is remote and found that the appellant's fear of harm was not well-founded at IAAD [41]. The reasoning which supports that conclusion (at [37]-[40]) is: In assessing the chance of the applicant being jailed and/or otherwise harmed for this reason I have considered the following. As noted previously, the applicant's travel to and from Sri Lanka and obtaining Sri Lankan passports without any difficulty indicates that he is not perceived by the Sri Lankan authorities as a person who supported the LTTE. Originating from an area that was previously under LTTE control meant that, along with every other person living in these areas, he and his family were compelled to provide support for the LTTE through paying money, paying taxes, and assisting in whatever manner they were required to assist. Originating from an area that was previously under LTTE control does not in itself result in a need for international refugee protection on the grounds of imputed political opinion as an LTTE supporter. After assessing all the evidence I am satisfied that the applicant does not face a real chance of being perceived to be an LTTE supporter by the Sri Lankan authorities, even having regard to any threatened intervention by the TMVP, the SLA and other associated parties. Also, as noted by the delegate, the applicant was not harmed by [names omitted], the authorities or the TMVP in the past when the land dispute was occurring. Rather, he was threatened with harm if he continued to prevent the building of the petrol station on his family land. The petrol station has been constructed, despite the applicant's objections. [Name omitted] and the others have achieved what they wanted to achieve. The applicant has not claimed that it is his intention to contest, nor did he express an interest in contesting the matter in court if he returns to Sri Lanka. [Name omitted] was arrested by the CID in Batticaloa in October 2015 on charges of killing former TNA parliamentarian Joseph Pararajasingham on December 25, 2005 in Batticaloa. [Name omitted] has returned to Switzerland where he lives. I note that in the past the applicant was able to resolve his issues with [Name omitted] and others through legal means. Country information indicates that the TMVP are a political party, have renounced paramilitary activities, and the criminal activities of paramilitaries including the TMVP is greatly reduced in Sri Lanka. The Office of the United Nations High Commissioner for Human Rights (OHCHR) refers to a response from Alan Keenan, Sri Lanka senior analyst at the International Crisis Group, in which he states "There are no longer any active paramilitaries in Sri Lanka. There are ex-LTTE and ex-Tamil militants from other parties who are reportedly working with the Sri Lankan military as informants and/or intelligence operatives. Some of these, according to some reports, may be involved in criminal activities including drug-running, extortion and violence. However, there is little hard evidence and such activities do not appear to be the work of clearly identifiable groups." The Immigration and Refugee Board of Canada (IRB) refers to a response from Colonel Hariharan, a former military intelligence officer of the Indian army, in which he states that "with the exit of Mahinda Rajapaksa from power, paramilitary wings have lost much of their influence and relevance to pressurize people", and that "military intelligence, which had enjoyed a lot of patronage during the previous regime to use paramilitary as coercive instrument of power outside the pale of law, is at present under a lot of pressure from the government." (Footnotes omitted.) 12 The IAA reasoned similarly concerning the appellant's fear of harm that he is perceived to be a supporter of the TNA: IAAD [42]-[45]. In addressing the direct question that the appellant feared future harm because he is a member of the particular social groups of wealthy Tamil landowners and Tamils who have acted contrary to the interests of powerful politicians, the IAA reasoned at [46]-[49]: I accept that "wealthy Tamil landowners" may be a particular social group; however I do not accept that "Tamils who acted contrary to the interests of powerful politicians" are a particular social group. In making this finding I note that the latter do not share a common characteristic which is innate or immutable, fundamental to their identity or conscience, or which distinguishes them from society. The purported group is defined by its actions. "Tamils who acted contrary to the interests of powerful politicians" are not a particular social group. The applicant clarified at the SHEV interview that his claims in this regard relate to his specific circumstances of fearing harm because of his refusal to give his family land for the purpose of the building of the petrol station. I am satisfied the applicant's fears in this regard have been addressed in the previous pages in this decision. For completeness, the applicant has not claimed that in the past he has been targeted because he and his family own farmland and are regarded as wealthy Tamil landowners, other than by the LTTE during the war. I have found that the applicant no longer faces harm from the LTTE as they are no longer a viable force. Rather the claim was based on a dispute arising from ownership of a particular parcel of land. I am satisfied after assessing all the evidence that the applicant does not face a real chance of harm because he is a member of the particular social group "wealthy Tamil landowners". 13 In so reasoning, the appellant's central complaint is that the IAA misunderstood what is necessary for a person to be treated as a member of a particular social group at s 5L of the Act, or otherwise this reasoning is legally unreasonable, illogical or irrational. Review before the Federal Circuit Court 14 The primary judge rejected the appellant's misunderstanding, legally unreasonable and illogical or irrational grounds which do not differ from the grounds of appeal to this Court. At the time of the IAA decision, s 5L of the Act provided: 5L Membership of a particular social group other than family For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person's family) if: (a) a characteristic is shared by each member of the group; and (b) the person shares, or is perceived as sharing, the characteristic; and (c) any of the following apply: (i) the characteristic is an innate or immutable characteristic; (ii) the characteristic is so fundamental to a member's identity or conscience, the member should not be forced to renounce it; (iii) the characteristic distinguishes the group from society; and (d) the characteristic is not a fear of persecution. 15 The primary judge described the appellant's claim that he was a member of a particular social group as "without merit": PJ [20]. The primary judge cited extensively from Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 242-243, Dawson J and Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; [2000] HCA 19 at [12]-[42] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) and concluded that no jurisdictional error had been committed by the IAA at PJ [22]-[24]: As noted earlier by reference to [46] of its reasons, the Authority identified the distinction between people who may be members of a particular social group, and those people in such group [sic] who have the characteristics as set out in s. 5L(c) of the Act. The Authority was alive to the requirements of s. 5L(c) of the Act, specifically using the words of such section in [46] of its reasons. Further, at [48] of its reasons, the Authority noted that the applicant had not claimed that in the past he had been targeted because he and his family owned farm land and were regarded as wealthy Tamil land owners, save in respect of the LTTE during the war. The applicant did not meet the high bar required to be met for the claim that the Authority was legally unreasonable because its reasoning was illogical and irrational. The Authority carefully dealt with the applicant's claims that he would suffer harm from particular individuals, or the TMVP organisation, and dismissed such claims. The Authority had due regard to country information in its assessment of whether there was a real chance that the applicant would suffer serious harm if he was returned to Sri Lanka, finding that he would not. The applicant cavils with the decision of the Authority and effectively seeks an impermissible merits review. 16 Further, the primary judge rejected an argument that the IAA failed to make "an obvious inquiry about a critical fact" (at PJ [25]) and the further argument that it failed to find that the appellant met the criteria for the complementary protection regime at s 36(2)(aa) together with ss 36(2A), 36(2B) and 36(2C): PJ [27]-[36]. The primary judge concluded that the IAA correctly understood the significant harm requirement at s 36(2A) at IAAD [63]-[66]: PJ [31]-[32]. Finally the primary judge concluded that the IAA did not reason illogically or irrationally and the decision was not legally unreasonable at PJ [34]-[35]: The Authority dealt with the claim that the applicant was relevantly a member of a PSG and duly found against the applicant. The Authority otherwise assessed whether the applicant faced a real chance of suffering serious harm either because of the land dispute, or because of an alleged imputed political association, but dismissed such claims. The Authority was satisfied that the applicant did not have the profile of an anti-government activist, or of a Tamil separatist. The Authority found that the applicant's expressed fears were not well-founded. At [59] of its reasons, the Authority found that there was not a real chance that the applicant would face serious harm "now or in the reasonable foreseeable future in Sri Lanka". At [65] of its reasons, the Authority found that the applicant did not face a real risk of significant harm "now or in the reasonably foreseeable future in Sri Lanka". It must be inferred that the Authority turned its mind to that very question in respect of each claimed basis for protection. The Authority did not err in the way in which it conducted its review of the applicant's claims. It was thorough and logical in the way in which it considered the evidence before it, and in the way in which it made its findings. The appeal to this Court 17 Despite being legally represented before the primary judge and on appeal to this Court, the appellant's grounds of appeal fail to focus on why it is said the primary judge erred. Rather, the appellant simply reproduces the grounds of review that were agitated before the primary judge with inconsequential alterations to the wording of the grounds. The only difference is that in this Court, the appellant adds three particulars to the particulars relied on in the Federal Circuit Court. A notice of appeal which fails to identify error in the decision of a primary judge and which is simply an attempt to re-agitate points that were argued below fails to comply with the basic requirements for a notice of appeal at r 36.01(2) of the Federal Court Rules 2011 (Cth), is unhelpful and unlikely to persuade this Court that there is correctable error in the decision below: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30 at [2]-[4], Gyles, Stone and Buchanan JJ; Huber v CellOS Software Ltd (in liq) (No 2) [2023] FCA 459 at [49]-[56], McElwaine J. 18 As drawn, the grounds in this Court provide (without correcting for grammatical or syntax errors): Grounds of appeal 1. The appellant contended in the Federal Circuit Court that the Immigration Assessment Authority ("the IAA") fell into jurisdictional error by misconstruing, misunderstanding and misapplying the test contained in section 5L of the Act when determining the Convention ground of Particular Social Group ('PSG'). And The IAA's finding is legally unreasonable because its reasoning process is illogical and irrational. Particulars: (a) The IAA made a finding and conclusion at paragraph 46 stating that they do not accept that "Tamils who acted contrary to the interests of powerful politicians" are a particular social group. In making this finding they note that the latter do not share a common characteristic which is innate or immutable, fundamental to their identity or conscience, or which distinguishes them from society. The purported group is defined by its actions. While the IAA merely stated the law at paragraph 46, the IAA misunderstood the term "by its actions" under legislation and case law. The IAA erred on construing s 5L and in considering matters relevant in determining whether the circumstances of the Applicant's claim constitute PSG, both to satisfy the elements of s 5L and the additional conditions of the term "by its actions", which is not contained within the Act. The Federal Circuit Court made conclusion at paragraph 22 to 23 in relation to the first part of the second ground but it did not deal with the ground and submission of the applicant. The Federal Circuit Court erred in that conclusion. In the second part of the second ground the Federal Circuit Court erred in stating that the applicant did not meet the high bar required to be met for the claim that the Authority was legally unreasonable because its reasoning was illogical and irrational. It failed to deal with the ground and submission of the ground. 2. The appellant contended in the Federal Circuit Court that: The IAA committed jurisdictional error by failing to consider or making a finding on a claim or an integer of claim that arose either expressly or clearly on the information and evidence before it: Particulars: (a) At paragraph 46 the IAA accepted the claim of "Tamils who acted contrary to the interests of powerful politicians" but concluded that that the group is not a PSG. However, the IAA failed to consider and make findings for the claim for complementary protection (paragraphs 61 to 65) whether the applicant will suffer "significant harm" (ss 36(2)(aa) & 36(2A). The IAA failed to correctly construe and apply, or otherwise correctly answer, the question posed by section 36 (2)(aa) when considering the Applicant's claim for complementary protection (b) The IAA failed to consider (and make finding) the applicant's claims cumulatively, despite its statement that it did so at CB 205 [59]. (c) The IAA failed to consider the applicant's fears of future harm as a member of the PSG of "wealthy Tamil landowners" because it misunderstood and mischaracterised the clam. The conclusion is legally unreasonable as the reasoning process is illogical and irrational. In relation to the first particular the Federal Circuit Court erred in its finding at paragraph 30-31. IAA at paragraph 38 or paragraph 34-41 considered a separate claim of SLA and TMVP will inform the government that he supported the LTTE and have him put in jail or will harm him in other ways. However, in this claim the IAA did not make conclusion about the reasonably foreseeable future at paragraph 41 because of the nature of that particular claim. The IAA failed to make finding or consider the claim whether the applicant as a Tamil who acted contrary to the interest of powerful politicians will suffer significant harm when assessing the complementary protection. In relation to the second particular the Federal Circuit Court erred in its finding at paragraph 32. The Federal Circuit Court did not consider the argument that the IAA failed to consider cumulative consideration realistically. In relation to the third particular the Federal Circuit Court erred in holding that there is no jurisdictional error in relation to this particular. One aspects of the argument before Federal Circuit Court was that the IAA misapprehended and mischaracterised the applicant's claim and thereby not dealt with the particular social group that have been raised by the applicant. At paragraph 33, the Federal Circuit Court misunderstood this particular. The first argument was the IAA misunderstood and mischaracterised the claim of "Wealthy Tamil landowners" namely it did not dealt with the PSG claim that have been raised. Secondly, the reasoning process to the outcome is illogical and irrational. 19 As to ground 1, in written and oral argument, Mr Selliah placed considerable emphasis on the factual aspects of the appellant's claims and on passages from various authorities, but with respect failed to expose why the primary judge or in turn the IAA failed to apply the identified principles. Expressed simply, the appellant's complaint is that the IAA failed at IAAD [46] to consider whether his claims satisfied the elements of s 5L of the Act because it took "an overly narrow view" of the basis on which he claimed to be a member of a particular social group. The written submission continues: IAA only considered the 5L(c)(i) and (iii) but not entire 5L(c)(ii) of the alternative clauses of 5L(c). Clause 5L(c)(ii) state "the characteristic is so fundamental to a member's identity or conscience, the member should not be forced to renounce it". Therefore the appellant "should not be forced to renounce it". The particular social group/s that related to the appellant was identified by the appellant. The appellant submits that the proper social group on the material before the IAA was social groups with the significant attributes that have been expressly highlighted. 20 By adopting a narrow view, it is further submitted that the IAA erred at IAAD [46] by concluding that a group defined by its actions is not one that shares a common characteristic. 21 The self-evident difficulty with this submission was identified by the primary judge at PJ [20]-[21]: Tamils who had acted contrary to the interests of politicians cannot be a particular social group because the shared characteristic is a fear of persecution by those politicians which engages the disqualification at s 5L(d) of the Act. Further, as the Minister correctly submits, the IAA also found that the appellant did not face a real chance of harm from the politicians he feared at IAAD [49], with the consequence that he could not satisfy the necessary criteria at s 5J(4) and (5) of the Act. 22 Nor is there any merit in the alternative contentions of legal unreasonableness, illogical or irrational reasoning to the conclusion, or in the conclusion itself, at IAAD [46]. When pressed in oral argument to explain the basis for these arguments, Mr Selliah was unable to do so beyond stating the obvious: the appellant disagrees with the finding. The primary judge was perfectly correct to reject these arguments at PJ [37]-[38] by reference to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [66] and [76], Hayne, Kiefel and Bell JJ. The grounds mask an invitation for this Court to engage in merits review. 23 As to the second ground, the appellant contends that the IAA failed to consider his claims to complementary protection on three bases: whether he faced a real risk of significant harm because he had acted contrary to the interests of powerful politicians; failure to cumulatively consider each of his claims and failure to consider his claims of future harm as a member of the particular social group of wealthy Tamil landowners. 24 In support of these arguments, Mr Selliah draws attention to and relies upon numerous authorities. The principles are not in dispute. A constructive failure to exercise jurisdiction by the IAA may be made out if it "fail[s] to respond to a substantial, clearly articulated argument relying upon established facts": Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24], Gummow and Callinan JJ. Similarly, if the IAA "disregard[s] a claim which arises clearly from the materials before it": NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [59], Black CJ, French and Selway JJ. In argument, Mr Selliah employed the phrase "active intellectual engagement" or variants of it, despite the reservations as to the utility of such phrases expressed in Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497; [2022] HCA 17 at [26], Kiefel CJ, Keane, Gordon and Steward JJ. 25 In developing the argument in support of this ground much emphasis was placed on the appellant's claims, variously expressed, that he would likely suffer significant harm if returned to Sri Lanka, whereupon his whereabouts would be quickly ascertained by powerful politicians, units of the SLA, the TMVP and the police. The particular complaint is that whilst the IAA considered and made findings about the relative risk to the appellant as a wealthy Tamil land owner, no consideration was given to each of his other claims. Further, on the cumulative aspect it is submitted on behalf of the appellant that his claims were not considered "cumulatively in real terms". 26 There is no merit in these arguments. Commencing at IAAD [61], the IAA considered the appellant's claim for complementary protection. No criticism is made that the IAA misunderstood the requirements of s 36(2)(aa) of the Act at IAAD [61]. The reasoning then proceeds at IAAD [63]-[64]: I have considered the applicant's claims that he fears being harmed in Sri Lanka because of his past experiences with the LTTE, the SLA and the IPKF; his Tamil ethnicity; his imputed political opinion as a supporter of the LTTE and the TNA; his claims arising from the building of the petrol station on his family land; his fears of the TMVP; and because he would be returning as a Tamil failed asylum seeker who departed Sri Lanka illegally. As outlined in the preceding pages I have found that the applicant does not face a real chance of serious harm in Sri Lanka in relation to his claims. I note that the "real risk" test in the complementary protection provisions imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear". As I have found that the applicant does not face a real chance of serious harm in relation to his claims I find also that he does not face a real risk. I accept that Tamils face a level of discrimination in Sri Lanka; however I am satisfied that the particular circumstances of the applicant are such that any discrimination he may face is not significant harm. I am satisfied that the applicant does not face a real risk of being arbitrarily deprived of his life; of the death penalty; of being subjected to torture or cruel or inhuman treatment or punishment; or degrading treatment or punishment. I find that the procedures the applicant will go through on return to Sri Lanka, as outlined in the above paragraphs, will not involve significant harm to the applicant. The fine, and the brief period of detention on remand he will face because of his illegal departure, does not amount to significant harm. 27 Having made each of those findings the IAA concluded at [65] that the appellant "does not face a real risk of significant harm now and in the reasonably foreseeable future in Sri Lanka." What is readily apparent from this reasoning is that the IAA relied on the earlier findings whereby each of the appellants claims were rejected based on his Tamil ethnicity ([18]-[22]), imputed support of the LTTE ([23]-[33]), the petrol station and land ownership disputes ([34]-[41]), association with the TNA ([42]-[45]), the perception that he is a wealthy Tamil landowner who had acted contrary to the interests of powerful politicians ([46]-[49]) and the claim that he feared future harm as a person who had departed Sri Lanka illegally and would return as a failed asylum seeker with imputed links to the LTTE ([50]-[58]). Expressly, the IAA stated at IAAD [59] that each of the appellant's claims had also been considered cumulatively in assessing whether there is a real chance that he will face harm now or in the reasonably foreseeable future in Sri Lanka. 28 What is manifestly clear is that the IAA was alert to each of the appellant's claims, essayed the material in support and made findings of fact contrary to the appellant's case. There was no failure to consider the material and the arguments in support of each claim. The contention that the IAA failed to undertake a cumulative assessment flies in the face of the express statement to the contrary at IAAD [59] and no persuasive argument was put that it is open upon a jurisdictional review to look behind that finding on the facts of this case. 29 The primary judge reasoned similarly at PJ [30]-[35] and did not err in rejecting the appellant's contentions. Conclusion 30 None of the appeal grounds are made out. The appeal must be dismissed. I was informed that there is no reason why costs should not follow the event. I order as follows: 1. The appeal is dismissed. 2. The appellant is to pay the first respondent's costs of the appeal as agreed or in default of agreement as assessed by a Registrar of this Court in a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth). I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine. Associate: Dated: 7 July 2023