AJL16 v Minister for Immigration and Border Protection

Federal Court of Australia|2019-03-05|Before: Mr J, Ms J, Mortimer J

The appellant have leave to file and serve an amended notice of appeal in the form of the notice of appeal filed on 1 November 2018.
The appeal be dismissed.
The appellant pay the first respondent's costs of and incidental to this appeal, fixed in the lump sum of $6,200.70. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction and summary 1 This is an appeal from orders made by the Federal Circuit Court on 6 July 2018, dismissing the appellant's application for judicial review and ordering him to pay the Minister's costs fixed in the sum of $7,328.00: see AJL16 v Minister for Immigration and Border Protection [2018] FCCA 1680. 2 For the reasons set out below, the appeal will be dismissed.

The Tribunal's reasoning 5 On 18 January 2016, the Tribunal affirmed the decision to refuse the appellant a protection visa. What follows is a summary of the Tribunal's reasoning for that decision. 6 The appellant's claims of what had occurred to him in Sri Lanka, and the reasons for his fears of persecution and serious harm, were put on many different factual bases, and he presented a complex factual narrative to the Tribunal, both through his own evidence and through lengthy submissions put on his behalf by his representatives. 7 The Tribunal accepted the bare aspects of the appellant's narrative of what had happened to him in Sri Lanka before he fled in 2012, and it accepted most of the appellant's account of his personal and family circumstances. 8 It rejected almost all elements of the appellant's claims where they touched on any close association with the LTTE, or any previous harm from Sri Lankan authorities because of any perceived or imputed association with the LTTE. It also rejected the appellant's claim that his cousin had been abducted by unidentified Army or Intelligence officers. Where the appellant's accounts of further harm suffered by him flowed out of an event such as his cousin's abduction, the Tribunal rejected those claims by adopting consequential reasoning: that is, because it did not accept the abduction occurred, it did not accept that part of the appellant's narrative which was claimed to flow on from the abduction. 9 The Tribunal also adopted this kind of consequential reasoning process in relation to other claims made by the appellant, such as that he was severely interrogated when he left Sri Lanka in 2011 to travel to India for work purposes, but managed to return without incident because his boss arranged for people to meet him at the airport and get him through. The Tribunal rejected these claims because of its earlier findings that, prior to this time, the appellant was not of any interest to the Sri Lankan authorities, and because he had previously travelled to India to study without experiencing any problems. There are several other examples where the Tribunal rejected a specific narrative put forward by the appellant (identified sometimes as having been put forward in earlier statements and sometimes only to the Tribunal) on the basis of earlier findings that he was of no interest to the Sri Lankan authorities. 10 Thus, for many of its findings adverse to the appellant in terms of non-acceptance of the factual narrative he put forward about what had happened to him in Sri Lanka, the Tribunal did not make independent factual findings rejecting the claims, but relied on its earlier findings to reject them. To observe as much is not to suggest that reasoning approach is impermissible, but it is important to note that is what the Tribunal did. 11 The Tribunal accepted the appellant and his family may have a claim to property which has been seized by the Sri Lankan Army and which they have not been able to get back, and also accepted the appellant and his family may have lost the deed to the property (the originals having been burned in the bombings of Jaffna during the war) and therefore may be unable to prove ownership of that property. The Tribunal found, however (at [45] of its reasons), that while it might well be described as unfair or unjust, the loss of the land to the Army did not amount to serious harm in the form of economic deprivation threatening the appellant's capacity to subsist, or significant harm, since the appellant and his family have not had possession of the land for 20 years and have lived in Jaffna without the benefit of that property for that time. 12 The Tribunal found at [48] that "the applicant was not in Sri Lanka between 2007 and 2010 but notes that he returned to Sri Lanka in 2010 without any problems and remained in Sri Lanka until 2012 without any problems". I note that this can only be understood as a finding again based on the Tribunal's consequential reasoning from its earlier findings, as the appellant certainly put before the Tribunal a number of claims about his "problems" during this period, none of which were accepted by the Tribunal. 13 In terms of personal matters arising in Sri Lanka since the appellant fled in 2012, the Tribunal accepted his mother may have been questioned by authorities since his departure, and indicated it was aware that this questioning occurred in circumstances where a person, like the appellant, is suspected to have left Sri Lanka illegally. The Tribunal did not accept these inquiries meant the appellant faced a real chance or real risk of serious harm if returned to Sri Lanka. 14 The Tribunal dealt with the appellant's claims about the "Sinhalisation" of the north of Sri Lanka, and the rise of violent gangs of criminals and paramilitaries, which are not controlled by the Sri Lankan authorities. The Tribunal accepted the substance of these claims at one level, but found (at [55]): The Tribunal notes that the applicant has been able to complete his education and work in the north and that, apart from his family land which has been part of a high security zone for 20 years, has not suffered serious harm arising from his race. The Tribunal accepts that there is an increased Sinhalese presence in the north and that Tamils in the north are concerned about this process. However, the Tribunal considers that the country information set out above indicates an improved situation for Tamils in the north overall. The Tribunal also notes that there are processes in place for Tamils to seek compensation for land acquisitions and the crime rate in the north does not indicate that gangs or paramilitaries are murdering Tamils as a form of ethnic cleansing. 15 Over several pages of reasons, and after assessing a considerable amount of country information, the Tribunal found the appellant did not face a real risk of significant harm, on the basis of how he might be treated in Sri Lanka on return, including because of his illegal departure. 16 Relevantly to the appellant's proposed ground of appeal, the Tribunal did find that the appellant might be remanded in prison for a short period of time, as part of the process of being prosecuted for his illegal departure from Sri Lanka. The Tribunal found (at [74]): The Tribunal accepts that prison conditions in Sri Lanka are poor and do not meet international standards. The applicant will be remanded for a short period of time, between one and several nights. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant or amounts to an act which could reasonably be regarded as cruel or inhuman in nature or an act or omission which is intended to cause extreme humiliation which is unreasonable. 17 At [76] the Tribunal found that: … a short period of remand on return to Sri Lanka does not give rise to substantial grounds for believing that the applicant faces a real risk of significant harm in the form of torture or cruel or inhuman or degrading treatment or punishment. 18 The Tribunal's factual assessment of what might happen to the appellant during any period of incarceration, as it found might well occur, was also affected by its earlier findings rejecting the appellant's claim that he had a past association with the LTTE, or would be imputed by the Sri Lankan authorities with an association with the LTTE. For example, at [69] (a paragraph on which there was some focus during oral argument) the Tribunal made the following finding: The Tribunal has considered whether the applicant faces a real chance of serious harm for a Convention reason whilst in custody for a short period of time pending bail. There are reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka's prison system. In 2012, Freedom from Torture reported that "those at particular risk included Tamils with an actual or perceived association with the LTTE including those returning from abroad". For the reasons set out above, the Tribunal does not accept that the applicant will be perceived to have an association with the LTTE which would cause him to be targeted whilst in custody. The evidence before the Tribunal does not indicate that Tamil returnees who have been charged with illegal departure and remanded in custody have been tortured or suffered serious harm whilst on remand and the Tribunal does not accept that the applicant faces a real chance of serious harm whilst on remand. (Emphasis added.) 19 Two matters should be observed about this paragraph, relevant to the appellant's arguments. First, the Tribunal adopts its earlier reasoning, and discounts any particular risk to the appellant based on imputations about LTTE associations. Most of the country information to which I refer below about accounts of harm by way of sexual violence was linked to Tamils who either in fact had, or were imputed to have, links to the LTTE. 20 Second, in this paragraph, the Tribunal does not limit its assessment to a risk of harm in the nature of torture. It specifically addresses "serious harm" in general, which should be taken to comprehend harm by way of acts of sexual violence.

The judicial review application to the Federal Circuit Court 21 The appellant sought judicial review of the Tribunal's decision on 18 February 2016. He was not represented before the Federal Circuit Court, although he appeared and made oral submissions before the Federal Circuit Court. 22 As the Federal Circuit Court reasons record at [3], he put forward two grounds of judicial review: 1. Tribunal failed to take the facts of application without giving me any sufficient opportunities to justify my claim; and 2. Tribunal rushed up with its decision without following the principal of natural justice. 23 The Federal Circuit Court set out in its reasons some of the matters put forward by the appellant at the hearing. It then considered the Tribunal's decision against each of the grounds advanced, doing so in a way which, with respect, was very fair to the appellant and attempted to assess the Tribunal's reasoning by reference to the criticisms the appellant had made. 24 On the first ground, the Federal Circuit Court found (at [27]-[29]) that the appellant was afforded procedural fairness in accordance with Div 4 of Pt 7 of the Migration Act 1958 (Cth) ("the Act"). It found he was represented throughout the process both before the delegate and the Tribunal, and further stated: The applicant was invited to and did attend a hearing before the tribunal assisted by his representative and an interpreter. His representative also provided detailed submissions which were considered by the tribunal, as is apparent from the reasons. The tribunal's reasons are comprehensive and clearly deal with each of the claims made by the applicant. Ultimately at the heart of this ground of review, is a complaint that the tribunal did not believe the applicant and this is in essence, an application for merits review which this court cannot undertake. 25 On ground 2, the Federal Circuit Court found (at [33]) the appellant's complaints about the standard of representation he received from his representatives had no apparent factual basis, but even if they had, such an allegation could not have affected the lawfulness of the Tribunal's decision. There was, I note, no allegation of fraud by his representatives which could have disabled the review by the Tribunal. Further, the Tribunal found (at [33]-[35]) that the appellant's representatives had lodged a great deal of material on his behalf, the Tribunal hearing had been adjourned to accommodate the appellant, and there was a significant gap of about six months between the review hearing and the Tribunal's decision. In those circumstances, the Federal Circuit Court rejected the appellant's contention that the Tribunal had "rushed" its decision. 26 Finally, the Federal Circuit Court noted that the appellant had raised the death of his colleague in Sri Lanka, although he accepted this occurred after the Tribunal's decision. The Federal Circuit Court noted (at [39]-[40]) that that event was "not a matter that this court can have regard to in a judicial review application", but even if it was, it was not a fact that could give rise to any claim of jurisdictional error in the Tribunal's decision.

The parties' contentions in summary 27 The appellant is represented on the appeal and, unsurprisingly, there is no pursuit of the two grounds of review which were raised before the Federal Circuit Court. Instead, the appellant seeks leave to raise a single ground of appeal, and a new argument about why the Tribunal's decision is affected by jurisdictional error. 28 The appellant contends a range of country information was put to the Tribunal on his behalf which indicated that sexual violence is widespread in Sri Lanka's detention facilities, and that Tamil men are at particular risk of such violence. In a context where the Tribunal found that there was a real risk that the appellant would be detained in Sri Lanka for up to several days, the appellant contends the Tribunal did not consider whether there was a real risk that the appellant would experience "degrading treatment or punishment" or "cruel or inhuman treatment or punishment" in the form of sexual violence while in detention, or whether the risk of suffering sexual violence in detention is a real risk faced by the population of Sri Lanka generally for the purposes of s 36(2B)(c) of the Act. On this basis, the appellant contends the Tribunal failed to perform its statutory review function, and failed to consider a claim he had made. 29 The Minister opposed leave being granted, principally on the basis that the proposed ground had insufficient merit.

The question of leave 30 I have previously set out my approach to the question of leave in a situation such as the present: see BKQ16 v Minister for Immigration and Border Protection [2019] FCA 40 at [73] and the authorities there cited. 31 I adopt that approach on this application. 32 I consider leave should be granted to raise the proposed ground of appeal. 33 The proposed amended notice of appeal was filed on 1 November 2018. That was shortly after a notice of acting was filed on 30 October 2018. In other words, once the appellant had retained a lawyer, he acted promptly. Counsel indicated at the hearing that although the proposed notice of appeal was filed without leave, it was always understood the appellant required leave to rely on the new ground. I accept that submission. 34 The appellant was not represented before the Federal Circuit Court. The grounds he inserted into the judicial review application were likely to have been cobbled together with assistance of another person, or from other sources. What he said to the Federal Circuit Court, as recorded in its reasons, makes it clear he had a very limited grasp of the legal concept of procedural fairness, which is understandable. Although it is correct, as the Minister submits, that there is no explanation for this ground not being advanced before the Federal Circuit Court, and no affidavit in support of the application for leave, the explanation is obvious. The appellant, as an asylum seeker with limited English and not being legally qualified, was not able to advance his own case in any material way before the Federal Circuit Court. 35 Now he has legal representation, and a ground has been identified and set out in a professional and clear way. The consequences for the appellant of failing in his judicial review application are profound. He faces removal to Sri Lanka, and possibly detention in Australia prior to his removal. He should, in the circumstances, have a fair opportunity to challenge the lawfulness of the Tribunal's decision now he has obtained legal representation. 36 The Tribunal has found it is likely the appellant will be detained on arrival in Sri Lanka for between one and several days. That is a finding of loss of liberty. The Tribunal has also found he will be detained in Sri Lanka in conditions that are very poor. The fact that this Court might see findings of that nature on a regular basis in Tribunal decisions should not inure the Court to the reality of what those findings suggest a person in the position of the appellant may experience and endure. They are serious matters. 37 There is no prejudice to the Minister as the ground has been fully developed in a timely way, in accordance with the Court's directions. The appellant would have been entitled to pursue two grounds of appeal, reflecting the grounds before the Federal Circuit Court. Instead, he has pursued only one. He would have been entitled to occupy the public resources of the Court and the Minister with two grounds of review that had no prospects of success, as the Federal Circuit Court reasons demonstrate. He has not done so, and instead presses one ground which in my opinion satisfies the description of arguable. These circumstances are of themselves an efficient use of the Court's time and resources, and those of the Minister. 38 Having reached the view the ground is arguable, together with the matters to which I have referred, leave should be granted to advance it and the Court should consider the arguments developed to support it.

How the appellant developed the new ground 39 The appellant does not contend he directly raised the claim that there was a real chance he might be exposed to sexual violence during any period of incarceration on return to Sri Lanka. That is, it is not contended he gave any evidence either in his statutory declaration, or in the interview before the delegate, or the Tribunal, about this fear or risk specifically. In his statutory declaration, he did, however, express his fears of harm in a way which might be said to not exclude sexual violence: I fear harm including arrest, detention, physical assault and death at the hands of the Sri Lankan Army and other government authorities on account of my Tamil ethnicity and having made a complaint against the Government's attempt to confiscate our land. I face an increased risk of this harm as I am a young male Tamil and because I left Sri Lanka illegally. I have already experienced beatings, harassment and persecution by people I believe are associated with the army. I cannot reasonably relocate anywhere else in Sri Lanka to avoid the threat of harm. I believe that I will be killed if I return. 40 In this context, counsel for the appellant accepted the chance of being subjected to sexual violence in prison could not be described as a subjective fear expressed to be held by the appellant, and it may be more difficult to fit this claim within the confines of Art 1A of the Convention (Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967). He accepted the error identified was one which went principally to the Tribunal's assessment of whether the appellant satisfied the complementary protection criteria. Counsel correctly emphasised the different formulation of the criteria for a protection visa in ss 36(2)(a) and in 36(2)(aa) of the Act, which provide: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; (Emphasis added.) 41 Thus, the agreed factual situation is that the appellant himself did not identify any such risk of harm, for either his claims under s 36(2)(a) or under s 36(2)(aa), but his representatives did put forward a reasonable amount of country information on the topic of risks of harm by way of sexual violence. They put forward some information to the delegate, but put more before the Tribunal. The country information contained references to the existence of such risks, and reports of Tamil returnees being harmed by the infliction of sexual violence. 42 In its submission to the delegate, RILC referred to information about the prevalence of sexual violence in Sri Lanka's detention facilities, such as the following extract from the Human Rights Watch report on Sri Lanka published in February 2013: Since the end of the armed conflict, other Tamils, living abroad, returned to Sri Lanka only to be arrested immediately or soon after arrival, and they too have been subjected to torture, including rape, while in custody. A number of these were questioned about alleged activities abroad, including peaceful criticism of the Sri Lankan government. For instance, YN, 46, was deported to Sri Lanka in January 2010. He told Human Rights Watch he was picked up by CID officials as soon as he cleared immigration at the Colombo's international airport, and taken to the fourth floor of CID headquarters where he was detained for two or three days before being transferred to Joseph camp in Vavuniya. He said he was repeatedly beaten, tortured, and raped at Joseph camp. 43 The submission to the delegate also relied on an extract from a Refugee Review Tribunal decision, where the Refugee Review Tribunal had stated that '[s]exual violence against Tamil men in detention has been reported as having occurred recently'. 44 Before the Tribunal, RILC's submissions contained further material addressing this particular risk. The following submissions were made: Widely documented reports of systematic sexual violence perpetrated by Sri Lanka's security services have also been dismissed out of hand by the Sri Lankan government: February 2013 saw the first report to establish the scale of continuing sexual violence in Sri Lanka after the war, when Human Rights Watch (HRW) published a landmark study of politically motivated sexual assaults of mostly Tamil detainees. It documented 75 cases from 2006-12, the majority after the end of the civil war. It found sexual violence by the security forces continued well after the war and all the evidence strongly suggested it was widespread and systematic. The Sri Lankan government dismissed it as "total fabrication" and "beyond any criminal activity, designed to tarnish the image of the country, total blatant lies. The report, coinciding with the UN Human Rights Council sessions in Geneva, gathered accounts of 75 cases of alleged rape and sexual abuse between 2006 and 2012 in both legal and "secret" detention centres in Sri Lanka. Navi Pillay in her 2014 report titled "Promoting reconciliation and accountability in Sri Lanka" noted the following: In its resolution 22/1, the Human Rights Council called upon the Government to conduct an independent and credible investigation into allegations of violations of international human rights and humanitarian law and to take all necessary additional steps to fulfil its relevant legal obligations and commitment to initiate credible and independent actions to ensure justice, equity, accountability and reconciliation for all Sri Lankans. A number of the recommendations made by the Lessons Learnt and Reconciliation Commission also called for further investigation into specific cases and issues, in particular allegations of the indiscriminate killing of civilians and the summary execution of prisoners. To date, the Government has taken limited and piecemeal steps towards investigating serious allegations of violations of international human rights and humanitarian law, and none of these have had the independence or credibility required [emphasis added). The refusal to investigate or prosecute offenses committed by members of the security services against members of Sri Lanka's Tamil population has contributed to a culture of impunity among its security services. We refer to the March 2014 report, An Unfinished War: Torture and Sexual Violence in Sri Lanka 2009 - 2014, which notes the following: These widespread and systematic violations by the Sri Lankan security forces occur in a manner that indicates a coordinated, systematic plan approved by the highest levels of government. Members of the Sri Lankan security forces are secure in the knowledge that no action will be taken against them. … In the same report [a reference to the March 2014 report, An Unfinished War]: In February 2014, the Australian-based International Crimes Evidence Project (ICEP) published a report on Sri Lanka that included an extended discussion of alleged rape and sexual violence during and after the war. Sri Lanka's military spokesman, Brigadier Ruwan Wanigasooriya, rejected the report as "old allegations" that the LTTE and its supporters had been making for the last five years. … On accountability for acts of sexual of violence, Human Rights Watch states the following: However, these specific barriers to prosecutions and redress pale in comparison to the larger and more intractable issue: the Sri Lankan government's clear unwillingness to seriously investigate or prosecute serious violations of human rights by the military and police, particularly those committed in connection with the armed conflict against the LTTE. Despite a backlog of cases of torture, enforced disappearance, and unlawful killings going back two decades, there have been only a small number of prosecutions. Past efforts to address violations by creating ad hoc mechanisms have produced few results, whether in providing information or prompting prosecutions. (Footnotes omitted.) 45 As the appellant submitted, the RILC submissions went on to link the risk to the appellant of being detained, even for a short period of time, for his illegal departure, to the risk he might be subjected to sexual violence. The appellant referred, for example, to the following extract from a March 2014 report: Some witnesses whose previous asylum applications were unsuccessful reported being abducted upon their return to Sri Lanka by the security forces, who knew of their failed asylum applications. Once in detention, they were subsequently repeatedly tortured and sexually assaulted until, in cases documented in the study, bribes could be used to procure release and they managed to leave the country again. (Footnotes omitted.) 46 The appellant also referred to that part of the RILC submissions (somewhat further on in the submissions) where another extract from the March 2014 report was set out, which stated: Most of the torture and sexual abuse alleged by the witnesses took place as recently as 2012, 2013 and 2014, with alleged involvement of, high-ranking officers in the Army, members of the Criminal Investigation Deportment (CJD), Terrorist Investigation Division (TID) and other members of the police force [emphasis added]. Sworn statements were also provided bv two independent international medical experts who have assessed hundreds of torture claims from Sri Lankans, and many more from other countries, and who have served as qualified experts for courts, tribunals, immigration boards and commissions of inquiry panels. (Footnotes omitted.) 47 RILC also submitted: Accounts of burnings with hot irons, rape, sexual abuse and long periods of solitary confinement have been commonplace in the testimony of FFT clients. … In the present case, it is our submission that while punishment for illegal departure is indeed a law of general application, it may be implemented in practice in a discriminatory manner towards Tamil individuals with distinct profiles, such as our client. That is to say, that once detected and questioned at the airport (which is a certainty), there is then a real chance that the period of remand detention that Mr Aloysius would be subjected to would be arbitrarily long; that he would be subject to interrogation and mistreatment, including torture, while in detention. we submit that the likelihood of mistreatment and torture while in detention causes this punishment to move beyond a mere law of general application and to move towards a law that is inflicted in a persecutory manner on Tamil individuals with particular profiles, such as our client. (Footnotes omitted.) 48 Although there was no specific reference to sexual violence, RILC concluded its submissions by contending that "Australia's obligations are engaged in relation to the real risk that the [appellant] will suffer mistreatment including torture in prison in Sri Lanka". 49 Thus, it is sufficiently clear, in my opinion, that RILC was pointing to the risk of harm by way of sexual violence as one of the risks that persons such as the appellant might face on return to Sri Lanka. However, and it important to make this qualification, the submissions by RILC and the reliance on the country information to which I have referred were made in the specific context of advancing a claim by the appellant that he in fact had past associations with the LTTE and would be mistreated for that reason, and further that he would be imputed with associations with the LTTE in the future. The Tribunal rejected both of those bases for his protection claims, and the fact of that rejection is significant in assessing the error identified by the appellant on this appeal. 50 It is common ground that there is no specific reference in the Tribunal's decision to any risk of sexual violence in prison which the appellant might face on return to Sri Lanka. As I have noted in the extracts cited above at [16], the Tribunal accepted (at [74]) that prison conditions were poor and did not meet international standards, but found that any harm the appellant might suffer would not be intentionally inflicted. This particular finding is (I infer) based on, and referable to, the High Court's decision in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405 at 408-409, 411-413. 51 The appellant contends the Tribunal's approach to intention missed the point. He submits that: … [w]here the harm consists of 'impersonal' prison conditions, such as 'overcrowding, poor sanitary facilities and limited access to food', the question is whether an 'official to whom knowledge of prison conditions can be imputed, could be said to intend to inflict severe pain or suffering on the appellants or to intend to cause them extreme humiliation by sending them to prison.' However, where the feared harm takes the form of a direct application of physical force to the applicant's body by another person, it is that person's intention (and not the intention of a hypothetical government official) that is relevant. (Original emphasis and footnotes omitted.) 52 Relying on AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the appellant submits that the Tribunal's review task in matters such as whether there is a real chance of serious harm for the purposes of complementary protection is unlikely to be performed according to law by a "summary and formulaic finding". The appellant contends the Tribunal must: … 'understand what degrading treatment was in the statutory context, and then by reference to the evidence and material before it, explain why it did or did not consider that that was the kind of treatment the appellant had a real risk of facing if he were to be remanded for a period of several days, including determining whether there was an "actual subjective intention" to inflict degrading treatment'. (Footnotes omitted.) 53 He contends the same principles apply where a risk of cruel or inhuman treatment or punishment is alleged. 54 The appellant submits the Tribunal, having found the appellant was likely to be detained for up to several days, did not consider the "sexual violence claim" at all, and therefore "failed to perform its jurisdictional task". He contends the Tribunal's findings on the risk the appellant would face torture were insufficient because they were at too high a level of generality given the specific harm identified in the RILC submissions. The appellant relied on the kind of analysis undertaken by Beach J in BPF15 v Minister for Immigration and Border Protection [2018] FCA 964, see especially at [103]-[107] where his Honour's conclusions on a similar argument are expressed.

Findings and conclusions on the new ground 55 In his statutory declaration, having outlined all his past experiences which led him to fear returning to Sri Lanka, and to fear that he would not be protected by the Sri Lankan authorities if he returned, the appellant said: I fear that they will know if I return to the airport and will arrest and detain me there. I left without a valid passport and would face punishment for this. 56 Together with the parts of his evidence which I have quoted at [39] above, this is as specific as his claims were about what kind of mistreatment would occur if he were to return. Of course, those statements were made in the particular context of his narrative about previous association with the LTTE and the likelihood he would be imputed with an association with the LTTE. 57 The Minister relied on the following observations by Allsop J (as his Honour then was) in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15]: … the statutory task of the Tribunal is to assess the claims by reference to all the material not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but have not been, and then subjecting them to further analysis to assess their legitimacy. 58 These observations were cited with approval by a Full Court in Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; 219 FCR 287 at [70], and more recently in the Full Court decisions of DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177 at [21] and AOJ18 v Minister for Home Affairs [2018] FCAFC 220 at [29]. 59 I do not consider the present case falls easily within the circumstances described by Allsop J in NAVK, but on reflection, I have concluded the appellant's arguments do have elements of this kind of approach. RILC made submissions which included submissions about sexual violence, so much is correct. However, it did so without a proportionately significant focus on that kind of harm as one likely to be experienced by this particular person on his return. The focus of the submissions was on country information supporting the appellant's direct claims to fear harm because of a past association with the LTTE and the future risk of an imputed association with the LTTE. It was in this context that the country information referring to sexual violence was presented. 60 Although in hindsight it may be easier to describe the Tribunal as having "missed" the aspect of the country information dealing with sexual violence, I do not consider that is what occurred. The appellant simply did not indicate he feared any such harm, inside or outside prison. He made no mention of sexual violence whatsoever. The RILC submissions drew attention to this specific risk as one of the many kinds of harm which it submitted could befall a person in the appellant's position. For the Tribunal to have dealt expressly with it would have required an exercise akin to attempting to "discover" any potential claims lying somewhere in the country information. 61 I do not accept that it is appropriate to describe this aspect of what was presented by RILC as a "claim" made by or on behalf of the appellant. While I accept the point made by the appellant about the difference between the assessment under s 36(2)(aa) and the assessment under s 36(2)(a), it is still necessary for a visa applicant to identify what it is about her or his particular circumstances which is said to give rise to "substantial grounds" for the belief that she or he may suffer significant harm on return to her or his country of nationality. That is not to insist such identification occur through evidence directly from a visa applicant, although of course that is one obvious and regular way in which a claim may be made. It may be inferred from the existing evidence, or it may be part of the instructions provided to a representative and communicated in such a way. In some circumstances, a representative may formulate a "claim" on behalf of a visa applicant, but whether or not that is the correct characterisation for what has occurred will be a matter of fact in each particular case. 62 As NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 makes clear (at [55]), such a "claim" may arise directly, or indirectly, on the material, but if it is not dealt with, the Tribunal will have failed to carry out the review the statute requires of it. In NABE the Full Court said at [58]: It has been suggested that the unarticulated claim must be raised 'squarely' on the material available to the Tribunal before it has a statutory duty to consider it - SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb 'squarely' does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal. 63 Another characterisation of the nature of this error is a failure to accord procedural fairness and a constructive failure to exercise jurisdiction where there was "... a substantial, clearly articulated argument relying upon established facts" that was not dealt with by a decision-maker: see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]. 64 Whether characterisations of this kind are appropriate will be an assessment to be made in each case. The term "claim" is not part of either of the protection criteria in ss 36(2)(a) and 36(2)(aa). In a legislative scheme which requires an "application", and a basis identified in the application for a favourable exercise of power, it is no more than a label emphasising the need for an applicant who seeks the favourable exercise of power to put forward the basis on which she or he seeks it to be exercised, and some probative material to support that basis: see Beezley v Repatriation Commission [2015] FCAFC 165; 150 ALD 11 at [68]. 65 I do not accept that the appellant, whether by himself or through his representatives, had sought to invoke Australia's protection obligations on the basis that if he were incarcerated, there was a real chance or a real risk that he might be subjected to sexual violence by State or non-State actors during that incarceration. He had sought protection on the basis he might be harmed - and the kinds of harm were developed in some detail by his representatives through the use of country information. One kind of harm identified was sexual violence. This did not mean that in considering and assessing this aspect of his "claim", the Tribunal needed expressly in its reasons to deal with every kind of harm the country material suggested a person in the appellant's position could conceivably face. The Tribunal was entitled to focus on what the appellant himself identified and what could reasonably be drawn from the RILC submissions. Although sexual violence was clearly mentioned as a possible form of harm, I do not consider it figured so prominently that it could properly be described as a separate "claim" made by the appellant, or a "claim" linked to another claim made by the appellant. 66 Further, the RILC submissions to the Tribunal state: [The appellant] relies on his previous Statutory Declaration dated 9 December 2012 ("2012 declaration") submitted with his Protection Visa application. He does not wish to raise any new or varied claims, (Emphasis added.) 67 It was in that context of how the appellant and his representatives had framed his "claims" that the Tribunal found that those with a real chance of suffering harm while incarcerated for reasons such as illegal departure were Tamils with an actual or perceived association with the LTTE. The Tribunal did not accept the appellant had a profile of that kind. At [69] it concluded: The evidence before the Tribunal does not indicate that Tamil returnees who have been charged with illegal departure and remanded in custody have been tortured or suffered serious harm whilst on remand and the Tribunal does not accept that the applicant faces a real chance of serious harm whilst on remand. 68 This reflected the way the appellant had put his visa application to the delegate and to the Tribunal, both in person and through RILC. I do not consider the Tribunal ought to have been expected to specifically identify and determine whether the appellant faced any risk of sexual violence while on remand. In the circumstances of this case, it was sufficient for the Tribunal to look at harm at a more global level, and its findings were lawfully able to be located within its general findings about the risks of "serious harm". There is no suggestion in its reasons that the Tribunal was excluding sexual violence from what might be comprehended under the heading of "serious harm". 69 Read in the context of the Tribunal's factual findings unfavourable to the appellant's asserted LTTE association or imputation, the Tribunal was in particular looking for risks of harm to those Tamil returnees whom it had found had a similar profile to the appellant - that is, people without any likelihood of being imputed with LTTE affiliations. That was the lens through which the Tribunal was examining the country information. This may explain the absence of a specific reference to the sexual violence extracts in the country information, although as I have found, the Tribunal was not obliged to expressly refer to this material as it was not a "claim" made by the appellant. 70 I also accept the Minister's submission that, the appellant being capably represented, he had not himself put forward any material about this particular risk of harm - that is, whatever went on between him and his adviser, this particular harm was not identified as one he should address in his evidence. Some weight should be given to this, although it is not determinative. 71 Two of the sources referred to in the RILC submissions (Human Rights Watch and Freedom from Torture) were the subject of a report by DFAT to which the Tribunal referred at [60] of its reasons. In that report, DFAT described communication with the "The Migration Directorate from the Foreign and Commonwealth Office (FCO) in London" and described the response from the FCO as being that: We have received no substantiated cases of mistreatment on returns for our returnees, and claims made by organisations such as Freedom from Torture and Human Rights Watch are not supported by any of our interlocutors. 72 Before the Tribunal, this kind of material could be described as third-hand hearsay, from sources located in several countries (at least, the United Kingdom and Sri Lanka) but in a review such as that conducted by the Tribunal, that is no objection to it being relied upon. However, at some point it may bear on the rationality and reasonableness of a decision-making process if there is no scrutiny applied to the reliability of what is being related second- or third-hand, and at some point, an assessment may need to be undertaken by a decision-maker about the rigour of the process by which such statements are obtained. Otherwise, reliance on such material may not properly be described as a rational reliance on probative material. That is not a contention made by the appellant in this appeal, and no more need be said. 73 The Tribunal placed some weight on DFAT's response and found (at [61]-[62]): DFAT also advised that it is aware of a small number of allegations of torture or mistreatment by returnees and that verifying these allegations is difficult because they have been made anonymously and to third parties. DFAT also noted that there have been thousands of asylum seekers returned to Sri Lanka since 2009 and relatively few allegations of mistreatment. The UNHCR has advised that persons with certain suspected links to the LTTE may be at risk of harm on return to Sri Lanka. For the reasons set out above, the Tribunal does not accept that the applicant will be imputed with any LTTE association. The information above does not indicate that Tamils returnees from Australia have been imputed with an LTTE association arising from their travel to Australia. The Tribunal places weight on the DFAT report set out above and is satisfied that the applicant will not be subjected to any detention or interrogation on return to Sri Lanka other than the standard questioning and procedures as outlined above by DFAT. The Tribunal does not accept that this questioning and procedure amounts to serious or significant harm. Landlnfo also concluded in 2012 that there is nothing to indicate that returning Tamils are treated in any particular way or are at risk of violations. (Footnotes omitted.) 74 Having provided a rational explanation for preferring some country information over other information before it, the choice about the weight to give that kind of material was a matter for the Tribunal. There was nothing irrational, or legally unreasonable, in its reasoning process, not that those grounds are alleged in any event. I am satisfied that in these two paragraphs, the Tribunal showed some cognisance of the kinds of harm to which the RILC submissions referred more specifically. That is evident from its use of the term "mistreatment" and also its use of the term "violations". 75 I also accept that the Tribunal did focus on the most up-to-date country information, including the DFAT country information report on Sri Lanka from 2015. Since the task is a prediction as to what may happen to a person in the future, it is a core aspect of the Tribunal's review, and the formation of the requisite state of satisfaction in the context of provisions such as s 36(2)(a), for a decision-maker to make her or his assessment based on the most recent information available: see Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [73]-[74]. 76 There was no error in the Tribunal not adverting specifically to the information before it about reports of sexual violence being perpetrated on Tamils incarcerated in Sri Lankan prisons. I do not consider that in the context of the appellant's claims before the Tribunal, fulfilment of its statutory task required it to assess and explain with specificity why it was not satisfied there was a real chance or a real risk the appellant might experience sexual violence during the one to "several" days or so the Tribunal found he may be incarcerated in a Sri Lankan prison. 77 While the appellant made a submission about intention in assessing risk of harm which appears limited to non-State actors, as I understood the argument, it included a contention that the Tribunal should have examined the risk of both Sri Lankan authorities and non-State actors being potential perpetrators of sexual violence. The country information put forward by RILC contained material suggesting people who could be identified as "State actors" were in some situations responsible for such violence. Broader arguments about the role of intention and non-State actors in the determination of complementary protection obligations are dealt with by Beach J in BPF15 (see [88], [101]-[106]). That is not the kind of contention being advanced on this appeal and those debates can be put to one side. What is plain (and needs no authority) is that if any State actor in Sri Lanka (prison officers, police, prosecutors, CID or holders of similar offices) is involved in, condones or is an accessory to, the perpetration of sexual violence on prison inmates, that conduct is likely to be the kind of conduct which may give rise to protection obligations under the CAT (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)) or the ICCPR (International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976)) to those protection visa applicants found to face a real chance of being the victims of such conduct. It is quite a different situation from a country not having sufficient resources, or not having taken sufficient steps, to maintain prison conditions to international standards. 78 The appeal must be dismissed, with costs. 79 The parties each filed affidavit evidence containing a 'Costs Summary' detailing the costs of and incidental to this appeal (in accordance with the requirements of the Court's Costs Practice Note (GPN-COSTS)). 80 The first respondent claims costs fixed in the lump sum amount of $6,200.70 on a "party and party" basis. That amount includes costs incurred by the first respondent's instructing solicitors and disbursements in the form of counsel's fees. The bulk of the work undertaken by the first respondent's instructing solicitors was performed by a lawyer, and no more than 11 hours of time was billed by those instructors in total. 81 Counsel's fees constituted disbursements for counsel's attendance at the hearing of the appeal and preparation of the first respondent's submissions. I am satisfied that the lump sum amount claimed is reasonable having regard to the nature of the matters raised in this appeal and the fact that the appellant was represented. Accordingly, I will order that the appellant pays the first respondent's costs of and incidental to the appeal fixed in the lump sum of $6,200.70. I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.

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