Ground 1
35 The appellant submitted that, given that the Authority accepted that the taking of his catch by the Navy was systematic and discriminatory treatment directed towards him because:
(1) he was a Tamil and he had a particular vulnerability to that conduct because of his race; and
(2) when he resisted the taking of his catch, he was physically mistreated and had his means of earning a living removed for a month,
it was therefore clear that if he resisted the taking of his catch in the future, he was likely to suffer similar mistreatment, including long periods without the capacity to earn a livelihood.
36 The appellant contended that the Navy was engaging in extortion. In those circumstances, the appellant submitted that the Authority's conclusion that the harassment of the Navy was not to such an extent as to threaten his capacity to subsist was illogical. It was submitted that the Authority failed to ask the question of whether the threat of harm underlying that extortion constituted persecution. Reliance was placed upon the reasoning of Logan J in SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; 238 FCR 404, in which his Honour gave additional reasons to those of Robertson and Kerr JJ for upholding a somewhat different ground of appeal as follows:
14. To reason, as the Tribunal did, at [51], that there is no real chance of abduction on return because the appellant's mother will continue to make the payments demanded is, with all respect to the member constituting the Tribunal, perverse. The very essence of extortion, if successful, is that the threat made to the victim will not be carried into effect providing that the demand made is satisfied.
…
17. To conclude that the reasons given by the Tribunal as to why it was not satisfied that the appellant was a person to whom Australia owed protection obligations were logical and rational would be to render that protection obligation largely ineffectual in cases grounded in claimed extortion for multi-faceted reasons which include being targeted for Convention-based reasons, if not to stand those protections on their head. The type of reasoning evident in [51] was rejected as fallacious by McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [43]:
… The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many - perhaps the majority of - cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
(Original emphasis.)
This explanation for the rejection of such reasoning has later been applied in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1142 and SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 and, in the United Kingdom, in HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596.
37 It was submitted that the primary judge was therefore in error when his Honour found at [30]:
In relation to Ground 2, Mr Kumar of counsel took the Court to the Authority's reasons in relation to the incidents that the applicant had encountered in relation to loss of his fishing catch and argued that there was not a meaningful and real consideration being given to the applicant's claim in relation to his ability to sustain himself. The Authority's reasons reflect a proper and genuine engagement with the applicant's claims. The adverse finding in relation to the applicant's ability to subsist as a Tamil fisherman was open on the material before the Authority and cannot be said to lack an evident and intelligible justification. No jurisdictional error of the kind alleged in Ground 2 is made out.
38 The Minister submitted that the claim upon which the appellant relied, namely extortion, was not one that was ever made before the delegate, before the Authority or before the primary judge. The Minister also relied upon s 5AAA, which provides that it is for the appellant to specify all particulars of a claim of being a person who is owed protection obligations and to provide sufficient evidence to establish such a claim. It was submitted that without further elaboration, this ground could not succeed.
39 As the case for the appellant unfolded, it became apparent that the appellant sought to ventilate the issue of having to continue his prior behaviour modification to avoid the dire consequence of losing his livelihood altogether. The appellant was, in substance, objecting to having to forgo, without resistance and as a result of admittedly discriminatory conduct, a part of his fishing catch so that he could keep his fishing permit and continue fishing to earn his livelihood. That is, the appellant objected to the proposition that if he complied and surrendered a part of his catch, as the Authority effectively found he would have to, there would be no significant harm. Stated in those terms, without qualification, that argument might have found support in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473, in which it was found that asylum seekers are not required to modify their behaviour, such as by taking reasonable steps to avoid persecutory harm, and if such steps are taken, it is necessary to inquire as to why that had taken place to ensure it was a truly voluntary choice. The High Court found that if the fear of harm will influence an asylum seeker to live discreetly, a decision-maker will err if consideration is not given to whether the fear of harm is well-founded and whether the threat of harm itself constitutes persecution.
40 However, Appellant S395 was addressed by Parliament legislatively, not to curtail that case in its terms but, rather, to confine the scope of its potential application to the sort of case in which it arose. The current manifestation of that legislative response is contained in part of s 5J, a provision which defines in some detail the Refugees Convention concept of a "well-founded fear of persecution", being an aspect of what is necessary for refugee status and the grant of a protection visa under ss 5H(a) and 36(2)(a) respectively. Section 5J(3) provides:
A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person's identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
41 The outcome in Appellant S395 would have been the same had s 5J(3) existed at the time it was decided. However, s 5J(3) operates so that modification of conduct can be required if it does not go so far as to compromise the essential terms of the Refugees Convention, now set out in s 5H. Thus, a person cannot claim to have a well-founded fear of persecution if reasonable steps could be taken to avoid a real chance of that persecution by modifying their behaviour, provided that the modification does not entail any of the matters listed in s 5J(3)(a), (b) or (c). Other exclusions of such conduct contained in s 5J do not require consideration in this case.
42 In written submissions for the appellant in support of being given leave to amend ground 1 in the terms proposed, it was submitted that nothing more was involved than an elaboration of the way in which the ground had previously been drafted. The asserted error remained a failure to address whether the threat of harm which underpinned the appellant's decision to surrender his fish amounted to serious harm. On that argument, the ground as sought to be amended asserts a failure to ask the question required by the High Court in Appellant S395, as modified by s 5J(3). That is, it is asserted that, akin to Appellant S395, the Authority's consideration was confined to the seriousness of the harm remaining after the modifying behaviour, and that it was not open to the Authority to assess the seriousness of the greater harm feared if that modifying behaviour had not taken place.
43 The Minister's anticipatory response to the above amendment argument was that the amendment was futile because the Authority had found that the harm feared, and not just the harm to be imposed after modified behaviour by way of compliance, was not serious harm. The Minister asserted that the appellant had not made any claim to fear other harm and, in particular, made no claim that he would modify his behaviour. Section 5AAA required the appellant to specify all particulars of his claim.
44 It is convenient to outline the aspects of the Authority's reasons to which the Minister was adverting in relation to the findings made about harm.
45 The Authority found that the beatings that the appellant described happened only twice over a five-year period, and only within the context of the immediate aftermath of the civil war between the LTTE and the Sri Lankan government. The Authority thus addressed the basis for finding little future risk of physical harm of a kind that was not present in SZTAP (being the ratio of that case). The Authority was satisfied that the incidents of physical harm described by the appellant were attributable to the conditions prevailing at the time and that the chance of the appellant suffering similar harm now or in the foreseeable future was remote.
46 The Authority accepted that the appellant would still be subject to a pass system, and may face the same situation of day-to-day discriminatory and systematic conduct by the Sri Lankan authorities, based on his Tamil ethnicity, that may impact on his capacity to earn a living. However, the Authority did not accept that the evidence suggested that the appellant would be unable to support and maintain himself as a fisherman, or that the harassment of him while conducting his fishing work was to such an extent that it would threaten his capacity to subsist or that would otherwise constitute serious harm.
47 The appellant's response to the Minister's futility argument was that the materials before the Authority, and the Authority's own findings as to the harm that the appellant had faced in the past, were sufficient to raise for consideration whether the appellant was modifying his conduct to avoid serious harm, namely by surrendering his catch. A comparison was drawn with Appellant S395, in which the Tribunal found that the applicants for protection visas were homosexuals, rejected claims of past serious harm and said that the applicants had been discreet, but also found that the applicants had not in terms claimed that they had to modify their behaviour so as not to attract attention, relying on McHugh and Kirby JJ at [35] and [39]. Thus, it was the threat of serious harm that mattered in Appellant S395. It should be noted that the modifying behaviour of the applicants in that case was to conceal their homosexuality, which was what attracted a Convention ground of persecution.
48 The appellant in this case argued that his claims of past harm that were accepted included the surrender of his fishing catch, and being physically mistreated and having his fishing permit suspended for a month when he objected. He argued that the loss of his ability to fish fell within the s 5J(4)(f) definition of "serious harm", being "denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist". Thus, it was effectively argued, the "but for" case of what would happen if his behaviour was not modified was stronger and clearer than it had been in Appellant S395, in which the claims of past harm had been rejected. The appellant submitted that the findings by the Authority made it highly likely that he had surrendered part of his catch in the past because of the fear of greater harm, amounting to serious harm, if he did not do so. He submitted that there was no other plausible explanation for his acquiescent behaviour, given the accepted evidence of what had happened when he had not submitted to surrendering his catch. Thus, while the appellant had made no express claim of behaviour modification, he submitted that it unavoidably arose from the findings as to what had happened in the past, those findings being the best guide as to what would happen in the future.
49 The arguments advanced on behalf of the appellant addressed Appellant S395. There subsequently remained a need to address the legislative confinement of the effect of that case by s 5J(3). The appellant's argument in relation to that provision was that it operated in a manner analogous to the principles applicable to relocation. It was submitted that before that provision arises for consideration, there must first be a finding that there is a real chance of harm for a Refugees Convention reason (as manifested in the reproduction of the terms of that Convention in s 5H). The appellant submitted that it is only then that the Authority needs to consider whether the appellant can take reasonable steps to avoid the serious harm within s 5J(3). Thus, it was argued, the terms of s 5J(3) had not yet arisen for consideration.
50 The submissions for the appellant set out in the preceding paragraph cannot be accepted. The whole point of enacting s 5J(3) was to confine the scope of the application of Appellant S395 to Convention-like reasons for modifying behaviour. If, as a result of the modification of behaviour of the kind required by s 5J(3), there was either no harm at all, or harm falling short of serious harm, then no further inquiry is required on that aspect of the claim of a well-founded fear of persecution. The only circumstance in which that does not apply is if the modification of behaviour is of a kind that does not fall within s 5J(3), so as to be back within the operation of Appellant S395 (as essentially covered by the terms of paragraphs (a), (b) and (c) of s 5J(3)).
51 In seeking leave to further amend ground 1, the appellant did not identify any reason why the conduct of the appellant, in surrendering part of his catch so as to avoid the more serious consequences that had occurred in the past, fell outside each of the subparagraphs in s 5J(3). It is at this point that the reliance by the appellant on Appellant S395 breaks down, because there is no reason to doubt that the modifying behaviour in that case was of the kind described in s 5J(3)(c)(vi), being concealment of true sexual orientation. By contrast, there was no suggestion made that the appellant surrendering part of his catch, discriminatory though it was, amounted to modifying conduct that:
(1) conflicted with any characteristic fundamental to his identity or conscience (s 5J(3)(a));
(2) concealed any innate or immutable characteristic that he has (s 5J(3)(b)); or
(3) required him to do any of the things listed in s 5J(3)(c).
52 Without Appellant S395 reasoning applying, as provided for and perhaps more by paragraphs (a), (b) and (c) of s 5J(3), the appellant cannot rely on the seriousness of the harm in the absence of modifying behaviour. Rather, the seriousness of the harm can only be relied upon with the benefit of modifying behaviour. Even on a reading of the Authority's reasons that is most advantageous to the appellant, it was effectively found that if the appellant were to continue to surrender part of his catch, as he had done in the past, he would not suffer serious harm. There was no legal error, let alone jurisdictional error, in that conclusion.
53 It follows that whether or not leave to further amend ground 1 is granted, ground 1 must fail. In those circumstances, there is no utility in granting leave to further amend. Leave is therefore refused, and this ground fails.