Grounds 1 and 3
42 For the reasons that follow, I have determined that grounds 1 and 3 of the notice of appeal are made out.
43 Part 7AA of the Act imposes an obligation on the Authority to review a decision referred to it by the Minister: s 473CA and s 473CC. To exercise its review function lawfully, a decision-maker must correctly construe and consider all claims (and their component integers) made by an applicant or which are apparent on the material before the decision-maker. If a decision is made without having considered all such claims, the decision-maker will have failed to exercise the jurisdiction conferred by the statute, and thereby fallen into jurisdictional error: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]-[25] (Gummow and Callinan JJ, with whom Hayne J agreed at [95]); Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136 at [42] (Allsop J, with whom Spender J agreed at [1]); BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [79] (Rangiah, Perry and Bromwich JJ).
44 It is therefore necessary to consider the claims raised by the appellant in his application. As referred to at [16] above, the Authority in its statement of reasons noted the appellant's claim that he would be subjected to extortion demands from the Sri Lankan military and paramilitary groups upon returning to Sri Lanka because he would be involved in the running of the family business. The appellant also claimed that his father had been subjected to extortion demands in the past. The appellant claimed that when his father did not comply with those demands in 2008, the appellant's brother had been "disappeared", which I understand to refer to being kidnapped and killed. The appellant claimed to fear that he too would be "disappeared" like his brother. These claims were contextualised by the appellant's own experiences of physical violence and threats of violence in Sri Lanka. The Authority did not reject any of these claims by the appellant. In fact, at [49] in its statement of reasons, the Authority appears to have accepted (or at least not rejected) the claim that, as at the date of its decision, paramilitary groups were continuing to demand goods from the family business without payment -
… I note that the applicant's father still runs the family business and although the applicant claims paramilitary groups still demand to be given goods without payment there is no evidence before me to indicate that the applicant's father has been otherwise harmed during these incidents.
45 At [50] of its reasons, the Authority explicitly accepted that the appellant, on returning to work in the family business in his home area, may be subjected to extortion demands.
46 By definition, every instance of extortion is underpinned by a threat that some negative consequence will ensue if the victim does not meet the demand. The appellant's claims in relation to his fear of extortion or bribery demands, and the history of violence towards the appellant and his family, and the Authority's acceptance that the appellant may be subjected to extortion demands, raised for consideration by the Authority whether the threat of harm underpinning those demands would be sufficiently serious to give rise to a well-founded fear of persecution. For reasons upon which I will further elaborate, the appellant's submission that a threat of harm may constitute serious harm for the purposes of the Act should be accepted: Appellant S395/2002 v Minister for Immigration [2003] HCA 71; 216 CLR 473 at [43] (McHugh and Kirby JJ); SZTAP v Minister for Immigration and Border Protection at [17] (Logan J), [61] (Robertson and Kerr JJ).
47 The next question is whether the Authority gave adequate consideration to the appellant's claim in conducting its review. Again, this directs attention to the Authority's written reasons. Those reasons should be read fairly and without a rigid focus on particular language or phrasing: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ). Yet, even allowing this beneficial construction, it does not appear that the Authority evaluated whether the threat of harm, which it accepted that the appellant might face on returning to Sri Lanka, constituted serious harm under the Act. The Authority appears to have focused on the absence of recent physical harm to the appellant or his father, rather than turning its attention to the likely seriousness of any threats that might underpin the extortion demands. The nature of the error by the Authority, being a failure to exercise its jurisdiction, means that it is difficult to isolate a particular sentence or finding in the reasons which itself is determinative of the existence of error. Rather, there are several features of the reasons which, considered as a whole, indicate that the Authority either misunderstood or failed to address the appellant's claim in relation to the threat of harm that he would face on return to Sri Lanka.
48 First, in the section of its reasons under the heading: "Does the applicant face a real chance of harm from paramilitaries through extortion and bribery or forced recruitment?", after referring to the appellant's claim that paramilitary groups continued to enter his father's shop and demand goods without payment, the Authority noted at [49] of its reasons that there was no evidence that the father had "been otherwise harmed during these incidents." In the next sentence, the Authority stated that: "[t]he evidence indicates that [the appellant]'s father has not been physically harmed since 2005 when he was assaulted by men from the Sri Lankan military..." (emphasis added). The Authority then concluded that "I do not consider that [the appellant]'s father has suffered serious harm through extortion and bribery demands." The Authority's reasoning in these passages strongly suggests that it did not consider that anything other than physical harm might constitute serious harm. It appears to have overlooked the possibility that the threats that were made to the father might themselves have constituted serious harm. Had the Authority not been under this misapprehension, one would expect that it would have made findings as to the nature of the threats underlying the demands made to the appellant's father by the paramilitary groups, or the likelihood that those threats would be carried into effect if he refused to comply. The Authority instead fastened upon the absence of any recent physical harm to the appellant's father. It is unclear why the absence of physical harm to the appellant's father should be relevant in the absence of any finding that he had actually refused to comply with recent extortion demands. As Logan J explained in SZTAP at [14]:
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.
49 Second, within the same section of its reasons, the Authority did not refer to the disappearance of the appellant's brother in 2008. The Authority had earlier accepted that the appellant's brother had "disappeared" after their father had refused to comply with a demand by paramilitary groups. That incident could be seen as evidence of the seriousness of the threats that underlay the extortion demands faced by the appellant's father. In fact, it appears to have been the only example before the Authority of what had actually occurred when the appellant's father had refused to comply with an extortion demand. The Authority accepted at [50] of its reasons that kidnap for ransom, extortion, and bribery demands were still perpetrated by paramilitary groups, and that upon returning to Sri Lanka and taking over the family business the appellant may be subjected to extortion demands. It is a striking feature of the Authority's reasons that it did not mention the appellant's brother's disappearance when assessing the seriousness of the harm that the appellant might face through extortion demands. The Authority's failure to refer to the disappearance suggests that it did not grasp the potential relevance of this incident when assessing the potential seriousness of the demands that the appellant might face.
50 Third, at [50] of its reasons, the Authority relied on country information which indicated that, although still occurring, the incidence of extortion, bribery and kidnap for ransom had "significantly reduced" in Sri Lanka in recent years. The Authority also noted that country information showed that the Sri Lankan government was "taking action against perpetrators." The Authority then concluded that, while the applicant may be subjected to extortion demands, there was not a real chance that this would involve serious harm. This aspect of the Authority's reasons is difficult to follow. In light of the Authority's specific finding that the appellant may face extortion demands on his return to Sri Lanka, it is unclear how a general reduction in the prevalence of extortion, bribery or kidnapping in Sri Lanka, or that the Sri Lankan government had recently been taking action against the perpetrators of such activities, informed the Authority's evaluation. I appreciate that the task of this Court on judicial review is solely to identify whether the Authority fell into jurisdictional error, and not to determine whether the Authority could have expressed itself more clearly or completely. However, the process of reasoning undertaken by the Authority indicates that it did not engage with a question raised by the appellant's claims: whether the threat of harm underlying the extortion demands, which the Authority accepted that the appellant might experience on return to Sri Lanka, was sufficiently serious to amount to serious harm under the Act.
51 Counsel for the Minister submitted that, on a fair reading of its reasons, the Authority should be understood to have concluded that, regardless of whether the appellant would or would not satisfy the extortion demands that he might experience on his return to Sri Lanka, the consequences for the appellant would not rise to the level of serious harm. In other words, the Authority reached a conclusion that encompassed all logical possibilities. This submission largely reflected the findings of the primary judge at [55]-[57] of his Honour's reasons. I accept that, if the Authority had expressed its conclusion in this way, then the Authority may not have fallen into jurisdictional error. It would have been unnecessary for the Authority to identify specifically what the appellant would have done when faced with extortion demands, or what the consequences of failing to comply with those demands would have been. As the Full Court (French, Sackville and Hely JJ) observed in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [43] is apt -
It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.
52 However, in my view, that is not a fair reading of the Authority's reasons. I am conscious that the Authority's reasons should not be construed minutely or with an eye attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). But that does not mean that the reasons should be strained in order to reach an interpretation that would uphold the Authority's decision: AHX15 v Minister for Immigration and Border Protection [2015] FCA 1183; 68 AAR 98 at [24] (McKerracher J); Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]-[15] (Allsop J). Taking the Authority's reasons as a whole, the overwhelming impression is that the Authority did not turn its mind to the seriousness of the threats themselves that the Authority found might be made to the appellant, and whether the prospect of those threats satisfied the statutory threshold of serious harm.
53 It is appropriate now to consider the authorities relied upon by counsel for the appellant in support of his submission, which I have accepted, that the Authority was required to direct its attention to the appellant's claim that the threat of harm that underlay the extortion demands that he might experience constituted serious harm, rather than focusing on the physical consequences of the demands.
54 In SZTAP v Minister for Immigration and Border Protection, SZTAP had applied unsuccessfully for a protection visa based on a claim that, during the civil war in Sri Lanka and thereafter, his mother had to pay sums of money to particular officers of the Sri Lankan Criminal Investigation Department because they had threatened to take SZTAP in the absence of his father, who had been sought by the Department on suspicion of being a member of the LTTE. The Refugee Review Tribunal accepted that SZTAP's mother had been subjected to extortion in this way, and accepted that if SZTAP returned to Sri Lanka, then corrupt officers from the Department might continue to visit SZTAP's mother and extort money from her as they had done in the past. However, the Tribunal was not satisfied that the corrupt officers intended to detain or harm SZTAP because they had shown no interest in him. The Tribunal's reasons for this conclusion included a finding that the officers' overriding aim was simply to extort money from SZTAP's mother, and in the absence of any claim that she proposed to stop making payments the Tribunal considered that this situation would continue unchanged and that there was not a real chance that SZTAP would be abducted or otherwise seriously harmed.
55 The Full Court accepted SZTAP's claim that the decision of the Tribunal was affected by jurisdictional error because it was illogical and amounted to legal unreasonableness. Specifically, Robertson and Kerr JJ held at [56] and [61] that it was illogical for the Tribunal to have reasoned that there was not an objective basis for SZTAP to fear harm when: (1) the absence of harm in the past was referrable to the successful extortion of payments from his mother; (2) the harm that had been threatened in the absence of payment was abduction of SZTAP, and that there was no suggestion that this would not amount to "serious harm" for the purposes of the criterion in the Refugees Convention, which at the time relevant to SZTAP's application for a protection visa was picked up by s 36 of the Act; (3) it could not be in dispute that the vulnerability of SZTAP and his mother to extortion arose because of their membership of a social group, namely family members of a person identified by corrupt officers of the CID as having suspected links to the LTTE; and (4) although the Tribunal had held that the corrupt officers' threats were a bluff designed to elicit money from SZTAP's mother, that conclusion was also infected by the illogical reasoning process which had been identified.
56 The presiding judge, Logan J, agreed generally with Robertson and Kerr JJ, and gave separate reasons. Logan J held at [14] that for the Tribunal to have reasoned that there was no real chance of abduction on SZTAP's return to Sri Lanka because his mother would continue to make the payments demanded was "perverse". Logan J stated that 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". His Honour stated at [15] that extortion-related refugee claims require very particular care in the analysis of the underlying occasion for the claimed extortion because this may reveal that the occasion for the extortion is multi-factorial but nonetheless founded in part in a particular vulnerability to extortion for a Convention-based reason. Logan J held that for the Tribunal to conclude that the overriding aim of the corrupt CID officers was simply to extort money from SZTAP's mother was to fail to grapple with why SZTAP's mother was a target for extortion at all: cf, Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317 at [37] (Gageler J). Logan J concluded at [16] that for the Tribunal to reason in this manner disclosed a perversity or want of logicality or rationality in the Tribunal's reasons.
57 In support of his Honour's conclusion that the Tribunal had acted outside its jurisdiction, Logan J set out at [17] an extract from the following passage of the reasons of McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs at [43] -
The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. 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
(Italics in original.)
58 The High Court's decision in Appellant S395 concerned a Bangladeshi couple who applied for refugee protection visas in Australia on the basis of a claimed fear that they would be persecuted due to their homosexual sexual orientation if they were returned to Bangladesh. The Tribunal accepted that it was impossible to live openly as a homosexual man in Bangladesh. However, the Tribunal found that, while living in Bangladesh, the applicants had practiced their sexuality discreetly and in a manner unlikely to attract reprisal, and that there was no reason to suppose that they would not continue to do so if they were returned to Bangladesh. For that reason, the Tribunal was not satisfied that their fear of persecution was well-founded. The Court, by a majority (which included McHugh and Kirby JJ, together with Gummow and Hayne JJ), held that such reasoning involved an incorrect interpretation or application of the applicable law, and remitted the matter back to the tribunal for further hearing
59 In DQU16, the Court examined its earlier decision in Appellant S395. DQU16 concerned an application for a protection visa by an Iraqi national who claimed to fear persecution if he returned to Iraq because, while in Iraq, he sold alcohol, which was banned by local law in some parts of the country and considered "immoral" and "un-Islamic" by Sunni and Shi'ite extremists. The Authority affirmed a decision of a delegate of the Minister to refuse to grant DQU16 a protection visa. The Authority found that DQU16 did not face a real risk of harm if he returned to Iraq because he had sold alcohol previously, and that if he returned to Iraq, he would not continue to sell alcohol. DQU16 contended that the Authority committed jurisdictional error in failing to apply the principle in Appellant S395 when considering his complementary protection claim under s 36(2)(aa) of the Act. Specifically, DQU16 submitted that, in deciding the complementary protection claim, the Authority was required, but failed, to consider why he would modify his behaviour by not selling alcohol if he returned to Iraq.
60 By a joint judgment the Court determined at [25] that "the principle in Appellant S395" uniquely applied to claims for refugee protection under s 36(2)(a) of the Act, and could not be applied by analogy to a complementary protection claim under s 36(2)(aa). In reaching this conclusion, their Honours distilled the ratio decidendi of Appellant S395. Their Honours endorsed the explanation of Appellant S395 that had previously been expressed by Gageler J in Minister for Immigration and Border Protection v SZSCA at [36]-[37], stating at [8] -
The principle for which Appellant S395 stands is that "a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution". The principle "directs attention to why the person would or could be expected to hide or change behaviour that is the manifestation of a Convention characteristic" (emphasis added).
(Footnotes omitted.)
The Court explained the rationale for this principle at [9]-
…a person who would otherwise be entitled to protection under s 36(2)(a) will not, and should not, lose that protection if it can be shown that the person would or could avoid persecution by sacrificing a protected attribute under the Convention. The principle, and its rationale, ensure that "the very protection that the Convention is intended to secure" for those facing persecution because of a protected attribute is not undermined, or surrendered, by requiring such a person to conceal that attribute on return to their home country.
(Footnotes omitted.)
61 In light of DQU16, the jurisdictional error found in Appellant S395 is to be understood to have existed in the Tribunal's reasoning that the appellants could have avoided harm in their native Bangladesh by hiding their sexual orientation, which was a characteristic protected by the Convention, and which would now be protected under s 5J(1) of the Act, as currently in force: see the reference in DQU16 at [10] to the "fundamental, innate or immutable characteristics" in s 5J(3) of the Act.
62 At the hearing of this appeal, counsel for the appellant submitted that the observations of McHugh and Kirby JJ in Appellant S395 at [43] should be understood to exist as a free-standing obiter dictum statement, independent of the ratio of Appellant S395. Counsel also referred to SZVRQ v Minister for Immigration and Border Protection, a decision of this Court in which Snaden J applied McHugh and Kirby JJ's observations in similar factual circumstances to both SZTAP and the present case.
63 In SZVRQ, the Tribunal accepted that, as SZVRQ was a member of the Rohingya ethnic group, he would be would be vulnerable to extortion from government authorities if he were returned to his native Pakistan, who may threaten to charge and detain him on allegations of residing in the country illegally. However, the Tribunal found that the threat of extortion did not constitute "serious harm" because SZVRQ would have sufficient funds to pay whatever "low level" bribes were demanded of him, so the risk that he would actually be arrested or detained by the authorities was remote. The Tribunal also found that the amounts demanded from the authorities would not rise to a sufficient level to threaten SZVRQ's capacity to subsist in Pakistan. Snaden J held that the Tribunal fell into jurisdictional error by incorrectly directing its attention to what SZVRQ could do to avoid persecutory harm if he were returned to Pakistan (at [35]-[38]). The Tribunal did not make any finding as to whether SZVRQ in fact would pay any amounts demanded from him, and so failed to consider "the central question…namely, what will happen to the appellant if he returns to Pakistan and why?"
64 Snaden J went on to consider, for completeness, whether the appeal should be allowed even if his primary conclusion was incorrect, and the Tribunal's reasons should properly be read as encompassing an implicit finding that SZVRQ, upon returning to Pakistan, would (as opposed to could) pay whatever extortion demands were made of him. At [39], his Honour stated that he would still allow the appeal in those circumstances. His Honour observed that the facts of the case bore an "overwhelming resemblance" to those that were before the High Court in Appellant S395. Snaden J cited the previously extracted passage at [43] in Appellant S395 per McHugh and Kirby JJ and reasoned as follows-
To adapt the observations of McHugh and Kirby JJ: to determine the issue of whether there was a real chance that the appellant would be persecuted as he feared without determining whether his likely conduct in Pakistan (namely, meeting whatever extortionate demands were made of him) was influenced by the threat of harm (relevantly in the form of arrest and detention) is to fail to consider that issue properly.
65 I accept the appellant's submission that the obiter comments of McHugh and Kirby J in Appellant S395 describe a general principle, illustrated by the decisions of this Court in SZTAP and SZVRQ, which has not been overtaken by DQU16. That principle is that the serious harm feared by an applicant for the purposes of a refugee claim under the Act may consist in the threat that the applicant will be subjected to some harmful consequences if the applicant does not modify his or her conduct in a certain way. For example, by not engaging in certain activity or by paying bribes or satisfying other extortionate demands.
66 Of course, the outcome of any application for judicial review must turn on the facts of the case and an analysis of the unique reasoning of the relevant decision-maker: SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [35] (Robertson, Griffiths and Perry JJ). The circumstances of the present appeal are materially different from those that existed in SZTAP or SZVRQ in which it was determined that the decision-maker reasoned illogically or unreasonably. Here, the error lay in the Authority's failure to engage with the appellant's claim that by reason of his Tamil ethnicity he would suffer serious harm in the form of the threats to which he claimed he would be subjected. The error was material and therefore jurisdictional because if the Authority had engaged with this aspect of the appellant's claims, realistically its evaluation could have been different. Accordingly, the primary judge erred and grounds 1 and 3 of the notice of appeal should be upheld.