Consideration
80 Mr Minson is undoubtedly correct that the IAA did in fact consider, and had expressly rejected, a number of contextualised claims that the Appellant advanced. However, that establishes no more than that the IAA cannot be criticised with respect to those aspects of its decision making in respect of which the adequacy of its reasoning is not in dispute.
81 However, there appears to be a broader proposition implicit in the submissions Mr Minson advanced on the Minster's behalf. That proposition is that the IAA's rejection of all of the Appellant's specific contextualised claims necessarily was sufficient to permit it lawfully to dispose of any broader generic case the Appellant might have also advanced.
82 However, must that be so? The underlying logic may be tested as follows.
83 Let it be assumed that an applicant for a protection visa has been accepted to be a member of a particular ethnic group. He or she claims that they fear persecution by reason of their religion, ethnicity and imputed political opinions should they be returned to their home country. He or she provides an account of having been subjected to a series of traumatic events. If accepted, that account would show that they had been subjected to past incidents of actual persecution. But let it be assumed that the decision maker is entitled to find that the whole of that account of past persecution is a fabrication and rejects it.
84 In my opinion what then would still remain as requiring consideration would be any unembroidered claim advanced by the applicant to fear persecution on the basis of their ethnicity if returned to their country of origin.
85 The correctness of that analysis can be demonstrated by reference to the paradigm instance that prompted international recognition of refugee rights: the position of persons of Jewish descent objecting to their return to Nazi Germany. All that such a person might falsely advance as an account of their actual experiences of persecution might properly be rejected. But even on that assumption if a similarly evil circumstance was to be replicated today, then self-evidently it would remain necessary for the decision-maker to assess any residual claim that he or she would be at risk of persecution if returned to Nazi Germany by reason of his or her religious and ethnic background alone.
86 However, as Mr Minson submits, it is only if such a claim has actually been made that the duty to consider it arises.
87 At paragraph [21] of its reasons, the IAA stated that the Appellant "himself has not claimed that he has suffered harm or fears harm from the Sri Lankan security authorities because of any suspected connection with the LTTE, or because he is a Tamil". In the same paragraph, the IAA characterised his claims relating to his ethnicity as having been confined to the contention that "Muslims do not like Tamils and want their land".
88 However, those statements appear under the heading "Information before the IAA" and in a particular context in which the IAA was then considering only whether or not there were exceptional circumstances as would permit it to give consideration to certain media and human rights reports to which the Appellant had asked it to have regard to as new information. That that is so evident when regard is had to the paragraphs that precede paragraph [21]:
19. As to the media and human rights reports, the delegate dealt with an implied claim that the applicant faced harm on return as a failed Tamil asylum seeker. The applicant could not have known before the decision was made that she would consider and reject this claim. While the delegate considered some reports about the situation of Tamil asylum seekers returning to Sri Lanka, the most recent of these is dated 2014. As the reports provided by the applicant's representative date from 2015 and 2016, and give the benefit of considering the most up to date information about the situation in Sri Lanka, I am satisfied that in the circumstances, they could not have been provided to the delegate before the decision was made and that there are exceptional circumstances which justify consideration of the reports which are referred to in footnote [12].
20. A report from Tamilnet about the home guards dates from 1997. I am satisfied that this report could not have been provided to the delegate before the decision was made. Given that it concerns a period well before the events described by the applicant took place, when the civil war was in progress, I consider that it is out of date and does not contain credible personal information that may have affected the consideration of the applicant's claims; nor are there exceptional circumstances which justify consideration of this information.
21. Of the other media and human rights reports …
(Emphasis added).
89 By contrast when the IAA addressed itself to the question of the Appellant's refugee assessment, it gave no attention to the claim he asserts in these proceedings he had advanced that he would be subject to persecution by reason of his ethnicity standing alone.
90 The primary judge reasoned that notwithstanding that circumstance, it had not fallen into error because the Appellant "did not claim, and could not reasonably have been taken by the [IAA] to have claimed, fear of harm based solely on his Tamil ethnicity".
91 The difficulty with that finding is that, contrary to the primary judge's observations there clearly was at least some not insignificant material before the IAA consistent with such a claim having been made. That material included:
(1) The Appellant's statement of 24 February 2016, in which he had made the following claims:
I quit studying halfway in Year 10. I had to come to Australia in 2012 because I could not stay in my home town. It is a life and death story….
In Kalmunai, we Tamils are a minority group and most of the population is Muslims. The Muslims do not like us and there are ongoing tensions between us.
(2) The reasons of the Delegate, whose decision the IAA was charged with reviewing. It is uncontentious that the Delegate, although rejecting his claim, had acknowledged that he had claimed that "there were ethnic tensions between the majority Muslims… and the minority Tamils in the applicant's home town". The Delegate had concluded:
I therefore accept that the applicant fears harm because of his Tamil ethnicity.
(3) The written submissions filed on behalf of the Appellant. Those submissions had included the following passage:
Racial identity is viewed as a marker of political allegiance, with acts or relationships that would otherwise be regarded as innocuous gaining greater significance in the eyes of the Sri Lankan authorities. Ethnic identities may hence serve to instigate persecution for reasons of both race and political opinion, even where only one ground is cited.
92 It cannot be to the point, as Mr Minson submits, that those submissions had been advanced to the IAA on the Appellant's behalf by his immigration agent rather than by the Appellant himself. Those submissions were not characterised by the IAA as containing new material or as expressing a new claim as would have engaged s 473DE of the Migration Act. Properly understood they simply highlighted and articulated a pre-existing claim as had been made by the Appellant to the Delegate.
93 For the above reasons the primary judge's reasoning that the passage contained in the Appellant's statement of 24 February 2016 extracted above "could not reasonably have been taken by the Authority to have claimed … fear of harm based solely on his being a member of the Tamil minority" is unpersuasive.
94 An appeal by way of re-hearing requires an appellate court to decide for itself whether the decision of the primary judge is correct or incorrect. Doing so requires a single judge exercising the Court's appellate jurisdiction to determine, within the boundaries of the grounds of appeal, whether the IAA took a course that caused it to fall into jurisdictional error: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 per Gageler J at [20] and [30].
95 The IAA was subject to a duty to give reasons in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; 187 FCR 362, Rares J observed at [86]:
Hence, the importance the courts have placed on the absence from the written statement… of some matter that would have demonstrated that the decision was made according to law or not affected by jurisdictional error. A written statement ensures transparency in the tribunal's exercise of a power conferred on it by the Parliament. This transparency is essential… to enable the Court to exercise the judicial power of the Commonwealth in reviewing whether the decision was made according to law or affected by a jurisdictional error
96 The IAA's otherwise very detailed reasons at no point address the "stand-alone" claim Mr Albert submits the Appellant had advanced.
97 Having regard to what I have set out at [91] I am satisfied that that claim was not only made but also was clearly made. It was, as I have sought to explain, at least potentially, a claim, if accepted, upon which a finding in the Appellant's favour might have be made. Having regard to the reasoning of Gleeson CJ, McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69], I am entitled to infer in the absence of any reference or discussion as to its merits by the IAA that the claim was overlooked. I draw that inference.
98 In this Court deciding for itself, I am satisfied that the IAA, as Mr Albert submits, did fall into error by failing to give consideration to a plainly articulated claim based on the Appellant being at risk of harm as a member of the Tamil minority. The primary judge's reasoning that the IAA did not err in that regard cannot be sustained.
99 However, that is not the end point of this Court's duty. Having concluded that such an error was made it must then give consideration to whether that error was material: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 (SZMTA).
100 To answer that distinct question the Court is required to give attention to whether the error operated to deprive the Appellant of the possibility of a successful outcome: in other words, whether the IAA's decision could realistically have been different had the relevant error not been made: SZMTA at [68], [69] and [71] per Bell, Gageler and Keane JJ.
101 The onus is on the Appellant to satisfy the Court of jurisdictional error, including that the error was material in the relevant sense: SZMTA at [4], [41] and [46].
102 I am unpersuaded that that onus has been discharged.
103 It is not in dispute that the Delegate who had earlier acknowledged the Appellant's claim to fear persecution by reason of his ethnic status standing later dismissed that claim on the merits having given it extensive consideration. While I am satisfied that that claim was not withdrawn and thus had remained before the IAA nothing in the Appellant's written submissions went beyond the abstract in challenging the Delegate's reasoning in that regard.
104 Mr Albert does not suggest that the IAA erred when it reasoned that none of the Appellant's more specific contextualised claims as it accepted had been made justified it concluding that the Appellant had a well-founded fear of persecution (Migration Act s 36(2)(a)) or faced a real risk of suffering significant harm were he to be removed from Australia and returned to Sri Lanka (Migration Act s 36(2)(aa)).
105 At [42] of its reasons, the IAA addressed the Appellant's accepted claim of fear of harm by reason of his being returned as a failed Tamil asylum seeker in the following terms:
….I find that he has no profile as a person suspected of personal or family links with the LTTE. UNHCR's most recent (2012) Guidelines for assessing the eligibility of Sri Lankans for asylum' state that there is no longer a presumption of a requirement for protection simply for reason of being of Tamil ethnicity and a prior resident of areas of the country previously under the control of the LTTE, namely the Northern and Eastern Provinces. The Guidelines state that persons suspected of certain links with the LTTE may be in need of international refugee protection, depending on the individual circumstances of their case. There is no evidence before me to suggest that the applicant has a relevant profile or to indicate that there is a real chance that he would be of interest to the authorities because of suspected LTTE links
106 In assessing that specific claim, the IAA had earlier accepted that there were exceptional circumstances which justified it receiving and taking into consideration certain media and human rights information the Appellant had submitted to be relevant to the IAA's review task. In its assessment of that material the IAA reasoned at [49] as follows:
I have considered the material referred to in the submission provided to the IAA by the applicant's representative. While there are reports of failed Tamil asylum seekers returning to Sri Lanka being detained on arrival at the airport or after returning to their villages, and then being mistreated and subjected to torture particularly if they are detained for prolonged periods, the country information, considered as a whole, suggests that the key risk factor is whether a Tamil has actual or perceived links to the LTTE; merely being a Tamil, or a Tamil from the north or the east, or being a failed asylum seeker is not enough, in my view, to give rise to a real chance of harm on return. In my view, there is no credible evidence before me which points to anything in the applicant's background which would result in his being imputed to have any connection with the LTTE. I find that the applicant does not face a real chance of persecution on returning to Sri Lanka as a failed young Tamil male asylum seeker from Eastern Province who departed illegally, or for any other reason arising from his particular circumstances.
(Emphasis added).
107 I accept that the words to which I have given emphasis appear within a passage responsive to the Appellant's more specific claim to fear harm by reason of his being a failed Tamil asylum seeker. However, it contains a plainly expressed finding of generality as would also extend to a "stand-alone" claim based on the Appellant's Tamil ethnicity. Had the IAA given attention to his "stand-alone" claim as I have concluded it ought to have, I am unpersuaded that there is any realistic possibility that it would have reached a different finding.
108 Having regard to the above I am not satisfied that the Appellant has discharged his burden of proving that the error the IAA made was material. I accept Mr Albert's submission that the error identified in Ground 1 is established but I reject, in the actual circumstances applying, that I should be satisfied that IAA's decision could realistically have been different had the relevant error not been made.