MZAAA v Minister for Immigration and Border Protection

Proceedings before the Federal Circuit Court 13 The appellant lodged an application for review of the Tribunal's decision on 18 September 2013. Only one of the review grounds relied upon by the appellant before the Federal Circuit Court is repeated on this appeal. That ground, as expressed in the appellant's amended notice of appeal dated 1 December 2014, was that: (a) The Second Respondent failed to exercise jurisdiction in that the Second Respondent failed to consider an integer of the Applicant's claim that he would be targeted because he was a young man from [redacted] or a young Tamil man from [redacted]. Alternatively, the Second Respondent erred at law by failing to properly categorise the Applicant and his claims when considering them. Further and alternatively, the reasoning of the Second Respondent was illogical in considering the Applicant's ethnicity in isolation from his particular characteristics/social group claims (see Submissions filed today). Particulars (1) The Applicant advanced a claim that he would be targeted as a young Tamil man from [redacted]. (2) The Second Respondent did not consider those claims. (3) In paragraph [25] at [CB 192] the Second Respondent rejects, as a group, any claim where Tamil ethnicity is involved. (4) That characterization was unlawful and obscured the attributes particular to the Applicant, such that the attributes of being young, a Man and from [redacted] were not considered. (5) Alternatively, to analyse the claims in this way was illogical. 14 The Federal Circuit Court rejected that ground of appeal: 11. There is no merit in either ground advanced by the Applicant. It is clear when examining the Tribunal's decision that it considered the claims as put by the Applicant; did not misconstrue those claims; and dealt with them on the basis of the evidence before it. The Tribunal's findings were clearly open to it on that evidence which included relevant country information considered by the Tribunal, and it is not for this Court to engage in merits review. In particular, the Tribunal considered the Applicant's claims on the basis of his age and gender, and both individually and cumulatively. There is no illogicality evident in the reasons of the Tribunal. 12. The Applicant argues in ground 1(a) of the Amended Application the Tribunal only considered the Applicant's claim as a Tamil but not his claims based on both his age and gender or his age, gender and ethnicity in combination which were claims specific to him personally and in his circumstances. But the Tribunal did so. 13. The Tribunal accepted that the Applicant was a young Tamil male. Notwithstanding this profile, the Tribunal found that in the particular circumstances of the Applicant, he was not of sufficient concern to the relevant authorities such that he had a real chance of harm. The Tribunal referred to "all [the] accepted circumstances" of the Applicant; found no evidence the Applicant had personally experienced abuse, harassment, victimisation, pressure or limited rights as a Tamil - to any extent which amounts to serious harm under s.91R(1)(b) of the Act, including having regard to the non-exhaustive examples of s.91R(2) of the Act. I refer to the Tribunal's findings as referred to in these Reasons. 15 The findings referred to by the Federal Circuit Court were those at [30], [40] and [41] of the Tribunal's decision record (of which [40]-[41] are set out above at [11] of these reasons). Paragraph [30] of the Tribunal's decision record read as follows: For the reasons stated, I find the applicant faces no real chance of serious harm as a returning failed asylum seeker from Australia (or the West or overseas) - regardless of whether seeking asylum is conceived of either as an imputed political opinion, or as an identifying characteristic of any particular social group, in any combination with other characteristics of Tamil ethnicity, age, or area of residence in the (north-west) Puttalam district. I find information regarding the return of Tamils to areas in the north and/or east does not pertain to the situation of Tamils returning to the north-west. I have found elsewhere above that the applicant's past travel to [his father's fishing village] between 2003 and 2006 has never resulted in serious harm to him, for any reason.

The appeal to this Court 16 The appellant's notice of appeal to this Court as filed raised a single ground of appeal: The Second Respondent failed to exercise jurisdiction in that the Second Respondent failed to consider an integer of the Applicant's claim that he would be targeted because he was a young man from [redacted], or a young Tamil man from [redacted]. Alternatively, the Second Respondent erred at law by failing to properly categorise the Applicant and his claims when considering them. Further and alternatively, the reasoning of the Second Respondent was illogical in considering the Applicant's ethnicity in isolation from his particular characteristics/social group claims. 17 The appellant foreshadowed in his written outline of submissions an application to add a new ground. He sought to characterise the jurisdictional error as the Tribunal having asked itself the wrong question in dealing with the appellant's claim. 18 The Minister neither consented to nor opposed that grant of leave. He contends, correctly, that despite the amendment the essential complaint of the appellant remains the same. 19 The appellant was granted leave at the hearing of the appeal to rely instead on the following grounds: The Second Respondent asked the wrong questions when the Second Respondent asked: (a) Whether the Appellant faced persecution as a member of any particular social group where his Tamil ethnicity is a defining characteristic; and, (b) Whether the Appellant had advanced a claim that he would be targeted because of his youth or gender alone. The Second Respondent erred at law by failing to properly categorise the Appellant's claims. As a result, the Second Respondent failed to ask the right question and exercise jurisdiction in that the Second Respondent failed to consider an integer of the Applicant's claim that he would be targeted because he was a young man, or a young Tamil man. Further and alternatively, the reasoning of the Second Respondent was illogical in considering the Applicant's ethnicity in isolation from his particular characteristics/social group claims. (Emphasis in original.)

CONSIDERATION 20 It is true that, in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 at [77], Gummow and Hayne JJ emphasised the need for decision-makers on protection claims to give "proper attention to the accuracy or applicability of the class chosen", and (at [78]) warned against the dangers of decision-makers engaging in classifications which paid insufficient attention to the "essentially individual and fact-specific inquiry which must be made". 21 The appellant's submissions identified the error here as the Tribunal failing to appreciate that the appellant was, at base, claiming to fall into a social group of young Tamil males, rather than claiming that each of those attributes, alone, put him at risk of persecution. Thus, the appellant submitted: To put this even more simply a 'young Tamil male' is a distinct conceptual class, different to the class that is arrived at by adding the predicates applicable to the young, to the predicates applicable to males to the predicates applicable to Tamils. 22 I do not accept the submissions that the Tribunal failed to examine the risk of persecution to the appellant based on his possession of all three attributes of being young, male and a Tamil. It is true the Tribunal does not identify a social group comprising people with these attributes but that is, in my opinion, more a function of how the appellant's claims were put to the Tribunal. 23 While the Minister is correct to submit that most of the material submitted on behalf of the appellant by his representative to the Tribunal centred on the appellant's ethnicity, as a Tamil, without other attributes, it might be said, taking a somewhat generous approach to the appellant's claims, that a claim that he might be targeted because he was young, male and a Tamil arose on the material and needed to be considered by the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58], [60] and [63]. I say "might" because in my opinion this case is on the margins of an NABE kind of analysis. 24 This is not a situation where an assertion by an applicant, albeit made briefly either in writing or orally, is backed up by considerable country information, and therefore one can expect the tribunal to have examined the issue squarely. Nor is this a case where an applicant has gone into some detail about a claim that she or he has particular attributes and the country information is sparse, but nevertheless the way the applicant has put the claim requires the decision-maker to consider it. This is a situation where the claim was made in, essentially, one line by the appellant, and only in relation to past persecution in 2007 (as put in his statement of claims, "many Tamil young boys had been targeted and abducted by the CID in similar way"), and where the country information relied on seemed also to say very little. 25 The way the Tribunal looked at the risk to the appellant given a combination of attributes, including being young and male, and Tamil, was apparent at various parts of its decision: see for example [9], [15], [28], [30], [40], [41] and [46]. This last finding at [46] appears in the Tribunal's consideration of complementary protection issues, but in my opinion it indicates the Tribunal was alive to the need to consider what risks the appellant faced as a young Tamil male returning to Sri Lanka. As the Minister submitted, when describing its approach to the appellant's claimed attributes at [9], the Tribunal did identify a list of attributes as relating to the appellant's membership of social groups. It did so in quite a summary way, it must be accepted, and the lack of delineation of various social groups is undesirable. But read with the whole of the reasons, it is not in my opinion indicative of the Tribunal's statutory task miscarrying. 26 There are also findings such as those in [21] about the appellant's particular "identity and background" which indicate the Tribunal was looking at the appellant's individual circumstances. 27 Paragraph [25] of the Tribunal's reasons, which I have extracted above, was a focus of the appellant's submissions. It appears under a heading "Tamil ethnicity". It is something of a "rolled up" finding, and indeed encompasses several different ways of looking at the appellant's claims. As I have said, I accept the Minister's submissions that the appellant's ethnicity as a Tamil was the principal focus of the submissions made on his behalf, and the country information that was emphasised. Nevertheless, reading the decision as a whole and without focusing too much on what might be said to be a rolled up finding in [25], I am not persuaded the Tribunal has failed to examine the risks which might be faced by the appellant as a young Tamil male. On the material before it, in my opinion, for the Tribunal to describe the appellant's Tamil ethnicity as the "defining characteristic" of his claims was open to it, and it was permissible for it to focus on that aspect of the appellant's claims, without, as I have found, ignoring what he had said about other attributes of age and gender. 28 It can be accepted that the last sentence of [25] is badly expressed, and unclear. What function the word "alone" is intended to perform in that sentence is not apparent. The sentence seems more intended to reflect the Tribunal summarising its views about the "combination" of the appellant's attributes as a Tamil, and as a male and as a young person. However the sentence should not be read in isolation from the remainder of the Tribunal's reasons, which, in my opinion, sufficiently demonstrate the Tribunal considered the risks to the appellant as a young Tamil male, if he were to return to Sri Lanka. 29 The submissions made on behalf of the appellant maintained, although faintly, an attack on the Tribunal's reasoning process as illogical. This contention again focused on [25] of the Tribunal's reasons. The appellant contended it was illogical for the Tribunal to consider all social groups involving Tamil ethnicity without separating those groups out by reason of their particular attributes, unless the Tribunal was finding (contrary to the evidence it otherwise accepted) that all Tamils were safe. As I have noted, the last sentence of [25] is poorly expressed. However, reading the reasons as a whole I see nothing in them to suggest want of logic or rationality in the way the Tribunal stepped through its findings about the appellant, the applicable country information and its statutory task of determining the nature, level and source of the risks facing the appellant if he were returned to Sri Lanka.

Conclusion 30 The appeal must be dismissed. There is nothing in the material to suggest anything other than the usual order as to costs is appropriate. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.