The applicant's argument
41 The applicant's written submissions were directed only to his foreshadowed adjournment application. The oral argument was based on North J's reasoning in WZAPN and ignored three Full Court judgments published on 24 March 2015: SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 ("SZTEQ"), SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 ("SZTIB") and BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41 ("BZAFM").
42 As Mr Bodisco conceded, the argument the applicant wishes to put if his application is granted is substantially the same as the argument which was put and rejected in those three judgments.
43 In SZTEQ at [46], SZTIB at [44] and BZAFM at [41] the Full Court (Robertson, Griffiths and Mortimer JJ) said:
In our opinion, on its proper construction, s 91R does not forbid a qualitative assessment of claimed detention or imprisonment with a view to establishing whether or not it rises to the level of "serious harm" so as to constitute persecution, if the detention or imprisonment is for a Convention reason and the other aspects of s 91R are satisfied.
44 Mr Bodisco declined the Court's invitation to point to any error in their Honours' reasons. Rather, he submitted that there were conflicting Full Court decisions and this was a matter which weighed in his favour on his application.
45 Two points should be made here. First, it is disingenuous to categorise the decision of North J on the one hand and those of the three Full Courts on the other as conflicting Full Court decisions. In the three judgments published in March this year, the Full Court held that WZAPN was wrongly decided. Secondly, in the absence of any argument to suggest that the Full Court might have erred, I am unable to discern any basis upon which it could be said that the applicant would have an arguable case on appeal.
46 In any event, I am not persuaded that, if the Minister's appeal in WZAPN is dismissed and the High Court were to uphold North J's interpretation of s 91R(2)(a), it would make any material difference in this case. That is because, even if the period of detention the Tribunal considered the applicant would face on his return to Sri Lanka amounted to serious harm for the purpose of s 91R(1)(b), the Tribunal would still have affirmed the delegate's decision, for the requirements in s 91R are cumulative and the Tribunal was not satisfied that the persecution the applicant feared involved discriminatory conduct as required by s 91R(1)(c). That conclusion necessarily follows from the Tribunal's findings at [55]-[60] (extracted above at [20]) and also from the paragraphs of the Tribunal's reasons that followed. It is most clearly evident from the Tribunal's statement at [60] to the effect that short-term imprisonment on remand (or a fine) would not amount to persecution for a Convention reason "because it is the result of enforcement of a generally applicable law". Earlier, at [58] the Tribunal referred to the absence of information to suggest the discriminatory enforcement of the laws.
47 Mr Bodisco submitted, however, that there was an "intermingling of the issues" - in effect, that the Tribunal had allowed the question of whether the persecution might involve serious harm to intrude into its consideration of whether the persecution also involves systematic and discriminatory conduct. This submission was based on the Tribunal's statement at [58] that "[t]here is no information before me suggesting discriminatory enforcement of these laws or particularly harsh punishment of a particular cohort of returnees".
48 I am not persuaded that the Tribunal's view of what may constitute serious harm affected its conclusion that the persecution the applicant feared did not involve discriminatory conduct. To reach that conclusion it would be necessary, at the very least, to engage in the kind of analysis forbidden by Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 that is to say, to scrutinise the reasons of an administrative decision-maker in order "to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed". On an application for judicial review, "looseness of language" or "unhappy phrasing" are not matters for concern.
49 Mr Bodisco also submitted that "the Tribunal misdirected itself on whether the different treatment involved offends the standards of civil societies which seek to meet the calls of common humanity". This contention picked up on what Gleeson CJ, Gaudron, Gummow and Hayne JJ said in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 ("Chen") at [29]:
Whether the different treatment of different individuals or groups is appropriate or adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity.
50 North J referred to this test in WZAPN at [48] in the context of some obiter remarks about High Court authorities which hold that conduct undertaken pursuant to a law of general application do not amount to persecution if the law is "appropriate and adapted to achieving some legitimate object of the country concerned": see Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at [43] (Gleeson CJ, Gummow and Kirby JJ) and Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258 (McHugh J).
51 The Tribunal's conclusion that the punishment the applicant would face on his return to Sri Lanka would result from a law of general application necessarily involves the consequence that the punishment would not be discriminatory and so would not constitute persecution: Minister for Immigration and Multicultural Affairs v Israelian (2001) 206 CLR 323 (heard together with Minister for Immigration and Multicultural Affairs v Yusuf) at [55] (Gaudron J), at [97] (McHugh, Gummow and Hayne JJ). In Applicant S Gleeson CJ, Gummow and Kirby JJ accepted that a law of general application can result in discriminatory treatment, for example, because of the way it is implemented or enforced. Here, however, the Tribunal did not find that the relevant law would or could result in discriminatory treatment, whether by reason of its implementation or enforcement or in some other way. More importantly, perhaps, save for the submission that the Tribunal's consideration of "serious harm" infected it, the applicant did not challenge the Tribunal's finding that the punishment the applicant would face on his return to Sri Lanka would result from a law of general application (for example, on the basis that the Tribunal failed to consider whether the treatment in question is "appropriate and adapted to achieving some legitimate object of [Sri Lanka]": see Applicant S at [43] per Gaudron J). It is true that Mr Bodisco did seem to be getting close when he picked up some of the language in Chen. It was not entirely clear, however, what his point was. But even if this were the purport of the submissions, albeit that they fell short, the proposed ground of appeal does not raise this as an issue.