MZZUO v Minister for Immigration & Border Protection

REASONS FOR JUDGMENT 1 The appellant appeals from a decision of the Federal Circuit Court made on 6 June 2014 dismissing, with costs, an application for judicial review of a decision of the Refugee Review Tribunal dated 26 September 2013. In that decision, the Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a Class XA protection visa. 2 The appellant arrived in Australia as an unauthorised maritime arrival on 17 May 2012, having left his home in Sri Lanka by boat on 30 April 2012. Upon arriving in Australia the appellant sought protection on a number of grounds, including: that he feared harm from Sri Lankan authorities who suspected him of being a supporter of the Liberation Tigers of Tamil Eelam (LTTE) by reason of his Tamil ethnicity; that he had been harassed and prevented from earning a living as a fisherman by members of the Sri Lankan army and navy; and that he feared attacks from criminal gangs known as 'grease devils' or 'grease men'. He also claimed to fear torture and imprisonment if he returned to Sri Lanka as a failed asylum seeker who had left the country illegally. 3 These claims were not accepted by the Minister's delegate. In considering his claim, the delegate found that the appellant was a credible witness and accepted that he 'may have been scared due to lingering distrust of the army by Tamils in the north following the end of the war'. However the delegate noted that they appeared to show no particular interest in the appellant apart from two incidents reported by him where he was briefly detained and questioned by Sri Lankan authorities during 2009. The delegate found that although the appellant would likely be questioned and possibly detained upon his return to Sri Lanka as a failed asylum seeker, he did not have any particular profile which might put him at risk of serious harm from Sri Lankan authorities and that his fear of persecution was not well-founded. 4 The appellant sought review of the delegate's decision and attended a hearing on 4 June 2013 where he gave evidence through an interpreter. He was represented on that occasion by a migration agent who also made submissions on his behalf. He reiterated his claims of harassment by Sri Lankan authorities, including the navy, and of his fears of persecution for reasons of race, imputed political opinion and his status as a failed asylum seeker if returned. At the request of the Tribunal, the appellant also explained his claim about attacks by 'grease devils'. The appellant stated that the last attack had happened during 2011 when a group of unknown people came to his village and attacked women but that they did not come to his house and no one in his family was harmed. The Tribunal accepted the appellant's claims regarding the two incidents of questioning by the authorities in 2009 and of another incident about which he gave evidence during the hearing where he claimed to have been assaulted by a naval sailor whilst fishing. The Tribunal also accepted that he was sometimes stopped by the navy whilst fishing and had been asked for his ID and had been questioned about his activities. The Tribunal did not, however, consider that any of these incidents constituted persecution or amounted to serious harm. The Tribunal did not accept that he was ever subjected to any form of mistreatment by a 'grease devil'. Having considered the evidence before it, the Tribunal concluded that it did not accept that there was a real chance that the appellant would suffer serious harm on return to Sri Lanka for any of the reasons identified by him. 5 The appellant applied for judicial review of the Tribunal's decision on three grounds, which were set out in the reasons of the Federal Circuit Court judge as follows: 1. The Tribunal has failed to consider my claim as a Tamil and fell into jurisdictional error. 2. The Tribunal has not considered the integer of my claims. 3. The Tribunal's decisions were infested with jurisdictional error. Only the second of these grounds was pressed by Counsel who appeared on behalf of the applicant at the hearing of the application, but the Federal Circuit Court judge dealt with all three grounds in his reasons. In relation to the first ground, namely, that the Tribunal had failed to consider the appellant's claim as a Tamil, his Honour set out in full a number of paragraphs from the Tribunal's decision which his Honour said squarely addressed the fact of the appellant's ethnicity in relation to his claims and noted that '[it] seems clear that the Tribunal did in fact address these claims in its lengthy decision'. The appellant made no complaint about this finding in his notice of appeal to this Court. 6 The appellant's notice of appeal raised only one ground of appeal to this Court which was expressed as that 'the integer claim of the appellant about his fear of persecution from "grease devil" and/or "grease man" was not dealt by the learned judge and the Tribunal and by not addressing this particular issue the learned juge [sic] erred in his decision'. The notice of appeal had also claimed that the appellant had not "yet" been given written reasons for the decision but written reasons were given on 1 August 2014 and, therefore, the only ground of appeal is the alleged failure to address his fear of harm or persecution from 'grease devils'. The ground cannot succeed, however, because the matter claimed not to have been considered was considered by his Honour in his Honour's consideration of grounds two and three of the appellant's application for judicial review, in relation to which his Honour stated: Grounds 2 and 3 were developed by Counsel on the basis of being an integer claim although in substance were a claim that the Tribunal failed to deal with significant parts of the evidence that were put forward by the applicant. […] The claim is that the Tribunal has failed to properly address and consider the evidence of the applicant relating to a criminal group described loosely as either grease men or grease devils. This was squarely raised by the applicant in his written submissions where the applicant said: 20. More recently, over the last year in Udappu, there have been gangs of people who attack Tamils in their homes at night. These gangs are nicknamed 'grease men' (meaning monsters in Tamil). The grease men have raped females in our town of Udappu and have attacked families in their homes. When the locals try to chase the grease men, they run to the navy camp and the navy personnel deny any knowledge of them. 21. I know of these grease men attacks personally as my neighbours were attacked by the grease men last year, around the middle of 2011. The grease men climbed through the roof of my neighbours home and my neighbours ran away in fright. Their house was ransacked and robbed. 22. In another house, five houses away from mine, the female occupant was raped by the grease men. These grease men wear blades imbedded in their gloves. The female victim had part of her skin ripped off in this attack by the blades that these grease men use. This also happened in the middle of 2011. 23. These grease men attacks and the constant harassment from the authorities (army, navy, police and CID) has caused a situation of terror to spread in Udappu. There is no protection offered to the Tamil community. As Tamil's we do not feel able to go to the police or authorities for protection because they are the ones perpetrating these crimes and harassment. As Counsel for the applicant properly identifies it was also the subject of discussion in the transcript appearing at page 25 from line 13: MEMBER: All right, now you also made reference before to there being some incidents in your area with the grease devils? Would you like to tell me about those incidents? --- It happened in middle of 2011 so and our people used to come from a Chinese house, the Tamil - they come Tamil - (indistinct) the Tamil (indistinct) hey used to wear the spring shoes and but no one can identify them. So they used to have a (indistinct). Then one day (indistinct) they tried to catch a women mostly, they went to many houses. It didn't happen in our (indistinct) one woman for (indistinct) and hit, I think it is a (indistinct) Tamil this violence against the Tamil searching this, they said (indistinct) security in the Tamil, that's why I'm telling. (Indistinct) the Tamil, this type of problem also come (indistinct), that's why I'm telling this. … When was the last time you were aware of an incident of that nature happening? --- It's happened in 2011 (indistinct). In 2011? --- 2011. So that was the last time? --- As far as I know. Did anything happen in your house or to any member of your family? --- Not happened (indistinct). I accept the proposition from Counsel that the question of a claim relating to grease men or grease devils was squarely raised by the Tribunal and appears to have been the subject of at least some discussion in the hearing before the Tribunal. It is clearly a significant matter that the Tribunal needed to deal with in order to properly exercise their functions. His Honour then went on to consider the Tribunal's findings on this claim. As noted, the Tribunal did not accept that the appellant, or anyone in his family, had been subjected to any form of mistreatment by 'grease devils', and had found that he did not have a well-founded fear of persecution at their hands should he return to Sri Lanka. 7 The Tribunal had summarised the evidence given by the appellant in respect of the claim relating to 'grease devils' at paragraph 57 of its reasons, which read: The applicant has consistently maintained since arrival that 'grease devils' had been active in Udappu in 2011 and that they had broken in to homes, attacked people and raped women; however, he did not give evidence to the Department or Tribunal that he or any member of his family had been attacked, threatened or harmed by a 'grease devil', and accordingly, on the evidence before it, the Tribunal does not accept that the applicant was ever subjected to any form of mistreatment by a 'grease devil'. The Tribunal's findings relating to the risk of harm to the appellant from 'grease devils' if he were to return to Sri Lanka were set out in paragraph 80 of its reasons, which read: With regard to his claim that he would be at risk of being harmed by random criminal attacks by 'grease devils' who had been active in Udappu in 2011, having carefully considered the applicant's evidence, which is that neither he or any member of his family had been targeted, attacked or threatened by a 'grease devil' in the past, and that the last attacks were in 2011, and while acknowledging that independent information indicates that criminal groups are active throughout Sri Lanka, on the evidence before it the Tribunal considers the chance of the applicant being targeted or subjected to harm by a 'grease devil' or other criminal group to be mere speculation and remote, and it does not accept that there is a real chance he would suffer serious harm in this way for any reason. The learned Federal Circuit Court judge set out each of these paragraphs in his reasons, and noted that it was clear from them that the Tribunal 'did identify the evidence [which the appellant] had given and did squarely consider that evidence and make a finding with respect to it'. His Honour's finding in that regard is correct as can be seen from the Tribunal's reasons to which his Honour referred. It is clear from the Tribunal's reasons that it was aware of the appellant's claimed fear of persecution from 'grease devils' and that the Tribunal did consider the evidence presented in support of this aspect of the appellant's claim and made findings in relation to it. 8 It is also clear from his Honour's reasons that his Honour also considered and addressed the appellant's claim regarding 'grease devils', contrary to the ground of appeal raised by the appellant in this Court. An argument had been raised by the appellant's counsel before his Honour that paragraphs 57 and 80 of the Tribunal's reasons, extracted above, did not mention evidence given by the appellant that his neighbours' house had been attacked. This argument relied on the reasoning in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 and Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 to submit that the Tribunal's failure explicitly to mention this piece of evidence indicated a failure to consider it and that the Tribunal had thereby fallen into error. His Honour noted that although not mentioned specifically in the paragraphs setting out the Tribunal's reasons for rejecting the appellant's claim about 'grease devils', the evidence had been set out earlier in the Tribunal's reasons, at paragraph 6(e). For this reason, his Honour held that the case did not fall into the same category as SZSRS and MZYTS where a significant piece of evidence had not been mentioned in the Tribunal's reasons at all. In that regard, his Honour said: … The particular piece of evidence given by the applicant that is the subject of the complaint was really only one small part of his overall claim with respect to grease devils or grease men. The failure of the Tribunal to mention this "particular" of the claim does not appear to me to be sufficient to indicate that they have overlooked it or overlooked a significant part of the claim. On the material in the decision I would not be prepared to draw the inference that the Tribunal have not considered this aspect of the claim. I note here, as has been said in a number of decisions, both with respect to judicial review and appeals from Trial Judges, one does not expect every single piece of evidence or every particular to be mentioned in the judgment or decision. The question is (as the Court set out in the decisions mentioned above) a question of degree given the nature of the evidence and the nature of the issues before the Tribunal. I am not persuaded that this case falls into the category where a fair reading of the decision, in light of the particular issues and evidence here it could be said that the Tribunal has fallen into error that is judicially reviewable. There is no error, and none has been demonstrated, in his Honour's approach in this regard. 9 The appellant appeared with the assistance of an interpreter at the hearing of the appeal in this Court. He had filed no written submissions but orally submitted a different formulation of the ground of appeal from that found in the notice of appeal. The oral submissions suggested that the Tribunal had failed to deal with the appellant's claims in respect of his status as a Tamil. That claim, however, must also be rejected upon a consideration of both the decision by the Tribunal and the decision of the Federal Circuit Court. The appellant's claim that the Tribunal had not dealt with his claim as a Tamil was dealt with by the learned Federal Circuit Court judge in express terms. His Honour specifically referred to the claim which had been made for the appellant that the Tribunal had not dealt with the appellant's claim based upon his status as a Tamil, and his Honour set out in detail the paragraphs which showed that the Tribunal had "squarely addressed" the matter in a number of places in the Tribunal's decision. Specifically his Honour said: 12. With respect to the claim that the Tribunal did not deal with the applicant's claim as a Tamil, I note that the Tribunal squarely addressed this in their reasons at a number of places: 30. The Tribunal noted that the information before it indicated that it is likely he would be taken into custody and charged and brought before a magistrate; there were no reports before the Tribunal of returnees in the recent past being harmed during that process. The Tribunal noted that information form DFAT and various media sources indicated the offence he would be charged with is a bail-able offence and that sources indicate that bail is routinely granted on a personal guarantee and a guarantee from a family member, and in his circumstances with no criminal record or involvement in people smuggling, it is likely he would be granted bail, but that he might be held on remand for a few days at most. When asked to comment on this information the applicant said that the GoSL might say that is what is happening but the real situation is different; the media does not tell the truth; he said he might be on remand for a few days or year, no one will know what will happen. The Tribunal notes that the independent information did not indicate a person with his circumstances would spend more than a few days on reman. He said he has a past CID profile so they would keep him there. ... 33. The Tribunal noted that source indicated that the conditions of remand cells were crowded, dirty and generally very poor, however, the information before the tribunal did not indicate that Tamil returnees in the recent past had been harmed while on reman. When asked to comment on the information and the prospect of being held on remand for a few days in terrible conditions the applicant said that he does not accept that information; a few months ago he read that 10 people had died in prison; there is no security in prison especially for Tamils; it's not just LTTE cadres who are tortured in prison, all Tamils are tortured; the media tell lies about this information and it is biased in favour of the GoSL; the GoSL does it on purpose to punish Tamils; he cannot go back and live there; he does not know what punishment he will get but he will be punished. … 35. The Tribunal put to him that information from UNHCR and DFAT did not indicate that Tamils from Mullaitivu were singled out for mistreatment or that Tamils from Udappu were being persecuted or targeted for harm or mistreated because of their ethnicity; it notes the independent information indicated that the Tamils who had been subjected to mistreatment in the recent past had the additional attributes discussed earlier, and that simply being Tamil from a particular area was not a reason or reasons for being imputed with an adverse profile. The applicant said that the information is incorrect... 37. The applicant's migration agent submitted that the fact there are no media reports of Tamil fishermen being harmed or mistreated in Udappu did not mean it was not actually happening; she said she did not have any independent information that it was happening but noted there was an absence of media reports about things generally in Udappu; Sri Lanka is in a post-conflict situation and the GoSL treats Tamils poorly and the fact the applicant is originally from Mullaitivu and has come illegally to Australia and claimed protection here gives him a profile of potential concern... 44. The Tribunal has carefully considered his evidence and the independent information before it and while it accepts he was questioned by the CID on two occasions in 2009, in light of the fact that neither he or his family were actually involved with the LTTE, it considers that after interviewing him the CID came to the conclusion that he had no involvement or connection or association to the LTTE and that he did not present any value as a source of information, which is why he was released without any further action being taken against him... 71. The Tribunal accepts that the applicant would return to a difficult life in Udappu and would have to live under a government that clearly has little respect for its Tamil citizens. However his evidence does not reveal that he or any members of his family were subjected to discrimination that affected their capacity to subsist or caused them to suffer significant economic harm or that they were denied access to services or that he or any member of his family were subjected to harm that would amount to serious harm for the purposes of s.91R... 13. It seems clear that the Tribunal did in fact address these claims in its lengthy decision. It follows, therefore, that the ground made orally in the appeal to this Court must also fail. The claim of a failure by either the Tribunal or by the Federal Circuit Court to consider the appellant's status as a Tamil is incorrect. 10 Counsel for the Minister then drew to the Court's attention an issue that had not been raised by the appellant but which it was appropriate for the Minister to raise with the Court. That issue concerned the potential application of the decision in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. The appellant had not sought to raise WZAPN and had not been given notice of the Minister's submission that the decision was distinguishable from the appellant's case. The Minister made oral submissions at the hearing of the appeal and, after making those submissions, was directed to provide the appellant with a short statement of the Minister's contention together with a copy of the transcript of the hearing in which the Minister had developed the submissions and argument that WZAPN was distinguishable. The appellant was informed that he could seek advice on the submissions made by the Minister and that the appellant could, if he wished, provide written submissions in response by 14 November 2014. Written submissions for the appellant, dated 19 November 2014, were not received until 20 November 2014 but have nonetheless been taken into account. 11 North J held in WZAPN that the application of s 91R did not permit a qualitative assessment of the nature of the harm required to be considered by that section. The Minister in the appeal before me drew attention to aspects of the reasoning of the Tribunal in the case before me which suggested that it too may have made a qualitative assessment of the nature of the harm contrary to the reasoning in WZAPN. The Minister has sought to appeal the decision of WZAPN but contended that the case before me was, in any event, distinguishable from WZAPN and required that the appeal be dismissed whatever might be the outcome of the appeal in WZAPN. 12 The appellant in WZAPN had claimed to fear harm in Iran on the basis, relevantly, of his status as a stateless Faili Kurd. The reviewer in that case had made a finding that there was a real chance that the applicant would be questioned periodically and would probably be detained for short periods when he failed to provide identification, but the reviewer concluded that this did not amount to serious harm within the meaning of s 91R(2)(a), (b) or (c). North J considered that in approaching the matter in this way the reviewer had made a qualitative assessment of the nature of the harm caused by the detention which was not permitted by the provision. His Honour described the approach taken by the reviewer at [18]: The reviewer accepted that there was a real chance that the applicant would be questioned periodically and probably detained for short periods when he failed to provide identification, but held that the frequency and length of the detention, and the nature of the treatment he would receive in detention, did not amount to serious harm within s 91R(2)(a), (b) or (c). The reviewer concluded that on this analysis, the nature of the detention was not sufficiently significant and thus did not constitute serious harm ([81] - [82]). In approaching the matter in this way, the reviewer made a qualitative assessment of the nature of the harm caused by the detention. The argument in WZAPN was recorded by his Honour at [20] as: The applicant contended in his original written submissions, and in oral submissions, that the reviewer wrongly applied a qualitative assessment to the nature of the harm. The applicant argued that s 91R(2)(a) is concerned with the threat, in the sense of a risk, of harm to life and liberty, whatever the nature of the harm. Whether there is a threat depends on an assessment of the likelihood of harm happening. But once that threat is established, s 91R(2)(a) operates so that the threat to life or liberty amounts to serious harm irrespective of the nature or extent of the potential harm to life or liberty. Thus, there is no place for an assessment of the frequency or degree of the harm, or the circumstances which attend such harm, save only for a de minimus exclusion. Consequently, once the reviewer found that the applicant was at risk of detention, serious harm was established within the meaning of s 91R(2)(a) irrespective of the significance of the circumstances attending the detention. That argument was accepted by his Honour at [30], and [44]-[45] when his Honour said: 30 The conclusion from the language and structure of s 91R(2) is that serious harm in s 91R(1)(b) is constituted by a threat to life or liberty, without reference to the severity of the consequences to life or liberty. […] 44 In taking the human rights approach, there is no place for a qualitative assessment of detention affecting the right to liberty for it to constitute an infringement of that right. 45 By making a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant's liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error. The conclusion of error in WZAPN, therefore, followed from the qualitative assessment of serious harm which the reviewer had made. 13 A similar approach could be seen in some parts of the Tribunal's decision in the proceeding before me. In this case the Tribunal had accepted the possibility that the applicant "might spend up to four days in custody on remand before being brought before a Magistrate" if charged under applicable law in Sri Lanka. In that context the Tribunal went on to say at [83]: … The Tribunal has considered this evidence and the submissions of his agent, however, with regards to the period of time in which he is on remand and the conditions in remand, although it accepts that the conditions of the remand cell he might be kept in would cause him to suffer discomfort and irritation, on the evidence and information before it and in light of its earlier findings, the Tribunal does not accept that, in his particular circumstances and with his attributes, there is a real chance he would suffer serious harm for any reason. Although the nature of the qualitative assessment by the Tribunal may be seen to be different from the nature of the qualitative assessment of the reviewer in WZAPN, there is nonetheless (as the appellant, in effect, submitted in his written submissions dated 19 November 2014) sufficient similarity for the potential application of the reasoning in WZAPN to that part of the Tribunal's decision in the case before me. The Minister, however, whilst making a formal submission that the decision in WZAPN was wrong, did not seek to argue that it should not be followed by me, but relied rather upon the submission that WZAPN did not apply to the facts of this case. 14 The decision of the Tribunal in this case, unlike that the reviewer in WZAPN, stands on an independent and alternative basis that would not warrant remittal of the proceeding. In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 the majority of the High Court declined to grant relief in circumstances where no useful result could ensure from the grant of the relief sought by the appellant because, in that case, the decision-maker was bound to refuse a claim on the findings which had been made. In SZBYR it was said at [27]-[29]: 27 The respondent minister raised the issue of discretionary relief by way of a notice of contention dated 16 February 2007. The minister argued that, even if the appellants' arguments about s 424A were correct, their claim would be doomed to failure because of the absence of a Convention nexus, and thus the grant of certiorari or mandamus would be futile. This submission was not put to the courts below, and, given the conclusions expressed in these reasons that on the facts of this case s 424A had not been engaged at all, it is not critical for the minister to rely upon it in this court. However, it is convenient to say something on the subject. 28 This court has previously emphasised that the grant of the constitutional writs is a matter of discretion, and the same principles apply to the grant of relief by the Federal Magistrates Court and the Federal Court pursuant to s 39B of the Judiciary Act 1903 (Cth). In Aala, Gaudron and Gummow JJ noted that: [56] Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said: "For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld." 29 The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the Tribunal's finding that their claims lacked the requisite Convention nexus. The appellants' case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, cited in Aala, was one in which "irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse". In this regard, the references that were made in the course of argument to the "unbundling" of a tribunal's reasons into "impeachable" and "unimpeachable" parts were more likely to mislead than to assist. While there may well be cases in which a tribunal's breach of s 424A affects its findings about the absence of a Convention nexus, this was not such a case. [Footnotes omitted.] Similarly, the Minister contended that the case before me was one in which no useful purpose could be served by remitting the proceeding in application of the decision in WZAPN because the other findings which had been made necessitated the same result as the Tribunal had reached. The Minister's submission was that the decision in this case had another basis that was independent and alternative to that which might have attracted the reasoning in WZAPN. 15 The appellant, in his written submissions dated 19 November 2014, contended that the Tribunal had impliedly found that the law in Sri Lanka 'could be selectively or discriminatorily enforced on a Tamil' of his profile. The appellant's submission was: The minister's legal representative contends that any detention of appellant in Sri Lanka would result from the general application, the law applied equally to all persons, and the law was not selectively or discriminatorily enforced. The applicant contends this view was misguided because of the applicant's profile. The Tribunal accepts the applicant being a Young Tamil originally from the north of Sri Lanka. It accepts at paragraph 71 of it decision (CB 239) the government has little respects for its Tamil citizens, it quotes from UNHCR and other sources including DFAT (at paragraph 70) that the information does not indicate that in the recent past Tamils had been targeted or imputed with an adverse political opinion or had suffered serious harm simply because of the fact they are Tamils. By making such pronouncement the Tribunal implies the law could be selectively or discriminately enforced on a Tamil of the applicant's profile when he was charged with an offence. Bearing in mind the draconian Prevention of Terrorism Act (PTA) which is still in force is always used against the Tamils on a selective manner. However the appellant's submission is not borne out by what the Tribunal found. The Tribunal in the case before me had specifically found that any detention of the appellant would be pursuant to a law of general application which, critically, the Tribunal had found would not be applied differently to the appellant. The Tribunal found at [82]: As discussed with applicant, the Immigrants and Emigrants Act is a law that on its face applies equally to all persons and the information before the Tribunal indicates that it is not being selectively enforced or applied in a discriminatory way, as the GoSL is prosecuting all persons who leave by boat irregularly (see paragraphs 133). When asked to comment on this information the applicant said that he would be treated differently because he was born in Mullaitivu and the CID is interested in him. The Tribunal has considered his evidence and the submissions of his agent, however, on the basis of the information before it finds that the law he would be prosecuted under is not discriminatory in its terms and applies to all people who departed Sri Lanka from an unofficial port without a valid travel document. Accordingly, the Tribunal finds that the Immigrants and Emigrants Act is a law of general application that is not being selectively enforced or applied by the GoSL and that in being prosecuted under that law there is not a real chance the applicant would suffer persecution. The appellant's submission to this Court of an implied finding of selective or discriminatory application of the law cannot succeed in light of the express findings made by the Tribunal. These findings were independent of those regarding serious harm and provided an alternative basis for the Tribunal's decision which might otherwise have attracted the reasoning in WZAPN. 16 Section 91R of the Migration Act 1958 (Cth) deals with persecution and requires a finding of 'systematic and discriminatory conduct'. Section 91R provides: (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. (3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. The requirement in s 91R(1)(c) is that the persecution must involve systematic and discriminatory conduct and is an additional criterion to those in s 91R(1)(a) and (b). In Minister for Immigration & Citizenship v SZNWC (2010) 190 FCR 23, Perram J (with whom Moore J agreed) said at [40]: In a case where a person applying for a protection visa claims to be a member of a particular social group which is persecuted by the operation of some criminal law, the approach to be taken by those deciding the visa application is well settled. First, the decision-maker must ask whether the particular social group claimed exists. Secondly, if the group exists then the decision-maker must ask whether the nominated criminal law discriminates against that group. This is necessary because unless the criminal law discriminates against the group then there can be no question of the group being persecuted by that criminal law. Thirdly, however, discrimination although necessary is not sufficient. If discrimination be shown the decision-maker must then ask whether the criminal law is appropriate and adapted to some legitimate object of the country in question. This is a two-pronged test requiring consideration both of the legitimate object identified as well as an assessment of whether the criminal law is appropriate and adapted to the achievement of that object. In this case it is unnecessary to consider the third aspect of the test to which Perram J referred because the Tribunal in this case found that there was no discrimination against the appellant for any of the reasons for which he put forward in respect of the operation of the relevant law. The law in question is one of general application and the Tribunal did not accept that the appellant might be treated differently in the application of that law. The Tribunal specifically said at [83] (immediately after the passage quoted above from that paragraph): With regards to his loss of liberty while on remand, because it arises through the operation of a law of general application, the Tribunal finds that it does not amount to persecution for the purposes of s 91R. That conclusion, together with the other findings made by the Tribunal to that effect, was an independent and alternative basis for rejecting the appellant's claim from that which might have attracted the considerations in WZAPN. The Tribunal's decision did not depend only upon an impermissible qualitative assessment of whether the appellant would suffer serious harm, but upon the non-discriminatory application of a general law. The evaluation made by the Tribunal which might have invoked the reasoning in WZAPN for the purposes of s 91R(1)(b) did not apply to the Tribunal's findings that the law of general application was not enforced in a selective or discriminatory way or that it would be applied to the appellant in a discriminatory way for the purposes of s 91R(1)(c). The information before the Tribunal permitted its finding that the relevant law was one of general application and was not being selectively enforced or applied in a discriminatory way. The appellant was specifically given the opportunity by the Tribunal to indicate why he might be treated differently and the Tribunal considered, but did not accept, the appellant's submissions. Accordingly, irrespective of any error in respect of the kind considered in WZAPN, it is an appropriate case for the Court not to exercise any jurisdiction to grant the relief sought by the appellant. 17 Accordingly, the appeal will be dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.