CONSIDERATION
13 In order to make out either ground of appeal, the appellant seeks to establish that the appellant's Post-hearing Submissions to the Tribunal contained a discrete claim that was not considered by the Tribunal.
14 There is no doubt that the Tribunal must correctly construe and consider each claim (including each element or integer of each claim and the cumulative effect of each claim) made by an applicant: see Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42] per Allsop J, Spender and Merkel JJ agreeing, and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 ('Dranichnikov') at [22]-[24], [27] per Gummow and Callinan JJ, Hayne J agreeing, and at [88]-[89] per Kirby J.
15 The Tribunal will fall into jurisdictional error if it fails to consider the component integers of each claim made by an applicant: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [45], and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 ('NABE') at [55] and [63]. This includes claims that are expressly raised by an applicant or are apparent on the material before the Tribunal: see NABE at [58]-[61] per Black CJ, French and Selway JJ.
16 The appellant submitted that the error in this case arose from a failure to consider a claim that was made by reference to the Extracted Paragraph, with support from the following paragraphs from the Post-hearing Submissions:
Being at the very least forced to encounter ongoing acts of extortion or intimidation and the threats that would follow from such acts, we believe, would amount to at least significant harm as defined under section 5(1) of the Act.
…
We also contend that [the appellant] is at risk of significant harm after release into the community, whether or not he serves a year in prison.
17 In particular, the appellant submitted that the term "armed groups" in the Extracted Paragraph refers specifically to persons other than the Sri Lankan authorities, and that the words "[i]n addition" make it clear that the claim was advanced in addition to the claims concerning the risks of arrest and detention by the Sri Lankan authorities. The important distinction made by the appellant was that the source of the potential harm, and the type of harm, in each of the claims was different. The source of the potential harm was government or government-affiliated authorities on the one hand, and separate non government-affiliated "armed groups" on the other. The different types of harm included arrest and detention by the former source, and intimidation or extortion by the latter.
18 I observe at the outset that the appellant had legal representation at the time that he lodged his application for the visa and when he filed both the earlier written submissions on 20 November 2012 and the Post-hearing Submissions. This has some (non-determinative) significance in the way the Tribunal is expected to conduct the proceeding and in the way it would read and approach submissions.
19 If there was to be a new claim from those clearly and separately articulated in the submissions dated 20 November 2012, or at the three hearings before the Tribunal, the Tribunal would expect such a new claim to be identified as such. This is especially so if a distinction was to be drawn between "armed groups" which are affiliated with the government, and those which are not, and therefore to a purportedly different type of harm than previously articulated by the appellant. In fact, on reading the Post-hearing Submissions, and the Extracted Paragraph in particular, I am not at all convinced that on its face, the reference to "armed groups" is a reference to "armed groups" which are divorced from government.
20 It is also useful to recall the comments of Kirby J in Dranichnikov at [78]:
… The tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the tribunal to search out, and find, any available basis which theoretically the Act provides for relief. This court has rejected that approach to the tribunal's duties. The function of the tribunal, as of the delegate, is to respond to the case that the applicant advances. A fortiori this is the function of the Federal Court in determining any application to it for judicial review of a decision of the tribunal.
(Footnotes omitted)
21 Upon a reading of the Extracted Paragraph and additional paragraphs relied upon by the appellant, I conclude that no claim or integer of the claim is raised in the manner now contended for by the appellant. I also do not consider that the purported claim is sufficiently apparent on the material before the Tribunal for it requiring separate consideration.
22 A number of reasons support this approach.
23 The Post-hearing Submissions must be read in context. Part of this context is that the appellant originally only claimed harm from Sri Lankan authorities and the types of harm referred to by the appellant included intimidation and extortion by government authorities or government-affiliated groups. For instance, in the 20 November 2012 submissions the appellant's claim was limited to government and affiliated groups but referred generally to a fear of persecution:
Our client's claims: We submit that our client's claims fall within the ambit of the UNHCR Refugees Convention and Protocols but, in the event the decision-maker is not satisfied that is the case, we have made some submissions regarding Australia's complementary protection obligations following the refugee submissions.
In summary, our clients fears persecution because Sri Lankan Government security agencies and affiliated paramilitary organisations suspect that he is linked with the LTTE.
Our client was detained 1½ month during which time he was severely beaten in an effort to extract a confession from him acknowledging his involvement with the LTTE, the authorities extorted 30 000.00 S/L Rupees from our client and released him.
Our client fears he will be persecuted by the authorities should he return to Sri Lanka because he was suspected of been a member of the LTTE and follows his imputed political opinion.
In addition, our client fled Sri Lanka illegally and he fears he will be intercepted on return to Sri Lanka, accused of supporting the LTTE, this will be reinforced by the fact our client was born in the Northern province of Sri Lanka and this will potentially expose him to dire consequences.
(Footnotes omitted and emphasis added)
24 Throughout the 20 November 2012 submissions, the appellant made reference to armed or paramilitary groups. Most of these references were made in relation to the activities of government authorities, including paramilitary proxies (of the government). However, the appellant's claims as articulated in those submissions (as set out above) made a reference to persecution from those same sources. It is apparent from other parts of the appellant's submissions that "persecution" includes harm such as torture, ill-treatment, killings, abductions, intimidation and not just arrest and detention.
25 Further, the Post-hearing Submissions commenced with the words: "We refer to the 3rd hearing of this application on 12 September 2013, and hereby provide you with further submissions". In using this introduction, the appellant's legal representative was directing the Tribunal's attention to the matters that transpired at the hearing on 12 September 2013. However, the appellant does not suggest that the purported claim arises in any way from anything that occurred on that occasion.
26 A fuller extract of Post-hearing Submissions than that relied upon by the appellant is also useful to demonstrate context:
Amongst other matters discussed at hearing, evidence provided by the [appellant] confirms that whilst he may have been the holder of a passport at the time of his departure from Sri Lanka, he was only able to exit the country after payment of bribes to an agent whom he paid with the specific purpose of ensuring his unhindered, and lawful, exit from Sri Lanka.
Other evidence re-confirms his testimony that prior to his departure he has been the subject of arbitrary arrest, detention and torture at the hands of the Sri Lankan Army. Furthermore the [appellant's] evidence is that authorities have visited his home on a number of occasions in attempts to locate him and have an ongoing interest in him.
Not withstanding information referred to at hearing and available from V14 Home Office Guidance Note for Sri Lanka Issued July 2013, we submit that this report is not exhaustive and urge the Tribunal to consider a range of country information as discussed below.
(Footnotes omitted and emphasis added)
27 The Post-hearing Submissions, after setting this scene and making particular reference to discussions at the hearing and evidence given as to "arrest, detention and torture", then go on to the matters relied upon by the appellant, including the matters contained in the Extracted Paragraph.
28 The reference in the Extracted Paragraph to "armed groups" was taken from a research response by the Immigration and Refugee Board of Canada referring to types of harm at the hands of "armed groups" and has the same status as the paragraph preceding it, that is "[t]he UNHCR's Eligibility Guidelines also [refer] to ongoing monitoring by the security services of returnees after they return to their home area". It follows that both this reference and the references to "armed groups" bolster and support the appellant's claim of a risk of significant harm and fear of persecution at the hands of the government or groups sanctioned by, or affiliated with, Sri Lankan authorities.
29 It is significant that for many more pages the Post-hearing Submissions detail country information and other risks of persecution, including incarceration and arbitrary detention. Again, these various types of harm were directed to government authorities and affiliated groups.
30 The references in the Post-hearing Submissions, which were filed after the third hearing and were supplementary to the matters discussed at that hearing, do not suggest any new claim, whether relating to a new type or source of feared harm. As I mentioned above, the harm feared from "armed groups" could come from government-affiliated armed groups, since the harm of "intimidation and extortion" is a sub-set of the feared harm of "persecution" as articulated in the claims made by the appellant form the outset.
31 By way of conclusion, I address a specific contention of the appellant relating to the distinction between claims and evidence.
32 The appellant contended that there was an express separate claim made, and not just a reference to a piece of evidence. For example, the appellant submitted that directly after referring to the country information, the Post-hearing Submissions stated that "[b]eing at the very least forced to encounter ongoing acts of extortion or intimidation and the threats that would follow from such acts, we believe, would amount to at least significant harm", and it therefore constituted an articulated claim.
33 The appellant also contended that the Federal Circuit Court erred in finding that the claim was not clearly apparent on the material before the Tribunal, including in particular the Post-hearing Submissions. In this regard, it was submitted that the Federal Circuit Court was wrong to rely on a purported dichotomy between claims made by the appellant on the one hand, and "a piece of evidence contained in country information" on the other.
34 It was further contended that in any event the relevant country information referred to in the Post-hearing Submissions was more than mere evidence which, if accepted, might have led the Tribunal to make a different finding of fact. Rather, the Post-hearing Submissions raised an additional contention which, if accepted, might establish that the appellant had a well-founded fear of persecution.
35 I agree that there is no clear or bright line distinction between claims and pieces of evidence: see, eg, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111] per Robertson J. However, this appeal is to be disposed of not by reliance on that distinction, but simply by a reading of the Post-hearing Submissions, looking at their context and terms, to determine whether a new claim or integer of a claim was made, or is apparent in the relevant sense, as now characterised by the appellant.
36 My approach leads to that question being answered in the negative. Once this conclusion is reached, the Tribunal was under no obligation to consider the purported claim. If I had come to the view that the purported claim was in fact made, or was even raised on the materials before the Tribunal in a way that required it to be considered by the Tribunal as a separate claim (or even a material part of a separate claim), my conclusion would have been different. In that situation, there would have been jurisdictional error.