SZTAP v Minister for Immigration and Border Protection

The reasons of the Federal Circuit Court 35 Since the present grounds of appeal were not raised before the Federal Circuit Court, it is not useful or necessary to set out the reasons of the primary judge.

The Amended Notice of Appeal 36 The appellant sought further to amend his grounds of appeal. Proposed grounds 1 and 2 were not raised before the Federal Circuit Court but the Minister did not oppose the appellant's application for leave to rely on those grounds. Proposed ground 3 was also not raised before the Federal Circuit Court and notice of it was given as recently as 27 October 2015. Ground 3 had not been the subject of written submissions. However, each party indicated that they were in a position to deal with that ground. In that respect, an affidavit was also read on behalf of the Minister exhibiting the transcript of the hearing before the Tribunal. 37 By draft Amended Notice of Appeal dated 27 October 2015 the appellant relied on the following grounds: 1. The Federal Circuit Court made an error in failing to find that the decision of the Second Respondent was affected by jurisdictional error in that the Tribunal failed to consider a claim advanced by the Appellant. Particulars The Tribunal failed to consider the Appellant's claim that he would be at a greater risk of serious harm, in the form of abduction by the CID in Sri Lanka, than he was before he left Sri Lanka, because of his age. 2. The Federal Circuit Court made an error in failing to find that the decision of the Second Respondent was affected by jurisdictional error in that the Tribunal's decision was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. Particulars The Tribunal, at [47] of its decision record (AB 356) made a critical finding of fact that was adverse to the Appellant's claims, that the CID, despite it being accepted that it had, and would continue, to threaten to abduct the Appellant, had no intention to detain or harm the Appellant. This finding of fact was not open to be made by the Tribunal in that it was contrary to the evidence, and not based upon probative material. 3. The Federal Circuit Court made an error in failing to find that the decision of the Second Respondent was affected by jurisdictional error in that the Tribunal failed to comply with s 425 of the Migration Act 1958. Particulars The Tribunal found that the Appellant on return to Sri Lanka will be 'arrested at the airport and brought before a court to apply for bail': [61]. The Tribunal found that 'bail is routinely given on the accused's own recognisance although a family member is also required to provide surety': [61]. The Tribunal concluded that it was not satisfied that 'the treatment afforded returnees for departing Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when they are later dealt with by the courts, can reasonably be seen as constituting 'serious harm' to the [appellant], and systematic and discriminatory conduct': [61], thereby implicitly concluding or assuming that the Appellant, or a family member, or someone else, would be able and willing to provide the surety required for the Appellant's bail. It was on that basis that the Tribunal considered it unnecessary to give consideration to, and make a finding, as to whether the Appellant would suffer serious harm, or significant harm, on remand awaiting a final hearing. The issues arising in relation to the decision under review therefore included whether the Appellant or his family or someone else would be able and willing to provide the surety required for the Appellant's bail so as to cause him to be released from prison prior to a final hearing. This issue was not a live issue before the First Respondent's delegate, and was not raised by the Tribunal at its hearing on 24 April 2013. The Tribunal's conclusion or assumption that the Appellant or his family or someone else would be able and willing to provide the surety required for the Appellant's bail was 'adverse' to the Appellant and was 'not obviously … open on the known material': SZBEL v Minister for Immigration and Citizenship [2006] HCA 63; (2006) 228 CLR 152, [29], citing Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 591-592. The Tribunal did not give the Appellant 'the opportunity of ascertaining' that issue or the opportunity 'to be informed of the nature and content of adverse material' in relation to that issue: SZBEL v Minister for Immigration and Citizenship [2006] HCA 63; (2006) 228 CLR 152, [32]. The issue of whether a family member would provide surety for the Appellant was a 'crucial link' in the Tribunal's chain of reasoning, which the Tribunal had to identify to the Appellant in order to comply with s.425(1): Minister for Immigration v SZTQS [2015] FCA 1069, [60]. 38 In addressing these grounds, it is well-settled that the Court should not be "concerned with looseness in the language … nor with unhappy phrasing of the reasons of an administrative decision-maker. The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error." As Brennan CJ, Toohey, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272, these propositions from Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; 43 FCR 280 at 287, recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. Of course, it does not follow that any ambiguity in approach or reasoning has to be resolved in the decision-maker's favour: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [190]. It was recognised in Wu Shan Liang itself, at 271, that: "The words used by the delegate must be analysed to establish what they say as to the thought process in fact applied by the delegate to the determination of refugee status." In our opinion, the Court must give the Tribunal's reasons a fair reading, in context, and attention must be given to the substance of the Tribunal's reasons for decision.

Ground 1 39 The appellant submitted that the Tribunal failed to consider the appellant's claim, expressly advanced by him, that he had a well-founded fear of persecution arising from the risk of abduction by the CID that would be a greater risk than that which he faced prior to coming to Australia, because of his age. The appellant submitted that the Tribunal gave no consideration to the question of whether the appellant would be at increased risk of abduction due to his coming of age. The appellant submitted the extent of the Tribunal's findings in relation to this claim was at [51]: "I consider that situation will continue unchanged despite the [appellant] no longer being a child." The appellant submitted no reasoning, consideration or intellectual process was apparent from the Tribunal's brief rejection of this aspect of the appellant's claim. The appellant submitted there was inconsistency between what the Tribunal said at [51] and what it said at [48] in relation to the evidence of the appellant's father. 40 The Minister submitted that the appellant's assertion that his abduction would become more likely as he got older was not a different or distinct claim from the one that he had already made (that he was at risk of abduction) but merely an elaboration on the likelihood that such abduction would occur once he reached a certain age. There was no separate claim to consider. The Tribunal concluded that the appellant had not been, and was unlikely to be, in the reasonably foreseeable future, persecuted on the basis that he was a Tamil. It was implicit in that finding that abduction was not going to be more likely than abduction at some earlier stage given that the appellant was not going to be at risk more generally by reason of his Tamil ethnicity. The Tribunal addressed the claim that the appellant would be at risk on his return to Sri Lanka by reason of his imputed connection to the LTTE or as a member of a related social group. That could only have been a claim that the appellant was at risk of abduction because of such a connection. The Tribunal rejected that claim for a number of reasons, including that the officers did not have the intention to abduct the appellant. The only reason that the appellant could have been at increased risk of harm as he got older was because it was more likely that he would face harm by reason of his being a young Tamil man or someone with a perceived association with the LTTE. Both of those claims, the Minister submitted, were addressed by the Tribunal. 41 In our opinion, the correct analysis is that the appellant submitted to the Tribunal that he was more likely to be abducted once he was no longer a child. This was said by the appellant to be a reason discounting the fact that he had not, during his time in Sri Lanka, been abducted. The Tribunal considered this at [48] and [51]. The Tribunal reasoned that although it may once have been a reasonable explanation for non-abduction that the appellant was small, the appellant was now almost 19 years of age and not a child. The Tribunal's overall conclusion, on this aspect of the matter, was that although the appellant's mother had been subjected to extortion by certain officers from the CID, those officers' threats in relation to the appellant were a bluff designed to elicit money from her. The Tribunal's reasoning was that, in those circumstances, the situation would continue unchanged and that it was immaterial that the appellant was no longer a child. 42 In our opinion, no jurisdictional error on the part of the Tribunal, in this respect, has been made out and ground 1, considered by itself, fails.

Ground 2 43 The appellant submitted, with reference to WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 at [7] (per Lee J, dissenting in the result), that the Tribunal made a critical adverse finding of fact against the appellant by a course of reasoning that was illogical and contrary to the evidence. That finding of fact was that the CID officers had no intention to detain or harm the appellant. The appellant submitted that the Tribunal's course of reasoning was illogical and contrary to the evidence because it failed to appreciate the unchallenged evidence of the appellant that his mother was being extorted for money, that the extorters threatened to abduct the appellant and that she paid the extorters because she did not know what they might otherwise do. The appellant submitted that, having regard to the Tribunal's conclusion at [46] that the CID officers would continue to extort money from the appellant's mother in relation to the appellant's father's alleged LTTE connections, it was not available to the Tribunal to find that the appellant was not actually at risk of abduction because the CID officers did not engage with him personally, did not question him directly and did not take up available opportunities to abduct him. Secondly, the appellant submitted that the Tribunal's decision was not based on findings of fact supported by logical grounds in that, at [47], the Tribunal relied upon the absence of evidence that the CID officers had questioned the appellant directly, including about his own political opinions, but where the appellant did not claim that he was himself suspected of being an LTTE supporter. 44 In oral submissions, the appellant emphasised that the nature of extortion was that there was an absence of the carrying out of the harm feared because of the fact that protection money was being paid. The Tribunal, the appellant submitted, chose, at [47] and [51] of its reasons, to focus upon whether the act of abduction would occur and it found that the CID officers were not going to abduct the appellant because if they were going to abduct him they would have done it already. The appellant submitted that the CID officers would not have done so because they were extorting money. The finding as to non-abduction in the future was based on the fact that the appellant had not been abducted in the past. 45 The Minister submitted that neither of the matters complained of by the appellant could be said to be irrational in the required sense. As to the claim that it was impermissible for the Tribunal to find that the appellant was not at risk of abduction, the Tribunal found that the extortion did not entail a real chance of abduction because it was satisfied that the threat was a "bluff". As to the appellant's second argument, The Minister submitted that it misconstrued the Tribunal's reasons. 46 In oral submissions, the Minister emphasised that whether or not the appellant's fear was well-founded was an assessment for the Tribunal to make and, at [50], the Tribunal said it was satisfied that the corrupt officers did not intend to abduct the appellant before he left Sri Lanka. This was a question of fact and assessment for the Tribunal. 47 In supplementary written submissions filed by leave after the hearing of the appeal, the Minister submitted that where a Tribunal finds that extortion has occurred and the visa applicant has a subjective fear of that extortion, it is open to the Tribunal also to find that the fear is not well-founded because, objectively assessed, the underlying basis of the extortion is found not to exist. Put slightly differently, a visa applicant may genuinely believe a threat and genuinely fear that threat but the threat may not be something that, objectively, has a real chance of occurring. Such reasoning, the Minister submitted, was consistent with principle and was not illogical or irrational. The Minister referred to SZTFR v Minister for Immigration and Border Protection [2015] FCA 545, SZJHM v Minister for Immigration [2007] FMCA 1847 and SZATE v Minister for Immigration [2004] FMCA 532. He also referred to Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 for the proposition that a subjective fear must be objectively well-founded, that is, there must be an objective basis for the applicant's fear. The Minister contended that it was not illogical that a person may genuinely fear harm from a threat (upon which extortion is based) and yet the Tribunal conclude that there is no real chance that the threat will be carried out. This would be rational on at least two bases: the extorters have no intention to carry out the threat if the money is not paid; and the money will continue to be paid (such payment not itself constituting harm to the applicant serious enough to be persecution). In the present case, the Minister submitted, the Tribunal relied upon both of these rational bases for its decision. 48 In the appellant's supplementary written submissions in response, he submitted that it could not be said that the threat of his abduction by CID officers who, the Tribunal accepted, had asserted would abduct the appellant because of the father's LTTE connections, was far-fetched, or remote or insubstantial. The threat to the appellant was sufficiently real to cause genuine fear in the appellant, at [50], and to motivate his mother to part with her money and to continue to do so, at [46]. In this case, it was a matter for the Tribunal to assess the likelihood of an abduction occurring in the circumstances advanced by the appellant. Specifically with respect to extortion claims, the appellant submitted, it was not inappropriate for the Tribunal to look to form a view as to the real motivation of the extorters: Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; 190 CLR 225, 284 (per Gummow J); Ram v Minister for Immigration and Ethnic Affairs [1995] FCA 1333; 57 FCR 565, 568 and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559, 574. 49 The appellant submitted that the Tribunal adopted the language of the real chance test in setting out its conclusions, at [51], but for reason of its illogical reasoning as to future events, the appellant submitted that the Tribunal failed to understand and apply properly the test in Chan. 50 The appellant accepted that in principle, and speaking generally, it was open for the Tribunal to accept that a person subjectively fears persecutory harm but also to find that that harm is not well-founded. However, the appellant did not assert illogicality in the abstract or as relating to the approach generally to be taken. Rather, the appellant's contention was that the Tribunal's decision was affected by jurisdictional error in light of the reasoning process exposed at [47] of the Tribunal's reasons where the Tribunal set out why it was satisfied that the corrupt CID officers had no intention to abduct the appellant. The likely future action of the CID officers in question was adjudged on the basis of their "past conduct". The rejection of the appellant's claims was based on the Tribunal's assessment of the likely behaviour of the corrupt officers, and not on the basis of other relevant information such as evidence that suggested that, unbeknownst to the appellant and his family, it was common for CID officers to target vulnerable families for the purposes of extortion, but that abduction seldom occurred; or evidence that the mother had, on one occasion or more, neglected to make the required payments to the CID and yet they did not carry through with their threat; or evidence that suggested that the Sri Lankan government was executing a crackdown on corrupt officers extorting money from people and engaging in illegal conduct. 51 The appellant submitted that cases involving extortion as a basis of the persecution that is feared were different from cases where the feared persecution did not involve extortion. The difference lay in the nature of the risk that a person faced. The authorities that related to extortion refugee cases were applicable and highlighted the error in the approach of the Tribunal in this case. Cases involving extortion formed a special class of case in which the actors whose actions are feared by the victim have a motivation to not engage in the feared conduct so long as money is paid to them. What this required was a consideration by the Tribunal of the particular circumstances surrounding the extortion. The Tribunal failed to address the factors necessarily arising from a scenario of extortion as they related to the risk of harm eventuating, and it was for this reason that the appellant submitted that the Tribunal's reasoning was illogical or irrational. 52 In addition to the decisions referred to in the Minister's supplementary submissions, the appellant referred to Perampalam v Minister for Immigration and Multicultural Affairs [1999] FCA 165; 84 FCR 274 and to Rajaratnam v Minister for Immigration and Multicultural Affairs [2000] FCA 1111; 62 ALD 73. The appellant submitted it was impermissible, and amounted to jurisdictional error, for the Tribunal to have rejected the appellant's claims on the basis of an assessment of the likelihood that the feared abduction would take place, without having proper regard to the circumstances of the extortion. The family was targeted because they were Tamil, the appellant's fear (which was found to be genuine) arose from the appellant's membership of a particular social group (which the Tribunal found to exist, at [55]). Put another way, it was not a valid approach for the Tribunal to reject the appellant's claim as it was of the view that the CID officers were "bluffing", or were not interested in the appellant, primarily on the basis that the extorters were yet to carry out their threat. 53 The appellant submitted that SZTFR was distinguishable having regard to the fact that the Tribunal in the present matter accepted that the CID officers were taking money from the appellant's mother, and it was accepted that they had threatened, and would continue to threaten, to abduct the appellant arising from his father's LTTE connections. The appellant submitted that SZJHM was distinguishable as the claims to fear persecutory harm were rejected on the facts as not amounting to serious harm. SZATE, the appellant submitted, was not relevant as in that case the Tribunal rejected the applicant's extortion claim on the basis that it was not Convention-related. 54 In our opinion, while we accept that there must be an objective basis for an applicant's fear, as explained in Chan at 396 (per Dawson J), 406 (per Toohey J), at 412 (per Gaudron J) and 429 (per McHugh J), in the present case the Tribunal's conclusion as to the lack of objective basis for the appellant's fear was founded on the conclusion that the corrupt CID officers did not intend to detain or harm the appellant which in turn was founded on those officers having shown no interest in the appellant in the past: see the Tribunal's reasons at [47]. 55 We note that while there is no suggestion their conduct was authorised in that regard, the extortion demands were made by persons holding office as members of the CID in circumstances in which the Tribunal accepted, at [24], that corrupt officials may act with impunity to solicit bribes from persons fearful of drawing themselves to the attention of the security forces. 56 It is, in our view, illogical to found the conclusion that there was not an objective basis for the appellant's fear on the absence of harm in the past, when the absence of harm was referable to the successful extortion of the payments, the payments being made to prevent the harm in question. The illogicality amounting to legal unreasonableness is that the past period of non-harm or non-interest in the appellant was co-extensive with the period when the appellant's mother was acceding to the extortion by the payment of money. 57 We accept, of course, as explained by French CJ in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [30], that the requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. 58 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 concerned the alleged irrationality or illogicality of the Tribunal rejecting corroborative evidence when it was convinced that a principal witness was fabricating a story, which was considered to be inherently implausible: see Gleeson CJ at [12] and McHugh and Gummow JJ at [49]. It was held that the determination by the Tribunal was not irrational or illogical as the appellant contended. Ground 2 of the present appeal does not involve irrationality or illogicality of that kind. 59 In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, the dispute concerned the adverse inferences which the Tribunal drew from its rejection of the account given by SZMDS of his personal history. The Tribunal rejected the claim of SZMDS to membership of a particular social group, being male homosexuals in Pakistan. The Tribunal concluded that SZMDS was not a homosexual and the primary judge held there were defects in the inferential reasoning to that conclusion which constituted jurisdictional error. This conclusion was, by majority, reversed: Heydon, Crennan and Bell JJ constituted the majority and Gummow A-CJ and Kiefel J dissented in the result. The majority held, at [78] and [131], that what was involved was an issue of jurisdictional fact upon which different minds might reach different conclusions. In this respect, Crennan and Bell JJ said, at [130]-[133]: … Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. … Was the Tribunal's fact finding "illogical" or "irrational"? Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal's conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. … However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. … It is in this sense that we have addressed the question of illogicality and made the finding at [56] above. 60 It is not a matter of that species of reasonableness review which concentrates on the outcome of the exercise of power, but reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power: see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47]. 61 We are of the view that while the appellant's mother was the direct subject of extortion, the harm threatened in the absence of payment was to her son and the actual harm threatened by the corrupt CID officers, if the payments they were extorting were to cease, was that the appellant would be abducted. There is no suggestion that that would not amount to 'serious harm' within Article 1A(2) of the Refugees Convention. Nor in our view could it be in dispute that, to the extent it existed, the vulnerability of the appellant and his mother to that extortion arose because of their membership of a social group, that is, it arose because the corrupt CID officers had identified them as family members of a person who was or who had had suspected links to the LTTE. It is on this, factual, basis that we would distinguish the observations of Burchett J, with whom O'Loughlin and RD Nicholson JJ agreed, in Ram at 569G that extortionists are simply extracting money from a suitable victim. In this respect we refer also to Perampalam at [16], per Burchett and Lee JJ as follows: The Tribunal cited Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565, where Burchett J said (at 569), in a judgment with which O'Loughlin and R D Nicholson JJ agreed: "Plainly, extortionists are not implementing a policy; they are simply extracting money from a suitable victim. Their forays are disinterestedly individual." But this was in the context (as appears from the same judgment at 567) of an express finding by the Tribunal that "the applicant has not satisfied me that the extortion was anything other than a criminal act, or that he was targeted for any reason other than he was known to have money". Here, the Tribunal's finding is the opposite: it says "there is no doubt that the LTTE approaches Tamil[s] for funding". The additional fact that the particular Tamils approached are chosen "because of their perceived wealth" is no more legally relevant than the fact (in Paramananthan) that the security forces targeted, among Tamils, young males from Jaffna who might be thought more likely to be guerillas. Extortion directed at those members of a particular race from whom something might be extorted cannot be excluded from the concept of persecution within the Convention, and Ram does not suggest it can. On the evidence, it was plainly open to the Tribunal to conclude that the fanatical combatants in the LTTE saw it as the obligation of every Tamil to make sacrifices, willingly or by coercion, for Tamil Eelam. No doubt, it was for this reason the finding was made "that the LTTE approaches Tamil[s] for funding". A motivation of this kind is sufficient for the purposes of the Convention. The words "persecuted for reasons of" look to the motives and attitudes of the persecutors (see Ram at 569), and if the LTTE practices extortion, with violence and threats of violence, against Tamils, the government being unable to provide protection, because the LTTE holds that Tamils must be coerced into supporting it, the terms of the Convention are satisfied. This passage was also cited with approval by Finn and Dowsett JJ in Rajaratnam at [42], their Honours going on to say, at [46]: … In the usual case of extortion the extorting party will be acting for a self-interested reason (ie to gain an advantage for himself or herself, or for another). In this sense, his or her interest in the person extorted can always be said to be personal. What needs to be recognised, though, is that the reason why the extorting party has that interest may or may not have foundation in a convention reason. The extorted party may have been chosen specifically as the target of extortion for a convention reason, or may have become the subject of extortion because of the known susceptibility of a vulnerable social group to which he or she belongs, that social group being identified by a convention criterion. Or, conversely, the person may have been selected simply because of his or her perceived personal capacity to provide the particular advantage sought and for no other reason or purpose. 62 In our opinion, this illogicality amounting to legal unreasonableness affects the conclusion of the Tribunal in relation to both the Convention-based claim and the claim for complementary protection. 63 Although the Tribunal expressly held that the corrupt officers' threats towards the appellant were a bluff designed to elicit money from his mother, that conclusion is infected by the same reasoning process which we have found to be illogical at [56] above. So also, in our opinion, is the Tribunal's conclusion at [51] that in the absence of any claim that the appellant's mother proposed to stop making payments, the situation would continue unchanged despite the appellant no longer being a child. 64 For these reasons, in this respect jurisdictional error on the part of the Tribunal is made out and ground 2 succeeds.

Ground 3 65 The appellant submitted that the nub of this ground was a failure to comply with s 425 based on the analysis of that provision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 and on the recent decision in Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069. The appellant submitted that the reasoning of the Tribunal in the present case was almost identical to the reasoning of the Tribunal in SZTQS. In the present case, the other way in which the appellant put his claim was that he would be at risk in returning to Sri Lanka because he would be a failed asylum seeker. This would be a particular social group claim. The relevant passage of the Tribunal's decision was at [61], which we have set out at [34] above. The appellant focused on the following sentence in [61]: Bail is routinely given on the accused's own recognisance although a family member is also required to provide surety. 66 The appellant submitted the Tribunal thereafter did not give any consideration to the prospect or to the chance that the appellant would be confined to prison for a prolonged period if bail was not granted to him. If the Court accepted on principle that the question of whether a family member would be able to provide surety was a dispositive issue, if the point was not squarely raised with the appellant at the Tribunal hearing, then the Court was left in a situation of needing to pick actual findings or available inferences from a decision record where the issue was not a live one. There was no consideration by the Tribunal of financial capacity even on the question of whether the mother would be able to continue to pay the protection money. The appellant submitted that if the issue had been raised and procedural fairness had been afforded, then it was possible that the appellant might have said something about the surety issue. The issue of the family members' capacity, and also inclination, to provide a surety should have been raised. Because the point was not raised, the Tribunal deprived the appellant of considering another claim, that is, the claim of the prolonged detention in the Sri Lankan prison while awaiting a final hearing: that consideration would have been dealt with had the point been raised. The appellant could not have anticipated this particular point being put against him, that is, that he would get bail and would avoid a prolonged period in detention, because that was not advanced by him as part of his fear of persecution. 67 The Minister submitted that the issue as to the appellant's fear amounting to a claim for complementary protection for harm from his imprisonment in Negombo Prison was something which he claimed for the first time in the Tribunal, and was not a claim that he made before the delegate. It was a new claim in the Tribunal. SZBEL did not say that a claimant was entitled to assume that all their new claims were going to be accepted. Where a person made a new claim, it was naturally in issue and the claimant should present their full case in relation to any new claims made for the first time in the Tribunal. Here, the Minister submitted, the appellant made a new claim in the Tribunal; he had to put his full case; and SZBEL was not engaged at all. The Minister put, in the alternative, that the Tribunal did put specifically to him the issue as to what was likely to happen upon the appellant's return in relation to the prison and, although not mentioning bail, did say words to the effect that the appellant would not have a problem on his return and he would be able to go home and that would have been enough to put the fear of harm in Negombo Prison in issue. In the further alternative, the Minister submitted that the information relating to bail was country information covered by s 424A(3)(a) and there was not an obligation to put to the appellant information pertaining to an issue which was already before the Tribunal and not a new issue. 68 In relation to SZBEL, the Minister also submitted that it was decided before s 424AA was enacted. That section provided that if an applicant was appearing before the Tribunal because of an invitation under s 425, the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review and, if the Tribunal did so, the Tribunal must, amongst other things, ensure, as far as was reasonably practicable, that the applicant understood why the information was relevant to the review, and the consequences of the information being relied on in affirming the decision that was under review. 69 The Minister also submitted that the issue of bail was not a crucial plank as it was in SZTQS because the appellant said he would be in detention for some days and that was not disputed. What was disputed was whether or not that would constitute serious harm or significant harm. Whether or not the appellant knew about bail, he did not refer to it. The present case was distinguishable from SZTQS, the Minister submitted, as here the appellant made claims about being "detained for days or more on return to Sri Lanka" and the Tribunal's approach was to determine whether that amounted to serious harm or significant harm and so, to that extent, the question of bail was not a crucial plank in the reasoning. 70 Under s 424A, the Minister was not obliged to disclose that information and s 425 should not pick up the matters that were exempted from s 424A. In this respect, the Minister referred to Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162; 163 FCR 285 at [87]-[88], as follows: The applicant submits that the following passage from SZBEL [at [47]] encapsulates his complaint regarding the RRT's failure to comply with s 425: But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. The short answer to the applicant's submission based upon SZBEL is that s 425 does not require the RRT to identify the significance of the questions that it puts to a claimant or the ultimate matter or issue to which those questions go. That is not what is required by SZBEL, and is an attempt to import the requirements of s 424A(1) into s 425. (Original emphasis. Citations omitted.) While accepting that the decision was not on all fours with the present case, the Minister submitted that if the Parliament had exempted an area from having to be addressed under s 424A, that exemption should not be undermined by implying some kind of an analogous issue identification process under s 425. 71 The Minister also submitted that a surety meant as a guarantor and it did not mean putting up money. 72 The Minister further submitted that what the Tribunal recounted in [57] of its reasons as to what the Tribunal had put to the appellant was a sufficient particularisation of the issue, the issue being what would happen to the appellant upon his return and whether or not he would be allowed to go home. 73 In reply, the appellant submitted there was some difficulty in expecting an applicant before a Tribunal to anticipate precisely the way that the Tribunal member was going to deal with a particular claim by simply putting the issue in broad terms. In the present case, the Tribunal was addressing a claim that was initially advanced, a risk of harm arising from return to Sri Lanka as a person who had left Sri Lanka illegally, and in not putting to the appellant during the hearing the issue about the bail procedure, an additional claim that arose on the face of the materials was not made apparent to the appellant. The way that the Tribunal dealt with the issue must have caught the appellant by surprise as it was not his claim as such that was the basis of it being rejected. For the first time, on reading the decision record, the appellant would have realised that some procedural issue with the obtaining of bail was raised and an assumption was being made that a family member would provide surety (or be guarantor). The Tribunal needed to turn its mind to whether an extended period of stay in the Sri Lankan prison if bail was not granted might be significant harm. The appellant submitted that SZTQS did not avoid the need for the Court to look carefully at SZBEL and to how issues were raised in the course of the review and then to consider whether there was a dispositive issue and whether the appellant had an opportunity to deal with it. 74 In SZTQS, Griffiths J dismissed an appeal by the Minister from the Federal Circuit Court, which had found jurisdictional error in a case where the Tribunal had concluded that a visa applicant would, on return to Sri Lanka, be granted bail in respect of a charge of illegal emigration, because a member of that applicant's family would provide surety for him. The jurisdictional error found by the Federal Circuit Court lay in the Tribunal's failure to identify to the visa applicant the issue as to the likelihood that he would be granted bail on the basis of a surety provided by a family member and to invite him to comment upon that before the Tribunal made its decision. 75 At a general level of abstraction, there is a similarity between SZTQS and the present case, as is revealed by the Tribunal's finding, at [61] that: "Bail is routinely given on the accused's own recognisance although a family member is also required to provide surety." Here, too, the Tribunal did not put to the appellant prior to making its decision an issue as to whether a family member would provide surety in respect of a term of any bail which he might be granted after return to Sri Lanka. 76 In our opinion, however, SZTQS does not stand for a high-level proposition that every reference to a family member being required to provide surety involves a breach of s 425(1) of the Act. 77 SZTQS is but an application, on particular facts, of a feature of the review jurisdiction exercised by the Tribunal under the Act, described in SZBEL. It is not necessary to consider whether or not SZTQS was correctly decided. Rather, the pertinent feature highlighted by SZBEL is that, in each instance, the Tribunal exercises a review jurisdiction in respect of a particular decision in respect of which the Minister (or a delegate) will have given particular reasons. In our opinion, SZTQS was, of necessity, fact specific. 78 In SZTQS, part of the background circumstances was that SZTQS had, before he left Sri Lanka, been taken to the police station and, two days later, to the local courthouse where his mother paid bail money for his release. By reason, in part, of those events and by reason of his ethnicity as a Tamil, SZTQS feared that he would be arrested again. SZTQS had also given a statutory declaration that he had an outstanding hearing for a charge of trying to leave Sri Lanka illegally and without permission. 79 However, on the facts of the present case, we would not accept that it was critical to the Tribunal's finding, that the appellant could apply for bail and that bail was routinely given, that a family member was required to provide surety and that therefore it was plainly an issue for the Tribunal that the appellant's family would be able to provide surety for him as a determinative factor in the mind of the Tribunal. It is to be recalled that what is, and what is not, an issue for the purposes of s 425(1) of the Act may be affected by what matters the Tribunal considers may be important to its decision: SZBEL at [47]. There is no such indication in the reasons of the Tribunal. 80 We also note that in SZTQS it appears to have been assumed by the Federal Circuit Court that providing surety involved the payment of money. This may have been because of the earlier history that SZTQS' mother had paid bail money for his release from a cell in a police station: see [78] above. In our opinion, no such assumption should be made in the present appeal. 81 While the passage complained of in [61] of the Tribunal's reasons was country information which was not required to be drawn to the attention of the appellant by reason of s 424A(3)(a), that is, it was information not specifically about the appellant or another person and was just about a class of persons of which the appellant or other person was a member, we need not rely upon that provision as a basis for our conclusion in respect of this ground. In the specific facts of this case, the Minister's delegate, whose decision adverse to the appellant had been the subject of review by the Tribunal, had extensively set out the country information, which the Tribunal summarised at [61], and the delegate's findings, including that country information, had been responded to by extensive written submissions to the Tribunal on the appellant's behalf. Whatever the effect of s 424A(3)(a) might be in other circumstances, in this instance we discern no breach of the rules of procedural fairness because the appellant was informed of, and had the opportunity to respond to, that material. 82 For these reasons, we reject ground 3.

Conclusion and orders 83 The appeal should be allowed, with costs, and the application remitted to the Tribunal for determination according to law. Because the grounds argued in this Court were new, the costs order, order 3, made by the Federal Circuit Court on 19 June 2015 should not be disturbed. 84 In conclusion, we note that in the transcript of the hearing in the Tribunal which was tendered by the Minister, the Tribunal member said, in closing the hearing, that if the Tribunal member found that the appellant was not a refugee and was not entitled to complementary protection the member would recommend to the Minister that the appellant be able to stay in Australia anyway, that is, the Tribunal would recommend to the Minister that the appellant be allowed to stay in Australia for other, humanitarian, reasons. We were not told whether such a recommendation was in fact made or what the outcome, if any, of any such recommendation had been. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Robertson and Kerr.