FEDERAL COURT OF AUSTRALIA
SZTIS v Minister for Immigration and Border Protection
[2017] FCA 545
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appellant have leave to rely on ground 1 set out in the draft notice of appeal dated 6 April 2016.
2. The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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BURLEY J:
1 This is an appeal from the judgment and orders made by the Federal Circuit Court of Australia (FCCA) on 17 March 2016, dismissing the appellant’s application for judicial review of the decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal) given on 9 September 2013. The Tribunal had affirmed a decision of a delegate of the first respondent (Delegate) not to grant the appellant a Protection (Class XA) Visa (Visa) under s 36 of the Migration Act 1958 (Cth) (Act).
2 In broad terms, the appellant’s application for the Visa was based on what he contended were well-founded fears of persecution based on; his Tamil ethnicity, his Hindu religion, his imputed political opinion of support for the Liberation Tigers of Tamil Eelam (LTTE) and opposition to the Sri Lankan government; his late father’s involvement in the LTTE; and the fact that, if he is returned to Sri Lanka, he would be targeted as a Tamil and a failed asylum seeker, who had departed the country illegally.
3 The Tribunal rejected the majority of these claims on the basis that it did not accept the version of events told by the appellant. It did accept that the appellant was a Tamil Hindu man from an area in the north of Sri Lanka, who had departed Sri Lanka illegally, but concluded, based on the available country information, that the risk to the appellant of being persecuted as a returnee after leaving Sri Lanka illegally and failing to obtain asylum abroad, was remote.
4 An appeal from the Tribunal to the FCCA was dismissed.
5 In the present appeal, the appellant relies on one ground only, namely, that the FCCA ought to have found that the Tribunal “failed to comply with s 425 of the Migration Act”. As this ground was not advanced in the FCCA there is no dispute that leave is required.
6 The proposed appeal turns on a narrow point. After the hearing was conducted before the Tribunal, the Tribunal wrote to the appellant and provided him with additional country information that indicated, amongst other things, that a Sri Lankan returning to Sri Lanka after being an illegal immigrant might be detained for a short period and then granted bail upon personal recognisance, with the requirement for a family member to stand as a guarantor. The appellant responded to the Tribunal’s letter in a lengthy written submission. Ultimately the Tribunal decided that the risk of being held for a short period on remand did not equate with a real risk of suffering significant harm and affirmed the Delegate’s decision. The appellant contends first, that by adopting the country information a fresh issue was raised, namely, whether a family member would provide surety for the appellant. Secondly, that by not raising that issue the Tribunal had failed to provide due process to the appellant as required by subs 425(1) of the Act.
7 The appellant filed an interlocutory application seeking leave to rely on an affidavit given by the appellant on 29 July 2016 in support of this ground. The affidavit annexes a copy of the transcript of the hearing before the Tribunal. The purpose of the transcript is to prove a negative, namely, that the additional country information was not identified at the hearing before the Tribunal. At the hearing counsel for the first respondent (Minister), Dr Graycar, accepted that that information was not raised. Accordingly, it is not necessary to consider the interlocutory application.
8 The appellant, by his counsel Mr Godwin, filed written submissions in support of his application and counsel for the Minister filed submissions in response. The argument proceeded on the basis that there were two substantive matters for consideration before this Court. First, whether the appellant should be granted leave to appeal. Secondly, whether, if leave is granted, the appeal should be allowed. At the conclusion of the hearing counsel for the Minister, sought leave to file additional submissions addressing a point first raised by the appellant in the course of oral argument. I granted that leave, and leave to the appellant to file submissions in reply. Later, counsel drew my attention to the recently decided Full Court decision in AEK15 v Minister for Immigration and Border Protection [2016] FCAFC 131 (AEK15) and later still drew my attention to the decision of Charlesworth J in ABA15 v Minster for Immigration and Border Protection [2016] FCA 1419 (ABA15).
9 For the reasons set out below, I allow the application for leave to rely on the proposed ground of appeal but dismiss the appeal and order that the appellant pay the first respondent’s costs.
2. THE PROPOSED GROUND OF APPEAL
10 The proposed ground of appeal for which leave is sought is as follows:
1. The Federal Circuit Court should have found that the RRT [Refugee Review Tribunal] failed to comply with s 425 of the Migration Act.
Particulars
The Tribunal failed to give the appellant the opportunity to present information and arguments at a hearing concerning the critical issues of whether a guarantor would be available to enable him to be bailed in the event that he was charged for illegally departing Sri Lanka, and the issue of whether recent experience in Sri Lanka of those who were returned there and charged with illegal departure affected the chance that he would be imprisoned should he be found guilty of departing illegally.
3.1 The Visa application and decision of the Delegate
11 The appellant is a citizen of Sri Lanka who left that country by boat and arrived in Australia as an undocumented irregular maritime arrival on 20 June 2012. He applied for the Visa on 2 November 2012. The Delegate refused that application on 11 January 2013.
12 Of relevance to the proposed ground of appeal are the following aspects of the Delegate’s decision:
Although also not enunciated by the applicant, I will also consider whether there is a real chance the applicant will suffer serious harm or persecution on account of an imputed pro-LTTE political opinion or because of being a Tamil male who departed Sri Lanka illegally by boat and subsequently returned to Sri Lanka.
…
Regarding the real chance of the applicant suffering serious harm on his arrival at Colombo airport on account of his being a Tamil man from the north who departed Sri Lanka illegally and returning from Australia, I have considered a range of relevant country information on the treatment of returned Tamil Asylum seekers to Sri Lanka.
…
The November 2012 DFAT [Department of Foreign Affairs and Trade] report [5.5.4] and other recent news reports further comment of [sic] the situation for returnees to Sri Lanka from Australia. The sources confirm that returnees are questioned on arrival by the CID at Colombo airport and then may be remanded in custody until their case is mentioned in court. This may take a few days or possibly weeks. After this they are generally bailed until a further hearing.
3.2 The proceedings before the Tribunal
13 On 16 January 2013, the appellant applied for a merits review of the Delegate’s decision by the Tribunal.
14 On 5 March 2013, the legal representatives of the appellant provided written submissions to the Tribunal which relevantly noted; that the country information relied upon by the Delegate did not mention that Tamil failed asylum seekers were at risk of persecution; that the Delegate had accepted that the appellant may be questioned on arrival and that his background may be checked for any outstanding security or criminal matters; that the Delegate had accepted that the appellant may be remanded for a short time before going before a court and facing a possible fine for illegal departure; that the Delegate did not consider that treatment such as being held on remand for a few days or facing a possible fine would amount to persecution or serious harm; that the Delegate had expressed the view that there was no evidence that the appellant had had any involvement, apart from his illegal departure, that would lead him to be of interest to the authorities or that there is any real chance of harm befalling him on his return to Sri Lanka for any reason, including as a failed asylum seeker.
15 The submissions also relied on country information demonstrating that returnees and failed asylum seekers may be subject to serious harm by virtue of the fact that they are imputed with dissident or pro-LTTE views by reason of their attempts to gain protection in other nations.
16 The hearing before the Tribunal was conducted on 19 March 2013 where the appellant appeared and gave evidence with the assistance of an English/Tamil interpreter. He was represented at the hearing by Craddock Murray Neumann Lawyers.
17 After the hearing, on 1 May 2013, the Tribunal wrote to the appellant in the following terms, which included information set out in a report from the Australian Department of Foreign Affairs and Trade (DFAT) dated 4 March 2013 (Letter):
…
In conducting its review, the tribunal is required by the Migration Act to invite you to comment on or respond to certain information which the tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
…
Enclosed is a schedule containing country information on which the Tribunal will rely when determining this application for review. The country information contained in the schedule appears to indicate that the applicant’s fear of persecution is not well founded and there are not substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Sri Lanka, there is a real risk he will suffer significant harm.
Any comments the applicant wishes to make on the enclosed information must be received by the date given above.
18 The schedule to the Letter relevantly included the following (emphasis added):
…
Post’s experience with returnees from Australia is that persons are arrested by the Sri Lanka Police Service Criminal Investigation Department (CID) after being processed back into Sri Lanka by the Department of Immigration and Emigration. They are held in police custody at the CID Airport Office throughout the investigation period, which can last up to 24 hours under relevant legislation.
They are then produced before a magistrate and the Magistrate’s Court will determine whether the person is to be released on bail, to appear before the court at a later date, or is remanded into custody.
If a person needs to be held for more than 24 hours as a result of a Magistrates Court not sitting, such as when a person arrives during a weekend or public holiday, arrested persons are transferred to the nearby Negombo Prison (Remand Section) until the Magistrates Court is in session.
We understand the current process for bail is that all persons are granted bail based on personal recognisance (on their own responsibility), with the requirement for a family member to stand as a guarantor. There is no payment required for bail.
However, we note that the court may decide not to grant bail if the returnee is found to be a facilitator/organiser of people smuggling, or the court may grant specific bail conditions if the person is a repeat offender.
…
19 On 14 May 2013, the lawyers representing the appellant responded in detail to the letter of 1 May 2013, including to the country information cited. Despite its length (9 pages), and its specific reference to the DFAT report, nowhere did it raise as an issue the question of whether the appellant would find it difficult to secure release from prison with the assistance of a family member standing as guarantor.
20 On 9 September 2013, the Tribunal affirmed the decision of the Delegate, refusing the grant of the Visa.
21 In its decision, the Tribunal considered and rejected the factual basis for almost all of the appellant’s claims on credit grounds. The factual matters relevant to the current proposed ground of appeal are set out below.
22 The appellant claimed that in 2006 his mother had arranged for a people smuggler to help him leave Sri Lanka and flee to Malaysia. He remained in Malaysia illegally for two years until he was found by the authorities and deported back to Sri Lanka in 2008. The Tribunal appears to have accepted as a fact that he went to Malaysia and returned at the times claimed. It made no specific findings about whether the appellant had illegally left for Malaysia in 2006.
23 The appellant also relevantly claimed that he left Sri Lanka illegally to come to Australia in 2012. He claimed that he would be arrested and held upon his return because he is a Tamil who is imputed with dissident or pro-LTTE political views by reason of his attempt to gain protection in other nations. The Tribunal considered whether the risk to the appellant provided a basis for a well-founded fear of persecution. In doing so, the Tribunal drew attention to the following aspects of the country information available to it.
24 First, that the appellant did not fall within one of the seven classes of people whom the United Nations High Commissioner for Refugees identified as being in possible need of international protection, those people being; persons suspected of certain links with the LTTE, certain opposition politicians and political activists, certain journalists and other media professionals, certain human rights activists, certain witnesses of human rights violations and victims of human rights violation seeking justice, women and children in certain circumstances, and lesbian, gay, bisexual, transgender and intersex individuals in certain circumstances.
25 Secondly (at [64]), the content of the 4 March 2013 DFAT report which was quoted in the schedule to the Letter (see [18] above).
26 Thirdly, that upon arrival in Sri Lanka:
125. … returnees will be interviewed at the airport to establish identity and as soon as possible brought before a magistrate in relation to departing the country illegally.
126. Depending on the day on which the returnee arrives at the airport in Colombo, that person may be briefly detained in remand before being brought to the court. In the Tribunal’s view, country information indicates that for departing the country illegally, the returnee will be granted bail and will, eventually, receive a fine.
…
128. The Tribunal acknowledges that, according to DFAT, penalties for illegal departure can be a fine and a prison sentence. However, the Tribunal considers on the basis of the country information set out above, prison sentences are more likely to be imposed on those involved in people smuggling as it appears that it is the people organising those ventures who the government is really concerned about.
…
132. However, on the information before it about this issue, the Tribunal is satisfied that, while the government has, from November 2012, begun charging people for offences relating to illegal departure, the risk of any Tamil returnee, who unsuccessfully sought asylum abroad, being given a jail sentence for their illegal departure is remote. The Tribunal is satisfied that a fine is the most likely outcome and the imposition of a fine within the range of amounts set out above in country information (or what appears to be the lesser range actually being handed out by magistrates on those who attempt to leave illegally) does not amount to serious harm.
133. Accordingly, the Tribunal considers that the risk of a Tamil suffering harm in Sri Lanka as a returnee after seeking asylum abroad and leaving the country illegally (and suffering harm solely due to those factors) is remote.
…
171. The Tribunal finds the possibility of the applicant being held in remand briefly before being brought before a magistrate does not equate with a real risk of suffering significant harm (as defined in the Act).
27 The conclusions at [125], [126] and [171], quoted above, are particularly relied upon by the appellant.
28 The appellant appealed from the decision of the Tribunal on 7 October 2013 and filed an amended application in that Court on 29 January 2014. He was represented by counsel. The grounds relied upon in that Court were extensive and, in a lengthy and careful decision, the learned primary judge rejected each of those grounds on 17 March 2016.
29 It is not necessary for present purposes to address the details of the decision, or the grounds raised below, because, as I have noted above, the present notice of appeal raises a single ground which was not advanced or considered below.
30 The appellant advances on appeal a ground not considered by the primary judge. He submits that he should be permitted to do so primarily because the new ground has merit. The point raised by the ground, the applicant submits, arises from a decision of Griffiths J in Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 (SZTQS) which was decided after the hearing was conducted before the primary judge, but before the decision was handed down. The point was not raised prior to the decision because, apparently, the solicitors representing the appellant did not identify it. The current legal representatives have done so. However, no effective remedy is available against the solicitors who formerly acted for the appellant, in light of the relief now sought, namely that the appellant not be returned to Sri Lanka.
31 The substantive basis for the proposed ground as put by the appellant on appeal can be summarised as follows.
32 After the hearing on 19 March 2013, the Tribunal wrote the Letter which enclosed new country information. The Letter invited the appellant to comment on or respond to the information that was enclosed. That information is the emphasised portion of the Letter set out in [18] above.
33 At [126] of its reasons the Tribunal said:
Depending on the day on which the returnee arrives at the airport in Colombo, that person may be briefly detained in remand before being brought to the court. In the Tribunal’s view, country information indicates that for departing the country illegally, the returnee will be granted bail and will, eventually, receive a fine.
34 The appellant submits that this passage amounted to a conclusion on the part of the Tribunal that adopted the country information description as to the bail process. As counsel put it, in this passage the Tribunal expressly adopted the DFAT country information. Counsel submitted that this meant that implicitly the issue of whether or not a family member would provide surety had been a critical issue because of the finding that the duration of the detention would be brief.
35 The appellant submitted that the Tribunal did not raise the question of the bail process prior to or during the hearing. The country information quoted above was supplied by way of a letter that was sent after the hearing. That was inadequate to address the issue. Subsection 425(1) requires that the Tribunal invite the applicant to appear before it to address issues arising in relation to the decision under review. It had not done so. It was beside the point that the Tribunal had raised the issue in the Letter, which was sent after the hearing, or that the appellant’s legal representatives had responded in full to that letter in written submissions. The reasoning of Griffiths J in in SZTQS at [43], [52] and the reasoning of a judge of the Federal Circuit Court in SZTPL v Minister for Immigration and Border Protection [2016] FCCA 361 at [69] supported the proposition that by providing the Letter and additional country information to the appellant, the Tribunal had raised an issue in respect of which, by virtue of subs 425(1), the appellant was entitled to appear and be heard.
36 In support of its contentions, the appellant relied on a number of authorities including; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [82], [83] (per McHugh J); WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at [55]; and Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 at [29], [34]. Counsel for the appellant also submitted that the force of these authorities was such that a decision maker could be considered to have not complied with subs 425(1) by providing notice of an issue after a hearing had been conducted. The only available course according to the authorities would be for the Tribunal to conduct a further hearing on the issue raised; SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1 at [57], [72], [100], [101] and [103].
37 The Minister contests the grant of leave to advance the new ground of appeal. He submits that the proposed ground thwarts the appellate role of this Court by requiring it to consider as if at first instance, a ground not heard below, citing AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452 (AAM15) at [14]; SZUGL v Minister for Immigration and Border Protection [2015] FCA 868 at [18] (SZUGL). He also submits that the proposed ground has no merit and contests the legal and factual analysis advanced by the appellant.
38 Normally a party is bound by the way in which a case is conducted at first instance. In University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at [7], Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ observed:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
39 Similarly, in Coulton v Holcombe (1986) 162 CLR 1 at 7, Gibbs CJ, Wilson, Brennan and Dawson JJ observed:
… It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. …
40 Section 476 of the Act confers upon the FCCA the same original jurisdiction in migration decisions as is conferred on the High Court by paragraph 75(v) of the Constitution. By s 476A, the original jurisdiction of this Court is expressly limited, and can be exercised “if and only if” certain statutory criteria are met. This Court’s appellate jurisdiction is conferred by subs 24(1) of the Federal Court of Australia Act 1976 (Cth).
41 In this context, Buchanan J in SZUGL said (at [18]):
… it must also be borne in mind that the proceeding in this Court is an appeal from the judgment of the FCCA. This Court does not sit at first instance to review decisions of the RRT; Parliament has directed that it may not do so (s 476A of the Migration Act 1958 (Cth)). The primary role of this Court, therefore, is to examine whether appealable error was made by the FCCA, rather than to perform “the trial court’s entire function” (see AAM15 v Minister for Immigration and Border Protection [2015] FCA 804 at [14]).
42 Notwithstanding this general proposition, the Court is given a discretion to permit a new argument on appeal; Iyer v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71 at [25].
43 One factor to be taken into account, when exercising that discretion, and a factor which will normally preclude a new argument being raised for the first time on appeal, is the prospect that the new argument would have been met by evidence if raised earlier: see, for example, Water Board v Moustakas (1988) 180 CLR 491 at 496-497 per Mason CJ, Wilson, Brennan and Dawson JJ.
44 In Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424, Allsop J (as his Honour was then), set forth further consideration as follows (emphasis in original):
37. It is beyond question that if a new matter is raised and evidence could have been given which by any possibility could have prevented the point from succeeding, the point cannot be taken…
38. However, to say as much does not exhaust the description of the considerations for an appellate court when faced with a party raising a fresh point. First, the finality of litigation and the importance of parties being bound to the cases they make at trial should never be overlooked… Secondly, the difficulty of the party against whom the new point is raised reaching back in time to assess, necessarily hypothetically, how the conduct of the trial would, or may, have been different should not be underestimated. Such judgments or assessments can require re-agitation or reconsideration of decisions taken before and at trial (which may be privileged) and which can be very difficult to assess and articulate after the event. The entitlement of a party to the benefit of the opportunity of informed and reasonably contemporaneous assessment of relevant evidence, or inquiry, should be respected. Thirdly, the potential unfairness on counsel conducting an appeal who will be expected to assist the court in respect of the prejudice, or lack of it, to his or her client in the face of such matters being raised should not lightly be brushed aside. Even when counsel cannot positively say that something in particular would have been done differently, that does not mean that the court will be satisfied of a lack of prejudice. The possibility of evidence or the possibility that the hearing would have taken a different course, if not fanciful, may well suffice to deny raising of the new point. These considerations should not be seen as not requiring counsel frankly and candidly to say that the trial would not have been conducted differently if he or she is of that view. Fourthly, and in conclusion, before any new point be allowed, the court should be able to be satisfied that the raising of it could work no injustice on the other party and is otherwise in the interests of justice. The extent of the consideration of “the interests of justice” was discussed by Branson J and Katz J in H v Minister for Immigration and Multicultural Affairs, supra, at [8].
45 In VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588, Kiefel, Weinberg and Stone JJ said:
46. … Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) (2001) 117 FCR 424 at [22]-[24] and [38].
…
48. The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. ...
46 In SZQBN v Minister for Immigration and Border Protection (2014) 226 FCR 68 (SZQBN), Flick J referred to a number of the decisions mentioned above and added as follows:
55. The expression “the interests of justice” is undoubtedly a useful touchstone; but its recitation is sometimes more the expression of a conclusion than a reason. It is necessarily an expression which must remain flexible in content to accommodate the infinite variety of cases and circumstances in which appeals are conducted. There may well be different considerations as to what may be relevant to an assessment as to “the interests of justice” in private litigation as opposed to public law matters. Thus, for instance, it has long been recognised that there is a legitimate interest in public law matters being resolved in a timely and efficient manner: Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62], (2001) 192 ALR 71 at 86 per Gyles J. There is thus a legitimate public interest in the timely disposal of applications for protection visas: cf. SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [30] per Lander J. There may also be a legitimate public interest and, accordingly in “the interests of justice”, to permit new arguments to be raised on appeal which expose excesses of statutory power by public officials. The “serious consequences that may attend a wrongful refusal of a protection visa” is also relevant to an assessment as to “the interests of justice”: cf. SZEPN v Minister for Immigration and Multicultural Affairs [2006] FCA 886 at [16] per Branson J. Regrettably it is seldom the case that all of the relevant considerations point in one direction or the other as to the manner in which the discretion is to be exercised.
56. One factor which remains constant, however, in the exercise of the discretion is an assessment as to whether the new argument has any merit.
47 Subsection 425(1) of the Act provides:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
48 In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL), the Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) approved the following statement by the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591 (SZBEL at [32]):
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
49 In SZBEL the Court noted that the issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified (citations omitted):
34. … having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s Delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.
35. The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal… the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”… unless some other additional issues are identified by the Tribunal (as they may be)…
50 The obligation is accordingly met when the decision-maker identifies the relevant issue or if the issue has arisen before the Delegate.
51 The question of the application of subs 425(1) was raised in SZTQS. That case was considered by the Full Court in SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 (SZTAP). In SZTAP the appellant submitted that the Tribunal, having found that bail in Sri Lanka is routinely given on the accused’s own recognisance although a family member is also required to give surety, failed to consider the prospect that the appellant would be confined to prison for a prolonged period if bail was not granted to him. There was no consideration by the Tribunal of whether surety would be provided or if money were required, whether it could be paid.
52 Justices Robertson and Kerr found (Logan J concurring) that, “at a general level of abstraction” (at [75]) there was a similarity between SZTQS and the case before it, in that in both cases the Tribunal noted that bail is routinely given upon a family member providing surety. In both cases, the Tribunal did not specifically put to the appellant an issue as to whether there was in fact a family member who would provide that surety.
53 However, in SZTAP the Full Court distinguished SZTQS:
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.
54 The question of leave to raise a new ground necessarily involves, to some degree, a consideration of the merits. A clearly meritorious claim will not be refused in circumstances where, as noted above, it is in the interests of justice to permit new arguments on appeal which expose excesses of statutory power by public officials; SZQBN at [55].
55 In the present case, the central contention is that the Tribunal failed to invite the appellant to give evidence and present arguments at a hearing related to the issues arising in relation to the decision under review (subs 425(1)). It is essential, therefore, to correctly identify those issues.
56 The appellant’s claims were first set out in a statutory declaration submitted with his Visa application. In that document, the reason why he claimed to fear harm was on the basis of his Tamil ethnicity and as someone who would be imputed to have political opinions sympathetic to the LTTE. He was then interviewed by the Delegate who noted that while not “enunciated by the applicant” the Delegate proposed to consider whether he would suffer “serious harm or persecution on account of… being a Tamil male who departed Sri Lanka illegally by boat and subsequently returned to Sri Lanka”. In that context, the Delegate considered “a range of relevant country information on the treatment of returned Tamil asylum seekers to Sri Lanka”, in relation to the chance of the appellant suffering harm on his arrival at Colombo airport.
57 The Delegate referred to certain DFAT information and noted that returnees:
… are questioned on arrival by the CID at Colombo airport and then may be remanded in custody until their case is mentioned in court. This may take a few days or possibly weeks. After this they are generally bailed until a further hearing. … There is also no evidence of harm or abuse of returnees from Australia held in remand before being released on bail.
I accept that the applicant may be questioned on arrival at Colombo airport… [and] may be remanded for a short time before going before a court and facing a possible fine for illegal departure.
58 Ultimately, the Delegate did not accept that such treatment would amount to persecutory conduct or serious harm under the 1951 Convention relating to the Status of Refugees (as amended by the 1967 Protocol relating to the Status of Refugees), nor was the Delegate satisfied that Australia had complementary protection obligations to the appellant. Accordingly, the issue of whether the appellant would secure bail upon his return to Sri Lanka was raised by the Delegate and rejected.
59 From this material, it is apparent that the appellant was on notice that the Delegate considered the issue of his potential detention upon returning to Sri Lanka. The Delegate did not regard the grant of bail to be a problem that would prevent him from being detained for only a short period. It was open to the appellant to challenge that finding or, indeed, to raise an issue before the Tribunal on the basis of it. He did not.
60 The appellant then sought review by the Tribunal and provided written submissions in support. The Delegate’s findings in relation to what would happen on arrival at Colombo airport were acknowledged in the appellant’s written submissions, provided by his legal representatives prior to the Tribunal hearing. Those submissions provided a detailed response to the Delegate’s decision, but nothing was said on behalf of the appellant about the issue of remand on arrival and in particular, the ability of the appellant to obtain bail.
61 The gravamen of the appellant’s present submission is that an additional issue arose on the facts of his case, which was whether a guarantor would be available to enable him to be bailed so that he would not be subject to imprisonment for any lengthy period (which could amount to persecution). This, the appellant submits, was only raised by the Tribunal in the Letter sent after the hearing. Subsection 425(1) required the Tribunal to give the appellant an opportunity to be heard on the new issue.
62 As to the question of whether a new issue was raised, I consider that the reasoning in SZTAP compels a conclusion adverse to the appellant.
63 In SZTQS the issue of detention upon return to Sri Lanka was informed by findings of fact in the particular circumstances of that case namely, that SZTQS had previously been on bail and had an outstanding charge of trying to leave Sri Lanka illegally. In SZTAP the Full Court noted (at [78], [79]) that those factual findings were such that the Tribunal had made the issue of obtaining bail a critical one.
64 In SZTAP itself, no such facts arose, and whilst the country information indicated that a guarantor was necessary in order for bail to be granted, nevertheless the failure on the part of the Tribunal to raise that issue squarely with the applicant at the hearing did not give rise to a failure within subs 425(1). The Full Court said at [78], [79]:
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.
65 I consider the facts of the present case to be relevantly indistinguishable from SZTAP.
66 In SZTAP, the Delegate raised, considered and then rejected that the appellant would be detained other than briefly on remand upon his return to Sri Lanka (see [81], [34]). Accordingly, the issue of the appellant’s potential detention and release was squarely raised by the Delegate (and accordingly was relevantly notified for the purposes of s 425(1) before the Tribunal; SZBEL at [35]). Upon review by the Tribunal, the appellant did not raise any particular issues about his ability to obtain bail. Similarly, the facts found in the present case did not make the question of obtaining surety for his release on bail a critical issue. The Delegate considered and rejected the possibility that bail may be more than a brief period. That was the “issue” which must be considered in the context of subs 425(1). The additional point raised in this case (that is, whether there was an available guarantor) was not itself an issue, but is properly to be characterised as additional evidence about an extant issue, an example of which was noted in Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489 where at [51] the High Court (French CJ, Heydon, Crennan, Kiefel and Bell JJ) said at [51]:
Whether an issue must be raised with an applicant for the purposes of a further hearing under s 425(1) will depend on the circumstances of each case. Matters may arise requiring an invitation to a further hearing. However, that is not the case in the present matter. Here, Mr Cheah’s evidence was additional evidence about an extant issue; it did not constitute the raising of a new or additional issue such as to trigger the obligation to give another hearing. This distinguishes the facts here from those considered in SZBEL…
67 In the present case the general issue of bail was raised prior to the hearing and the appellant had an opportunity to make submissions in relation to it. The provision of the further DFAT Information in the Letter did not raise, contrary to the appellant’s contention, a new “dispositive issue”. As in SZTAP there is no indication that the question of the provision of a guarantor to secure bail was a determinative factor in the mind of the Tribunal. The general issue of detention upon return to Sri Lanka was raised prior to the hearing. That, in itself, was sufficient to satisfy subs 425(1) of the Act.
68 In ABA15, Charlesworth J distinguished SZTAP on the facts, finding that the position in that case was aligned with the position in SZTQS. A contrasting position to be seen in the decision of Gilmore J in ACC15 v Minister for Immigration and Border Protection [2016] FCA 97 at [26]. In the present case I am unable to see a relevant point of distinction from SZTAP.
69 For the reasons set out above, it is not necessary for me to consider the second aspect of the appellant’s submission, which is that the issue of the need for a guarantor had not been properly notified pursuant to s 425 of the Act. However, were I to have found that the issue had not been identified prior to the hearing, I would have been inclined to uphold the appeal. Section 425 requires the Tribunal to invite the applicant to appear. Subsection 425(2)(b) provides an exception to that mandatory requirement in the event that the applicant consents to the Tribunal deciding the review without the applicant appearing before it. As a matter of language, it appears to me that failure to comply with s 425(1) cannot be remedied by subsequent notice of a fresh issue and without conducting a further hearing absent the consent of the applicant. In this regard the statement of the plurality in SZBEL at [27] to the effect that s 425 imposes an obligation on the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review, subject to the qualification set out in s 425(2), tends to confirm that proposition; see AEK15 at [54], [56].
70 The fresh ground of appeal raised before this Court concerned a point that emerged from the decision in SZTQS. The point raised was arguable, and I accept the appellant’s explanation for not raising it before the primary judge. The Minister was able to address the new matter in submissions and did not contend that it otherwise suffered prejudice as a result of the new ground. Accordingly I allow the application for leave to rely on the new ground for appeal. However, for the reasons set out above, I dismissed the appeal and order that the appellant pay the first respondent’s costs of the appeal.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. |
