FEDERAL COURT OF AUSTRALIA

ABZ16 v Minister for Immigration and Border Protection [2018] FCA 412

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The First Respondent pay the Appellant’s costs of the appeal as taxed or agreed.

3.    Set aside orders 3 and 4 made by the Federal Circuit Court of Australia on 6 September 2017 and in lieu thereof and in addition thereto order that:

(a)    There issue to the Second Respondent a writ of certiorari absolute in the first instance quashing the decision of the Second Respondent in matter no. CLF 2012/243405.

(b)    There issue to the Second Respondent a writ of mandamus absolute in the first instance directing it to determine the Applicant’s review application according to law.

(c)    The First Respondent pay the Applicant’s costs as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J:

1    This is an appeal from the Federal Circuit Court which dismissed the Appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal: ABZ16 v Minister for Immigration [2017] FCCA 2153. The Tribunal had affirmed a decision of a delegate of the Minister not to grant the Appellant a protection visa.

2    The Appellant is a citizen of Sri Lanka and is of Tamil ethnicity. One of the claims he made before the Tribunal was that he had a well-founded fear of persecution for a Convention reason because he was perceived by the Sri Lankan Army to be connected with the Liberation Tigers of Tamil Eelam (‘LTTE’). The LTTE was at the forefront of the long civil war which concluded in 2009. Part of the Appellant’s case on that issue involved a contention on his part that he had been imprisoned by the army in various camps known as rehabilitation centres. This imprisonment was said to have lasted 2 ½ years.

3    Before the delegate the Appellant had relied upon a ‘reintegration certificate’ to buttress his case that he had been detained by the army for 2 ½ years. There was also a translation of the part of the certificate which was not in English. The translation and the certificate were not consistent as they suggested he had been released from different rehabilitation centres on the same day. The delegate ultimately concluded that the reintegration certificate had been falsified. The present appeal does not directly concern these documents although they are tangentially relevant to one of the issues. Rather, the appeal is principally concerned with another document which was not provided to the delegate.

4    That document is a certificate apparently issued by the International Committee of the Red Cross (‘ICRC’) on 8 November 2011. The certificate attests to the fact that the Appellant had been visited by ICRC delegates on 12 May 2009 whilst in detention at the Nellukulam Youth Rehabilitation and Training Centre. It also certified that ‘according to the authorities’ he had been released from detention on 20 September 2011.

5    The appeal concerns the way in which the ICRC document was handled by the Tribunal when it determined the Appellant’s review application. The hearing before the Tribunal took a slightly more convoluted course than is usual in cases such as the present. A hearing before the Tribunal was first set down for 25 May 2015 in Brisbane. The venue for this hearing was subsequently changed to Rockhampton but the same date was maintained. The hearing proceeded on that day commencing at 12.45 pm. This initial hearing was conducted by Member Deane.

6    Prior to this hearing the Appellant’s representative had, on 18 May 2015, sent through a submission together with some additional documents. Included amongst those documents was the ICRC certificate. The written submission advanced some brief submissions on why the delegate’s view of the re-integration certificate should not stand but made no reference to the ICRC certificate.

7    Following a direction by this Court a partial transcript of the hearing before the Tribunal was made available. The direction required that it include all parts of the hearing dealing with the ICRC certificate. The relevant portion of the transcript provided is as follows:

‘Member:    Did the Red Cross, ICRC come to visit you while you were detained?

Applicant:    Yes.

Member:    Do you remember when they came?

Applicant:    September 2009 they came, that is in 2009.

Member:    Is that the only time they visited?

Applicant:    Ye, yes, yes, and then… if you go with the identification numbers and you go ontot [sic] to the internet you can verify what I was saying was true or not it will have all the information about myself with those letters numbers.

Member:    Ok, yes, I was going to ask if we could verify this detention attestation that you have provided.

    I would like your permission to verify this detention attestation that you have provided.

Applicant:    No problem you can.’

8    It is clear from this that the Tribunal told the Appellant it was going to seek to verify, inter alia, the ICRC certificate. There was no suggestion that the Appellant was going to do so.

9    Following the hearing an email was sent by the Appellant’s representative to the Tribunal a few days later on 4 June 2015. It was in these terms:

‘We refer to the above client who appeared before Member Deane of the Tribunal on 25 May 2015 to provide further evidence with respect to his review application.

We advise that we are still in the process of obtaining instructions and preparing the submission anticipated by the Tribunal. Furthermore, we also await advice from the Red Cross regarding attestation of the ICRC document.

We understand that the Member indicated during the hearing that the Tribunal would also be conduct [sic] its independent enquiries regarding the genuineness of the documents provided by the client.

On this basis, we kindly request the Tribunal allow our office until 18 June 2015 to make further submissions.’

10    The third paragraph confirms what the transcript shows, namely, that the Tribunal was to inquire into the authenticity of the ICRC certificate. The last sentence of the second paragraph may suggest that the Appellant’s advisers had themselves agreed at the hearing to pursue such inquires. It may, on the other hand, merely be a reference to the following paragraph. It is, accordingly, ambiguous. That ambiguity may be resolved by reference to the transcript which shows there was never any suggestion that the Appellant would pursue such an inquiry. I therefore do not read the last sentence of the second paragraph as recording or evidencing an intention on anyone’s part that the Appellant or his representatives would pursue inquiries into the ICRC certificate.

11    I reject the Minister’s submission that the Appellant could have called his then representatives to give evidence about this matter. Given the transcript no such need arose.

12    On 25 May 2015 Member Deane made an internal request for information about, inter alia, the ICRC certificate. This is consistent, of course, with what he had said at the hearing. The request itself is not in evidence but is substantially reproduced in an internal Tribunal memorandum of 7 July 2015. The relevant portion contained questions about the ICRC certificate. The relevant questions were 3 and 4:

‘3.    Please arrange for ICRC detention attestation document to be verified. Does it accurately reflect the information in their records?

4.    The ICRC detention attestation states that the applicant was “released according to the authorities” on 30 September 2011 from the Marathamadhu Zone 5 Youth Rehabilitation and Training Centre. Who are the authorities that the certificate refers to?’

13    A response to these questions was received by the Tribunal from the Department of Foreign Affairs and Trade (‘DFAT’) on 17 August 2015. The answers were as follows:

‘Questions 2-4, regarding verification of documents, were referred to DFAT, and DFAT has since advised COISS by email that:

…

•    The Deputy Head of Delegation of ICRC, Sri Lanka, advised that ‘the concerned person [the Appellant] should contact himself the Australian Red Cross Society, Tracing Services, who are aware of the procedures to follow with the ICRC for verification of documents. Afterwards the Australian RC will get in touch with the ICRC Colombo to complete the procedure of verification.’

14    Whilst all this was taking place Member Deane became unavailable to complete the review. On 9 July 2015 the Tribunal wrote to the Appellant to tell him of this fact. A fresh hearing was scheduled before a new member on 9 November 2015 at Rockhampton.

15    On 9 November 2015, in the lead up to the second hearing, the Appellant’s representatives sent to the Tribunal by email the ‘ICRC Attestation Letter’. Attached to the email were two copies of the ICRC Certificate. The second of these was identical to the ICRC certificate which had been earlier provided to Member Deane. However the first was not. It contained a second ICRC seal in addition to the seal the original copy bore. This version was also embossed with a stamp saying ‘Certified copy Colombo 19.06.2015’.

16    The hearing proceeded on 9 November 2015. The Tribunal made its decision on 7 December 2015. It affirmed the delegate’s decision to refuse the Appellant a protection visa.

17    The Tribunal decided that it should place no weight on the ICRC certificate because it was not reliable. It reasoned that the Appellant had provided three documents dealing with his release from detention. These were:

(a)    the original reintegration certificate the English portion of which suggested the Appellant had been released from the Pampaimendu Rehabilitation Centre on 30 September 2011. The Tribunal said that this centre was in the district of Vavuniya.

(b)    a translation of the second page of the certificate in (a). This suggested the Appellant had been released from the Maruthamadu Rehabilitation Centre on 20 September 2011. The Tribunal said that this document showed that centre was in Pavepuni but I cannot see that on the document. The delegate’s decision says the camp is in Mannar.

(c)    the ICRC certificate which suggested that the Appellant had been released from the Maruthamadu Rehabilitation Centre on 30 September 2011. This certificate did say that centre was in Vavuniya.

18    The original reintegration certificate and the ICRC certificate were therefore consistent in both suggesting the Appellant was released from a centre in Vavuniya but the translation suggested, possibly, that he had been released in Pavepuni. The Tribunal asked the Appellant about this inconsistency and he gave an answer which was essentially non-responsive: that the ICRC had ordered him to be released from the Maruthamadu Camp on 30 September 2011. Because of the inconsistencies between the documents and his non-answer when questioned about it, the Tribunal decided to place no weight on any of the documents including the ICRC certificate.

19    The Appellant’s first argument is that it was procedurally unfair for the Tribunal not to have told him of the email from DFAT dated 17 August 2015 by which the Tribunal had been informed that the process of verification could not proceed without the involvement of the Appellant. It was, so the argument ran, procedurally unfair to conclude the ICRC certificate was unreliable when:

(a)    Member Deane had told the Appellant the Tribunal would be investigating the authenticity of the ICRC certificate and obtained his permission to do so;

(b)    it made inquiries to that effect;

(c)    those inquiries told the Tribunal that the Appellant had to contact the Australian Red Cross for the inquiry to be taken further;

(d)    that information was never given to the Appellant; and

(e)    the Tribunal overlooked that it already had his permission.

20    On its face I would accept that this involved a denial of procedural fairness. The Appellant was told that the Tribunal would inquire into the authenticity of the ICRC certificate and, put shortly, it did not do so. I reject the Minister’s argument that s 422B of the Migration Act 1958 (Cth) combined with s 424A meant that there was no need to pass on the contents of the email. Section 422B(1) provides:

‘422B Exhaustive statement of natural justice hearing rule

(1)     This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

…’

21    It is established that the words ‘in relation to the matters it deals with’ are important in identifying the scope of s 422B(1). Speaking of the relevantly identical s 51A(1) of the Act, five justices of the High Court considered its operation in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 (‘Saeed’). Their Honours said that the words ‘deals with’ in that provision were to be given meaning and effect (at 266 [39]) and that (at 267 [40]):

‘40    Necessarily, provisions which "deal with" "matters", for the purposes of s 51A, will contain some procedural requirements which go some way towards satisfying the fundamental requirements of the natural justice hearing rule. Some such procedural requirements are necessary if s 51A is to operate and the procedures provided for are to be taken as exhaustive of the rule. …’

22    The Minister nominated s 424A(1) as the provision ‘dealing with’ a relevant natural justice requirement. It provides:

‘424A Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)     give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)     ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)     invite the applicant to comment on or respond to it.’

23    The Minister’s argument fails at the threshold. The email of 17 August 2015 was not information related to whether the application should be refused or not. It is true that s 424A(1) applies not only to information which would be a reason for the decision to be refused but also to ‘the provision of information, more generally relevant and adverse, for comment’ (Saeed at [41]-[42]). But so expressed, s 424A(1) is a provision concerned with the notice which is to be given to an applicant of adverse substantive matters.

24    The information in this case – that further inquiries needed to be made of the ICRC to ascertain whether the certificate was genuine or not – had no relationship to the outcome of the application. It did not provide the occasion for the Appellant to explain why, despite the information, the application should nevertheless be granted. The information involved thus fell into a different genus than to that with which s 424A(1) is concerned. This information was procedural in the sense that it related to the process which the Tribunal was going to adopt. I do not read s 424A(1) as being in anyway related to that topic or, more relevantly, dealing with that ‘matter’.

25    The Minister placed reliance upon what was said by Buchanan J in Khan v Minister for Immigration and Citizenship [2011] FCAFC 21; 192 FCR 173 at 185 [40]. But that case was concerned with information which suggested that the visa holder had committed fraud on his sponsoring employer. That information was plainly adverse to the applicant and closely related to the concept of cancelling his visa. It was not in any way procedural information of the kind involved here. It follows that s 422B(1) had no application and the Tribunal was bound by the usual rules of procedural fairness in dealing with the information received from DFAT.

26    The Minister submitted that the letter from the Appellant’s representatives of 4 June 2015 showed that the Appellant had had the opportunity to make his own inquiries. However, as I have explained, that argument is not tenable in light of the transcript which shows that he was told the Tribunal would attend to the matter. And, as I have explained, the email of 4 June 2015 is, on its correct construction, consistent with that outcome.

27    The Minister also submitted that I should conclude that none of this mattered in light of the inconsistent dates in the various documents. I reject this argument. If it were established that the ICRC certificate was authentic (a topic which the Tribunal said it would investigate) then the fact that the dates stated in it were correct would make it impossible to doubt the matters stated in it.

28    In the Court below this argument was dealt with as follows:

‘28.    The UNHCR document that was purportedly verified as authentic was not a document that purported to certify the applicant’s attendance or release from a particular rehabilitation camp. Mr Tambimuttu sought to argue that the Tribunal should have either informed the applicant of the ability to make inquiries of the Red Cross about the authenticity of his documents, or should have made further inquiries itself. There was no onus on the Tribunal to make any such inquiry. There was no obvious inquiry able to be made of an ascertainable material fact.

29.    Further, the applicant had been informed twice as a result of the invitations to attend hearings that the Tribunal was not in a position to make a favourable decision on the material before the Tribunal. The information in the email of 17 August 2015, as set out above, did not identify information of a kind which as a matter of procedural fairness the Tribunal was required to pass on to the applicant, nor was the same information that undermined, detracted, or otherwise negated the applicant’s claims.

30.    The adverse credibility findings by the Tribunal were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. Whilst there is a reference to a particular document having a release date that appears to be an error, that was not a material error in the context of circumstances where the Tribunal clearly identified the releases taking place on the same date. The error was of no practical significance in circumstances of the adverse credibility findings. The reasoning adopted by the Tribunal was open on the material before the Tribunal. It was a matter for the Tribunal to determine what weight to place on the documents provided by the applicant. No jurisdictional error is made out as alleged from Ground 1 or Ground 5.’

29    There are several errors disclosed here. First, contrary to [29], where s 422B(1) did not apply, the rules of natural justice did and these were quite capable of imposing an obligation on the Tribunal to disclose information to the Appellant.

30    Secondly, [29] is wrong. Having told the Appellant that it would check the authenticity of the ICRC document it was procedurally unfair to do otherwise without first affording him a hearing: cf Attorney General of Hong Kong v Ng Yuen Shiu [1983] UKPC 2; [1983] 2 AC 629 at 637-638. Because the information in question was not governed by any of the provisions in Part 7 Div 4, s 422B(1) did not remove this obligation.

31    Thirdly, [30] does not disclose any kind of answer to a procedural fairness case.

32    It seems clear from this transcript that the Appellant was left with the impression that the Tribunal would investigate the authenticity of the ICRC certificate. Having given him that impression and then having failed to carry that out, it seems to be an unavoidable conclusion that the Appellant was denied procedural fairness.

33    The Appellant’s second argument was that the Tribunal had failed to draw his attention to the statement by DFAT that the Appellant needed to contact the Australian Red Cross. This argument stands or falls with the first argument. There is no need further to assess it. In this Court, the formal complaint as to this second ground was that the primary judge had not considered the argument at all. I accept that his Honour did not do so. However, given my conclusions this is not material.

34    In those circumstances the appeal should be allowed with costs. The decision of the Tribunal must be quashed and the matter determined according to law.

Associate:

Dated:    28 March 2018