FEDERAL COURT OF AUSTRALIA

SZQJH v Minister for Immigration and Border Protection [2013] FCAFC 147

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2.    The appeal be dismissed, with costs.

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

REASONS FOR JUDGMENT

THE COURT

Introduction

1    This appeal raises a question of procedural fairness which is whether, in the circumstances of the case, the Independent Merits Reviewer (the Reviewer) denied the appellant procedural fairness by not disclosing to him the possibility that she might find that a Sri Lankan court document produced by the appellant to the Reviewer was genuine, but that it might not relate to the appellant.

The history

2    The appeal is from a judgment of the Federal Circuit Court of Australia given on 12 July 2013.

3    As found by the Reviewer, the appellant arrived in Australia on 20 March 2010. He is of Tamil ethnicity and speaks Tamil. He is a citizen of Sri Lanka. On 12 June 2010, the appellant made a request for a Refugee Status Assessment and he subsequently made a request for Independent Merits Review. On 13 May 2011 the first Reviewer found that the appellant did not meet the criterion for a protection visa set out in s 36(2) of the Migration Act 1958 (Cth) and recommended that he not be recognised as a person to whom Australia had protection obligations under the Refugees Convention.

4    The appellant sought review of that decision in the Federal Magistrates Court (as it then was) and that Court, having found that the first Reviewer did not deny procedural fairness, dismissed the application on 2 November 2011. On 2 March 2012 the Federal Court set aside the decision of the Federal Magistrates Court on the basis that the first Reviewer made a legal error.

5    On 26 May 2012 the present Reviewer found that the appellant did not meet the criteria for a Protection (Class XA) visa and recommended that the appellant “not be recognised as a person to whom Australia has protection obligations or as a member of the same family unit as such a person.”

6    By an application for an order to show cause filed on 4 July 2012 and amended on 5 February 2013, the appellant sought judicial review of the decision of the present Reviewer. On 12 July 2013 the Federal Circuit Court of Australia dismissed that application, with costs.

7    So far as relevant, the amended grounds of the application the subject of the order of the Federal Circuit Court were:

(2)    The [Reviewer] fell into jurisdictional error by denying the [appellant] procedural fairness in failing to advise him that an issue arising in the decision was that the [Reviewer] did not accept that corroborating documentary evidence related to the [appellant], and consequently the [Reviewer] also failed to afford the [appellant] an opportunity to rebut, comment by way of submission and/or provide further information in relation to that issue.

    Particulars

The [Reviewer] did not appear to doubt the authenticity of a report filed by police with a court in Colombo (“Court Report”), but it did not accept that the document related to [the appellant]. However, the [Reviewer] did not inform the [appellant] that this was an issue arising in the decision and thereby failed to provide an opportunity for the [appellant] to respond to the issue.

8    There were other grounds of review before the primary judge but there is only one ground of appeal to this Court. This ground is that the primary judge erred in finding that the recommendation of the Reviewer was not affected by a denial of natural justice in that the primary judge erred in failing to find that the Reviewer erred in not disclosing to the appellant the possibility that she might find that a Sri Lankan court document produced by the appellant was genuine, but that it may not relate to the appellant.

The procedure

9    The present issue may be traced back to a submission to the present Reviewer dated 7 May 2012 by the appellant’s solicitors and registered migration agents. It was said there that the first Reviewer’s decision stemmed from his disbelief of the appellant’s claim of having been arrested by the Criminal Investigation Department (CID) and taken to the fourth floor of its headquarters and then detained and tortured. This formed the appellant’s central claim, it was submitted. The first Reviewer’s rejection of most of the other claims of the appellant, it was submitted, flowed from the refusal to believe the central claim.

10    But now, it was said in the submission, the appellant had, through lawyers in Sri Lanka, received documentary evidence in this connection which had not earlier been available. Had this evidence been produced at the earlier forums, the solicitors and registered migration agents submitted, the decision would most likely have been different. They submitted that the appellant was detained by the CID and beaten and tortured by the officers there. After five days he was produced in the Chief Magistrate’s Court, Hultsdorph, Colombo 12. He and other detainees were remanded and put in the remand prison at Welikade in Colombo. He was produced in Court which ordered his release but imposed a condition that he should report to the CID each month for the next six months.

11    The solicitors and registered migration agents forwarded documentary evidence, being a certified copy (in Sinhalese) of the report (information) filed by the police with the Chief Magistrate’s Court of Colombo under the relevant sections of the Criminal Procedure Code, having a specified case number, producing 39 suspects alleged to have come for destructive activities planned by the Tamil terrorist movement in the Akuressa division where they were secretly residing and were arrested, kept in detention by the Terrorist Investigation Division and then produced in the Chief Magistrate’s Court, Hultsdorph, Colombo 12 under the relevant Emergency Regulations.

12    A certified English translation of the document was also attached. It was said the appellant’s name appeared against number 15 in the list of suspects produced to the Court. It was said his name had been wrongly spelt in Sinhala – the wrong spelling and the correct spelling were given, the wrong spelling containing an “ri” instead of “iva” in a nine or ten letter name. It was submitted the mistake in the spelling of the name may even be due to a typographical error. It was submitted that the police did not take care to write the names properly or to give full names or give the national identity card numbers or the addresses to properly identify the so-called suspects. It was submitted that if any doubt was entertained regarding the document, the solicitors and registered migration agents urged that the Australian High Commission in Colombo be requested to kindly verify the veracity of the document through its legal sources. It was submitted that the appellant himself was willing and prepared to assist in whatever way he could in this endeavour. The document was date stamped 23 June 2011.

13    At the hearing conducted by the Reviewer on 9 May 2012 the Reviewer asked questions about the document and in particular the date of it in June 2011 when that was not a time the appellant was in Sri Lanka but was in Australia. The appellant said that his father went there in June 2011 to get the receipt. When asked about why he was presenting it today when his father had got it in June 2011 the appellant said that when he had his first review the agent did not ask him about any receipts that he had “to do with the courts”. On being questioned about the document, it appears that the appellant could provide very little information about its contents because it was, for the most part, in Sinhalese and the appellant said he did not read any Sinhalese at all. The parts of the document which were in English were said to be no more than translations of the earlier pages which were in Sinhalese.

14    The appellant was asked by the Reviewer why he continued to live and work in Colombo for another year if he was having problems with the CID in 2006. He said he thought after six months during which he had to “return and sign”, his problems with the CID might come to an end but they did not.

15    The appellant was asked who would harm him and why, if he were to return to Sri Lanka. The Reviewer put to the appellant that given the CID released him from the court without charge and he had completed his reporting period that would suggest he was no longer of interest to them. All of that occurred in 2006 and it was now 2012.

16    In the context of whether the appellant had a risk profile as a person suspected of having links with the Liberation Tigers of Tamil Eelam (LTTE), the Reviewer said that the appellant had said he had no links whatsoever with the LTTE and when he was taken in by the CID in 2006 he said in his own words that he went to the court and he was released with no charge solely on the basis that he had a requirement to report for six months. The Reviewer suggested that based on the appellant’s evidence it would appear that he did not fit one of the risk profiles identified by the UNHCR.

17    The Reviewer said again, “Given that the court released you in 2006 after [they] questioned you and according to your evidence [they] interrogated you in … this area … on the… fourth floor of the building where they interrogated suspect Tamil Tigers, given that you went through that and they gave you a clearance, they released you from the court without charge, only on the condition that you report monthly, go back to your business, report monthly and there was nothing after that, that would suggest you are not of interest to the authorities on the basis of being a suspected LTTE.”

18    There were further questions and answers as to why the CID came after the appellant in the first place.

19    In the Reviewer’s statement of reasons at [42] the Reviewer noted that the document had been faxed and at [44] recorded the questions and answers at the interview particularly as to the date of the document in June 2011. At [48]-[49] and [60], the Reviewer set out further material put by the appellant about the CID and about why the CID came after him in the first place and why the CID would harm him now.

20    At [84], the Reviewer said that she did not find the appellant to be a reliable, credible or truthful witness. The Reviewer considered inconsistencies between the appellant’s evidence on central issues like his alleged arrest by the CID as a Tamil suspect to be of a different order from the kinds of confusion or inconsistencies the UNHCR Handbook suggests decision-makers should not give too much weight to.

21    At [88], the Reviewer said that she did not accept that the appellant was arrested and interrogated by the CID on suspicion of being a LTTE operative or supporter. At [89], the Reviewer said that the appellant’s profile as a long-standing businessman in Colombo and the inconsistent and implausible account of what took place when he lodged his visa application did not support his claim that it resulted in the CID arresting him. The Reviewer said she was satisfied that the appellant did not come to the attention of the CID because he was a LTTE suspect after applying for an Australian visa through a Sinhalese Minister or any other agent. The Reviewer therefore found that the appellant was not arrested and interrogated by the CID after he lodged an application for an Australian visa. She did not accept that the appellant was forced to sign a statement saying he was a terrorist. She did not accept that the appellant suffered cruel and “inhumane” treatment from the CID and that he was produced in court on concocted charges of LTTE activity. Accordingly, the reviewer did not accept that the appellant was placed on reporting conditions and experienced harassment and extortion from police.

22    The paragraph of the Reviewer’s statement of reasons central to this appeal was as follows:

[90]    I do not consider that the copies of what are said to be extracts from a report filed by police with a court in Columbo (together with translations) recording that 39 suspects (including the claimant with his name [sic] was spelt differently) were charged and detained for destructive activities planned by the Tamil terrorist movement, in the Akuressa division, where they were secretly hiding, outweigh the problems I have with the claimant’s own evidence which I have outlined above. The claimant said he did not produce these documents at an earlier stage even though his father purportedly obtained them in June 2011. The agent invited the Reviewer to request the Australian High Commission to confirm the authenticity of these documents. I accept that they would confirm what is in the documents but in light of the above findings I do not accept that the documents relate to this claimant and give them no weight. I find that claimant [sic] was not persecuted by the CID because he was a Tamil suspect.

23    At [92] the Reviewer said that given her finding that the appellant did not come to the attention of the CID prior to his departure, she did not accept that the CID had visited his family and asked about his whereabouts nor did she accept that the CID had requested he report to them if he returns to Sri Lanka. The Reviewer found there was no real chance that the appellant will be persecuted by the CID or other Sri Lankan authorities because he was a Tamil suspect now or in the reasonably foreseeable future if he returns to Sri Lanka.

The Federal Circuit Court

24    The primary judge considered this issue from [67]-[80] of the judgment. The essence of his Honour’s reasons is that it was for the appellant to make his case and it was for the appellant to supply the relevant facts in as much detail as necessary to enable him to establish the facts. The appellant had the opportunity to furnish additional facts in order to establish that he and the person whose name appeared on the list were one and the same. This avenue was not pursued, other than a statement that the name of the appellant on the list was misspelt. This approach could be categorised, his Honour said, as an inconsistency in the appellant’s testimony as referred to in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9].

Submissions

25    The appellant submitted that natural justice required that the appellant’s attention be directed to the critical issue or factor upon which the decision was likely to turn, so that he may have an opportunity of dealing with it. The appellant referred to Kioa v West (1985) 159 CLR 550 at 587 per Mason J; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 311-312; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [19]; and Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [212]. The court document was submitted as evidence of a central plank of the appellant’s case, that he was detained by the law enforcement agencies of Sri Lanka in 2006 as claimed. It was clear that his solicitor recognised that the Reviewer may doubt its genuineness. He also recognised that the Reviewer may doubt whether the appellant was one of the people named therein because of the incorrect spelling of the appellant’s name. Thus he recognised that these were potentially issues in the proceeding – that is questions of fact upon which the Reviewer’s recommendation may turn. He did not know, however, whether the Reviewer would treat them as issues.

26    At interview the Reviewer questioned the appellant on the provenance of the court document and on the contents thereof. The appellant and his solicitor could not reasonably have been in any doubt that there was a question in the Reviewer’s mind, at least at first, as to whether the document itself was genuine. However, the appellant submitted, there was not a word from the Reviewer at the interview which suggested that if the document was itself genuine, the appellant may not have been one of the people named therein. Indeed, when the appellant said that a page of the document had names of the people arrested in English, all the Reviewer did was thank him for clarifying the point. In addition, the Reviewer’s questions suggested that the Reviewer accepted the veracity of the document and also accepted that it applied to the appellant. Thus not only did the Reviewer not raise the issue of whether the court document referred to the appellant but her conduct of the hearing diverted attention from the issue.

27    The appellant submitted that the Reviewer denied him an opportunity to address her specific concerns as subsequently emerged at [90] of her reasons. Thus there was a basic unfairness in the procedure adopted by the Reviewer. He submitted this case may thus be distinguished from that of Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1.

28    The appellant submitted the primary judge was wrong in suggesting at [78] that this was simply a case of the appellant failing to adduce sufficient evidence. Moreover, contrary to the reasoning of the primary judge at [79], this was not a case of the Reviewer failing to reveal her thought processes or her opinion of inconsistencies in the appellant’s evidence. It was a failure on the part of the Reviewer to direct the appellant’s attention to an issue so that the appellant could respond to it.

29    The first respondent (the respondent), noted that the appellant’s representative had submitted to the Reviewer that the document identified the appellant but misspelt his name. One of the pages of the court document contained a series of names which did not include the name of the appellant as it appeared in all other documents before the Reviewer. In order for the document to be of any utility in supporting his claimed arrest, the appellant had to advance an explanation for the difference, and his advisor did so. Notwithstanding that the Reviewer was ultimately of the view that the court document was probably authentic, in light of her concerns regarding the appellant’s evidence it was open to the Reviewer not to accept the explanation that the advisor proffered and to give the document no weight in not accepting the appellant’s claim to have been detained by the CID in 2006.

30    The respondent submitted that procedural fairness did not require that the Reviewer give the appellant notice, either at the hearing or subsequently, that she was of that view. Whether the document related to the appellant was not an issue that was independent of the claim in respect of which he relied upon them. In any event, the appellant had, by his agent, already advanced an explanation for the omission of his name, recognising that it was an issue that required explanation. If a person affected knows what he is required to prove and is given the opportunity to do so, he cannot then complain if his application is rejected because the decision-maker without notice to him has rejected what he has put forward. The respondent referred to Kioa v West (1985) 150 CLR 550 at 587 per Mason J and WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at [46].

31    The respondent submitted that the appellant accepted that the Reviewer did not have to give him a running commentary on her thought processes but posited that the general proposition may yield to particular circumstances. However the appellant did not identify any basis on which the general proposition should yield in this case, apart from contending that the Reviewer, in effect, led the appellant to believe that his being named in the court document was not in issue. Further, the respondent submitted the appellant did not contend below and only faintly contended now that he was actively misled by the Reviewer’s conduct so as not to have said everything he would wish to have said on the subject. To the extent made, that contention rested on the unsustainable premise that the Reviewer, by her questions, impliedly accepted that he was arrested. The circumstances of this case were far removed from situations in which an applicant is misled so as to have been effectively deprived of the opportunity to present his or her case: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Muin v Refugee Review Tribunal (2002) 190 ALR 601.

Consideration

32     Both parties accepted, and we agree, that the appellant’s solicitors and registered migration agents had accurately summarised the centrality of the appellant’s claim about being arrested and detained by the CID in their written submission dated 7 May 2012, shortly before the hearing, which stated:

We strongly belief [sic] and respectfully submit that the IMR Reviewer’s decision refusing to favourably consider the review application stems from his disbelief of the applicant’s claim of having been arrested by the CID and taken to the 4th Floor of its Headquarters and then detained and tortured. This forms the applicant’s central claim. The learned Reviewer’s rejection of most of the other claims of the applicant, we earnestly submit, flows from the refusal to believe this central claim of the applicant.

But now the applicant has, through lawyers in Sri Lanka, received documentary evidence in this connection which at the time of the RSA interview and the hearing of the IMR, were not available. Had this evidence been produced at these forums, we earnestly and respectfully submit, their decision would, most likely, have been different.

33    In our view that was the critical issue or factor on which the decision was likely to turn and there is no doubt that the Reviewer was obliged to make the appellant aware of that issue and did so: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591E; SZBEL v Minister (2006) 228 CLR 152 at [38]-[40]. Remembering that the merits decision maker is not a contradictor, this is the appropriate level of specificity to which the procedural fairness obligation attached: see SZBEL at [47].

34    In SZBEL at [29] and [49] the High Court recognised the content of the procedural fairness obligation in s 425(1) of the Act may, in a given case and on particular facts, extend to the greater level of specificity identified in Alphaone at 592A; namely

… to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.

35    In our view it is also plain, at a greater level of specificity, whether the document tended to show that the appellant had been arrested by the CID was also an issue of which the appellant was aware. At a still greater level of particularity, the appellant was aware that an issue the Reviewer might decide was whether the document referred to him.

36    Contrary to the appellant’s submission to this Court, we do not accept that in the present case the appellant had a right to expect that the issue of whether the submitted document referred to the appellant would be expressly put to him by the Reviewer in the hearing which took place two days after the date of the submission on behalf of the appellant by his solicitors and registered migration agents.

37    In our opinion the information in the document had an apparent frailty or weakness which was both obvious and recognised by the appellant’s solicitors and registered migration agents when putting them forward. Thus a finding that the document did not refer to the appellant was obviously open on the known material: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9]. The adverse conclusion drawn by the Reviewer on the material supplied on behalf of the appellant flowed from “an obvious and natural evaluation of that material”: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591E-F; 592.

38    If nothing had been said in the course of the interview conducted by the Reviewer about this issue it seems to us the appellant would not, in the circumstances of this case, have any procedural fairness ground for a complaint that the Reviewer did not accept that the document referred to the appellant. In terms, this is what happened, but the appellant seeks to rely on an implication in the questions the Reviewer did ask about the document.

39    The appellant does not complain about the Reviewer’s ultimate finding that the appellant did not come to the attention of the CID prior to his departure, although it may be said that some of the questions the Reviewer asked were put on the assumption that the appellant did come to the attention of the CID in 2006 and that he had been arrested and interrogated by the CID on suspicion of being a LTTE operative or supporter. This is an illustration of the difficulty of founding a procedural fairness claim on the form of questions when the purpose of the interview is to hear and to test an applicant’s claims rather than to determine them.

40    In our opinion, nothing that was said or not said in the course of the interview establishes that it was procedurally unfair for the Reviewer to conclude that the document did not refer to the appellant, as he contended it did. While it is true to say that the Reviewer did not put to the appellant that he was not the person referred to in the document, the passages from the transcript relied upon by the appellant at [10]-[11] of the written submissions on his behalf seem to us to be a procedurally legitimate testing of possible internal inconsistencies in what the appellant had put to the Reviewer according to his own evidence to the Reviewer. In other words, the Reviewer was putting that, on any view, the appellant would no longer be of interest to the CID. In our opinion this did not carry the implication that the Reviewer was saying or implying that she was persuaded that the document did refer to the appellant.

41    It was for the appellant to persuade the Reviewer that the document did refer to him despite the fact that in terms it did not, and to make out the claimed misspelling. That the Reviewer did not prompt him to do more than the submission of the appellant’s solicitors and registered migration agents had done does not establish a lack of procedural fairness given, as we have said, the inherent and apparent frailty or weakness of that material.

42    In addition, there was nothing said by the Reviewer which would provide a basis for the contention that the appellant was led not to put forward to the Reviewer material which would establish the relationship between the information in the document and himself.

43    In this respect we note that towards the end of the interview the Reviewer said to the appellant’s advisor that she had the advisor’s submission so she did not need the advisor to go through the submission but “if there’s anything additional or any particular point you would like to draw my attention to please do.”

44    We note that the ground pursued on this appeal is not that it was not open to the Reviewer to give little or no weight to the document in light of the problems she found to exist with the appellant’s own evidence but that it was unfair of the reviewer not to accept that the document related to the appellant.

45    We are not persuaded that there was any lack of procedural fairness, for the reasons we have given. In our view the primary judge did not err in his conclusion on this ground and the single ground of appeal fails.

Conclusion

46    The appeal should be dismissed, with costs. The name of the first respondent should be amended to “Minister for Immigration and Border Protection”.

Associate:

Dated:    4 December 2013