FEDERAL COURT OF AUSTRALIA

MZYPY v Minister for Immigration and Border Protection [2014] FCAFC 68

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

1    This appeal is from a decision of the Federal Circuit Court which was delivered on 23 August 2013 (MZYPY v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 810). The primary judge dismissed an application for judicial review in which the then applicant sought among other things, declaratory and injunctive relief, against the Minister, as well as declarations in respect of actions by two Departmental officers. For convenience, we will refer hereafter to MZYPY as “the appellant”.

2    The primary issue in the appeal is whether the primary judge erred in rejecting the appellant’s claims that he had been denied procedural fairness in the second respondent’s consideration of his case for the purposes of s 46A of the Migration Act 1958 (Cth) (the Act).

Outline of background facts

3    The appellant does not dispute the primary judge’s statement of the relevant facts. The outline of those facts below draws heavily on the primary judge’s reasons for judgment.

4    The appellant arrived in Australia by boat on 17 March 2010 and, accordingly, was prevented by s 46A of the Act from applying for a protection visa without first obtaining the Minister’s consent (which is often referred to as “lifting the bar”). The appellant initially claimed that he was entitled to refugee status. Those claims were considered by the Minister’s Department and then by an Independent Merits Reviewer (the reviewer). That process was finalised on 7 July 2011, which preceded the commencement of the complementary protection criteria in s 36(2)(aa) of the Act, on 24 March 2012. However, the process included consideration of whether the appellant’s claims could be sustained solely on the basis of his being Tamil having regard to country information about the treatment of Sri Lankan nationals returning to Sri Lanka after unsuccessful asylum bids. The reviewer concluded that something more than simply being Tamil was required to sustain the appellant’s claim to protection.

5    The appellant sought judicial review of the reviewer’s report and recommendation that he not be granted refugee status. His judicial review application was dismissed on 21 December 2011 in the Federal Magistrates Court and an appeal to this Court was also dismissed on 17 August 2012 (see MZYPY v Minister for Immigration and Citizenship [2011] FMCA 1003 and MZYPY v Minister for Immigration and Citizenship [2012] FCA 877 respectively).

6    The appellant was advised by a letter dated 7 August 2012 that, on the Department’s own initiative, his case had been assessed against Ministerial guidelines for the consideration of post review protection claims (the guidelines) (first PRPC assessment). This assessment involved considering the appellant’s claims against the complementary protection criteria. The appellant was informed that his case did not meet the guidelines and would not be referred to the Minister for his consideration. The details of the first PRPC assessment were recorded in a Departmental minute dated 10 May 2012. The assessment had been conducted by an officer within the Post Review Protection Claims area of the Department (PRPC). The officer had taken into account the reviewer’s adverse findings in respect of the appellant’s credibility. The PRPC officer concluded that there had been no substantial changes in Sri Lanka’s circumstances or the appellant’s personal circumstances to indicate that there was a real risk that he was likely to suffer significant harm if he returned to Sri Lanka by reference to the complementary protection criteria.

7    On 10 September 2012, the appellant’s adviser formally applied to have the Minister lift the bar under s 46A of the Act to allow the appellant to make a “fresh” protection visa application relying on the complementary protection provisions. As appears from the history set out above, the appellant had not made any protection visa application because he was not entitled to do so without Ministerial consent. The application was made on the stated basis that the appellant had worked for the LTTE, a claim that the Karuna Group was looking for him and that, as a failed asylum seeker, he would be questioned and detained upon his return to the airport in Colombo. These were the claims that he had previously made, unsuccessfully, to support his claim for refugee status.

8    The adviser’s letter was accompanied by documentary material regarding the use of torture and other ill-treatment in Sri Lanka, including a number of reports which had been released between August 2011 and August 2012.

9    By letter dated 13 September 2012, the Department acknowledged receipt of the letter dated 10 September 2012 from the appellant’s adviser. Importantly, the letter included the following statements:

…

It is very important that your client provides the department with all information about his case. The Minister generally does not wish to consider further requests, and will only do so if there has been a subsequent change in your client’s circumstances raising new protection issues which have not previously been considered and which bring his case within the Guidelines.

Please provide any further information to the Department within 10 days of the date of this letter. If we do not hear from you within that time, the Department will assess your client’s case against the Minister’s guidelines on information already held.

If you have any questions or will have difficulty in providing information within 10 days please contact NSW Ministerial Intervention on (02) 8666 5077.

…

10    No further information was provided by or on behalf of the appellant in support of the request contained in his adviser’s letter dated 10 September 2012.

11    The appellant’s claims as raised in his adviser’s letter dated 10 September 2012 were then assessed for a second time within the Department under the guidelines. By a minute dated 27 September 2012 (the minute), the second respondent (who was also an officer within the PRPC) found that the appellant’s case did not meet the guidelines and, therefore, would not be referred to the Minister for reconsideration. The second respondent took into account the findings of the reviewer, made in July 2011, and the fact that neither the appellant nor his adviser had presented any credible new evidence to contradict the reviewer’s findings.

12    The minute contains a section in which the second respondent addressed the issue of the treatment of failed Tamil asylum seekers who had returned to Sri Lanka. That section includes references to various country information reports which apparently had not previously been disclosed to the appellant. It might be noted that, while a copy of the minute was included in the appeal book before the Court, copies of the entire country information reports were not. The section of the minute considering the treatment of failed Tamil asylum seekers is as follows:

Treatment of Failed Tamil Asylum Seekers in Sri Lanka

•    A DIAC Country Information Research Response dated 16/12/2011(LKA12748) refers to a UK Home Office Report from August 2009 which states that: “an official from the Australian High Commission thought that there were no procedures in place to identify failed asylum seekers. The only way that authorities were alerted to a failed asylum seeker returning was if the airlines or IOM notified them that a person was a deportee or was being escorted. In an Australian official’s experience, the Sri Lankan Embassy/High Commission would sometimes alert the authorities in cases where they had given the returnee/deportee a travel document, but stressed that this was not always the case. If a failed asylum seeker returned unaccompanied, then the authorities would not be aware of the fact”.

•    There is no evidence to indicate that [MZYPY] departed Sri Lanka illegally (in fact, during his RSA interview, he asserted that he departed Sri Lanka lawfully on 09/11/2009), therefore it is unlikely that his departure from Sri Lanka would attract the attention of the authorities upon his return.

•    The UK Home Office Report of 26/06/2009 refers to an extract from a BHC letter dated 18/08/2008 which states that “were a Sri Lankan national to arrive at Colombo airport having been removed or deported [from another country] they would be in possession of either a valid Sri Lankan passport or an emergency travel document/temporary passport issued by the Sri Lankan High Commission. The holder of a valid passport would have the document endorsed by the immigration officer on arrival and have the document handed back to him/her. The Department of Immigration and Emigration at Colombo Airport, and the International Organisation for Migration… have both confirmed that a person travelling on an Emergency Travel Document will be dealt with similarly” and further, that “returnees had not encountered any problems producing ETDs at either checkpoints or police stations.”

•    Further, the Department considers that although [MZYPY] may be questioned to a minor degree regarding his reasons for obtaining an ETD (since he arrived in Australia without a valid travel document), this would be a standard procedure applied to all ETD holders, and that he would not be subjected to any differential or excessive treatment in this process, because there is no credible evidence to indicate that he is of any interest to the Sri Lankan authorities for any reason, and also because he departed the country lawfully by his own admission.

13    The minute also contains material which addresses the complementary protection criteria. Having regard to the commencement of the relevant provisions of the Act dealing with that subject, the second respondent stated that “it has been further considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of [MZYPY] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm”. After noting that significant harm, as defined in the Act, included arbitrary deprivation of life and the death penalty, as well as torture, cruel or inhuman treatment or punishment and degrading treatment or punishment, the second respondent then expressed his findings in respect of each of those matters. He found that there was no credible evidence before the Department to indicate that the appellant was wanted for any crimes in Sri Lanka and that “therefore it does not appear that he is at risk of being imprisoned and/or facing the death penalty if he were to return to this country”. After noting that there was no credible information to indicate that the appellant was a person of adverse interest to the authorities, the second respondent concluded that:

… it is unlikely that [MZYPY] would be considered to meet the high threshold for a real risk of significant harm. He may be subject to questioning but there is no indication that this questioning will result in [MZYPY’s] arbitrary detention or subsequent harm as a foreseeable consequence of his return.

14    On the issue of whether there was a real risk that the appellant would suffer significant harm by reference to other aspects of the statutory definition of that concept, the second respondent made reference to a 2010 US Department of State Human Rights Report: Sri Lanka (which had not previously been disclosed to the appellant) and noted that, under Sri Lankan law, torture was a punishable offence which attracted a minimum sentence of seven years imprisonment, and that there were credible reports that security forces did torture and abuse citizens. The second respondent concluded, however, that in spite of that material:

… there is no credible evidence to indicate that [MZYPY] is wanted by the Sri Lankan authorities or any other person, therefore it does not appear that he is personally at risk of being subjected to torture, [cruel or inhuman treatment or punishment] or [degrading treatment or punishment] in the context of detention or imprisonment.

15    For those reasons, the second respondent concluded that he was not satisfied that the appellant’s case met the guidelines and he declined the request to refer the matter to the Minister for reconsideration.

16    The appellant was advised of the outcome of his application by a Departmental letter dated 11 October 2012.

The judicial review proceeding

17    By a further amended application for judicial review, in the court below the appellant raised the following grounds as set out at [59] of the primary judgment (noting that the appellant is referred to in this document as “the Applicant”):

1.    As the Applicant is a person who has not yet made an application for a protection visa, s.35 of Schedule 1 of the Migration Amendment (Complementary Protection) Act (No. 121 of 2011) makes s.36(2)(aa) (as amended) applicable to the definition of “protection obligations” for the purposes of the Act in considering claims for protection made by the Applicant on and after 24 March 2012.

2.    The First Respondent has previously announced that all people who arrived and are offshore entry persons who provide claims or information which prima facie may engage Australia’s protection obligations would be assessed for the purposes of s.46A.

3.    The Applicant has made claims that prima facie engage Australia’s protection obligations as defined under the Act.

4.    The assessment of protection claims as defined by s.36(2)(aa) of the Act for the purposes of s.46A of the Act by the Second and Third Respondent has been attended by denial of procedural fairness and/or error of law for the reasons given below.

5.    The First Respondent cannot lawfully act of the basis (sic) of the “Reconsideration of Protection Claims – Following the Independent Merits Review Finding” assessment under the Consideration of Post-Review Protection Claims (“the Minister’s Guidelines”) because:

a.    The assessment applied the wrong standard of proof when assessing whether the First Respondent could have ‘substantial grounds for believing’ that the Applicant would be arbitrarily deprived of life, torture (sic), suffer cruel, inhuman or degrading treatment/punishment; and/or

b.    The assessment [was] made by a process that denied the Applicant procedural fairness in that the Applicant was not given any opportunity to:

i.    Be heard on the questions relevant to the assessments; and/or

ii.    Respond to the substance and source of information that the assessors relied upon as being credible, relevant and significant in making the assessment.

iii.    Have the full integers of his claim assessed.

6.    The purported assessment of the Applicant by the Second Respondent dated 27 September 2012…[was not an assessment] for the purposes of s.46A of the Act.

7.    Accordingly, further and in the alternative, a declaration that the assessment by the Second Respondent dated 27 September 2012 … involved denial of procedural fairness to the Applicant in that he was not able to give evidence to the decision maker in person.

18    The primary judge received into evidence two affidavits by the appellant’s solicitor. Attached to the affidavits were copies of correspondence to and from the Department regarding the assessment of the appellant’s case under the complementary protection provisions, as well as copies of the Departmental minutes dated 10 May 2012 and 27 September 2012 which recorded the Department’s two assessments of the appellant’s case by reference to the guidelines. The primary judge also received into evidence an affidavit by the Minister’s solicitor which introduced additional documents, including the record of the earlier refugee status assessment and independent merits review which had been undertaken by the Minister’s Department and the reviewer respectively.

The primary judge’s reasons summarised

19    The primary judge set out relevant provisions of the Act relating to applications for a protection visa based on either refugee status or complementary protection. Relevantly, s 36(2) of the Act described the criteria for a protection visa in the following terms:

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

…

20    The primary judge also took into account s 36(2A) of the Act, which specified when a non-citizen “will suffer significant harm”:

(2A)    A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

21    The primary judge also set out in his reasons for judgment extracts from the Minister’s second reading speech relating to the introduction of s 36(2)(aa) of the Act (see [18]-[19]).

22    After summarising the contentions of both the appellant and the Minister, the primary judge then gave his reasons for dismissing the application for judicial review at [54]-[76]. The primary judge noted the following matters:

    as a result of the Federal Court’s decision in MZYPY v Minister for Immigration and Citizenship [2012] FCA 877, it was not open to the primary judge to consider whether the report and recommendation of the reviewer were affected by any reviewable legal error, but these materials were relevant in providing the context in which to consider the assessment of the PRPC officer against the guidelines ([54]);

    the Minister’s consideration of the appellant’s claims, if any, was open to be informed by both the report and recommendation of the reviewer as well as the assessment of the PRPC officer for the purpose of considering whether to lift the bar pursuant to s 46A of the Act ([55]);

    by the letter dated 10 September 2012, the appellant requested reconsideration of his claims as considered by the reviewer but by reference to the complementary protection criteria ([56]-[57]);

    it was evident that the second respondent had reviewed the earlier Departmental consideration of the appellant’s claims and the findings made by the reviewer relating to his refugee status claims. The second respondent had also had regard to the first PRPC assessment in May 2012 (which preceded the 13 September 2012 invitation for the appellant to submit any further material bearing upon the issue of complementary protection). It was also evident that the second respondent had had regard to the submission made by the appellant’s adviser in the 10 September 2012 letter and the supporting documentation which accompanied that letter, which information was general in nature in relation to the circumstances in Sri Lanka ([58]);

    the second respondent found that there was no reason to alter the earlier assessments which had been made of the appellant’s claims to be a refugee ([59]); and

    after addressing the complementary protection criteria, the second respondent found that he was not satisfied that the appellant’s case met the guidelines ([59]-[60]).

23    Against the backdrop of those facts and events, the primary judge then explained why he rejected each of the appellant’s judicial review grounds.

24    First, the primary judge found that procedural fairness did not require the appellant to be afforded an oral hearing. His Honour contrasted the position of a person such as the appellant, who had no right of review before the Refugee Review Tribunal, with a person who did have such a right. His Honour held that it was sufficient that the second respondent gave consideration to the material which had been submitted on behalf of the appellant under cover of his adviser’s letter dated 10 September 2012, which his Honour found had occurred ([62]-[64]).

25    Secondly, as to the appellant’s complaint that the second respondent had failed to deal with the material which was provided under cover of his adviser’s letter dated 10 September 2012 with sufficient particularity, the primary judge noted that both the letter and the accompanying material were general in nature. His Honour found that all that material was sufficiently identified in the second respondent’s minute and had been considered ([64]).

26    As to the appellant’s third complaint that he was not put on notice that the second respondent would reject the contents of the material which had been submitted on his behalf as being “in global as ‘not credible’”, the primary judge accepted the Minister’s submission that the complaint was misconceived because the second respondent did not reject the country reports as being not credible, but rather found that they did not provide a credible basis to contradict the reviewer’s findings. His Honour held that procedural fairness did not require that advance notice be given to the appellant of this conclusion ([65]).

27    The appellant’s fourth complaint related to the failure of the second respondent to disclose country information relating to the treatment of returnees at Colombo airport. The primary judge accepted that, depending on the circumstances, procedural fairness may require that such material be disclosed, but his Honour held that, in the present case, the material referred to by the second responded added nothing of significance to the material which had already been considered by the reviewer, which the appellant must have been aware of because he had been provided with a copy of the reviewer’s report ([66]).

28    As to the appellant’s final complaint that the second respondent had applied the wrong test when considering the complementary protection criteria, the primary judge found that he was bound by the Full Court’s decision in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (SZQRB). It was held there that the correct test is whether there is a “real chance” of significant harm as defined in the Act. His Honour rejected the appellant’s submission that the second respondent had wrongly applied a balance of probabilities test. His Honour pointed out that the second respondent’s minute contains no reference to that discredited test. Instead, the second respondent described the test there in terms of whether there is “a real risk that [the applicant] will suffer significant harm”, which reflects the Act. The primary judge also found that the second respondent’s reference in his minute to the “high threshold” for a real risk of significant harm might convey several meanings, but his Honour read that reference as intending to refer to the quality of the harm which the appellant would face if he were to return to Colombo. In coming to that conclusion, the primary judge pointed to the reference in the immediately following sentence in the minute, which is as follows:

He may be subject to questioning but there is no indication that this questioning will result in [the applicant’s] arbitrary detention or subsequent harm as a foreseeable consequence of his return.

The primary judge found that that sentence was a reference to the statutory guidance provided in the Act (see [67]).

29    Accordingly, the primary judge rejected the appellant’s judicial review application and added that, if he were wrong in so doing, he would not have withheld relief in the exercise of discretion for reasons which are set out in [68] of his reasons.

The appeal

30    With the leave of the Court, the appellant relied on a further further amended notice of appeal (notice of appeal), which relevantly is in the following terms:

1.    His Honour made a legal error in not finding that the Second Respondent’s Minute dated 27 September 2012 involved a denial of procedural fairness:

Particulars

a.    The Appellant has not been accorded the opportunity to put his case in substance under the complementary protection provisions of the Migration Act 1958 (Cth);

b.    The Appellant was denied the opportunity of meeting the case against him in respect of the Country Information relied upon by the Second Respondent or of making representations - a “common form of detriment” noted by His Honour Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 195 ALR 502; (2003) 77 ALJR 699 at [37];

c.    There was a failure by the Reviewer to provide notice in the circumstances where a request for the Minister to take a procedural step in dealing with the Applicant’s claims is construed as a final submission;

d.    The request advanced in favour of the Appellant’s case - at page 43 in the Appeal Book - is a request under section 46A of the Migration Act for the Minister to consider and was not approached with any finality;

e.    The evidence advanced by the applicant’s advisor in pages 2-3 of the letter from Ms Michaela Byers dated 10 September 2012 does not appear to have been dealt with in any particularity in the Departmental Minute issued by the Department of Immigration & Citizenship officer dated 27 September 2012;

f.    The Applicant’s advisor was not placed on notice that the Departmental officer would reject the contents of these reports in global as “not credible”, denying him the opportunity to lead further evidence on this point or indeed to meet the case that was against him; and

g.    In the circumstances, the Appellant was denied the opportunity of meeting the case against him, in that country reports relied upon by the Second Respondent were not disclosed to the Appellant’s advisor, constituting a further denial of procedural fairness.

Disposition of the appeal

31    The appellant has not persuaded the Court that there is any appellable error in the primary judge’s reasons for judgment. In our respectful view, his Honour correctly stated the relevant legal principles and correctly applied them to the appellant’s circumstances.

32    The primary judge accepted that the second respondent was required to observe procedural fairness. His Honour did not say anything which was inconsistent with the principles established by the High Court in Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319, Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 and Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 and by the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 and SZQRB, referred to in the appellant’s written submissions. The issues in this appeal concern the content of the procedural fairness obligation and whether the primary judge erred in concluding that the second respondent had satisfied that obligation.

33    We shall now consider each of the grounds raised by the appellant in his notice of appeal as constituting procedural unfairness on the part of the second respondent (noting that Mr Searle, who appeared with Mr Bodisco for the appellant, made clear that he did not press an argument that procedural fairness required that the appellant be given an opportunity of an oral hearing by the second respondent).

34    We reject the appellant’s argument, as raised in paragraph 1(a) of the notice of appeal, that the primary judge erred in not finding that the appellant was not given an opportunity to put his case in substance in respect of his s 46A request. As noted above, the appellant’s adviser provided certain information under cover of her letter dated 10 September 2012, and she was told shortly thereafter by the Department that it was important that the appellant provide the Department with all the information about his case, particularly any information which demonstrated that there had been a change in his circumstances which had not previously been considered. The adviser was expressly asked to provide any further information to the Department within ten days of the Department’s letter dated 13 September 2012 and informed that, if no such information or documentation was provided within that time, the appellant’s case would be assessed against the guidelines on the basis of information already held by the Department. Notwithstanding those statements, neither the appellant nor his adviser provided any further information or documentation. In our view, the primary judge was correct in concluding that the appellant was provided with an adequate opportunity to put his case in writing.

35    Paragraph 1(b) of the notice of appeal complains that the appellant was denied procedural fairness because he was not given an opportunity “of meeting the case against him in respect of the Country Information relied upon by [the Assessor] or of making representations”. Paragraph 1(g) is in similar terms and also uses the language of the appellant being “denied the opportunity of meeting the case against him”. In our view, this language misconceives the nature of the assessment which was carried out by the second respondent. That assessment was not of an adversarial nature so as to justify the notion of the appellant having to meet a case against him in respect of any matter, including country information which was relied upon by the second respondent. We accept that, in some circumstances, procedural fairness obligations may require disclosure of country information which is to be relied upon by the decision-maker and which has not otherwise been disclosed to the applicant concerned, but procedural fairness does not require every item of country information to be disclosed.

36    We respectfully agree with the following statement of the relevant legal principle by Rares and Jagot JJ in Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; (2012) 200 FCR 223 (SZQHH) at [30] (and, to similar effect, see at [66] per Flick J):

However, the reviewer's obligation of procedural fairness did not require the reviewer to put to the applicant every piece of country or other information that the reviewer was considering. Rather, procedural fairness required that the applicant be given the substance of the credible, relevant and significant information available to the reviewer on an issue in the review, of which the applicant was not already on notice. The purpose of giving a person in the position of the applicant the substance of such information is to enable him or her to have an opportunity to deal with its potentially adverse consequences by responding to the decision-maker on those consequences. That enables the decision-maker to take into account the person's answer to the substance of information that has the potential of being used adversely to his or her interests. Affording the person an opportunity of dealing with some matter that he or she has not already had a chance to address in the process ensures that the process itself is fair.

37    In SZQHH, the applicant’s claim that the social discrimination suffered by Hazaras was so severe as to amount to persecution was rejected by the independent merits reviewer. In support of that finding, the reviewer relied upon a newspaper article in the Christian Science Monitor and, in particular, on the proposition stated there that the social discrimination against Hazaras had lessened significantly since 2001. The reviewer had not given the applicant prior notice of his intention to rely upon the newspaper article. In allowing the Minister’s appeal against a decision of a Federal Magistrate that the non-disclosure involved procedural unfairness, the Full Court found that there was nothing substantively new or different in the newspaper article from other country information and material which was known to the applicant. Rares and Jagot JJ stated at [33] (to similar effect, see at [68] per Flick J):

… There was nothing in the concept of “golden period”, or what the CSM article said about the changed position for the Hazaras since 2001, that was substantively new or different from what the applicant was aware had been said in the RSA, the information in the DFAT report or, for that matter, what the applicant's submissions and country information… had canvassed.

38    The general principle enunciated by Rares and Jagot JJ in SZQHH has been applied subsequently in SZQFY v Minister for Immigration and Citizenship [2012] FCA 486 at [60]-[61] per Siopis J and in SZQGL v Minister for Immigration and Citizenship [2012] FCA 1011; (2012) 206 FCR 474 at [61]-[74] per Cowdroy J.

39    In our view, the second respondent’s failure to disclose to the appellant the country information contained in the two reports set out in [12] above did not constitute a denial of procedural fairness in the circumstances of this case because:

(a)    neither of those reports contained any information which was not also set out in other country information which had been disclosed to the appellant in the earlier decision-making processes (noting again that the appeal book did not contain complete copies of those reports);

(b)    the substance of those reports was to the effect that, while a returning failed asylum seeker might be questioned to a limited extent on arrival at Colombo airport, such a person would not be subjected to any differential or excessive treatment unless there was some other reason why the person would be of interest to the Sri Lankan authorities;

(c)    country information which was to similar effect as the two later reports that had been taken into account by the reviewer (including information provided to the Department by the Department of Foreign Affairs and Trade in response to a series of questions relating to returning failed asylum seekers who were Tamils and a UK Home Office report on the treatment of Sri Lankan nationals returning to Sri Lanka after unsuccessful asylum bids). The appellant was provided with a copy of the reviewer’s statement of reasons dated 7 July 2011, which set out the reviewer’s conclusion at [58] that “… country information and UNHCR advice, which I accept, indicates that something more than simply being Tamil is required to sustain a claim to protection”; and

(d)    by the Department’s letter dated 13 September 2012, the appellant was informed that, in the absence of additional information from him, the Department would assess his case “against the Minister’s guidelines on information already held”. As a result, the appellant was on notice that the assessment would be made by reference to the information contained, inter alia, in the 7 July 2011 reasons which, in the absence of a change of circumstances, tended to contradict a contention that, by reference alone to being a failed asylum seeker, the appellant would be exposed to a real risk of significant harm if he returned to Sri Lanka;

(e)    the appellant’s counsel was unable to point to any material in the country information which had been provided by his adviser under cover of her letter dated 10 September 2012 which indicated that the mere fact that a person returning to Sri Lanka was an unsuccessful asylum seeker was sufficient of itself to indicate that there was a real risk of significant harm. In our view, this is relevant to an assessment as to whether the appellant suffered any practical injustice as a consequence of the non-disclosure of the two reports (see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at 13-14 per Gleeson CJ).

40    In the absence of the appellant pointing to anything in the country information which was not disclosed containing something different in substance from that already disclosed, any argument as to there being a denial of procedural fairness is an argument without substance. An allegation of a denial of procedural fairness may have gained momentum had the appellant pointed to any further information which was not disclosed containing (for example) an assessment as to whether relevant circumstances had changed between July 2011 and September 2012. But no such submission was advanced. And the appellant had been invited to put such further information and materials upon which he wished to rely. The materials provided to the Department on 10 September 2012 on his behalf did not attempt to advance any contention that there was any relevant change of circumstances between the facts that prevailed in July 2011 and as at September 2012.

41    As to paragraphs 1(c) and (d) of the notice of appeal, we accept the Minister’s submission that the meaning of both those grounds is unclear. That difficulty was not overcome by anything which was said on the appellant’s behalf in either oral or written submissions. We do not consider that either ground gives rise to an appellable error.

42    Paragraph 1(e) of the notice of appeal complains that the “evidence” contained in pages 2-3 of the adviser’s letter dated 10 September 2012 was not dealt with “in any particularity” in the minute dated 27 September 2012. Pages 2 and 3 of that letter summarised the appellant’s protection claims (see [7] above) and also described in very general terms the attached documentation relating to evidence of the use of torture and ill-treatment in Sri Lanka. It is notable that the adviser did not draw attention to anything in the supporting documentation which indicated that there may be a risk of significant harm if a failed asylum seeker returned to the airport in Colombo merely because the person was a failed asylum seeker and without more.

43    One of the reports provided by the adviser, which was entitled “Tortured when deported to their place of origin – AUSTRALIA GETS IT WRONG, again” and was dated 11 August 2011, described the alleged torture on their return of 3 Sri Lankans who had been deported after their asylum claims had been rejected. But the report did not claim that the alleged events occurred merely because the 3 people were unsuccessful asylum seekers. According to the report, one of the alleged victims was accused of having involvement “with the LTTE and its ship”. Another of the alleged victims was accused of committing a crime under Sri Lankan law. The adviser also provided a UK Home Office report dated 30 November 2011 entitled “Sri Lanka Bulletin: Recent Reports on Torture and Ill Treatment”. This report explained that of 35 alleged torture victims, 4 were returned failed asylum seekers. However, again, the report did not suggest that the alleged torture had occurred merely because these people were failed asylum seekers.

44    In his minute dated 27 September 2012, the second respondent summarised the adviser’s letter dated 10 September 2012 and explicitly identified the various supporting documents which had been enclosed with it. It is true that the second respondent did not analyse the appellant’s supporting documentation beyond acknowledging that it had been supplied. In our view, however, there was no obligation on him to do so in circumstances where that information did not indicate that a failed asylum seeker returning to Colombo airport may be at risk of significant harm merely because they were a returning unsuccessful asylum seeker and without more. The appellant has not demonstrated to our satisfaction that there was an appellable error in the primary judge’s finding that the supporting material had been considered adequately by the second respondent.

45    As to the appellant’s complaint that he was not placed on notice that the second respondent proposed to reject the supporting material accompanying the adviser’s letter dated 10 September 2012 (see paragraph 1(f) of the notice of appeal), we accept the Minister’s submission that this ground misreads what the second respondent found. In our view the primary judge did not err in finding that the second respondent did not reject the reports which were provided by the appellant’s adviser as not being credible, but rather found that they did not provide a credible basis for contradicting the reviewer’s findings. The appellant’s claims that he was at risk because he had worked for the LTTE and, as a result, the Karuna Group were looking for him, were rejected by the reviewer on credibility grounds. Otherwise, the reviewer did not accept that there was any risk factor in the appellant’s background that would lead him to conclude that there was a real chance that the appellant would suffer harm by reason of his ethnicity, his real or imputed political opinion or for any other Convention reason should he return to Sri Lanka in the foreseeable future. The second respondent found that no new credible evidence had been supplied to contradict those findings.

46    As to the appellant’s claim that he was at risk of being questioned and detained upon return to Colombo as a failed asylum seeker, the second respondent concluded that while the appellant might be questioned to a minor degree on return (because he had arrived in Australia without a valid travel document), he would not be subjected to any differential or excessive treatment in this process because there was no credible evidence to indicate that he was of any interest to the Sri Lankan authorities for any reason. The second respondent concluded that there was no credible evidence to indicate that the appellant was wanted by the Sri Lankan authorities or any other person, with the consequence that it did not appear that he was personally at risk of being subjected to significant harm within the meaning of the complementary protection provisions.

47    In oral argument, Mr Searle contended that appellable error was also disclosed by the primary judge not finding that there was procedural unfairness in the following extracts from the second respondent’s minute set out at [59] of the primary judgment:

•    Under the CP […Complementary Protection…] components, the definition of “significant harm” includes arbitrary deprivation of life (ADL) and the Death Penalty. There is no credible evidence before the Department to indicate that [the appellant] is wanted for any crimes in Sri Lanka, therefore, it does not appear that he is at risk of being imprisoned and/or facing the death penalty if he were to return to this country. (Emphasis added).

And

•    … there is no credible evidence to indicate that [MZYPY] is wanted by the Sri Lankan authorities or any other person, therefore, it does not appear that he is personally at risk of being subjected to torture, [cruel or inhuman treatment or punishment] or [degrading treatment or punishment] in the context of detention or imprisonment. (Emphasis added).

48    In particular, Mr Searle contended that the primary judge erred in not finding that there was procedural unfairness because the second respondent did not disclose the basis for his implicit conclusion that the appellant was not personally at risk of significant harm of the kinds identified in the absence of being “wanted” in Sri Lanka.

49    We reject that submission. In the first extract, the second respondent was considering the possible risk of two types of significant harm that could give rise to complementary protection obligations, namely arbitrary deprivation of life and the death penalty. The appellant had not suggested that he was at risk of either type of significant harm, except by reference to claims that had been rejected. The second respondent had previously concluded that, as a failed asylum seeker holding an Emergency Travel Document, the greatest harm to which the appellant might be subjected was questioning “to a minor degree”. In that context, in the first extract the second respondent was merely excluding from consideration the risk of imprisonment and or the death penalty in the absence of evidence that the second respondent was wanted for any crime.

50    The second respondent’s reasoning was clarified by the subsequent observation that the appellant “may be subject to questioning but there is no indication that this questioning will result in [the appellant’s] arbitrary detention or subsequent harm as a foreseeable consequence of his return”.

51    As to the second extract, the second respondent was saying no more than that he accepted the reviewer’s adverse findings against the appellant and no credible evidence had been provided by or on behalf of the appellant to indicate that he might personally be at risk of significant harm merely because he was a returning failed asylum seeker. This interpretation of the second respondent’s reasons is also supported by the finding that there was no indication that any questioning of the appellant on his return to Sri Lanka would result in subsequent harm as a foreseeable consequence of his return.

52    In our view, the primary judge was correct to hold that procedural fairness did not require that the appellant be given advance notice of these conclusions (see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [9]).

53    Finally, in oral argument Mr Searle also contended that procedural fairness was denied to the appellant because the second respondent had, without prior notice to the appellant, carried out a full substantive assessment of the appellant’s case under the complementary protection provisions, whereas all that had been requested was consideration of that case being referred to the Minister. It is not at all clear that this contention is supported by any of the grounds in the notice of appeal, but no pleading point was taken by the Minister. In any event, we do not accept the contention for the following reasons.

54    First, it is evident from the terms of the minute that the second respondent saw his task as being directed to the question whether or not the bar should be lifted, and not to undertake a full assessment of a s 36(2)(aa) complementary protection claim. That is reflected in the multiple references in the minute to the fact that the assessment was being carried out under the guidelines. The guidelines relevantly state:

5.    Not a complete assessment

The assessing officer should not engage in a complete assessment of whether the person is owed protection obligations as provided for in s36(2) of the Act. Their responsibility is to consider whether the new information provided may engage Australia’s protection obligations and enhances the person’s chance of making a successful claim for protection under s36(2) of the Act. (Emphasis in original).

55    In the introductory section of the minute, the second respondent noted that he was conducting “an assessment of whether the case of [MZYPY] meets the Minister’s guidelines… and, if so, whether it should be referred to the Minister for consideration”. To similar effect, in expressing his conclusion, the second respondent stated that he was not satisfied that the case met the guidelines and that the request should therefore not be referred to the Minister for reconsideration. The second respondent was plainly aware that his task was defined by the guidelines.

56    Secondly, in the section of the minute dealing with complementary protection obligations, the second respondent described the relevant question as whether “there are substantial grounds for believing that, as a necessary and foreseeable consequence of [MZYPY] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm”. We consider that that formulation is consistent with the guidelines. We do not accept that the second respondent misconceived his task and consequently denied the appellant procedural fairness.

Conclusion

57    For these reasons, the appeal should be dismissed and the appellant should be ordered to pay the costs of the first respondent.

Associate:

Dated:    27 June 2014