FEDERAL COURT OF AUSTRALIA

AYX16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 99

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The appellant appeals a decision of the Federal Circuit Court of Australia, which dismissed an application for judicial review of an international treaty obligations assessment (ITOA) that was approved by the second respondent in his capacity as Manager, Temporary Protection Visa Assessment Victoria, and was the subject of a report dated 25 February 2016: AYX16 v Minister for Immigration & Anor [2019] FCCA 35.

2    For the following reasons, we have determined that the appeal should be dismissed.

Background

3    This matter has a lengthy history, some aspects of which are relevant to the present appeal.

Arrival in Australia and earlier administrative processes and judicial proceedings

4    The appellant is a 31 year old male of Sri Lankan nationality and Tamil ethnicity. He first arrived in Australia at Christmas Island on about 18 June 2010. At the time of his arrival, for the purposes of s 46A of the Migration Act 1958 (Cth), he had the status of an “offshore entry person”, and now has the status of an “unauthorised maritime arrival”. Accordingly, the appellant was at all relevant times unable to make a valid application for a protection visa without the Minister making a determination under s 46A(2) of the Act, which is often referred to as “lifting the bar”.

5    On 20 August 2010, the appellant made a request to the Department of Immigration and Citizenship, now the Department of Home Affairs, for a Refugee Status Assessment. By a statutory declaration made on 20 August 2010, the appellant claimed a well-founded fear of persecution based on his Tamil ethnicity, his imputed political opinion as a person assumed to support the Liberation Tigers of Tamil Eelam (LTTE) and his membership of the particular social group comprising returned failed asylum seekers. He also claimed to fear significant harm based on being suspected of involvement in the murder by suicide bombing of a member of the Sri Lankan parliament, Jeyarai Fernando Pillai, in April 2008. The appellant declared that following this incident, he fled Sri Lanka to Qatar, where he remained for a month, returning because of illness and the imminent expiry of his Qatari visa. The appellant claimed that on return to Sri Lanka, he began to experience problems with a paramilitary group, the Karuna Group, who suspected him of supporting the LTTE on account of his Tamil ethnicity. The appellant claimed that he then left Sri Lanka following a series of death and kidnapping threats by members of the Karuna Group.

6    On 31 January 2011, an officer of the Department determined the appellant’s Refugee Status Assessment. The Refugee Status Assessment found that the appellant was not a refugee as defined by the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (Refugees Convention), and therefore that the appellant was not someone to whom Australia owed protection obligations. At that time, the criteria for a protection visa in s 36(2) of the Migration Act picked up the definition of “refugee” in the Refugees Convention, and did not include the alternative complementary protection criteria, which were inserted when s 36(2)(aa) and related provisions of the Act commenced operation on 24 March 2012.

7    On 17 February 2011, the appellant requested an Independent Merits Review of the Refugee Status Assessment.

8    On 13 December 2011, the appellant was granted a Bridging visa E. Since that date, the appellant has not been detained and has lived in the Australian community.

9    On 22 March 2012, an officer of the Department conducted an Independent Merits Review of the Refugee Status Assessment. The Independent Merits Review found that the appellant did not meet the criteria for a protection visa set out in s 36(2) of the Migration Act 1958 (Cth), and accordingly recommended that the appellant not be recognised as a person to whom Australia had protection obligations under the Refugees Convention. As with the earlier Refugee Status Assessment, the Independent Merits Review considered the criteria for a protection visa in s 36(2) of the Act, which at that time picked up the definition of “refugee” in the Refugees Convention, and not the complementary protection criteria, which had not yet commenced. On 12 April 2012, the Department notified the appellant of the outcome of the Independent Merits Review, which the Department had accepted in accordance with its policy.

10    On 30 and 31 May 2012, officers of the Department reconsidered the appellant’s protection claims by way of a Post Review Protection Claims Assessment. The Department undertook this reconsideration so as to consider the appellant’s protection claims against the complementary protection criterion in the Act, which had come into force on 24 March 2012. The assessment found that the appellant did not meet the complementary protection criterion. Therefore, the relevant officers were not satisfied that the appellant met the Minister’s guidelines for consideration of post review protection claims, and did not refer the appellant’s case to the Minister for his consideration. This outcome was communicated to the appellant by a letter dated 10 October 2012.

11    On 12 October 2012, the appellant made a request, supported by detailed submissions, for the Minister to exercise his power under s 46A(2) of the Migration Act to “lift the bar” on the appellant making a valid application for a protection visa. On 15 October 2012, the Department acknowledged the appellant’s request.

12    In the meantime, on 20 March 2013, the Full Court gave judgment in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505. The Full Court held that the respondent in that case was entitled to a declaration that an ITOA had not been made according to law because the relevant “test” to be applied was whether the respondent would satisfy the complementary protection criterion in s 36(2)(aa) of the Migration Act, and the ITOA was wrong to treat the “real risk” test as involving a “more probably than not” threshold, rather than the “real chance” threshold as understood with respect of the definition of refugee. The result was that, as the respondent was a non-citizen whose claims to complementary protection had not been properly considered, the respondent was entitled to an injunction restraining his removal under s 198 of the Migration Act without his claims being determined according to law.

13    Returning to the present appeal, the Departmental records before the Court indicate that the appellant commenced judicial review proceedings in relation to the above described migration review processes. It is not necessary to recount the details of those proceedings in deciding the present appeal. It is sufficient to note that on 3 October 2013, in one of those proceedings before the Federal Circuit Court, the Minister consented to an order that the Post Review Protection Claims Assessment had not been made according to law. A notation was made to a summary document on the Department file that this matter was “SZQRB affected”, which we infer recorded an acknowledgement by the Department that it erred in its Post Review Protection Claims Assessment process in the manner found by the Full Court in SZQRB.

The ITOA process

14    On 12 March 2015, the Department notified the appellant that due to legal developments and changes to Departmental policy, the Department would no longer rely on its Post Review Protection Claims Assessment. The Department notified the appellant that it would undertake a re-assessment of his protection claims as part of a new ITOA, and invited the appellant to submit further information to be considered in that assessment. The following terms of that letter, which refer to the nature of the Department’s ITOA, are important –

Due to legal developments and changes to departmental policy, the department will no longer be relying on this assessment [the Post Review Protection Claims Assessment]. The department will now undertake a re-assessment of your protection claims as part of a new International Treaties Obligations Assessment (ITOA). This ITOA will assess whether there are any non-refoulement concerns which would prevent the department from progressing removal arrangements in your case.

This ITOA will consider Australia’s non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights and its Second Optional Protocol.

Various provisions of the Migration Act 1958 (the Act) contain concepts relevant to assessing the non-refoulement obligations arising under the above treaties and reflect Australia’s interpretation of those obligations. Therefore, this assessment will use relevant provisions contained in the Act, even though this is not an assessment of a protection visa application.

15    On 7 May 2015, the appellant’s representative made detailed submissions in support of the appellant’s claims for protection, and provided a further statutory declaration of the appellant dated 5 May 2015. Amongst many other matters, the appellant’s submissions included a section on the Karuna Group. The appellant submitted that there was a real chance that he would suffer significant harm in Sri Lanka from the Karuna Group and Sri Lankan authorities. By reference to country information, the appellant summarised the Karuna Group’s history and influence, including by noting that its leader had been a member of the Sri Lankan parliament since 2008, that his party formed part of the coalition of the governing United People’s Freedom Alliance, and that he was currently the Deputy Minister for Resettlement. The appellant’s submissions stated that “[c]ountry information confirms that Karuna group continues to have significant power and influence in Eastern Province due to its alliance with the ruling government”, and that “it is clear that the Karuna group commonly exploits its current ties to the authorities in Eastern Province to further the criminal or personal motives of individual members, knowing that they can act with impunity.”

16    On 28 August 2015, the Department invited the appellant to an interview to discuss his claims and provide comment on any adverse information, which was not identified in the invitation. The following terms of that letter, which refer to the nature of the Department’s ITOA, are relevant to the present appeal –

On 12 March 2015 the Department of Immigration and Border Protection (the department) commenced an International Treaties Obligations Assessment (ITOA) in order to assess whether the circumstances of your case engage Australia’s non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights and its Second Optional Protocol.

As previously advised this ITOA will assess whether there are any non-refoulement concerns which would prevent the department from progressing removal arrangements in your case.

…

A decision that you engage non-refoulement obligations will enable the department to progress your immigration status. A decision that you do not engage non-refoulement obligations will enable the department to progress your removal arrangements.

17    On 16 September 2015, the Department sent an email to the appellant’s representative that outlined various matters to be discussed at the interview. Those matters relevantly included the appellant’s “claimed problems with the Karuna group and what this may mean for him on return to Sri Lanka.”

18    On 23 September 2015, the appellant attended the interview with his representative. Following the interview, the appellant was invited to comment on issues and information, and to provide any additional submissions.

19    On 14 October 2015, the appellant’s representative made further written submissions in support of the appellant’s claims for protection.

20    On 1 December 2015, the Department by letter invited the appellant to comment on adverse information. The Department’s letter referred to the nature of the Department’s ITOA in the same terms as the earlier letter dated 28 August 2015. The letter, which spanned 13 pages, addressed in detail a series of topics about which the Department considered that it held information that was adverse to the appellant’s claims, and invited a response from the appellant in relation to those topics. The letter noted that the Department was considering country information relevant to the appellant’s case. It also raised a specific concern, amongst others, in relation to the veracity of the appellant’s claim that he was staying with his uncle in Batticaloa in 2008-2009 when he claimed that he was targeted for forcible recruitment by members of the Karuna Group who visited his uncle’s home. The letter stated that, on the basis of information that was conveyed to the appellant in the letter, the Department may find that the appellant did not have an uncle in Batticaloa in 2008-2009, and therefore that he was not targeted for forced recruitment by the Karuna Group who visited his uncle’s home at that time.

21    By a letter dated 21 December 2015, the appellant’s representative made submissions in response to the Department’s invitation for the appellant to comment on adverse information, and provided a further statutory declaration of the appellant that was dated 22 December 2015. Amongst other matters, the appellant clarified that the man with whom he stayed in Batticaloa in 2008-2009 and to whom he referred as “uncle” was in fact his father’s cousin.

22    On 26 February 2016, the Department notified the appellant of the outcome of his ITOA. The Department’s letter relevantly stated –

On 12 March 2015 the Department of Immigration and Border Protection (the department) commenced an International Treaties Obligations Assessment (ITOA) in order to assess whether the circumstances of your case engage Australia’s non-refoulement obligations. As you are aware this assessment was undertaken in order to assist the department in considering whether there are any non-refoulement concerns which would prevent the department from progressing removal arrangements in your case.

Your ITOA was finalised on 25 February 2016 with a finding that non-refoulement obligations are not engaged in your case.

This means the department has concluded that you have no entitlements to remain in Australia and you should commence making arrangements to depart Australia voluntarily. Similarly, if you do not commence making your own arrangements the department will make arrangements to remove you from Australia.

The ITOA Report

23    The ITOA Report was finalised by an assessor in the Temporary Protection Visa Assessment Victoria branch of the Department on 24 February 2016, and confirmed by the second respondent in his capacity as a Manager in that same branch the following day. The ITOA Report spanned 55 pages. The introduction to the ITOA Report referred to the nature and purpose of the ITOA in substantially the same terms as the Department’s letter to the appellant of 12 March 2015 –

This ITOA is being undertaken for the purpose of assessing whether Australia has non-refoulement obligations to [the appellant] under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); or the International Covenant on Civil and Political Rights (CCPR) and its Second Optional Protocol, aiming at the abolition of the death penalty.

Various provisions of the Migration Act 1958 (Cth) contain concepts relevant to assessing the non-refoulement obligations arising under the above treaties and reflect Australia’s interpretation of those obligations. Therefore, this assessment will use relevant provisions contained in the Act, even though this is not an assessment of a protection visa application.

24    The ITOA Report was divided into four parts –

(1)    Part A included, amongst other things, a summary of the appellant’s migration history and claims for protection, and the assessor’s findings of fact in relation to those claims.

(2)    Part B set out an assessment of Australia’s non-refoulement obligations under the Refugees Convention. The assessor found that the appellant was not a refugee within the meaning of Article 1A and that Australia did not have a non-refoulement obligation to him under the Refugees Convention. In doing so, the assessor had regard to the Refugees Convention itself and to the Migration Act.

(3)    Part C set out an assessment of Australia’s non-refoulement obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture) and the International Covenant on Civil and Political Rights and its Second Optional Protocol (ICCPR). The assessor concluded that she was not satisfied that the appellant had a real chance of being subjected to significant harm should he be returned to Sri Lanka, and accordingly that the appellant was not a person in respect of whom Australia had non-refoulement obligations under the Convention Against Torture and the ICCPR. In doing so, the assessor had regard to the conventions and to s 36(2)(aa) and s 36(2A) of the Migration Act.

(4)    Part D recorded the assessor’s conclusion that Australia did not have non-refoulement obligations to the appellant.

25    Two particular features of the ITOA Report are relevant to the present appeal.

26    First, by reference to country information, the assessor found that if the appellant was returned to Sri Lanka, the Karuna Group did not pose a threat of serious harm to him –

The claimant fears members of the Karuna group in Batticaloa owing to past experience where they attempted to recruit him.

Given the substantially changed country conditions since the end of the civil war,[fn 90] the fact the Karuna group’s leaders have since entered politics in Sri Lanka legitimately,[fn 91] and the fact the claimant was able to avoid recruitment in the past due to a health condition which persists, I do not consider there is an objective factual basis supporting the proposition that the Karuna group or other paramilitaries formerly operating in the Batticaloa area continue to pose a threat of serious harm to the claimant.

27    Footnote 90 to the above passage referred to “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka”, UN High Commissioner for Refugees, 21 December 2012, UNB0183EA8; DFAT, “DFAT Country Report: Sri Lanka”, 16 February December [sic] 2015, CISEC96CF1164 (also in update “DFAT Country Report: Sri Lanka”, DFAT, 18 December 2015, CISEC96CF14143)”. Footnote 91 to the above passage was to “Political Handbook of the World 2015 – Sri Lanka”, DC: CQ Press, 01 January 2015, CISEC96CF12933”. Those two footnotes comprised references to four sources of country information – the 2012 UNHCR Eligibility Guidelines; the February 2015 DFAT Report; the December 2015 DFAT Report; and the Political Handbook.

28    Second, the assessor found that if the appellant was returned to Sri Lanka, it was highly likely that he would be temporarily detained for questioning. In considering Australia’s obligations under the Convention Against Torture and the ICCPR, the assessor found that the likelihood of detention did not amount to significant harm because the Sri Lankan Government would not intend to inflict harm by detaining the appellant –

Based on the information in Part B I find it highly likely that the claimant would be temporarily detained for questioning during the process of his return to Sri Lanka, but note that temporary detention in and of itself does not amount to serious harm.

I turn my mind to whether the applicant would face a real chance of degrading treatment or punishment as a result of temporary detention. I have considered an assessment from the UK Home Office that prison conditions in Sri Lanka are likely to breach Article 3 of the European Convention on Human Rights which prohibits ‘inhuman or degrading treatment or punishment’. As the language in the European convention on Human Rights reflects the International Covenant on Civil and Political Rights (ICCPR), I place significant weight on this assessment.

I also note information from the US Department of State that prisons designed for approximately 11,000 prisoners hold an estimated 32,000 prisoners, often in conditions that force prisoners to sleep on concrete floors. Cramped conditions, lack of a separate bed, and inadequate ventilation or lighting are conditions which have previously been held to constitute breaches of Article 7 of the ICCPR.

That said, I note the matter of MZZZR v Minister for Immigration and Anor [2014] FCCA 1551, whereby the court held that it was open to the Refugee Review Tribunal (RRT) to conclude that prison conditions in Sri Lanka would not amount to significant harm in the applicant’s circumstances as they came about due to a lack of resources and thus did not reflect an intention to inflict harm.

In the matter of MZZZR the RRT found that the applicant was likely to be detained on remand for a period of between one and several days. These circumstances are similar to that of the present claimant.

Having carefully considered the information before me in relation to prison conditions and this applicant’s circumstances, I am not satisfied that the Government of Sri Lanka would intentionally inflict significant harm upon the claimant as a result of imprisonment, such that reach the threshold of significant harm.

The proceeding in the Federal Circuit Court

29    On 26 April 2016, the applicant filed an application for judicial review in the Federal Circuit Court. It was not in issue that Federal Circuit Court had jurisdiction to hear the application pursuant to s 476 of the Migration Act: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [58]-[73].

30    On 27 June 2017, the applicant filed a further amended application. The further amended application identified the “decision” in respect of which judicial review was sought as “a future decision or other action by the Minister or an officer under the Migration Act”, and sought a declaration that the ITOA was procedurally unfair and was not made in accordance with the law, and an injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings. The further amended application raised two grounds of review –

1.    The Second Respondent denied the Applicant procedural fairness.

a)    The Second Respondent found that there was “no objective factual basis supporting the proposition that the Karuna group or other paramilitaries formerly operating in the Batticaloa area continue to pose a threat of serious harm to the claimant”, based on country information about the changed country conditions in Sri Lanka since the end of the civil war and former Karuna group leaders having entered Sri Lankan politics.

b)    The Second Respondent failed to put that country information to the Applicant and give him an opportunity to respond.

2.    The conduct of the ITOA by the Second Respondent was affected by jurisdictional error in that the Second Respondent applied the wrong standard in assessing whether or not Australia’s international treaty obligations were engaged in relation to the applicant.

a)    The Second Respondent was instructed to assess whether Australia owed non-refoulement obligations to the Applicant under international law, specifically the Refugees Convention, the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights and its Second Optional Protocol.

b)    The Second Respondent found that prison conditions in Sri Lanka have been held to breach the prohibition on inhuman or degrading treatment or punishment under article 7 of the ICCPR and the analogous provision in article 3 of the European Convention on Human Rights.

c)    The Second Respondent nevertheless found that the Sri Lankan government would not intentionally inflict significant harm on the Applicant, applying Australian case law interpreting the Australian Migration Act, and therefore found that Australia owed no obligation of non-refoulement to the Applicant under international law.

31    The hearing of the proceeding in the Federal Circuit Court was held on 1 August 2017. Further submissions were filed, the last being filed on 20 September 2017. On 17 January 2019, the primary judge published his reasons for judgment and made orders dismissing the appellant’s further amended application.

The primary judge’s reasons

32    The primary judge’s reasons may be summarised as follows.

Ground 1 – denial of procedural fairness

33    In relation to the first ground of review, the primary judge held that the appellant was not denied procedural fairness in the ITOA process. The primary judge proceeded on the Minister’s acceptance that the common law principles of procedural fairness applied to the conduct of the ITOA. The primary judge then referred to some leading authorities on the requirements of procedural fairness, including the content of the general requirement to give a person who is the subject of a decision the opportunity to ascertain the relevant issues and comment on any adverse information that is credible, relevant and significant, before the decision is made. In that respect, the primary judge stated that a distinction was to be drawn between adverse information that was truly personal and adverse to a person’s interests, and adverse information that was of a more general nature but which would be influential in the decision to be made, citing Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [21], which was concerned with the statutory obligation under s 57 of the Migration Act to give particulars of “relevant information”, which is a defined concept. The primary judge at [93]-[94] acknowledged the statutory context in which Saeed was decided. The primary judge stated that in the case of information that was of a more general nature, regard to the totality of the facts and circumstances would inform whether a person would not be sufficiently on notice of the relevant issues unless notice of the particular information was provided. Further, the primary judge stated that in the context of disclosure of country information, which is of a general nature and not personal, the obligation was only to put the person on notice of the substance of the issues discussed in the material and not to provide the specific material containing the country information to the person for comment.

34    The primary judge then considered whether the appellant was denied procedural fairness by not being put on notice of, or invited to comment on, country information that was relied upon by the assessor in finding that, if the appellant was returned to Sri Lanka, the Karuna Group did not pose a threat of serious harm to him. The primary judge extracted the impugned passage of the ITOA Report, which is set out at [26] above, and then stated that the appellant had identified three elements to the assessor’s reasoning that underpinned that finding: (1) the substantially changed country conditions since the end of the civil war; (2) the entry of members of the Karuna Group into Sri Lankan politics; and (3) the appellant’s persistent health condition. The appellant’s first ground of review focussed on the first two of those elements, and the primary judge considered them in turn.

35    First, in relation to the finding that country conditions in Sri Lanka had substantially changed since the end of the civil war, which supported the ultimate finding that the Karuna Group did not pose a threat of serious harm to the appellant, the primary judge accepted that it was apparent from footnote 90 in the ITOA Report that the assessor had relied on the 2012 UNHCR Guidelines, the February 2015 DFAT Report and the December 2015 DFAT Report in reaching that finding. The primary judge found that the 2012 UNHCR Guidelines and the February 2015 DFAT Report, but not the December 2015 DFAT Report, had been drawn to the appellant’s attention during the ITOA process.

36    Second, in relation to the finding that members of the Karuna Group had entered Sri Lankan politics, which also supported the ultimate finding that the Karuna Group did not pose a threat of serious harm to the appellant, the primary judge accepted that it was apparent from footnote 91 in the ITOA Report that the assessor had relied on the Political Handbook, and that it had not been put to the appellant during the ITOA process.

37    The primary judge found that the assessor was obliged to, and did, put to the appellant the substance of the country information concerning both the substantially changed country conditions in Sri Lanka since the end of the civil war, and the involvement of members of the Karuna Group in Sri Lankan politics. The primary judge found that the appellant was plainly on notice of the relevance of those issues to the ITOA. The primary judge found that for the purposes of assessing whether, following the end of the Sri Lankan civil war, the appellant had an objectively well-founded fear of harm from the Karuna Group, those issues were sufficiently addressed in the Department’s letter dated 1 December 2015, and also addressed by the appellant’s submissions dated 7 May and 21 December 2015. The primary judge found that no practical injustice was occasioned to the appellant in any failure to provide more fulsome or specific reference to the country information relied upon. The primary judge found that no attempt had been made by the appellant to identify that the December 2015 DFAT Report or the Political Handbook, contained personal information or information of decisive significance to conclusions in the ITOA Report that there had been an end to hostilities after the civil war, or that because the Karuna Group had entered politics, the appellant’s fear of harm from that group was not well founded. The primary judge noted the context that the ITOA followed all of the Department’s earlier review processes in which these issues had been raised, and that in that context his Honour did not consider that the assessor failed to adopt a procedure which a reasonable and fair repository of the power would have adopted in all of the circumstances of the case.

38    In conclusion, the primary judge held that the appellant had been given the opportunity to ascertain the relevant issues and was sufficiently put on notice of those matters so as to place him in a position where he could meaningfully avail himself of an opportunity to be heard, and rejected the ground of review.

Ground 2 – application of the wrong standard

39    In relation to the second ground of review, the primary judge held that the ITOA assessor did not commit a jurisdictional error by applying the wrong standard in conducting the assessment.

40    The primary judge accepted the appellant’s submission that the assessor was instructed to review the appellant’s case for the purpose of assessing whether Australia’s non-refoulement obligations under international conventions were engaged, and that one of those obligations was not to return a person to a place where he or she would face a real risk of cruel, inhuman or degrading treatment of punishment. However, the Minister had submitted to the primary judge that the assessor should undertake the assessment in accordance with Australian law, and that recourse could be had to relevant provisions of the Migration Act, which reflected Australia’s interpretation of those obligations. In considering the scope of the assessor’s instructions, the primary judge referred to the Department’s letter to the appellant dated 12 March 2015, the relevant parts of which are extracted at [14] above, and reasoned at [121] that –

The terms in which the letter referred to the use of the Act expressly recognised that the ITOA was not an assessment of an application under the Act. To the contrary, it identified the Act as containing some provisions that used concepts relevant to assessing non-refoulement.

41    Having found that the assessor correctly recognised the instruction to apply the international law standard under those international conventions, the primary judge then turned to consider whether the assessor applied that standard correctly. The issue for consideration arose in relation to that part of the ITOA Report, set out at [28] above, in which the assessor found that it was highly likely that the appellant would be temporarily detained for questioning if returned to Sri Lanka, then referred to international reports that found that detention in Sri Lanka would likely constitute inhuman or degrading treatment or punishment in breach of Article 7 of the ICCPR, and finally concluded by referring to MZZZR v Minister for Immigration and Anor [2014] FCCA 1551, in which the Court found that since it was not intended for detention to be inhuman or degrading, that detention would not amount to significant harm: see also, SZTAL v Minister for Immigration [2017] HCA 34; 262 CLR 362. The primary judge framed the issue as being whether the assessor took into account an irrelevant consideration in considering the question of intention.

42    The primary judge did not accept the appellant’s submission that international law did not require that intention be considered, and that it was relevant only for the purposes of the Act. His Honour stated that under the Convention Against Torture, intention was relevant to the definition of “torture” in Article 1, citing SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; 243 FCR 556 at [62] (Kenny and Nicholas JJ), and SZTAL v Minister for Immigration [2017] HCA 34; 262 CLR 362 at [4] (Kiefel CJ, Nettle and Gordon JJ) and [78] (Edelman J). But his Honour accepted that the obligation under Article 7 of the ICCPR did not include an intention requirement, and that the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s 5(1) of the Migration Act departed significantly from the ICCPR. However, the primary judge nonetheless found that the assessor did not err. The primary judge referred to the assessor’s conclusion, set out at [28] above, that she was “not satisfied that the Government of Sri Lanka would intentionally inflict significant harm upon the claimant as a result of imprisonment, such that reach the threshold of significant harm.” The primary judge then stated at [130] that the assessor’s conclusion “should not be read with an eye keenly attuned to error but read fairly and in the context of the ITOA Report as a whole”, and that it “may be understood as indicating a cumulative assessment that, intention aside, the prison condition in Sri Lanka would not reach the threshold of significant harm under those conventions”.

43    The primary judge went on to state, in obiter, that if his Honour was wrong and the assessor did err in her analysis of whether Australia owed non-refoulement obligations in respect of the appellant, his Honour would not have characterised that error as being jurisdictional. The primary judge stated at [135] that “upon examination of the comprehensive reasons in the ITOA Report, I consider that it is clear that the decision made by the assessor sufficiently complied with the obligation to consider the matter upon the applicable international conventions”. Further, the primary judge stated that, in the exercise of discretion, his Honour would have refused relief on discretionary grounds.

The appeal to this Court

44    The appellant’s notice of appeal in this Court advanced three grounds –

1.    The Federal Circuit Court erred in failing to find that the second respondent had denied procedural fairness to the appellant in the conduct of the International Treatment Obligations Assessment (‘ITOA’).

a)    The second respondent found that there was no basis for a claim that current or former members of the Karuna group or other paramilitaries posed a threat to the appellant, based on certain country information.

b)    The second respondent failed to put the country information on which the second respondent’s finding was based to the appellant and give him an opportunity to respond.

2.    The Federal Circuit Court erred in finding that the second respondent applied the correct standard under international law for cruel, inhuman or degrading treatment or punishment.

a)    The Federal Circuit Court found (correctly) at [128] that the question on an ITOA “is whether Australia owes non-refoulement obligations not to return a person to a receiving country and that is to be determined upon the applicable international convention.”

b)    The Court erred in finding at [130] that the second respondent applied the correct standard to the assessment of cruel, inhuman and degrading treatment or punishment under international law.

c)    The Court erred in failing to find that the second respondent, having found it was highly likely that the appellant would be detained, and having further found that the “threshold of significant harm” would not be reached because harm would not be intentionally inflicted, had made a jurisdictional error.

3.    The Federal Circuit Court erred in finding that if the second respondent had made an error, the error was not jurisdictional.

45    The first two grounds of appeal reflect the appellant’s grounds of review below. The third ground of appeal is additional, and addresses the primary judge’s obiter comments that, if his Honour had found that the assessor erred by applying the wrong standard, his Honour would nonetheless not have characterised that error as being jurisdictional, and would have refused relief on discretionary grounds.

46    On 27 February 2019, the Minister filed a notice of contention that relevantly contended that –

The Federal Circuit Court should have dismissed ground 2 of the further amended application filed on 27 June 2017 on the basis that the Appellant did not prove that the Second Respondent made a jurisdictional error by considering or applying concepts or provisions in the Migration Act 1958 (Cth) for the purpose of making his assessment, or that the Minister or officer under the Act would make a jurisdictional error in making a future migration decision that relied on that assessment.

47    The second respondent filed a notice submitting to any order that the Court may make in this appeal, save as to costs.

The appellant’s submissions

48    The appellant’s submissions are summarised as follows.

Ground 1 – denial of procedural fairness

49    The appellant submitted that he was denied procedural fairness in the ITOA process, and that the primary judge erred in failing to so hold. The appellant’s submission focussed on that part of the ITOA Report, set out at [26] above, which addressed his claim to fear harm from the Karuna Group if he was returned to Sri Lanka. The appellant submitted that he was denied procedural fairness because the assessor found that, given substantially changed country conditions since the end of the civil war and the fact that the Karuna Group’s leaders had entered politics in Sri Lanka legitimately, there was no basis for his claim that the Karuna Group posed a threat of serious harm to him, without having put the relevant propositions from the country information on which those findings were based to him for comment.

50    The appellant identified the four sources of country information on which those findings were based, set out at [27] above, and addressed each in turn. In respect of the UNHCR Guidelines and the February 2015 DFAT Report, the appellant accepted that those documents were put to him during the ITOA process, but submitted that they were put in relation to different issues that did not involve the Karuna Group, and that was not sufficient to discharge the obligation of procedural fairness. In respect of the December 2015 DFAT Report and the Political Handbook, the appellant relied on the primary judge’s finding that neither was drawn to his attention at any time in the ITOA process.

51    The appellant submitted that the significance of his loss of opportunity to be heard was illustrated by considering the ITOA Report’s treatment of another matter in relation to his claim to fear harm from the Karuna Group, which was put to him for comment. The appellant identified how the assessor had put to him a concern about the veracity of his claim that he was staying with his uncle in Batticaloa in 2008-2009, and how he had responded, and that the assessor had accepted his explanation in finding that the Karuna Group had attempted forcibly to recruit him. The appellant submitted that by contrast, the proposition relating to the supposedly declining threat of the Karuna Group, or the country information on which the assessor relied for that proposition, was never put to him, and his loss of opportunity to respond was material to the review.

Ground 2 – application of the wrong standard

52    The appellant submitted that the primary judge was correct to find that the assessor was instructed to review the appellant’s case for the purpose of assessing whether Australia’s non-refoulement obligations under certain international conventions were engaged, and that the international law standard under those international conventions was the proper standard to be applied. The appellant submitted that this was reflected in the Department’s correspondence to the appellant and the ITOA Report itself, which stated that the ITOA would consider Australia’s non-refoulement obligations under the Refugees Convention, the Convention Against Torture and the ICCPR. The appellant addressed those parts of the Department’s letter dated 12 March 2015 and the ITOA Report, set out at [14] and [23] above, which stated that “various provisions of the [Act] contain concepts relevant to assessing the non-refoulement obligations arising under the above treaties and reflect Australia’s interpretation of those obligations” and that “this assessment will use relevant provisions contained in the Act, even though this is not an assessment of a protection visa application”. The appellant submitted that those parts of the Department’s correspondence and the ITOA Report permitted the assessor to have regard to the Act for the majority of issues where the content of the Act mirrored the content of Australia’s non-refoulement obligations under the international conventions, but not where there was divergence. The appellant submitted that his construction of the assessor’s instructions accorded with the purposes of the ITOA. The appellant submitted that the primary purpose was to inform the Minister as to whether the proposed removal of the appellant under s 198 of the Migration Act would cause Australia to breach its international non-refoulement obligations. The appellant also submitted that a potential “flow-on” purpose was that if the ITOA found that removal would breach Australia’s international non-refoulement obligations, but at the same time the appellant would not satisfy the criteria for the grant of a protection visa because of a difference between Australia’s international obligations and that criteria, the Minister might seek to exercise his personal power under s 195A to grant the appellant a visa to avoid potential indefinite detention.

53    The appellant submitted that since the international law standard applied, to the extent that the content of a non-refoulement obligation under an international convention differed from the content of the complementary protection criteria under the Migration Act, the assessor was required to apply the criteria under the applicable international convention and not the Act. The appellant submitted that the assessor erred by applying the test for complementary protection under the Act, rather than the test under Article 7 of the ICCPR, in considering the real risk that the appellant would be exposed to cruel, inhuman or degrading treatment or punishment if temporarily detained in Sri Lanka. The appellant submitted that the obligation under Article 7 of the ICCPR did not rest on a requirement that there be an intention, unlike the corresponding complementary protection criteria in ss 36(2)(aa), 36(2A)(d) and 36(2A)(e), as informed by definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s 5(1) of the Act. The appellant submitted that the assessor erred by relying on MZZZR, which considered the application of the complementary protection criteria, and applying the intention requirement under the Act. The appellant submitted that in doing so, the assessor engaged in a task which the assessor was not instructed to undertake – namely, assessing complementary protection under s 36(2)(aa) of the Act – and failed to carry out the task that that the assessor was instructed to undertake – namely, assessing whether any of Australia’s non-refoulement obligations, relevantly including Article 7 of the ICCPR, were engaged. The appellant submitted that the ITOA Report was therefore affected by jurisdictional error, and the primary judge erred in failing to so hold.

Ground 3 – error was jurisdictional

54    The appellant submitted that the assessor’s error in applying the wrong standard was jurisdictional. The appellant submitted that contrary to the primary judge’s obiter comments, the assessor’s application of the wrong standard was not sufficiently compliant with her instructions to review the appellant’s case for the purpose of assessing whether Australia’s non-refoulement obligations under certain international conventions were engaged: cf, Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [23] and [42] (Kiefel CJ, Gageler and Keane JJ), which was cited by the primary judge at [135], footnote 93, of his Honour’s reasons. The appellant submitted that the assessor’s error in applying the wrong standard was material, given that having found that it was highly likely that the appellant would be temporarily detained if returned to Sri Lanka, it was plain that the application of the correct standard could have made a difference to the outcome of the ITOA Report.

The Minister’s submissions

55    The Minister’s submissions are summarised as follows.

Ground 1 – denial of procedural fairness

56    The Minister submitted that the appellant was not denied procedural fairness in the ITOA process. The Minister submitted that the appellant suffered no practical injustice from the assessor considering the country information cited in the impugned footnotes, or making the findings that he did arising from that information, and that the primary judge was correct to so hold.

57    The Minister focussed on the two impugned findings – that there were substantially changed country conditions since the end of the civil war, and that the Karuna Group’s leaders had entered politics in Sri Lanka legitimately. The Minister did not advance an argument that the third finding, namely the appellant’s persistent health condition, could stand alone to support the ultimate finding that the Karuna Group did not pose a threat of serious harm to him, such that any denial of procedural fairness in respect of the first or second integer finding was not material. In respect of the first finding, the Minister submitted that both the Department and the appellant had referred to the changed country conditions during the ITOA process, including by referring to the UNHCR Guidelines and the February 2015 DFAT Report, and that the proposition was trite. In respect of the second finding, the Minister highlighted that the appellant’s representative’s own submissions of 7 May 2015, referred to at [15] above, had referred to the entry of members of the Karuna Group into Sri Lankan politics. The Minister submitted that the appellant was sufficiently on notice of information indicating substantially changed conditions in Sri Lanka since the end of the civil war, and also that the Karuna Group’s leaders had entered Sri Lankan politics. Further, the Minister submitted that the appellant did not point to anything in the country information cited by the assessor that was substantively new or different from the country information of which the appellant was aware, and noted that the impugned country information cited by the assessor had not been adduced in evidence.

Ground 2 – application of the wrong standard

58    In respect of this ground of appeal, the Minister relied on his notice of contention. That notice was to the effect that the primary judge should have dismissed the corresponding ground of review below on the basis that the appellant did not prove that the assessor made a jurisdictional error by considering or applying provisions in the Migration Act.

59    The Minister accepted that the standard to be applied was to be determined by reference to the instructions given to the assessor. The Minister submitted that, properly understood, those instructions were to assess Australia’s obligations using the relevant Migration Act provisions and the case law interpreting those provisions. That relevantly included the intention requirement in the definitions of “cruel or inhuman treatment of punishment” and “degrading treatment or punishment” in s 5(1) of the Act, which were picked up in the complementary protection criteria in ss 36(2)(aa), 36(2A)(d) and 36(2A)(e) of the Act. The Minister submitted that s 36(2) of the Act reflected Australia’s interpretation of its international law non-refoulement obligations, and was the means by which Australia gave effect to those obligations in domestic law. The Minister submitted that whether or not other interpretations of those international law obligations were available, or even were correct, was not to the point. The Minister emphasised that the appellant’s construction of the assessor’s instructions would, in effect, make international law directly enforceable – the assessor would have been required to interpret and apply international law, and the court below and on appeal would be required to consider whether international law was properly applied. The Minister submitted that was unrealistic and inconsistent with the scheme of the Migration Act, noting that international law is contested and nation states are entitled to articulate and determine their own interpretation of international law. The Minister further submitted that it was highly unlikely that some freestanding entitlement to the correct application of international law, as pressed by the appellant, would raise a justiciable issue.

60    The Minister submitted that to properly understand the assessor’s instructions, it was necessary to have regard to the history of the appellant’s migration review processes, so as to understand the context and purpose of the ITOA assessment. We have summarised that history at [3]-[13], above. The Minister emphasised that the Department conducted a Refugee Status Assessment, which was confirmed by an Independent Merits Review, both of which found that the appellant did not satisfy the criteria for a protection visa in s 36(2) of the Act, which at that time picked up the definition of “refugee” in the Refugees Convention and did not include the complementary protection criteria. Then, after the complementary protection criteria commenced operation on 24 March 2012, the Department conducted a further Post Review Protection Claims Assessment, so as to consider the appellant’s protection claims against the complementary protection criteria. However, the Department’s Post Review Protection Claims Assessment was defective, as reflected in the Departmental record that stated that it was “SZQRB affected” and the consent order made in the earlier judicial review proceeding finding that the Post Review Protection Claims Assessment had not been made according to law. The Minister submitted that in light of that context, it was apparent that the Department’s next step was to undertake the ITOA to correct that mistake by conducting a proper assessment of the appellant’s protection claims against the complementary protection criteria. The Minister submitted that was directed to assisting him to make a decision on whether to “lift the bar” under s 46A(2) of the Act, so that the appellant could make a valid protection visa application. The Minister submitted that given that such an application could only succeed if the appellant satisfied the criteria in ss 36(2)(a) or (aa) of the Act, the purpose of the ITOA was to conduct a surrogate assessment of those criteria so that the Minister could be advised on whether lifting the bar would be futile, or if it may result in the appellant being granted a protection visa (subject to him satisfying other criteria).

61    The Minister also submitted that to properly understand the assessor’s instructions, it was necessary to have close regard to the ITOA process and the ITOA Report. The Minister emphasised those parts of the Department’s letter to the appellant dated 12 March 2015 (see [14], above) and the introduction to the ITOA Report itself (see [23], above), which stated in identical terms –

Various provisions of the Migration Act 1958 (the Act) contain concepts relevant to assessing the non-refoulement obligations arising under the above treaties and reflect Australia’s interpretation of those obligations. Therefore, this assessment will use relevant provisions contained in the Act, even though this is not an assessment of a protection visa application.

62    Further, the Minister emphasised that correspondence between the appellant and the Department during the ITOA process made reference to provisions in the Act relating to both the refugee criterion (s 36(2)(a)) and the complementary protection criterion (s 36(2)(aa)). In relation to the issue of the intention requirement in the statutory definitions of “cruel or inhuman treatment or punishment” and “degrading treatment of punishment”, and the risk that the appellant would be temporarily detained if returned to Sri Lanka, the Minister emphasised that the appellant’s representative’s own submissions of 7 May 2015 proceeded on the basis that the intention requirements in the Act applied to the ITOA –

While we concede that under Australian law, prison conditions alone may not amount to cruel or inhuman treatment or punishment or degrading treatment or punishment without an intention element, we emphasise that the fact of imprisonment may led [sic] to a real risk of further significant harm, as it gives rise to a risk of that person being tortured. The fact that the remand period may be short does not mitigate against this risk.

Intention may be inferred from the circumstances when it is evident from the facts that it was evidence that pain or suffering was or may be knowingly inflicted.

63    The Minister also emphasised that the Department’s letter of 1 December 2015 invited specific comment from the appellant on this issue by summarising the Court’s finding in MZZZR and stating that “I may conclude that these circumstances are similar to yours, and therefore that prison conditions would not amount to significant harm because they would not reflect an intention to inflict harm.” The appellant’s representative’s letter in response dated 21 December 2015, and the attached statutory declaration made by the appellant on 22 December 2015, did not comment on that issue.

Ground 3 – error was jurisdictional

64    The Minister submitted that his notice of contention should be upheld and consequently ground 2 of the appeal should be dismissed, and ground 3 of the appeal did not arise.

Consideration

Ground 1 – denial of procedural fairness

Obligation to afford procedural fairness

65    The Minister has consistently accepted, in the proceeding below and on appeal to this Court, that the common law rules of procedural fairness applied to the ITOA process the subject of the present appeal. As stated by the primary judge, it was not the existence of an obligation to afford procedural fairness in the ITOA process, but rather the scope and operation of that obligation in the circumstances of the case, which was at issue. That remains the issue on appeal.

Content of the obligation to afford procedural fairness

66    The question whether a procedure was fair is necessarily tied to the particular facts of the case: SZBEL v Minister for Immigration [2006] HCA 63; 228 CLR 152 at [26]. A finding of procedural fairness on particular facts is not binding as if it were a legal principle to which the doctrine of precedent attaches. However, findings in earlier cases may provide useful guidance in relation to the application of those principles.

67    Procedural fairness is concerned with, and requires, a fair procedure, and not a fair outcome: SZBEL at [25]. Fairness is not an abstract concept, and the concern of procedural fairness is to avoid “practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; 214 CLR 1 at [37] (Gleeson CJ). In the context of the present appeal, the assessor conducting the ITOA was required to adopt a procedure that was “reasonable in the circumstances” and which did not “so constrain the opportunity of the person [the appellant] to propound his or her case for a favourable exercise of the power to amount to a ‘practical injustice’”: SZSSJ at [82]. The content of the obligation to afford procedural fairness must be assessed in its legal and factual context. The real question is what is required to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which it is to be made: Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [30] (Kiefel CJ, Bell and Keane JJ).

68    The statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires: SZBEL at [26]. In the present appeal, the nature of the ITOA and its function in the legislative scheme of the Migration Act informs the content of the obligation to afford procedural fairness in the ITOA process. The Minister, by his acceptance that procedural fairness was to be afforded to the appellant in the ITOA process, must be taken to have accepted that the assessor undertook the ITOA process under and for the purpose of informing the exercise of a power under the Migration Act, such that the obligation to afford procedural fairness was implied as a condition of the exercise of the statutory power through the application of a common law principle of statutory interpretation: SZSSJ at [74]-[75]. The Minister’s concession obviated the need to establish as a question of fact whether the Minister personally made a procedural decision to consider whether to make a substantive decision to exercise a non-delegable discretionary power, with that procedural decision leading the Department to instruct the assessor to perform the ITOA, so as to inform the Minister’s substantive decision: cf, SZSSJ at [74]-[75]. During the hearing of the appeal, the parties identified that the ITOA was directed towards informing the Minister’s potential exercise of one of two non-delegable discretionary powers under the Migration Act. The Minister submitted that the ITOA was undertaken to inform his potential exercise of his power under s 46A(2) to “lift the bar” to allow an unauthorised maritime arrival, like the appellant, to make a valid application for a visa. The appellant submitted that the ITOA was undertaken to inform the Minister’s potential exercise of his power under s 195A to grant a visa to a person who is in detention. The appellant submitted that while he was not in detention during the ITOA process or afterwards, if he was to be removed from Australia under s 198 of the Act, that would necessarily involve him being detained, and so the Minister’s power to grant a visa to a person in detention under s 195A of the Act would then be enlivened.

69    The obligation to afford procedural fairness includes a general requirement to give a person who is the subject of a decision the opportunity to ascertain the relevant issues and comment on any adverse information before the decision is made. As with the content of the obligation to afford procedural fairness generally, the content of this particular requirement to put adverse information must be assessed in its legal and factual context. An often cited formulation, to which the parties in this appeal referred, is that “an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made”: Kioa v West [1985] HCA 81; 159 CLR 550 at 629 (Brennan J). That formulation has been cited with approval on many occasions: see, for example, Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at [15]-[17] (the Court); Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [2] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).

70    The content of the requirement to put adverse information has received particular attention in the context of migration cases in which the relevant adverse information was contained in country information that was not specific to the person who was the subject of the decision. In the present circumstances where the ITOA process engaged the common law obligation to afford procedural fairness, the provisions in the Migration Act that exclude country information from the content of the statutory procedural fairness hearing rules that govern other review processes under the Act, did not apply: cf. ss 359A(4)(a), 424A(3)(a) and 473DE(3)(a). The existence and content of an obligation to put adverse country information must be assessed on the common law standard. Country information can be repeated in many documents. This may require particular focus on whether any failure to put particular documents containing country information was reasonable in the circumstances, or amounted to practical injustice. The person who is the subject of a decision should be given the substance of adverse country information, so that he or she may meaningfully respond to it: Plaintiff M61/2010E v The Commonwealth of Australia [2010] HCA 41; 243 CLR 319 at [98] (the Court). However, procedural fairness does not necessarily require that every detail of the country information be put to the person, or that the person be provided with a copy of every documentary source of country information: see, for example, Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; (2012) 200 FCR 233; MZYPY v Minister for Immigration and Border Protection [2014] FCAFC 68.

71    In SZQHH, which was relied upon by the Minister in this appeal, the Full Court considered a claim that the appellant was denied procedural fairness in a review process conducted by the Department because the reviewer relied on country information that was not put to the appellant. The appellant was an Afghan national who claimed to fear persecution on the grounds of his Hazara ethnicity and Shia Muslim religion. The reviewer found that Hazara Shias did not face a situation in Afghanistan that gave rise to a well-founded fear of persecution. The reviewer relied on multiple sources of country information, relevantly including a newspaper article in the Christian Science Monitor, which had not been put to the appellant. The Full Court reviewed the Christian Science Monitor article, which was in evidence, and found that it did not contain anything substantively new or different from the other country information that was put to the appellant. The Full Court held that the non-disclosure did not amount to a failure to afford procedural fairness. The joint judgment of Rares and Jagot JJ at [30] considered the operation of the obligation to put adverse information in that context –

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.

72    In MZYPY, which was also relied upon by the Minister in this appeal, the Full Court considered a similar claim that the appellant was denied procedural fairness in a review process conducted by the Department because the reviewer relied on country information that was not put to the appellant. The appellant was a Sri Lankan national who claimed to fear persecution, or face a real risk of significant harm, on the grounds of his claimed prior involvement with the LTTE, his claim that the Karuna Group was looking for him, and his status as a returned failed asylum seeker. The joint judgment of Flick, Griffiths and Gleeson JJ at [36]-[38] endorsed the reasoning of Rares and Jagot JJ in SZQHH, and at [35] stated the principle 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.” The Full Court at [39] found that two documents of country information, which addressed the issue of the treatment of failed Tamil asylum seekers who had returned to Sri Lanka, and which had not been put to the appellant, did not contain any information that was not also set out in other country information that had been disclosed to the appellant. Those two documents were not in evidence before the Full Court, so the Full Court was required to assess the issue by having regard only to the reviewer’s references to those documents in the report assessing the appellant’s claims. The Full Court stated at [40] that “in the absence of the appellant pointing to anything in the country information which was not disclosed, any argument as to there being a denial of procedural fairness is an argument without substance.”

73    By contrast, in BRF038 v Republic of Nauru [2017] HCA 44; 91 ALJR 1197, which was relied upon by the appellant in this appeal, the High Court, exercising original jurisdiction under s 5(2) of the Nauru (High Court Appeals) Act 1976 (Cth), considered the same issue whether a failure to put adverse country information amounted to a denial of procedural fairness, and held that it did. In that case, the High Court considered the common law standard of procedural fairness, which was expressly preserved by the relevant Nauruan migration legislation to apply to the relevant tribunal in its review of migration determinations of the Secretary of the Department of Justice and Border Control of Nauru. The appellant was a Somalian national who applied for refugee status on the basis of his claim to fear persecution in Somalia arising from his membership of the Gabooye tribe. The appellant claimed that the Somalian authorities were unwilling to assist him and his family due to their ethnicity, and that there was nowhere in Somalia where he would be safe from racism, discrimination and militant groups. The tribunal found that the appellant did not have a well-founded fear of persecution as a result of his membership of the Gabooye tribe. In doing so, it relied on country information that indicated that the Somaliland police force included police officers from every tribe to support a finding that, if returned to Somalia, the appellant would have some redress from the acts of others. The Tribunal did not put the appellant on notice of the issue of the tribal composition of the Somaliland police force, or the substance of the country information that every tribe was included in the police force, at any point in the process. The High Court held that the tribunal failed to afford the appellant procedural fairness.

No denial of procedural fairness

74    Turning to the present appeal, we agree with the primary judge’s conclusion that the appellant was not denied procedural fairness in the ITOA process. Adopting the language of the High Court in SZSSJ, the process was reasonable in the circumstances, and the appellant was not denied the opportunity to propound his case so as to amount to practical injustice.

75    The appellant submitted that he was denied procedural fairness because adverse country information that was relied upon by the assessor in making two findings, which supported an ultimate finding that the Karuna Group did not pose a threat of serious harm to him, was not put to him. The focus of the enquiry is whether the substance of the country information was put to the appellant, and not whether every detail of the country information was put to the appellant, or the appellant was provided with a copy of every documentary source of country information.

76    The first finding was that country conditions had substantially changed in Sri Lanka since the end of the civil war. The appellant was on notice of this issue and potential finding. Both the appellant and the Department had referred to the changed conditions in Sri Lanka during the ITOA process. We accept the Minister’s characterisation that the proposition that country conditions in Sri Lanka had substantially changed since the end of the civil war was trite. Those changed country conditions were central to the country information relevant to the ITOA assessment, and the appellant was on notice of that. In making the finding that country conditions had substantially changed, the assessor cited the 2012 UNHCR Guidelines, the February 2015 DFAT Report and the December 2015 DFAT Report. The 2012 UNHCR Guidelines and February 2015 DFAT Report were put to the appellant during the ITOA process. While the December 2015 DFAT Report was not put to the appellant during the ITOA process, the appellant has not pointed to anything in that report that was substantively new or different from country information of which the appellant was aware, and did not put the December 2015 DFAT Report into evidence: cf, SZQHH and MZYPY. This is distinguishable from the facts of BRF038, where the Tribunal did not raise the issue of the tribal composition of the Somaliland police force at any point. Further, the language used by the assessor in footnote 90 of the ITOA Report itself suggests that the assessor did not rely on anything substantively new or different in the December 2015 DFAT Report. The footnote lists the UNHCR Guidelines and the February 2015 DFAT Report and then states, “(also in update “DFAT Country Report: Sri Lanka”, DFAT, 18 December 2015, CISEC96CF14143 [the December 2015 DFAT Report])”. The assessor adopted this form of reference to country information being derived from the February 2015 DFAT Report and being “(also in update [the December 2015 DFAT Report])” in numerous other footnotes in the ITOA Report. On the evidence as it is, we infer that the assessor’s use of brackets and the words “also in” indicate that the assessor did not derive any substantively new or different information from the December 2015 DFAT Report, but rather that it contained country information that was also in the earlier February 2015 DFAT Report. The appellant has not established that he was denied procedural fairness in respect of any failure to put country information relied upon in making this first finding. The finding was trite and no practical injustice was occasioned to the appellant.

77    The second finding was that the Karuna Group’s leaders had entered Sri Lankan politics legitimately. Again, the appellant was also on notice of this issue and potential finding. The appellant’s representative’s own submissions of 7 May 2015, referred to at [15] above, detailed the entry of the Karuna Group into Sri Lankan politics. In making the finding that the Karuna Group’s leaders had entered Sri Lankan politics legitimately, the assessor cited the Political Handbook, which had not been put to the appellant. However, the appellant has not pointed to anything in the Political Handbook that was substantively new or different from country information of which the appellant was aware, and it was not in evidence: cf, SZQHH and MZYPY. This, too, is distinguishable from the facts of BRF038, for the reason given earlier. It is difficult to see how, in the absence of evidence to the contrary, the failure to put the Political Handbook to the appellant constituted a denial of procedural fairness amounting to practical injustice, when the appellant himself presented other country information to the assessor that supported the same finding that was made citing the Political Handbook.

78    The appellant’s submissions on this ground of appeal extended beyond those findings themselves, to a submission that he was denied procedural fairness in relation to the assessor’s ultimate finding that the Karuna Group did not pose a threat of serious harm to him. For ease of reference, we have again extracted the impugned passage of the ITOA Report –

Given the substantially changed country conditions since the end of the civil war,[fn 90] the fact the Karuna group’s leaders have since entered politics in Sri Lanka legitimately,[fn 91] and the fact the claimant was able to avoid recruitment in the past due to a health condition which persists, I do not consider there is an objective factual basis supporting the proposition that the Karuna group or other paramilitaries formerly operating in the Batticaloa area continue to pose a threat of serious harm to the claimant.

79    We consider that it is reasonably clear in the above passage that the assessor relied on the country information cited in footnotes 90 and 91 to support the first two findings, and not the ultimate finding. The footnote references are included after the parts of the sentence that record those particular findings, and not after the final part of the sentence in which the assessor reaches the ultimate finding. By reference to the first two findings (and the third finding in relation to the appellant’s health), the assessor then drew the conclusion that the Karuna Group did not pose a threat of serious harm to the appellant. To the extent that the appellant’s claim of a denial of procedural fairness in relation to the ultimate finding relies on a failure to put to him the country information cited in those footnotes, it cannot be accepted because we have found that the substance of that country information was put to the appellant. The assessor was not required to give the appellant a running commentary of her proposed conclusions, or provide the appellant with an opportunity to comment on those proposed conclusions: SZBEL at [48]. The assessor was not required to put the ultimate finding to the appellant for comment.

80    The appellant’s submissions directed to the materiality of the lost opportunity to be heard, which the appellant made by reference to the fact of the assessor accepting the appellant’s response to the assessor’s initial concern regarding the appellant’s stay with his “uncle” in Batticaloa in 2008-2009, do not fall for consideration.

81    We reject the appellant’s first ground of appeal.

Ground 2 – application of the wrong standard

The ITOA was framed by the assessor’s instructions

82    The parties accepted that the scope of the ITOA was framed by the assessor’s instructions, and that those instructions therefore determined the proper standard to be applied. The parties embraced the reasoning in SZSLM v Minister for Immigration and Border Protection [2017] FCA 413, in which Perram J held at [9] that “[t]he obligation of the officer conducting the ITOA to consider matters is, in my opinion, a function of the instructions which are given to that officer”, and at [13] that the “instruction must have both provided the authority to, and delineated the jurisdiction of, the officer conducting the ITOA.” In SZSLM, there was no direct evidence before the Court of the instructions given to the ITOA assessor. Perram J identified the content of the instructions given to the assessor by inference from the Department’s letter to the appellant, which advised him that an ITOA was to be conducted, and the introduction section of the ITOA Report itself, which set out the purpose for which the ITOA had been undertaken. The parties to this appeal agreed that was the correct approach.

The issue is the assessor’s instructions

83    The issue for determination under this ground of appeal is the content of the instructions given to the ITOA assessor. The appellant submitted that the assessor was instructed to apply the standard under the international conventions, and that where the Migration Act differed from the international conventions, the assessor erred by applying the Act and not the conventions. The Minister submitted that the assessor did not err by applying the relevant Migration Act provisions, which reflected Australia’s interpretation of its international non-refoulement obligations under the relevant conventions, and was the means by which Australia gave effect to those obligations in domestic law. The appellant conceded that if the Minister’s construction of the instructions was accepted, then there was no jurisdictional error and this ground of appeal must fail.

84    The controversy before this Court is to determine what the assessor was asked to do in conducting the ITOA. It is not necessary at that stage of the inquiry to assess the extent of any divergence between the international law standard under the international conventions and the Act, and in particular, the divergence in the Act imposing an intention requirement in the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”: cf, SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [77]-[78] (Edelman J), with that reasoning adopted at [4] (Kiefel CJ, Nettle and Gordon JJ).

Content of the assessor’s instructions

85    As in SZSLM, there was no direct evidence of the instructions given to the ITOA assessor. Proof of the content of those instructions must therefore rest on the inferences that arise from the circumstances that are the subject of evidence. That evidence includes the history of the appellant’s earlier migration review processes, the correspondence between the Department and the appellant during the ITOA process, and the ITOA Report itself.

86    For the following reasons, we find that the correct inference is that the assessor was instructed to apply the international conventions, but on the basis of what was described as Australia’s interpretation of those obligations, as reflected in the relevant Migration Act provisions.

87    First, we consider that the Department’s correspondence with the appellant in relation to the ITOA process and the ITOA Report itself support the inference that the assessor was instructed to apply the international conventions as reflected in the relevant Migration Act provisions. The key passages of the Department’s letter dated 12 March 2015, which informed the appellant of the ITOA process to be undertaken, and which we have set out at [14] above, support that inference. While those passages do not unequivocally resolve the issue, our view is that it is reasonably clear that the purpose of the third paragraph set out at [14] above was to explain and emphasise a view that the relevant Migration Act provisions represented Australia’s interpretation of its obligations under the international conventions, and that the assessor would apply those provisions, and impliedly the judicial interpretation of those provisions, in conducting the ITOA. While the Department’s letter stated that those provisions contained concepts that were “relevant”, rather than determinative, of Australia’s non-refoulement obligations, we consider that the later statement that those provisions “reflect Australia’s interpretation of those obligations” supports the inference that the assessor was instructed to apply the international conventions as reflected in the relevant provisions in the Act. That construction of the assessor’s instructions is reinforced by Part C of the ITOA Report. The beginning of that Part summarised Australia’s non-refoulement obligations under the Convention Against Torture and the ICCPR by reference to how those conventions are reflected in the relevant provisions of the Act –

Australia’s non-refoulement obligations under the CAT and ICCPR arise where there are substantial grounds for believing that, as a necessary and foreseeable consequence of a person being removed from Australia to a receiving country, there is a real risk the person will suffer significant harm.

A person will suffer significant harm if:

   (a)    the person will be arbitrarily deprived of their life; or

   (b)    the death penalty will be carried out on the person; or

   (c)    the person will be subjected to torture; or

(d)    the person will be subjected to cruel or inhuman treatment or punishment; or

   (e)    the person will be subjected to degrading treatment or punishment.

The above test is contained in subsections 36(2)(aa) and 36(2A) of the Migration Act. These provisions reflect Australia’s interpretation of its non-refoulement obligations under the CAT and ICCPR.

(emphasis added)

88    We acknowledge that it has been found that the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s 5(1) of the Act do not reflect Australia’s international obligations: SZTAL at [77]-[78] (Edelman J), with that reasoning adopted at [4] (Kiefel CJ, Nettle and Gordon JJ). However, our view is that is not to the point in this appeal. The issue is what the assessor was instructed to do in conducting the ITOA.

89    Second, we consider that the history of the appellant’s migration review processes, which we have summarised at [3]-[13] above, supports the inference that the assessor was instructed to apply the international conventions as reflected in the relevant provisions of the Act. We accept the Minister’s submission that the history supports an inference that the ITOA was undertaken as a surrogate assessment of the protection visa criteria, so as to inform the Minister’s potential exercise of his power under s 46A(2) of the Act to “lift the bar” for the appellant to make a valid protection visa application. The Department assessed the appellant’s case against the refugee criterion, now contained in s 36(2)(a) of the Act, by its Refugee Status Assessment and Independent Merits Review, and found that the appellant did not satisfy that criterion. The Department then sought to assess the appellant’s case against the new complementary protection criteria, contained in s 36(2)(aa) of the Act. Its first attempt to do so through its Post Review Protections Claims Assessment was flawed, and the Department acknowledged that it could not be relied on. The Department’s next step was to correct that error by conducting an assessment of the appellant’s protection claims, including against the complementary protection criteria, through the ITOA. The correspondence supports an inference that the ITOA was directed to whether the Minister should exercise his power under s 46A(2) to “lift the bar” –

(1)    The Department’s letter to the appellant dated 10 October 2012 referred to the complementary protection criteria under the amended legislation that came into force on 24 March 2012, and to the question whether it was in the public interest to allow the appellant to apply for a visa.

(2)    The Department’s letter to the appellant’s representative dated 15 October 2012 referred to s 46A(2) of the Act, and stated that under that section, the Minister might allow certain persons to make a valid application for a visa if he considered it was in the public interest to do so.

(3)    The Department’s letter to the appellant dated 12 March 2015 referred to the letter of 10 October 2012 and stated –

In that letter the department informed you that your case did not meet the Minister's Guidelines for the consideration of post review protection claims and therefore was not referred to the Minister for consideration of whether it is in the public interest to allow you to apply for a Protection visa.

A few lines below was a sub-heading, “New ITOA to be made in relation to your claims”. The letter stated that “The Department will now undertake a re-assessment of your protection claims as part of a new International Treaties Obligation Assessment”. The references to “claims” in the sub-heading and in the text of the 12 March 2015 letter are reasonably to be understood as being references to the claims that the appellant had previously made in support of his application that the Minister exercise power under s 46A(2) to allow him to make a valid application for a protection visa.

90    In reaching this conclusion, we have not ignored the following sentence in the Department’s letter of 12 March 2015 that is included in the passages set out at [14] above –

This ITOA will assess whether there are any non-refoulement concerns which would prevent the department from progressing removal arrangements in your case.

91    However, in context, any removal arrangements were secondary to the proposed re-assessment of the appellant’s claims. The more immediate consequence of the assessment was to inform whether the Minister wished to consider exercising the power under s 46A(2) of the Act to “lift the bar”.

92    We reject the appellant’s second ground of appeal.

Ground 3 – error was jurisdictional

93    Given that we have found that the assessor did not err by applying the wrong standard in conducting the ITOA, the appellant’s third ground of appeal does not arise.

Conclusion

94    For the above reasons, the appellant’s appeal is dismissed. The appellant should pay the Minister’s costs of the appeal.

Associate:    

Dated:    3 June 2020