FEDERAL COURT OF AUSTRALIA

SZQFY v Minister for Immigration and Citizenship [2012] FCA 486

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1    The appellant is a Sri Lankan citizen of Tamil ethnicity. On 20 March 2010, the appellant arrived on Christmas Island by boat, and was subsequently detained. On 6 June 2010, he lodged an application for a refugee status assessment alleging that he was a refugee to whom Australia owed protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (the Convention).

2    The appellant claimed that he feared persecution on the grounds of his Tamil race and antigovernment imputed political opinion and on the basis of being a member of a social group of failed asylum seekers.

3    The appellant claimed that when he was very young the Sri Lankan army had come to the family’s house and shot and killed his father, three uncles and two male cousins. The appellant also claimed, that during this incident, his brother, who was three years old, had been tossed on to some rocks and sustained severe injuries from which he died six months later.

4    The appellant further claimed that in May 2006, while travelling with a friend on a motorcycle to Nelliyady from Jaffna town, he was stopped by some men in a white van and kidnapped. He suspected that the kidnappers were from either the Eelam Peoples Democratic Party or the Karuna group - groups that work closely with the Sri Lankan army. The appellant claimed that he managed to escape but his friend’s body was found two days later. He said that after this, the white van came to his house five or six times looking for him. After this incident, a close relative advised the appellant to move from Jaffna town to Colombo for his own safety.

5    In July 2006, the appellant moved to Colombo to continue his studies. The appellant claimed that in August 2006, in Colombo, he was arrested, and, after his identification was checked, he was detained for three days at the Maradana police station and a further 21 days in a gaol in Welikada on suspicion of terrorist activities because of his Tamil ethnicity. He claimed that his mother lodged a court action and that he was then released.

6    The appellant said that in October 2008, he was taken into custody by the Special Task Force of the Sri Lankan army on suspicion of being involved in a suicide bomb explosion because his mobile phone number had one digit different to a mobile phone number dialled by the suicide bomber prior to the bombing. He said he was detained for four days and tortured, but was released after his mother bribed a Criminal Investigations Division officer.

7    The appellant went on to claim that in August 2009, he was kidnapped in Colombo by people in an unidentified white van and the kidnappers demanded 50 Lakhs from his mother for his release. He said that he was released from custody by a guard after he gave the guard his ATM card, and the guard withdrew 1 Lakh from his account. He claimed that the guard who had released him had stopped a lorry and asked the driver to take the appellant to Colombo. However, when he reached his home, some armed men came to his house in search of him. He then went into hiding in a friend’s house. The armed men attended his house several times but he was not there.

8    The appellant claimed to fear returning to Sri Lanka because he is a young Sri Lankan Tamil male from the north and he would be suspected of supporting the Liberation Tigers of Tamil Eelam (LTTE). He said that he feared the Sri Lankan army, the Special Task Force, the Karuna group, and other para-military groups loyal to the Sri Lankan government. The appellant claimed to have no involvement with the LTTE.

9    On 8 July 2010, an officer of the Department of Immigration and Citizenship (the assessor) assessed the appellant as not meeting the definition of a refugee under the Convention.

10    The appellant was represented before the assessor by a migration agent, who submitted a number of reports by way of country information to the assessor and made submissions on conditions in Sri Lanka based on that information, on behalf of the appellant.

11    In his assessment report the assessor referred to a number of country information reports on the current conditions in Sri Lanka and the treatment of failed asylum seekers.

independent merits review

12    The assessor’s decision was reviewed by the second respondent (the reviewer), in his capacity as an independent merits reviewer. The appellant was represented by a migration agent who made submissions to the reviewer on behalf of the appellant. The submissions disputed the choice of the country information used by the assessor, and referred to other country information in support of the appellant’s claim.

13    The appellant, also, produced, at the interview with the reviewer, several documents which were reports and complaints about the disappearance of his relatives and people known to his mother. He had, also, sent to the reviewer a number of emails identifying certain websites which contained information about conditions in Sri Lanka, and asked that the documents be printed for use as part of his review.

14    The reviewer rejected the appellant’s application because he found that the appellant was not a credible witness. He found that his claims were far-fetched and implausible. The reviewer found that there was nothing about the appellant’s personal circumstances that would be of particular adverse interest to Sri Lankan authorities or paramilitary groups.

15    The reviewer, also, observed that both government and pro-government forces in Sri Lanka had an appalling human rights record and that it was apparent that some young Tamil males in the north and east of the country were targeted and suffered serious harm and death in the aftermath of the conflict. The reviewer went on to find that the country information disclosed that many thousands of young Tamils have now left the detention camps and returned to their home areas and that some form of normality was returning in the post-conflict environment.

16    The reviewer, also, found that country information suggested that in the absence of a LTTE connection or criminal record, a “returnee” was not likely to encounter significant problems. The reviewer was satisfied that the appellant did not have a LTTE connection or a criminal record and concluded that there was no real chance that the appellant would face harm as a returnee for reasons of race, ethnicity, or imputed political opinion.

17    In his reasons, the reviewer referred to extracts from the following country information:

(i)    the 2009 US Department of State Country Report on Sri Lanka Human Rights Practices dated 11 March 2010;

(ii)    a country advice given by the Refugee Review Tribunal dated 22 April 2010;

(iii)    an article titled “SRI LANKA: Over 200,000 Lankan Tamil IDPs return home: UNHCR” dated 29 April 2010 from the Global Tamil News; and

(iv)    the Department ’s Country Guidance Note dated 28 October 2010.

18    The appellant had not been afforded the opportunity to comment upon these reports during the review process.

19    On 12 April 2011, the reviewer recommended that the appellant not be recognised as a person to whom Australia owes protection obligations under the Convention.

the federal magistrates court

20    The appellant made an application to the Federal Magistrates Court for judicial review of the reviewer’s decision. Relevantly for this appeal, the appellant contended, as a ground of review, that the reviewer had failed to accord the appellant procedural fairness. The ground of review was particularised as follows:

(a)    The second respondent did not inform the applicant that he intended to rely upon, and failed to afford the applicant an opportunity to respond to, the following adverse country information contained in the reasons for decision:

(i)    an extract from the 2009 US Department of State Country Report on Sri Lanka Human Rights Practices dated 11 March 2010;

(ii)    an extract from a country advice given by the Refugee Review Tribunal dated 22 April 2010;

(iii)    an article titled “SRI LANKA: Over 200,000 Lankan Tamil IDPs return home: UNHCR” dated 29 April 2010; and

(iv)    an extract from the Department’s Country Guidance Note dated 28 October 2010.

(b)    That country information was credible, relevant and significant to the finding by the second respondent that the applicant was not at risk if he were returned to Sri Lanka, and that Australia therefore did not owe him a protection obligation.

21    The Federal Magistrate first considered whether the failure of the appellant to provide evidence of practical injustice flowing from the alleged procedural unfairness, was fatal to his application. The Federal Magistrate referred to two strands of authority in relation to whether it was necessary to adduce evidence of practical injustice in order for a party to succeed on a claim of breach of procedural fairness. The Federal Magistrate concluded as follows:

I conclude from this discussion that…an applicant who has established procedural deficiency on the part of an independent merits reviewer is entitled to succeed unless the Court is satisfied that it could have had no bearing on the outcome. If, at the trial, there is doubt as to what an applicant could have done with the information which was not provided or how the outcome could have been different if the information had been provided, before the Court will find that a procedural deficiency amounted to a practical injustice and thus a denial of procedural fairness, as a practical matter the applicant is likely to have to adduce evidence to explain why he or she has been unfairly treated.

22    The Federal Magistrate then considered, in detail, the allegation of procedural unfairness as identified in the ground of review referred to above.

United States Department of State Country Report

23    The Federal Magistrate found, that the reviewer had set out, in his reasons for decision, extracts from the Department of State country report; and that this report had not been among the country information which had been referred to by the assessor.

24    The appellant claimed, before the Federal Magistrate, that the reviewer used this report to form a factual basis for his conclusion that the contemporary situation in Sri Lanka was much improved since the end of the conflict.

25    The Federal Magistrate, however, held that the substance of the information from the Department of State country report set out in the reviewer’s reasons, did not need to be provided to the appellant because it raised no new issue, contained no adverse information and was not relied upon by the reviewer as a basis for his conclusion regarding the appellant’s claim for protection. In support of this conclusion, the Federal Magistrate said that the reviewer only relied on an extract from the report in support of an observation that the current environment in Sri Lanka was much better than it had been during the conflict. The Federal Magistrate observed that that information was not relevant to whether the appellant feared persecution in the then current Sri Lankan environment. The Federal Magistrate observed at [49]:

The previous situation tends to put the current one into relief and to emphasise its comparative safety but in this case the comparison was essentially irrelevant to the Reviewer’s consideration of whether, given the then-current circumstances, the applicant had a well-founded fear of persecution for a Convention reason in his country of nationality. While the past may be a guide to the future, that was not the use to which the information in question was put by the Reviewer. It was really no more than historical background material used to put the present situation in some context.

Refugee Review Tribunal country advice

26    The Federal Magistrate then considered the position in relation to the information comprising the Refugee Review Tribunal (RRT) country advice. The RRT country advice reproduced information from a number of other sources, including the United Kingdom Foreign and Commonwealth Office 2009 Report (UK Home Office Report).

27    The Federal Magistrate observed that the reviewer had referred to information in the RRT country advice that was adverse to the appellant’s claims and identified those specific extracts from the country advice. The RRT country advice stated that Tamil returnees to Sri Lanka, who were failed asylum seekers, were under no more scrutiny than any other Tamil returning to the country, which would involve being screened for LTTE association. The country advice, also, stated that all enforced returns to Sri Lanka are referred to the Criminal Investigations Department at the Colombo airport for criminal record and nationality checks. The RRT country advice went on to state that:

Tamils from the north and east of the country were likely to receive greater scrutiny than others, and that the presence of the factors below would increase the risk that an individual could encounter difficulties with the authorities, including possible detention:

●    outstanding arrest warrant

●    criminal record

●    connection with LTTE

●    illegal departure from Sri Lanka

●    involvement with media or NGOs

●    lack of an ID card or other documentation.

28    The Federal Magistrate said that the reviewer reached the conclusion, that “in the absence of a LTTE connection or a criminal record” a returnee was not likely to encounter significant problems upon return to Sri Lanka, and that neither of these factors applied to the appellant.

29    The Federal Magistrate recorded that the assessor in dealing with this issue, had cited some of the same information as had the reviewer, including the same passage as is set out in [27] above, which the assessor attributed to emanating from the UK Home Office Report. The Federal Magistrate, also, recorded that, based on this information, the assessor had found that he was not satisfied that the appellant met any of the criteria that would show that he would come under more scrutiny from the authorities upon return to Sri Lanka, than any other Tamil. This, said the Federal Magistrate, was the same conclusion to which the reviewer came.

30    The Federal Magistrate stated that, in reaching his conclusion on this matter, the reviewer had relied upon essentially the same information as was before the assessor. However, the Federal Magistrate pointed out that the only possible difference was that the reviewer had made a reference to a statement in the RRT country advice which was not cited by the assessor. This statement was that “the UN High Commissioner for Refugees had expressed no concerns as to the treatment of Tamil returnees at Colombo airport”. The Federal Magistrate, however, observed that this statement by the reviewer was supported by a footnote which referred to information that was, in substance, no different to the information relied upon by the assessor, as to the circumstances in which Tamil returnees were likely to be detained for questioning at Colombo airport.

31    The Federal Magistrate went on to state that it was evident from the submissions made to the reviewer, that the appellant and his advisers were aware of the substance of the information which was in the RRT country advice which was adverse to his claims, and were also aware of the conclusions the assessor had drawn based on that information. The Federal Magistrate, also, said that the appellant’s advisers had addressed this adverse information in their submissions to the reviewer.

32    The Federal Magistrate observed that the appellant also appreciated, and addressed, the issue of the risks faced by returnees to Sri Lanka, by providing to the reviewer an internet link to an Amnesty International statement and a Green Left Weekly newspaper article, each of which dealt with the detention of repatriated asylum seekers upon return to Sri Lanka, three of whom were Tamils. The Federal Magistrate observed that the appellant’s actions demonstrated that the appellant had an appreciation of the issues raised by the RRT country advice.

33    Accordingly, said the Federal Magistrate, the reviewer was not required to provide the appellant with the information in the RRT country advice in order to discharge his procedural fairness obligations.

Department of Immigration and Citizenship’s country guidance note

34    The reviewer, also, quoted in his reasons an extract from the Department of Immigration and Citizenship’s country guidance note, published in October 2010. It was accepted that the extract from the Department’s country guidance note was not referred to by the assessor. The guidance note was published after the assessor had made his assessment.

35    The Federal Magistrate held, however, that to the extent that the guidance note did not support the appellant’s claims in relation to the treatment of failed asylum seekers, the guidance note merely stated, more explicitly, information regarding the treatment of failed asylum seekers returning to Sri Lanka, that was before the assessor.

36    The Federal Magistrate held that the reviewer did not, therefore, have to put the contents of the information in the guidance note to the appellant in order to discharge his procedural fairness obligations.

Global Tamil News article

37    The Federal Magistrate then referred to the fact that the reviewer, in his reasons, had quoted an extract from a newspaper article from the Global Tamil News.

38    This extract contained information to the effect that many thousands of displaced Tamil civilians, had left refugee camps in the north and east of Sri Lanka and were returning home; and that the UNHCR was providing cash grants as assistance to help those people rebuild their lives.

39    The Federal Magistrate found that the extract from the Global Tamil News quoted by the reviewer, was an expanded version of the same information which had been cited by the assessor in his reasons. The Federal Magistrate said that both the reviewer and the assessor had relied on this information to conclude that the appellant would not face persecution in Sri Lanka if he was to return.

40    The Federal Magistrate went on to find that the submissions made to the reviewer by the appellant’s advisers, and the documents that the appellant submitted to the reviewer, demonstrated that the appellant had an appreciation of the issues that were raised by the newspaper article. The Federal Magistrate referred specifically to an Amnesty International report and Amnesty International articles, as well as a Tamilnet article and an internet link to an article from Green Left Weekly, which the appellant had submitted to the reviewer.

41    Accordingly, the Federal Magistrate held that the reviewer was not required to raise the information, contained in the Global Tamil News article, with the appellant, and, therefore, the appellant had not been denied procedural fairness.

42    The Federal Magistrate dismissed this ground of review.

the appeal

43    The appellant’s amended notice of appeal comprised the following grounds:

1.    His Honour erred in law in his approach to the issue of “proof of practical injustice”.

2.    His Honour erred in law in not finding that the Second Respondent failed to accord procedural fairness to the Appellant by not affording the Appellant an opportunity to respond to the following adverse country information contained in the Second Respondent’s reasons for decision:

(i)    an extract from the 2009 US Department of State Country Report on Sri Lanka Human Rights Practices dated 11 March 2010;

(ii)    an extract from a country advice given by the Refugee Review Tribunal dated 22 April 2010;

(iii)    an article titled “Sri Lanka: Over 200,000 Lankan Tamil IDPs return home: UNHCR” 29 April 2010;

(iv)    an extract from the Department’s Country Guidance Note dated 28 October 2010.

3.    His Honour erred in law in upholding the Second Respondent’s decision.

Ground 1

44    In light of the view to which I have come, it is unnecessary to determine this ground of appeal. In any event, the ground of appeal is curious, because the Federal Magistrate held that the appropriate line of authority, was that which was most favourable to the appellant.

Ground 2

45    The appellant’s first complaint is that the Federal Magistrate erred in concluding that the reviewer did not rely upon the information contained in the US State Department country report. That the reviewer relied upon the US State Department country report in making his decision, said the appellant, was evident from the fact that the reviewer referred specifically to information from that report in his reasons.

46    This complaint is not accepted. The gravamen of the Federal Magistrate’s decision in respect of the information in the report, is that the information was not relied upon by the reviewer in a manner which was adverse to the appellant’s claim.

47    In my view, the Federal Magistrate did not err in stating that the information from the US State Department country report was used by the reviewer only as part of the historical background. The only reference to the report in that part of the reviewer’s reasons which consider the merits of the appellant’s claim, is at [30] of the reviewer’s reasons. There, reference is made to the report in support of a statement that both sides of the conflict had an “appalling record of human rights breaches during the civil war”. It was not, as the Federal Magistrate correctly observed, information which was relied upon in assessing the current position in Sri Lanka in relation to persons of Tamil ethnicity.

48    Next, the appellant complained about the fact that the reviewer had not drawn to the appellant’s attention, nor sought his comment upon, the RRT country advice, the Department’s country guidance note and the Global Tamil News article. The information in each of these documents, said the appellant, dealt with the issue of Tamil returnees to Sri Lanka and was relevant to his claim to fear persecution as a returned failed asylum seeker and procedural fairness required that the appellant have an opportunity to comment thereon.

49    The appellant, also, contended that it was not sufficient to reason, as the Federal Magistrate had reasoned, that because the substance of the information was known to the appellant and his advisers, the reviewer was not required to put the material to the appellant. In particular, said the appellant, given the “official” nature of the RRT country advice and the Department’s country guidance note, and their inherent credibility and significance, the material should have been disclosed to the appellant to enable the appellant and his advisers to comment upon it.

50    In the case of Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45 (SZQHH) - a decision handed down after judgement in this case was reserved, but in respect of which the parties have made written submissions - the Full Court considered a similar argument to that made by the appellant in this case.

51    In SZQHH, the assessor, who conducted the refugee status assessment, considered whether the applicant had a well-founded fear of persecution if he returned to Afghanistan by reason of his Hazara ethnicity. In coming to the view that the applicant did not have a well-founded fear of persecution on that ground, the assessor relied upon a report by the Department of Foreign Affairs and Trade, “Afghanistan: Situation of the Hazara Minority”, which the Full Court referred to as “the DFAT report”. In essence, the DFAT report stated that the Hazara minority had for a long time been the subject of persecutory conduct, but in recent times the position of the Hazara minority had improved significantly. The current position was that whilst the Hazara minority were the subject of social discrimination, they were not the subject of persecutory conduct.

52    The applicant was represented by solicitors and migration agents in the process before the assessor. The report of the assessor referred in some detail to the DFAT report, and rejected the applicant’s claim.

53    The applicant, then, applied for an independent merits review of the decision made by the assessor. The applicant’s representative before the reviewer forwarded a 42 page submission on behalf of the applicant, to the reviewer, and, also, provided a further statement by the applicant, in response to the reasons given by the assessor for his negative assessment. The submissions referred to, and criticised, by reference to other country information, the information in the DFAT report. The reviewer interviewed the applicant on 9 February 2011, and on 11 February 2010, the reviewer gave a copy of the DFAT report to the to the applicant’s representative. Neither the applicant’s representative nor the applicant, made any submissions on the DFAT report after the reviewer had provided it.

54    The reviewer did not accept the applicant’s claim and, importantly, the reviewer did not accept the contention that the social discrimination suffered by Hazaras was so severe as to amount to persecution. The reviewer then went on to cite in support of that proposition, and, in particular, the proposition that the social discrimination against Hazaras had lessened significantly since 2001, a reference to a newspaper article in the Christian Science Monitor, “Afghanistan’s success story: The liberated Hazara minority”.

55    The reviewer had not provided the applicant with an opportunity to comment upon the Christian Science Monitor article during the review process. The applicant claimed before the Federal Magistrate in an application for judicial review, that he had been denied procedural fairness. The Federal Magistrate made a declaration to that effect.

56    The Full Court allowed an appeal against that decision.

57    At [27] in SZQHH, Rares and Jagot JJ observed:

An administrative decision-maker must determine whether particular information he or she has is credible, relevant and significant before arriving at a final decision: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 at 96 [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. If the decision-maker determines that he or she has information that is, first, credible, relevant and significant and, secondly, apparently adverse to the interests of a person who will be affected by the decision, then, ordinarily, procedural fairness requires that the decision-maker must give that person an opportunity to deal with the information. The person whose interests may be affected should be given the substance of the potentially adverse information, so that he or she may respond to it. However, in general, it is not necessary for the decision-maker to give the person whose interests may be affected a copy of any document containing the information or to identify its source: 225 CLR at 95-96 [15], 100 [29]. (Original emphasis.)

58    In relation to the substance of the information in the Christian Science Monitor article, Rares and Jagot JJ observed at [33]:

There was nothing in…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.

59    The Full Court, held that in the circumstances, it was not incumbent upon the reviewer to disclose the Christian Science Monitor article to the applicant in order to afford the applicant procedural fairness.

60    In my view, the observations of Rares and Jagot JJ in SZQHH referred to above, are apposite to this case. There is, in my view, no material difference between the circumstances in this case and the circumstances the subject of the decision of the Full Court in SZQHH.

61    In my view, the Federal Magistrate did not err, for the reasons he gave, when he found that the information to which the reviewer referred, and which was adverse to the appellant’s claim in each of the RRT country advice, the Department’s country guidance note and the Global Tamil News article, was not substantially new or different from what the appellant knew had been said in the assessor’s reasons and in the country information upon which the assessor had relied; and which had been addressed in the submissions and materials provided by the appellant and his advisers to the reviewer. Nor did the Federal Magistrate err in determining that in those circumstances, it was not incumbent upon the reviewer to provide the appellant with an opportunity to comment on the information, in order to afford the appellant procedural fairness.

62    The appellant, also, contended, however, that there was a denial of procedural fairness in the reviewer not putting the documents to the appellant as part of the review process because the reviewer, thereby, denied the appellant the opportunity to comment upon the source of the information.

63    In my view, this contention is not to be accepted.

64    The Full Court in SZQHH, found that there was no absolute obligation to disclose the source of the information which was intended to be relied upon, to an applicant. However, the Full Court (at [28] per Rares and Jagot JJ, and [70] per Flick J) did recognise that there may be circumstances where the source of the information may be relevant to the question of the reliability of the information. In that case, said the Full Court, it may be necessary to disclose the source of the information in order to comply with procedural fairness. However, in this case, the issue does not arise because the appellant accepted that the information which was not disclosed to him, was credible. Indeed, the appellant contended that because the information was from credible sources, it should have been disclosed to him. In my view, the observations of the Full Court in SZQHH do not support the contention advanced by the appellant on this issue.

65    It follows that ground 2 of the appeal is dismissed.

66    The appeal is dismissed.

67    The Court extends its appreciation to Mr Barns who appeared pro bono for the appellant.

Associate:

Dated:    11 May 2012