FEDERAL COURT OF AUSTRALIA

SZQGL v Minister for Immigration and Citizenship [2012] FCA 1011

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1    The appellant appeals from a decision of Federal Magistrate Nicholls delivered on 21 December 2011 (SZQGL v Minister for Immigration and Anor [2012] FMCA 1019) which dismissed an Application for Review of a recommendation of Michael Griffin, in his capacity as Independent Merits Reviewer (‘the Reviewer’) dated 13 April 2011. The Reviewer recommended to the first respondent, the Minister for Immigration and Citizenship (‘the Minister’), that the appellant is not a person to whom Australia owes protection obligations.

BACKGROUND

2    The appellant is a citizen of Sri Lanka who arrived on Christmas Island by boat on 7 February 2010 without a visa. The appellant was then detained pursuant to s 189(3) of the Migration Act 1958 (Cth) (‘the Act’). The appellant claimed refugee status under s 36 of the Act and sought to be declared a refugee by the Department of Immigration and Citizenship (‘the Department’).

3    As someone who arrived outside of Australia’s migration zone, the appellant was subject to the Refugee Status Assessment (‘RSA’) and Independent Merits Review (‘IMR’) processes. These processes provide persons such as the appellant with the opportunity to apply for a humanitarian visa. The RSA process involves the Department interviewing the applicant and considering whether it is satisfied that the applicant is a person to whom Australia owes protection obligations.

4    If the review is unfavourable to the applicant, then the applicant may engage the IMR process. The IMR process is carried out by an Independent Merits Reviewer. The Reviewer is tasked with making a recommendation to the Minister as to whether an applicant is a person to whom Australia owes protection obligations. If, after considering the Reviewer’s recommendation, the Department found that the applicant was someone to whom protection obligations were owed, it would prepare a submission to the Minister seeking the Minister’s agreement to exercise the power under s 46A(2) of the Act to permit the appellant to make a valid visa application under the Act.

5    The appellant claimed to be a Tamil from the north of Sri Lanka who was at risk of harm from the Sri Lankan government. He claimed to be of adverse interest to the Sri Lankan government because of his age, Tamil ethnicity, his basic military training and because he told the police that he could identify a suspect in a shooting which he claimed to have witnessed in Sri Lanka (‘the shooting incident’). The shooting incident was said to have occurred in June 2009 about 50 metres from the appellant’s shop.

THE REVIEWER’S RECOMMENDATION

6    The Independent Merits Review hearing was held at Christmas Island on 29 November 2010. In his Statement of Reasons after the review of the appellant’s claims (‘the review’) the Reviewer stated that he was satisfied that there was nothing about the appellant’s circumstances that distinguished him from the many thousands of other young Tamils in Sri Lanka. He found that the appellant was of no particular adverse interest to the authorities at the time of the heightened conflict within Sri Lanka and as a consequence he would be of even less interest to them now. The Reviewer concluded that as the appellant was of no adverse interest to the authorities, he would have no difficulty returning to Sri Lanka. The Reviewer also doubted the credibility of the appellant’s claim in relation to his witnessing a shooting and stated that the circumstances of this event did not found a basis of fearing persecution. Consequently, the Reviewer found the appellant was not a person to whom protection obligations were owed.

APPLICATION TO FEDERAL MAGISTRATES COURT

7    By Amended Application filed 29 September 2011 in the Federal Magistrates Court of Australia the appellant sought a declaration that the review was not conducted in accordance with the law, and an injunction restraining the Minister from acting upon the recommendation. The grounds upon which the appellant relied were:

1.    The Second Respondent failed to comply with the common law rules of procedural fairness by failing to provide the Applicant with an opportunity to comment on adverse information which the Second Respondent later relied on.

2.    The Second Respondent’s decision was affected by legal error as the Second Respondent failed to adequately consider or take into account and/or give genuine consideration to the grounds upon which the Applicant’s claim.

3.    The Second Respondent failed to afford procedural fairness to the Applicant, in that he failed to apply the correct legal principles and to consider the grounds put forward by the application.

4.    The Second Respondent’s decision was affected by legal error by failing to comply with the with the [sic] common law rules of procedural fairness by not having regard to all the information put forward by the Applicant.

8    As part of the first ground considered by the learned Federal Magistrate, the appellant submitted that the Reviewer did not provide his proposed adverse findings to the appellant for his comment. However, his Honour found that there was no requirement on the part of the Reviewer to provide a ‘running commentary on his thought processes’. Since the appellant and his advisor were aware that country information existed concerning the situation of Tamil returnees to Sri Lanka, and submissions had been provided to the Reviewer by the appellant on this issue, no ground of error was revealed.

9    Further, Nicholls FM found that no procedural unfairness arose from the Reviewer failing to provide certain pieces of information upon which the Reviewer based his decision. Such finding was made upon the basis that in a review process, provided the substance of the information to be relied upon by the Reviewer was put to the appellant, procedural fairness requirements would be satisfied. His Honour found that the appellant already knew the case against him in relation to the issues raised in the country information, as was evident from the submissions which the appellant had made to the Reviewer, and which had been extensively referred to by the initial assessor. His Honour found that there was no occasion to provide different information which merely adverted to the same issues. Accordingly since the review process was considered by his Honour to be a continuing process after the initial review, the Reviewer was entitled ‘to have regard to what had been said and done in the past’. Since the appellant was aware of the country information adverse to his claims, as did his advisors, no legal error resulted.

10    The second ground of the application to the Federal Magistrate asserted that the Reviewer failed to ‘adequately’ take into account or ‘give genuine consideration’ to the grounds upon which the appellant’s claim was made. The appellant claimed that the Reviewer did not consider the following: that the appellant had been arrested on several occasions and had been asked by the Sri Lankan authorities to identify people said to be linked to bombings in his village; the personal circumstances arising from the fact that he came from Valvettithurai, the same village as a leader of the Liberation Tigers of Tamil Eelam (‘LTTE’); the claim that the Reviewer concentrated on the shooting incident and was thereby diverted from considering of ‘real’ or substantial reasons advanced in the claim with the result that the shooting incident was ‘elevated’ to be the appellant’s substantive subjective reason for fearing persecutory harms; and the claim that the Reviewer did not give ‘proper consideration to the claims advanced by the appellant’.

11    His Honour dismissed such ground observing that the appellant’s claims ‘evolved, and were explained and refined, over time’. His Honour noted that the transcript of the interview showed that the appellant abandoned one aspect of his claim, which alleged that the appellant was asked (by the Sri Lankan Forces) to identify people who had planted bombs. His Honour found that the Reviewer was obliged to deal with the claims as ultimately pressed and was not required to deal with abandoned claims. Further, his Honour found that the Reviewer ‘may have emphasised some of the applicant’s evidence in his recorded analysis’ but this of itself did not reveal error but was merely a process of evaluation.

12    His Honour found that the Reviewer had considered the fact that the appellant was from Valvettithurai, but stated that this claim did not go any further than to establish that the appellant was from a Tamil area of the northeast. Further, his Honour found that the Reviewer’s finding in relation to the shooting incident did not, as claimed, divert the Reviewer from understanding and considering all of the appellant’s claims to fear harm. His Honour found that it was open to the Reviewer to conclude that the appellant was not of specific interest to the authorities.

13    As to ground 3 his Honour observed that such ground was never made clear but that it appeared to assert that the Reviewer failed to deal with an integer of the appellant’s claims; and that such ground was not established and constituted no more than a request for an impermissible merits review.

14    Ground 4 claimed that three articles in the Tamil language which were provided by the appellant to the Reviewer should have been translated and that it was insufficient for the Reviewer simply to ask the appellant to explain the content of such documents.

15    His Honour found that the Reviewer did not reject the documents because they were untranslated; rather he invited the appellant at the interview to tell him about the documents and that the appellant did so. Further, the Reviewer’s record revealed that he acknowledged the documents were put before him and recounted the appellant’s explanation of their relevance to his claims. Accordingly it was part of a fact finding exercise central to the task of the Reviewer and no error resulted.

16    For the above reasons the Federal Magistrate dismissed the application.

APPEAL TO THIS COURT

17    By Further Amended Notice of Appeal (which the Court directed to be filed following the abandonment of certain claims in the Amended Notice of Appeal), the appellant raises 13 grounds.

18    The submissions of the appellant conveniently consolidate the numerous grounds of appeal into four broad categories of appeal. They will be considered hereunder.

FAILURE OF REVIEWER TO FOLLOW GUIDELINES

Should leave to raise fresh grounds of appeal be granted?

19    On 2 May 2012, the appellant filed an Amended Notice of Appeal and Amended Submissions. Such documents raised a ground of appeal that the Independent Merits Review decision was infected by error of law and/or jurisdictional error arising from the fact that the Guidelines for the Independent Merits Review of Refugees Status Assessments (‘the Guidelines’), which applied to the Reviewer’s decision, were inconsistent with the High Court’s decision in M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth (2010) 243 CLR 319 (‘Plaintiff M61’). This point was not taken before the Federal Magistrate.

20    At the hearing on 28 May 2012 the respondent objected to leave being granted to the appellant to rely upon this ground, as it had not been taken below. Counsel for the respondent indicated that it was a radical departure from the appellant’s previous Notice of Appeal and submissions and also that fresh evidence may have to be called. The respondent also stated that it was the appellant’s own fault that the issue was not brought before the Federal Magistrates Court. The respondent also stated that the submission lacked sufficient merit for leave to be granted to rely upon it.

21    The Court indicated to both parties that in the circumstances it would allow the respondent to adduce fresh evidence to meet this new submission and in the course of its decision it would consider whether leave should be granted to raise this issue. In further written submissions filed by the respondent on 18 July 2012 the respondent indicated that it continued to oppose leave being granted to the appellant to rely on this ground of appeal.

22    In Metwally v University of Wollongong (1985) 60 ALR 68, the High Court stated at 71:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

23    In O’Brien v Komesaroff (1982) 150 CLR 310, Mason J stated at 319:

In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided (Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at p 480; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at p 438; Green v Sommerville (1979) 141 CLR 594 at pp 607-608. However, this is not such a case. The facts are not admitted nor are they beyond controversy.

24    In Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, the High Court stated at 438:

Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards.

25    In Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409, Lee J stated at 416:

Permission to amend the pleading and to take on appeal a point not taken at trial will depend on whether relevant facts have been determined beyond controversy or the question is one of construction of law and it is expedient and in the interests of justice that the point be decided. Leave to amend will not be granted where the effect of the amendment would be the presentation of a new or different case on appeal from that which emerged at trial.

26    The Court considers that it is expedient and in the interests of justice that leave be granted to the appellant to rely on this new issue. Although there was initially some confusion between the parties as to which version of the Guidelines was to be used by the Reviewer at the time of the review, agreement has been reached and thus the facts relevant to this point are not in dispute. The respondent has had an opportunity to formulate new written submissions and also to tender new evidence to respond to the issue raised by the appellant. The respondent also acknowledged that they would not be prejudiced if this issue were allowed to be raised. The Court also acknowledges the fact that counsel in the proceedings before this Court had only entered the proceedings at a very late stage and was obliged to take steps to reformulate submissions in order to assist the appellant. The Court accordingly grants leave for the issue to be decided by this Court.

Relevant procedural background

27    In order to appreciate the appellant’s submission on this point, it is useful to describe some of the events surrounding the appellant’s review.

28    As stated above, the review took place on 29 November 2010. At the time, the Guidelines stated at cl 2.3:

While the RSA process is non-statutory, when assessing a claim for protection, Independent Reviewers may still be guided by the legislated interpretations of the Refugees Convention in sections 36 and 91R-91U of the Act and Australian case law on the interpretation of “protection obligations”. It is important to note that these sources of interpretation are not binding authorities but may be useful as an aid to interpreting aspects of the Convention.

29    In Plaintiff M61 the High Court considered the Independent Merits Review Manual (‘IMR Manual’), which contained a provision that was for relevant purposes identical to cl 2.3 of the Guidelines. The High Court found this provision to be contrary to law, stating at [88]-[89]:

[88] One of the powers whose exercise was being considered was the power to lift the bar under s 46A and permit the plaintiff to make a valid application for a protection visa. Exercise of that power on the footing that Australia owed protection obligations to the plaintiff would be pointless unless that determination was made according to the criteria and principles identified in the Migration Act, as construed and applied by the courts of Australia. For the purposes of the Minister considering the exercise of power under s 46A, what the RSA Manual and the IMR Manual both referred to as “Australian legislation and relevant case law” had, therefore, to be treated as binding upon those who made the assessments and those who reviewed the assessments, not just as “aid[s] to the interpretation of the Refugees Convention”.

[89] Although expressed generally – as whether Australia owed the plaintiff protection obligations, the fundamental question to which the assessment and review processes were directed had to be understood as whether the criterion stated in s 36(2) as a criterion for grant of a protection visa, was met. Necessarily, that question had to be understood by reference to other relevant provisions of the Migration Act, and the decided cases that bear upon those provisions. If the interpretation, the assessment or review would not address the question that the Minister had to consider when deciding whether to lift the bar under s 46A. […]

30    The appellant submitted that as a result of the above decision the Guidelines as they stood at the time of the appellant’s review were contrary to law. In fact, the Reviewer did not follow the Guidelines; instead stating that Australian case law was binding on him (as found by the High Court in Plaintiff M61). The Reviewer’s direction gave rise to an alternative claim by the appellant that the conduct of the Reviewer in declining to follow cl 2.3 of the Guidelines was unauthorised and the Reviewer’s recommendation was therefore invalid.

31    The respondent submitted that the Reviewer’s decision to not follow cl 2.3 of the Guidelines did not result in a contravention of the Guidelines. It was possible for the Reviewer to ignore cl 2.3 and treat the relevant case law as binding while following the rest of the Guidelines.

What is the effect of the Guidelines?

32    It is convenient to refer at this juncture to the origin of the Guidelines.

33    Independent Merits Reviews are conducted by an organisation called Wizard People Pty Ltd (‘Wizard People’). The Commonwealth has entered into a contract with Wizard People (‘the Contract’). The Contract is stated to be ‘in relation to Services for Independent Merits Review of Refugee Status Assessments. An undated copy of the contract has been provided to the Court.

34    Pursuant to cl 2.1 of the Contract, certain obligations are placed upon Wizard People and its servants, namely, the Reviewers who are described in the contract as ‘Specified Personnel’. (The second respondent is named in the contract under ‘Specified Personnel’) Those obligations, as set out in Item B to the schedule to the contract, include a requirement that the reviews must, inter alia, be fair and just and include hearings and/or interviews with the Offshore Entry Person (‘OEP’) (e.g. the appellant). Further, the contract requires that in conducting the review, the Reviewer must take into account all information available to the Department; all information provided during the course of the review, including any new information given by the OEP to the Reviewer; and such additional information which the Reviewer considers relevant.

35    Further, the Reviewer is required to identify to an OEP ‘all relevant information which may be adverse to their case and give those OEPs a reasonable opportunity to address the information and present arguments’.

36    Pursuant to cl 2.1.1 Wizard People is contractually bound to inter alia ‘adopt relevant best practice, including any Departmental, Commonwealth or industry standards and Guidelines specified in Item D (Standards and Best Practice)’. Item D contained in the schedule was originally blank. However, by Deed of Variation Number 1, Item D was amended to state:

The Specified Personnel are to use the Draft Guidelines for Independent Merits Reviewers to assist with the review process having regard to procedural fairness and natural justice. The Draft Guidelines for Independent Merits Reviewers are located at Attachment A.

37    The Contract refers to ‘Draft Guidelines for Independent Merits Reviewers’. The Court has received a copy of Draft Guidelines dated 3 August 2009. Such Draft Guidelines contain cl 2.3 which is in identical terms to cl 2.3 of the Guidelines extracted above at [28].

The appellant’s submissions on the Guidelines issue:

38    The appellant contends that the IMR Guidelines in force at the time that the review was undertaken in this matter were the same as those which were found to be defective by the High Court in Plaintiff M61. Consequently, had the Reviewer followed the Guidelines as he was required to do he would have reached the same erroneous conclusion, namely that the Australian legislation and case law were not binding upon him.

39    However the appellant submits that the Reviewer chose not to follow the Guidelines and consequently the Reviewer did not conduct the review in accordance with the Guidelines. Since the contract between the Reviewer and the Commonwealth required the Reviewer to apply all Guidelines and directives issued by the Minister (including the Guidelines published in 2010) and the Reviewer did not follow the Guidelines, the review was not conducted in accordance with the law.

40    The appellant submits that the essence of the IMR process is that the Minister asks a Reviewer for a recommendation. The Minister directs that the Reviewer follow a set of procedures, including the Guidelines, in order to formulate the recommendation. If the Reviewer fails to follow this direction, then the Reviewer is acting outside of power.

41    In summary, the appellant’s submission posits, in essence, a ‘Catch-22’ scenario. If the Reviewer of the appellant’s case had stated that he was not bound by case law, then his decision would be unlawful for the reasons stated in Plaintiff M61. If however, the Reviewer refused to follow the erroneous (since Plaintiff M61) Guidelines, then he would be in contravention of his instructions from the Minister and would have no power to make the recommendation.

42    The respondent submitted that the High Court held in Plaintiff M61 that the Guidelines were not a source of power for the Reviewers, but a guide to assist them in making recommendations to the Minister. The Guidelines also do not place any sort of jurisdictional limit on the Reviewer’s power. A Reviewer does not act ultra vires by failing to follow the Guidelines where the Guidelines are inconsistent with the law.

The Court’s consideration on the Guidelines issue:

43    In Plaintiff M61 the High Court stated at [66]:

The decisions to establish and implement the RSA and IMR procedures are not just a direction to provide the Minister with advice about whether power under s 46A of 195A can or should be exercised, but as a decision by the Minister to consider whether to exercise either of those powers in respect of any offshore entry person who makes a claim that Australia owes the claimant protection obligations.

44    The RSA process and the IMR process are non-statutory in the sense that they are administrative procedures established to assist in determining to make a recommendation to the Minister whether, in a particular case, Australia might owe protections obligations to the applicant in question and a submission would be prepared to the Minister for consideration of the exercise of his power under s 46A(2) or under s 195A of the Act.

45    The High Court also determined that the recommendations provided by the Reviewer do not bind the Minister. An unfavourable determination will not preclude the Minister from exercising the power under ss 46A or 195A. Nor will a favourable review oblige the Minister to exercise such power.

46    The IMR Guidelines have no statutory effect. In MZYPW v Minister for Immigration [2012] FCAFC 99, Flick and Jagot JJ said at [11]:

The Department of Immigration and Citizenship has developed non-binding Guidelines for Independent Merits Reviewers.

47    Their Honours continued at [21]:

… the findings and reasons satisfy the requirements imposed by Clause 12 of the Guidelines and whether any such failure would constitute jurisdictional error. A failure to provide reasons may not vitiate a decision for jurisdictional error absent some statutory requirement requiring the provision of reasons: cf. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56, 216 CLR 212. See also: Seiffert v Prisoner’s Review board [2011] WASCA 148 at [162]-[179] per Martin CJ. In the present proceeding, it would be most unlikely that a failure on the part of the Independent Merits Reviewer to comply with Clause 12 could vitiate a decision of the Minister for jurisdictional error. The Guidelines are expressed at the outset to be non-binding and the entire scheme is an administrative construction rather than a statutory process. But the remedy for a failure to comply with that requirement need not presently be explored. The consequences of a failure to comply with Clause 12 was not the subject of submissions.

48    Accordingly, a failure by a Reviewer to adhere to the IMR Guidelines does not, per se, constitute an error of law so as to invalidate any decision made after considering the Reviewer’s recommendation.

49    The Court will now address the appellant’s submission that by failing to apply the Guidelines, the Reviewer was in breach of the Contract, which meant that the Reviewer’s recommendation was unlawful.

50    In Item D of the Contract it is stated that the Guidelines are to be ‘used to assist’ the Reviewer in conducting the review. The use of the word ‘assist’ implies that the Guidelines are not mandatory and they are not the source of the Reviewer’s power. They are merely intended to be a tool for the assistance of the Reviewer. Where use of this tool would lead to a result which is contrary to law, as is the case in the present proceedings, the Reviewer is not bound to follow it. Application of the Guidelines dogmatically, even when they are found to be unlawful, would be contrary to cases such as Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. The Guidelines would be of no assistance to Reviewers if the expectation was that they be applied contrary to the existing applicable law.

51    Further, Clause 6 of the extant Guidelines states inter alia:

Independent reviewers are, as far as practicable, required to comply with any guidelines provided to them by the Department.

52    Item D of the Contract and cl 6 of the Guidelines comprise part of the instructions given by the Minister to the Reviewer as to how the IMR process is to be conducted. Clause 6 of the extant Guidelines therefore establishes that the Reviewers are not bound to comply with the extant Guidelines where compliance is impracticable, but should comply where it is practical to do so. In the present circumstances, the Court finds that it would be impracticable to apply the Guidelines in the face of a High Court decision that states that the relevant section of the Guidelines is contrary to law.

53    By departing from the element of the Guidelines which had been found to be unlawful, the Reviewer’s action was in accordance with the Minister’s instructions. The Reviewer correctly applied the principle in Plaintiff M61 in preference to the instruction in the Guidelines which the High Court in Plaintiff M61 found to be erroneous. This did not invalidate the Reviewer’s recommendation. Accordingly, no error arises because the Reviewer did not apply the Guidelines and the appellant’s ground of appeal is rejected.

DENIAL OF PROCEDURAL FAIRNESS

54    The appellant submits that the Reviewer denied him procedural fairness because the Reviewer relied upon country information contained in four publications, and did not disclose such information to the appellant. The publications are as follows:

(a)    2009 US State Department Country Report on Sri Lanka;

(b)    Refugee Review Tribunal advice dated April 2010;

(c)    Global Tamil News report dated 29 April 2010;

(d)    Department of Immigration Country Guidance Note dated 28 October 2010.

55    Alternatively it is submitted that the Reviewer denied the appellant procedural fairness in relying upon conclusions drawn from the country information without putting those conclusions to the appellant or providing him with an opportunity to respond, namely:

(a)    That some displaced persons were leaving refugee camps and “some form of normality is returning to the post-conflict environment”;

(b)    That a returnee to Sri Lanka would only encounter significant problems if they had a criminal record or connection to LTTE.

56    The appellant claims that those conclusions are not evident on the face of the material and that the conclusions are a ‘gloss’ put upon the material by the Reviewer.

57    The appellant challenges the Federal Magistrate’s finding that it was not necessary to put the information to the appellant before the review because it had already been raised during the RSA process. The appellant relies upon the High Court’s observations in Plaintiff M61 which establishes that an IMR recommendation must be made in accordance with general administrative law principles. In particular, the appellant relies upon the observations at [85], [91] and [98] of the decision wherein the High Court stated that since the country information had not been put to the applicant in those proceedings, a breach of procedural fairness resulted.

58    At [39] of his decision, the learned Federal Magistrate stated:

Thus, in this context, the Tribunal’s obligation is discharged if those issues are drawn to the applicant’s attention as a result of the delegate’s decision. It is where a “new” issue emerges that the Tribunal must ensure the applicant is made aware of it at the hearing.

59    At [73]-[74] the Federal Magistrate stated:

73. The issue of the situation regarding Tamil returnees to Sri Lanka was a live issue before the initial assessor. The assessor’s decision record made extensive reference to country information in this regard.

74. That the applicant and his advisors were alert to this issue and the country information attendant on it, and understood its importance to the review, is seen in submissions made by them to the reviewer on 3 September 2010…

60    Further, the Federal Magistrate stated at [85]:

In the current case the applicant knew the case against him in terms of the substance of the “credible, relevant and significant” country information adverse to his claims. The advisors plainly knew of it, they made submissions to the reviewer. In these circumstances I cannot see legal error.

Finding

61    A reviewer is not obliged to place the entirety of country information before an applicant for comment. Rather, a reviewer is required to make the substance of the information clear to the applicant so that they may respond to it. So much is seen from the decision of the Full Court in SZQHH v Minister for Immigration and Citizenship (2012) 200 FCR 223. In paragraph [27] of such decision the Full Court stated:

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 at [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, 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: Applicant VEAL of 2002 at [15], [29].

62    See also Plaintiff M61 at [91], where the High Court relevantly stated:

Third, procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff’s claims. The Migration Act makes special provision about how the Refugee Review Tribunal is to conduct its reviews. It provides that the tribunal must give an applicant “clear particulars of any information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. But that obligation is subject to qualifications. In particular, it does not extend to information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”. Hence country information is treated as a class of information which need not be drawn to the attention of applicants for review by the Refugee Review Tribunal. [Footnotes omitted]

63    It is apparent that the issues of displaced Tamil persons now being in a position to return to their homes in the north of Sri Lanka and the concerns about the treatment of persons who departed Sri Lanka illegally were both issues which the appellant had made submissions on during the RSA process. These were not new issues which were raised only for the first time before the Reviewer.

64    The relevant question is whether, contrary to the finding of the learned Federal Magistrate at [72] of his decision, the Reviewer was obliged to put the country information to the appellant at the hearing.

65    In SZQHH Rares and Jagot JJ stated at [30]:

However, the reviewer’s obligation of procedural fairness did not require the reviewer to put to the applicant every piece of country 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 take into account the person’s answer to the substance of the information that has the potential of being used adversely to his or her interests. [Emphasis added]

66    Further at [35] their Honours stated:

The CSM article’s references to the history of Hazaras and their interaction with the Taliban and Pashtuns, including past and continuing threatening conduct, were all matters substantively in the country information of which the applicant and his advisor were aware. There was no information of substance in the CSM article of which the applicant had not been on notice at the latest by the time he received the DFAT report. [Emphasis added]

67    The decision in SZQHH leads to the conclusion that provided an applicant is on notice that a particular issue discussed in country material is a relevant issue upon which the reviewer could rely in the course of the review process, there is no obligation to provide the specific country material to the applicant for comment.

68    The US State Department Report used by the review is identical to that considered in SZQFY v Minister for Immigration and Citizenship [2012] FCA 486. In that case Siopis J found that the Federal Magistrate committed no error in relying upon the history stated in such report. His Honour also found that since the assessor had received the substance of such report, the Reviewer committed no procedural error in failing to provide the report to the appellant at the review stage. As in SZQFY, in the present matter the US State Department Report is listed as part of the material before the RSA officer.

69    Nicholls FM referred to the Guidelines which required Reviewers to invite claimants to comment upon any adverse information. His Honour observed that the Guidelines did not suggest that such comment could only be invited at the review. The Federal Magistrate found that the issue concerning the situation of Tamil returnees to Sri Lanka was a ‘live issue before the initial assessor’. Accordingly the subject matter of the reports relied upon by the Reviewer and which dealt with the situation of Tamil returnees was already known to the appellant prior to the hearing on the review and in respect of which both oral and written submissions were made.

70    In this appeal the appellant contended that it was not sufficient to conclude, as the Federal Magistrate had concluded, that because the substance of the information was known to the appellant and his advisers the Reviewer was not required to put the country information to the appellant. In particular had 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 country information should have been disclosed to the appellant.

71    This question has already been the subject of judicial determination by this Court. In SZQFY Siopis J observed at [48] and [49] of his decision:

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.

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.

72    Siopis J referred to the decision of the Full Court in SZQHH before finding that there was no obligation for the Reviewer to put to the applicant the information which had already been considered and put to the appellant by the assessor and in respect of which submissions had been made to the Reviewer.

73    Relying upon the observations in SZQHH Nichols FM found that since the substance of the information had been put to the appellant it was not necessary to provide a translation of the entirety of the material. His Honour said at [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.

74     The Court is bound to follow the approach of the Full Court in SZQHH and finds no reason not to adopt the reasoning of Siopis J in SZQFY. It follows that the submissions of the appellant on this issue must be rejected.

Failure to put conclusions

75    The appellant submits that in the present appeal s 7.1 of the Guidelines entitled ‘undertaking an IMR’ advised Independent Reviewers of the need to invite claimants to comment on any adverse information that was credible, relevant and significant and that the Reviewers ‘must invite the claimants to comment upon any adverse information… which the Reviewer considers may bear negatively upon the claims made’. Further, cl 4.1 of such Guidelines is entitled ‘Roles and Responsibilities of Reviewers’ and provides inter alia:

Independent Reviewers are to conduct reviews in accordance with any guidelines, procedures and ministerial directions that may be issued from time to time.

76    The appellant also submits that the Reviewer failed to afford procedural fairness to the appellant by failing to put to him propositions and conclusions he drew from the material that were adverse to the appellant’s interests and were treated as ‘credible, relevant and significant to the decision’.

77    The appellant challenges the findings of Nicholls FM at [53] of his decision in which his Honour observed that the appellant’s submissions made no attempt to explain how the information was adverse to the applicant’s claims. The appellant compares such observation with the later observation of his Honour that it was the appellant’s position that the Reviewer relied upon the information. The appellant submits that the critical question is whether the Reviewer discharged the duty of permitting the appellant to respond to the country information before him and whether it was necessary for the appellant to be provided with details of every part of the information before the Reviewer or merely the critical aspects of that information.

78    Further, it is submitted that his Honour’s conclusion that the information could not ‘be said to be adverse to the applicant’s cause’ failed to address the critical matter, namely the use to which the information was to be put. The Reviewer, having considered the information before him, observed that the situation in Sri Lanka was showing a ‘return to normality’.

79    The appellant submits the country information was used in an adverse manner and that such information was not put to the appellant. Accordingly the appellant claims he was not placed on notice and did not have the opportunity to respond to the question whether resettlement would be possible having regard to the ‘some form of normality’ found by the Reviewer.

80    The appellant also submits that no opportunity was provided to consider whether the Tribunal’s opinion relating to ‘some form of normality’ in some way countered the other evidence to the effect that ‘young Tamils in the north… were targeted and suffered serious harm or death’. The appellant claimed that those findings were not predictable and that he should have been provided an opportunity to respond to such findings.

81    It is further submitted by the appellant that ‘There was no way the appellant could have predicted the second respondent [the Reviewer] would rely upon country information regarding resettlement as equating the ‘normality… returning’’ since there was no necessary or probative link between the information and the proposition; the conclusion was not put to the appellant and that therefore he was not on notice.

Finding

82    The statement of the Reviewer that ‘some form of normality is returning in the post-conflict environment’ paraphrases the central issue in the Global Tamil News Article. Although the Reviewer does not quote that article directly, the statement is clearly consistent with the thrust of the article since it is no more than a paraphrase of the article and is not the Reviewer’s own determination. As already referred to, this was the same statement that was made by a Reviewer and considered in SZQFY at [15]. Siopis J found no error in the Reviewer’s statement because of the fact that the country information had been provided to the appellant for comment at the RSA stage. The same considerations apply in this appeal.

83    The Reviewer concluded that if the appellant came to the adverse attention of the authorities for departing Sri Lanka illegally upon the appellant’s return to Sri Lanka it would be due to the application of the general law of Sri Lanka and not for a discriminatory reason. This was again a valid conclusion. There was no obligation on the part of the Reviewer to put such proposition to the appellant. Rather, this statement is the consequence of the Reviewer’s decision-making process and the Reviewer was entitled to draw such conclusion.

Absence of translation

84    During the interview the appellant provided a number of documents written in Tamil to the Reviewer. The Reviewer informed the appellant that because they were written in Tamil they would be of little assistance to him, but the Reviewer also invited the appellant to describe the articles. The appellant proceeded to tell the Reviewer the headlines of the articles and a very broad overview of the substance of the articles.

85    The appellant submits that the Reviewer failed to comply with the requirements of procedural fairness and of cl 7.4 of the Guidelines because the documents were not translated into English. Such clause relevantly provides:

If an untranslated document is received, the Independent Reviewer should ascertain from the claimant the relevance of the untranslated document to their claims for protection. If the document is not deemed of any weight in the decision making process (for example, if it duplicates information already given by the claimant or held by the Department), consideration should be given to whether the document needs to be translated.

86    The Federal Magistrate found no such obligation to translate the appellant’s documents, finding that since the Reviewer had asked that the contents of the articles be explained to him and also asked questions about the articles, any duty to the appellant was thereby discharged.

87    The appellant relies on X v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 319 at [29]-[30] and submits that the Federal Magistrate’s conclusion was in error and that he should have considered this question in accordance with natural justice and that the circumstances required the Reviewer to obtain a translation of the documents.

Finding

88    In reaching his conclusion the Federal Magistrate referred to the decision of Moore J in S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs) [2003] FCA 1153, in which Moore J found that it was sufficient for a decision-maker to ascertain ‘the gist’ of untranslated documents so as to ascertain ‘the way in which the applicant relied upon them’. The decision of Moore J was subsequently applied in cases such as SZLSW v Minister for Immigration and Multicultural Affairs (2008) 103 ALD 580 at [12].

89    The Federal Magistrate also referred to the Full Court decision in Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 which held at [25]:

There may be occasions in which the RRT is under an obligation to obtain a translation of a particular document which is in a foreign language and whose relevance has been explained to the RRT. However, the primary judge was correct when he said, as a general proposition, at [46] that the RRT "is not required to translate material in a foreign language" or "consider large volumes of material whose relevance is not explained". Its failure to do so will not mean that it failed to consider or review an application in accordance with s414(1) of the Act or s54 of the Act, if applicable, when it has otherwise dealt with all material considered by it to be germane to its task of reviewing the decision of the delegate. In the present case the additional material was voluminous (including 19 textbooks in Spanish) and its relevance unexplained.

90    The transcript of the interview shows that the Reviewer asked the appellant about the newspaper articles. The Reviewer also asked about the names of the newspapers in which the articles appeared.

91    It should be noted that, unlike the Full Court in X v Minister for Immigration and Multicultural Affairs, this Court does not have before it translated copies of the full articles. The Court is therefore unable to determine whether the statements made by the appellant about the articles accurately summarised their contents. However, the Reviewer provided the appellant with the opportunity to summarise such articles. Thus in the Court’s view the Reviewer satisfied the procedural fairness requirements in this respect.

92    In X v Minister for Immigration and Multicultural Affairs Gray J referred to the distinction between a request of a decision-maker that a document be translated into English compared to a refusal of a decision-maker to take into account a document which has not been so translated. In the present matter, the Reviewer did accord consideration to the documents put forward by the appellant, since he made specific enquiries relating to their contents.

93    As to the submission that the Reviewer failed to comply with the requirements of cl 7.4 of the Guidelines, it must be observed that this clause does not impose any obligation other than to ‘give consideration’ to whether the document should be translated. It is apparent that the Reviewer, having asked questions concerning the meaning of the documents, was satisfied that he comprehended the documents and accordingly translations were unnecessary.

94    There is no demonstrable error as alleged.

Failure to determine claims

95    The appellant submits that the Federal Magistrate failed to find an error of law and a failure to accord procedural fairness in the Reviewer failing to adequately consider claims made by the appellant in support of his claim for asylum. It is submitted that the Reviewer considered only whether the appellant was of ‘particular adverse interest’ to authorities in Sri Lanka or whether his circumstances differed from ‘other young Tamils’ and in doing so failed to determine whether the appellant was at risk of persecution on grounds of memberships of a particular social group, namely young Tamil males from the north. Further it is submitted that the Reviewer failed to consider whether the appellant was at risk of persecution in light of the fact that he was a young Tamil male; he had LTTE connections having trained with the LTTE; was involved in the Rising Tamil movement; and came from the same village as the LTTE leader; and departed Sri Lanka illegally.

96    The appellant submits that the Reviewer failed to understand, failed to consider and properly deal with such issues. Further, it is said that contrary to the Reviewer’s observations made during the course of the hearing before him, the appellant did not abandon any of his claims. The appellant maintains that he made his asylum claim based on his ethnicity, namely being a Tamil; his imputed political opinion (namely his connection to the LTTE), and membership of a particular social group namely Tamils who are believed to support the LTTE. The appellant submits that the Reviewer irrationally and illogically failed to determine the ‘social group claim’, treating it as if it was of no consequence and imposing a different test; one not authorised by the Guidelines. The appellant submits that such failure constitutes a failure to accord natural justice and gives rise to jurisdictional error.

97    Further, it is submitted that the Reviewer determined the matter by comparing the appellant’s personal circumstances to that of ‘many thousands of other young Tamils’ and that this was not the test to be applied. By limiting such inquiry to considering whether the appellant’s circumstances differed from those of other young Tamils, the Reviewer failed to determine whether the appellant was at risk of persecution by reason of his membership of a particular social group.

98    The appellant also claimed fear of persecution because he would return to Sri Lanka as someone who had departed Sri Lanka illegally. The appellant submits that the Reviewer failed to consider whether in the present case there was a Convention reason having regard to each of his claimed basis for fear of persecution.

Finding

99    The issues sought to be raised were considered by the Federal Magistrate. Before the Reviewer the appellant made the claims that he had a connection with the LTTE; his fear of the Sri Lankan army resulting from the appellant’s involvement with the LTTE and of his ethnicity as a Tamil from Valvettithurai; and his claim to have been involved in the ‘Rising Tamil’ organisation.

100    The Federal Magistrate at [133]-[140] noted each of these matters and between [142] and [155] considered the claims that the appellant would suffer persecution. The Federal Magistrate observed that the Reviewer noted the claims and observed that the appellant had been released on many occasions from arrest and that the appellant did not have the profile of having an ‘LTTE connection’ such as would lead to him having significant problems if he returned.

101    The Court rejects the appellant’s submissions, noting in effect what is sought is a factual review of the findings of the Reviewer. Contrary to the claim that the Reviewer did not inquire to inform himself or understand the Rising Tamil movement, the Reviewer specifically asked the appellant to inform him of such organisation.

102    Similarly, it was not necessary for the Reviewer to make a finding of fact in relation to the claim of the appellant that he came from a particular town. The general finding of the Reviewer that the appellant was not at risk was made in the light of all such claims, including the claim relating to his origin. The Court finds no error by the Federal Magistrate in dismissing such claims.

103    As to the claim that the appellant would be arrested on return because of his illegal departure from Sri Lanka, the Reviewer found that whilst such departure might draw him to the attention of the authorities, and could lead to detention, such would not result in persecution. There is no failure to determine such claim.

Illogicality/irrationality

104    The Reviewer rejected claims that the appellant faced persecution because he had a minor connection to the LTTE, although the Reviewer found that persons with LTTE connections were likely to encounter significant problems upon return to Sri Lanka.

105    The appellant submits that the decision of the Federal Magistrate erred in failing to find that the IMR decision was affected by error of law and/or jurisdictional error and that the decision was illogical or irrational. The appellant submits that the Reviewer erred in failing to consider the particular circumstances of the appellant and instead compared the appellant against ‘the thousands of young Tamil males from the North’ before concluding that there was nothing to warrant the appellant’s fear of persecution and submitted that this was not the appropriate test.

106    Each of the above claims was not made in the context that the Reviewer’s decision was illogical or irrational. Rather, the claims were made before the Federal Magistrate in the context that the Reviewer had failed to give adequate or genuine consideration to each of the above matters.

Finding

107    The Federal Magistrate dealt extensively with such assertions but concluded that the grounds did not rise above ‘impermissible merits review’.

108    The Reviewer found that the appellant was not of particular interest to the relevant authorities since he had not been targeted in the past. Although the appellant had been arrested as part of wider general security roundups, he had always been released shortly thereafter. Further the Reviewer found that the circumstances in Sri Lanka had improved as evidenced by the return of many displaced persons who had been residing in camps. Accordingly, on this basis, the Reviewer concluded that the appellant would not be of adverse interest to the authorities.

109    As was pointed out by the Minister’s submissions, the reasoning propounded by the appellant could be supported by the decision of Gaudron J in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 415 wherein her Honour said:

If an applicant relies on his past experiences it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality. To require more of an applicant for refugee status would, I think, be at odds with the humanitarian purpose of the Convention and at odds with generally accepted views as to its application to persons who have suffered persecution…

110    However such reasoning was not accepted in subsequent decisions: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [150] in which Gummow J expressly stated that such view did not accord with the majority in Chan. Further, in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, Gaudron J at 254 acknowledged that her view did not represent the majority view. In SCAM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 964 at [27] the Federal Court has not followed the observations of Gaudron J in Chan.

111    Whilst the appellant claims there was an inconsistency in the conclusion of the Reviewer that the appellant did not have an LTTE connection with the earlier acceptance by the Reviewer that the appellant had received basic training by the LTTE, no inconsistency exists. The Reviewer found that the appellant had no current LTTE connection which would place him at risk.

112    The appellant also argues that the rejection of his claims on the ground that he was not of particular adverse interest to the authorities was illogical, as the authorities had detained the appellant multiple times. The appellant submits that because he was detained multiple times, this fact strengthens the conclusion that the appellant was of interest to the authorities.

113    In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ stated at [130]:

In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came… is one at which no rational or logical decision maker could arrive on the same evidence. In other words, irrationality provides some distinct basis for seeking judicial review of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.

114    In oral submissions, counsel for the appellant stated that it would be illogical to conclude that unless a person was detained indefinitely, they were not of interest to the authorities. With respect, this is an incorrect conclusion to draw from the Reviewer’s finding. The Reviewer referred to the fact that the appellant had been released after every occasion of detention to bolster the conclusion that the appellant’s circumstances were no different to other young Tamil males, who were generally subject to periodic arbitrary roundups and detention by the authorities. This is clear in the Reviewer’s decision at [25], where the Reviewer states ‘Significantly in my view he was never sought out as a particular target but was caught up in the general security roundups’. Had the appellant been of any significant interest to the authorities, then presumably the authorities would not have released the appellant after conducting their various roundups. This is not an illogical conclusion. Consequently this ground of appeal must fail.

115    For the above reasons the Court dismisses the appeal.

Associate:

Dated:    14 September 2012