FEDERAL COURT OF AUSTRALIA

SZTDB v Minister for Immigration and Border Protection [2015] FCA 956

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant 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 an ethnic Tamil from Sri Lanka. He arrived at Christmas Island by a boat apparently bound for mainland Australia on 1 July 2012, presumably after the boat was intercepted and diverted to the island.

2    On 23 November 2012, with the assistance of a migration agent, he applied for a protection (class XA) visa. His application was considered by a delegate of the Minister and, following an interview with the delegate, it was refused. The applicant then applied to the Refugee Review Tribunal to have the decision reviewed. When that application failed, he lodged an application in the Federal Circuit Court asking the Minister to show cause why constitutional writs should not issue against the Minister and the Tribunal as the decision, he alleged, was affected by a number of errors. The primary judge who heard that application found against him. In this appeal the appellant maintains that the Tribunal erred as he alleged in the court below and that he is entitled to relief.

3    As the primary judge pointed out in her reasons, decisions of the Tribunal are not amenable to appeal or to judicial review, save for jurisdictional error. That is the combined effect of s 474 of the Migration Act 1958 (Cth) (“the Act”), Chapter III of the Constitution and the

High Court’s decision in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The primary judge held that the Tribunal’s decision was not affected by jurisdictional error. Broadly speaking, the question on this appeal is whether her Honour was wrong to do so.

4    The appeal was originally listed for hearing on 5 November 2014. On 15 October 2014, with the consent of the appellant, the Minister approached the Court to adjourn the hearing until after the High Court had considered applications for special leave and, if leave were granted, the appeal from the judgment in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (North J) (“WZAPN”). The Minister apprehended that the appeal in the present matter was likely to raise an issue that would be resolved one way or another by the special leave application or appeal. On this basis I acceded to the parties’ request and on 22 October 2014 I ordered that the hearing be vacated. On 17 June 2015 the High Court published its judgment in Minister for Immigration and Border Protection v WZAPN together with WZARV v Minister for Immigration and Border Protection [2015] HCA 22; 320 ALR 467. The following day the Minister formally notified the Court and the appeal was listed for hearing on 17 August 2015. For the reasons given below the appeal must be dismissed.

The relevant legislation

5    The power to grant a visa is conferred on the Minister by s 65 of the Act, but, like any of the Minister’s powers under the Act, (by signed instrument in writing) it may be delegated to any person (s 496). The exercise of the power to grant a visa depends on the Minister (or his delegate) being satisfied that certain criteria set out in the Act and the Migration Regulations 1994 (Cth) have been met. The Tribunal is required to review the Minister’s decision (s 414) and, for this purpose, it has all the powers of the Minister (s 415).

6    At the time of the Tribunal’s decision, the principal criteria for the grant of a protection visa appeared in s 36(2) of the Act. As the Tribunal dismissed the application because it was not satisfied that these criteria had been made out, it is unnecessary to refer to the others. The relevant criteria under s 36(2) were that the applicant for the visa is:

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

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

7    Paragraph (a) is commonly known as the refugee criterion and (aa) as the complementary protection criterion.

8    Protection obligations under the Refugees Convention as amended by the Refugees Protocol (together “the Refugees Convention”) apply to refugees. Article 1A(2) of the Refugees Convention relevantly defines a refugee as a person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …

9    At the time of the Minister’s decision and the time of the review, the Migration Act required that the alleged reason(s) be “the essential and significant reason(s)”, that the harm be “serious” and that the conduct be “systematic and discriminatory”: see s 91R(1). The circumstances in which harm will be serious within the meaning of s 91(1) were described in s 91R(2), to which I will return later in these reasons.

10    “Significant harm” for the purpose of s 36(2) is defined in s 5(1) to be “harm of a kind mentioned in s 36(2A)”. The kinds of harm mentioned in s 36(2A) are that:

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

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

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

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

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

11    “Torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” are all defined in s 5(1).

The appellant’s claims

12    The appellant’s claims were contained in a statutory declaration prepared by his migration agent which was annexed to his visa application.

13    In his statutory declaration the appellant said that in 2007 a Sinhalese man told the police that he and his cousin, with whom he worked in a mechanic workshop owned by his cousin, were doing work for the LTTE (Liberation Tigers of Tamil Eelam or Tamil Tigers as they are commonly known). Consequently, he said, the police took both of them in for questioning. Despite their professed lack of knowledge of their customers’ political affiliations, the appellant claimed that the police “made a case against [them]” and, after a court hearing, his cousin was convicted and sentenced to six months gaol. He (the appellant), however, was released.

14    The appellant said he then fled to Kuwait where he applied for a working visa and spent the next five years working there as a gardener. He said he sought 15 days emergency leave from his job to travel to Sri Lanka in May 2012 after hearing that his father was gravely ill. He claimed that about two days after he arrived, police attended his parents’ home and questioned him over his alleged involvement with the LTTE, reminding him of the accusations made against him before he had left the country in 2007. Once again, he said, the police did not believe him and ordered him to attend the station for further questioning. After being interrogated for hours, he said he was released, but before doing so the police threatened to kill him if they ever found out that he had any involvement with the LTTE. He said he was frightened for his life but was scared to return to Kuwait because of police threats that he would be arrested and “made to disappear” if they caught him trying to leave the country. He claimed that, by the time he plucked up the courage to leave, his Kuwaiti visa had expired. Learning that many Tamils were fleeing by boat, he decided to join one and come to Australia. He said that if he were to return to Sri Lanka he fears he would be abducted and killed because he is a young Tamil man and one suspected of being a former member and/or supporter of the LTTE.

15    The Tribunal treated the appellant’s claims to fear harm as being (“both singularly and cumulatively”) for the reasons of:

(1)    race/ethnicity, as a young Tamil male; or

(2)    imputed political opinion on suspicion of being a member and/or supporter of the LTTE; and

(3)    membership of the following social groups:

(a)    failed asylum seekers and/or people who fled Sri Lanka illegally to seek protection in a western country and/or people who had spoken out against the Sri Lankan government and/or contributed to the damaged reputation the government is trying to restore (“failed asylum seekers”); and/or

(b)    young Tamil males who have previously been held on suspected affiliation with the LTTE during the civil war.

The decision of the Tribunal

16    The Tribunal did not accept any of the appellant’s claims.

17    It did not accept the claim that the appellant and his cousin were apprehended by the Sri Lankan authorities in 2007 due to allegations made against them that they were fixing motorbikes for the LTTE based on the following matters:

(1)    the fact that, when asked, the appellant was unable to give his cousin’s full name, despite having given evidence that he had worked for him for three months and had attended the entire court hearing of the charges against him;

(2)    the appellant’s inability to identify the gaol in which his cousin was imprisoned and the provision of some limited information on the subject only after the Tribunal had raised with him its concerns about his ignorance of such matters;

(3)    the Tribunal’s inability to accept that in 2007 the appellant could have passed freely through the airport in Sri Lanka (to travel to Kuwait) using his genuine passport if he was of interest to the authorities;

(4)    reports of country of origin information that the area in which the appellant resided was “relatively unscathed by the Civil War” and under the control of the authorities in 2007, which the Tribunal considered made it “not realistic” that the LTTE would have their bikes fixed in an area that was not controlled by them or that the appellant and his cousin would be accused of fixing LTTE bikes in that area; and

(5)    the Tribunal’s inability to accept that the appellant would have been able to return to Sri Lanka in 2012 if he were of ongoing interest to Sri Lankan authorities as he claimed, given country of origin information regarding security checks conducted upon re-entry.

18    Nor did the Tribunal accept that the appellant was visited at his home by Sri Lankan authorities in 2012 after he returned from Kuwait or that he was told to attend the police station or warned about possible association with the LTTE and told not to leave Sri Lanka. And it did not accept the proposition that, after he travelled to Kuwait or Australia, the police had visited his house (threatening his mother), as the appellant had told the Tribunal during the hearing. Furthermore, the Tribunal did not accept that the appellant’s family would continue to reside in the same area (as the evidence indicated they had done for many years) if the appellant’s claims were true.

19    The Tribunal was not satisfied that the appellant had a well-founded fear of serious harm or persecution on any of the Convention grounds it identified as having been raised by his application because the evidence indicated to the Tribunal that he was not of interest to the authorities. It relied on the following matters:

(1)    apart from his five years in Kuwait and his time in Australia, for his entire life he had lived at the same address in an area of Sri Lanka under the control of the Sri Lankan authorities, which indicated to the Tribunal that there was no need to move;

(2)    despite repeated questioning about when he had been asked to show his identification card, “he failed to provide evidence of such”, merely repeating that he had to carry the card in his village;

(3)    his capacity to travel freely in and out of Sri Lanka on a genuine Sri Lankan passport;

(4)    the Tribunal’s conclusions as to the appellant’s past, in particular, its failure to accept that he was arrested, detained or accused of assisting the LTTE during the Civil War; and

(5)    country of origin information regarding the end of the Civil War.

20    In relation to the appellant’s claim to have a well-founded fear of serious harm or persecution because he was a member of the social group of failed asylum seekers, the Tribunal found that the appellant would be questioned by the authorities on his return but “this will not be impacted upon by his race or ethnicity, as country of origin information reports that all returnees are treated alike regardless of ethnicity”. It also found that it was possible the appellant would be held in gaol on remand, “as a person who left Sri Lanka illegally”, and then fined and bailed. The Tribunal noted parenthetically that the appellant did not claim to be “an organiser or people smuggler” who might expect to be imprisoned for a longer period. The Tribunal said that it was not satisfied that the consequences it considered the appellant would or might face if he returned to Sri Lanka “equate[d] to serious harm or persecution as per the Convention”. Upon his release, the Tribunal found that the appellant would be able to return to his own area if he wished to do so, and, although he might be visited by the authorities, the Tribunal did not consider that a visit of this nature constituted serious harm or persecution.

21    The Tribunal therefore concluded that the appellant did not satisfy the refugee criterion. It then turned its attention to the complementary protection criterion. On that question the Tribunal referred to some of its earlier findings and observations (at [58]):

Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). As noted above, the Tribunal has found that the applicant has been granted a genuine Sri Lankan passport on two occasions by the Sri Lankan authorities, and be has legally exited and re-entered Sri Lankan (sic) without issue when travelling to Kuwait. The applicant also passed through at least one check point without issue after returning to Sri Lanka in 20l2. The applicant has also resided in an area controlled by the Sri Lankan authorities during the Civil War (as opposed to the LTTE), and resided in the one premises in Sri Lanka, where his parents and sister continue to reside. The Tribunal accepts that the applicant will be questioned by the Sri Lankan authorities upon return to Sri Lanka, and may be held for a relatively short period on remand due to his illegal departure from Sri Lanka and then fined and bailed. He may also be visited by Sri Lankan authorities once he arrives home. However, based on the evidence before it including country of origin information regarding the treatment of returnees, the Tribunal does not consider the questioning process by the authorities or the period of remand or a fine being imposed to be significant harm. Nor does it consider a visit by the authorities to the applicant’s home to be significant harm. As such, based on the evidence before it, the Tribunal does not have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

The application to the Federal Circuit Court

22    The grounds listed in the applicant’s amended show cause application were (without alteration):

1.    The correct test under the Migration Act for the Complementary Protection was not correctly applied when the RRT found that I may be subjected to questioning by the police on my return or fined or even jailed for a period.

2.    The main element of claim that I would be detained and abused on my arrival was not correctly dealt.

3.    The RRT did not provide me all of the evidence on which it rejected my case for my comments

4.    The RRT’s reasons for rejecting my case are not supported by evidence.

The appeal

23    The notice of appeal in this Court merely repeated the grounds in the amended application in the court below.

The reasons of the primary judge

24    In relation to ground 1, the primary judge referred to the Tribunal’s consideration of the question of complementary protection and held that it had correctly identified the criterion, specifically addressed the claim “by reference to the language of the statute”, and made findings of fact which led it not to accept the appellant’s claims. Her Honour noted that there was no jurisdictional error in referring to previous factual findings if the claim for protection based on the complementary protection criterion could not survive those findings, referring to SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56] (Robertson J).

25    The primary judge rejected a submission from the appellant that the Tribunal did not consider what would happen to him after he was questioned.

26    The appellant apparently also asserted that the Tribunal failed to look into his circumstances. Her Honour noted that it was well established that the Tribunal had no general obligation to investigate an applicant’s claim nor a general duty to inquire.

27    In relation to ground 2, the primary judge said she asked the appellant in what way his claim was not correctly dealt with and he replied that he would be subjected to harm by authorities. Her Honour said that the Tribunal had considered what may happen to the appellant if he returned to Sri Lanka as a failed asylum seeker and referred again to the Tribunal’s findings on this question. Her Honour observed that whether the treatments the appellant faced satisfied the definition of significant harm was “a factual determination” for the Tribunal. She noted that it was well-established that the weight to be attached to any country information was a matter for the Tribunal. She held that the Tribunal’s findings were open to it on the evidence and other material before it and for the reasons it gave. She added that merits review was not available in the court.

28    In relation to ground 3, the primary judge invited the appellant to indicate the information with which he claimed he should have been provided for comment. His response was that the Tribunal had told him his credibility was in question but “did not elaborate on areas with which the [Tribunal] was unhappy”. Her Honour held that the Tribunal’s decision record did not support the appellant’s assertion. Her Honour also referred to s 424A of the Act, relevantly noting that “evidence arising from inconsistencies [in the appellant’s evidence] is not “information” for the purposes of the section and that “information” does not include “the [Tribunal’s] subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).”.

29    As for ground 4, the primary judge held, in effect, that there was no basis for the assertion that the Tribunal’s reasons for rejecting the appellant’s case were not supported by evidence. Her Honour noted the appellant’s submission that the Tribunal did not give him “evidence or assurance” that he would not suffer harm at the hands of the authorities if he were to return to Sri Lanka. Her Honour held that there was no jurisdictional error in failing to provide such evidence or give such an assurance.

30    Finally, her Honour considered the Tribunal’s decision as a whole and held that it was not affected by jurisdictional error.

Did the primary judge fall into error?

31    An appeal to this Court from the Federal Circuit Court is in the nature of a rehearing. It is not a new hearing. To succeed, the appellant must show that the primary judge fell into error: SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 at [11]. The appellant was unable to identify any error on her Honour’s part and neither am I.

Ground 1: Was the test for complementary protection correctly applied?

32    For the reasons given by the primary judge, the Tribunal applied the correct test for complementary protection and committed no jurisdictional error in its application of the test. Its conclusion on the question whether, as a necessary and foreseeable consequence of the appellant’s removal from Australia to Sri Lanka, there was a real risk the appellant would suffer significant harm was open on the evidence and other material before it.

33    The appellant’s complaint was that, although the Tribunal recognised he might be imprisoned if he returned to Sri Lanka, it considered he would only be held on remand and then released. His contention was that there was no guarantee he would be released. For this reason, he submitted, it was unreasonable for the Tribunal not to have found that, as a necessary and foreseeable consequence of his removal from Australia to Sri Lanka, there was a real risk he would suffer significant harm.

34    No ground of unreasonableness was pleaded. In any case, I am not satisfied that any of the circumstances which might be said to lead to a conclusion that the Tribunal’s decision was unreasonable in a legal sense are present here. The decision was based on findings or inferences of fact supported by logical grounds: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [37]-[38] (Gummow and Hayne JJ). More than one conclusion was open on the evidence: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] (Crennan and Bell JJ).

35    The appellant submitted that, absent a guarantee, the Tribunal was required as a matter of law to grant him a protection visa. That submission must be rejected. The Act imposes no such requirement either expressly or implicitly.

Ground 2: Did the Tribunal correctly deal with the main element of the appellant’s claim that he would be detained and abused on arrival (in Sri Lanka)?

36    Presumably this was the ground the Minister originally apprehended may have raised the issue at the heart of WZAPN.

37    In WZAPN an Independent Merits Reviewer (“IMR”) had accepted that, if the applicant, a stateless Kurd from Iran, were to return to Iran, there was a real chance that in the reasonably foreseeable future he would be periodically questioned and probably detained for short periods when he failed to produce identification. However, the IMR did not accept that the frequency or length of detention, or the treatment the applicant would receive whilst in detention would involve serious harm within the meaning of the Act.

38    Section 91R of the Act relevantly stated:

(1)    For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)    that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)    the persecution involves serious harm to the person; and

(c)    the persecution involves systematic and discriminatory conduct.

(2)    Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)    a threat to the person's life or liberty;

(b)    significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)    significant economic hardship that threatens the person's capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person's capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

(Original emphasis.)

39    In WZAPN North J held that the IMR had fallen into jurisdictional error by making a qualitative assessment of the nature of the harm caused by the detention.

40    In WZARV v Minister for Immigration and Border Protection [2014] FCA 894 the IMR accepted that it was likely the applicant, another Sri Lankan national, would be interviewed by Sri Lankan authorities at the airport on his return but said it was usual for such questioning to be completed within hours. McKerracher J dismissed an appeal from the Federal Circuit Court which had held that the reasoning of the IMR was open on the facts.

41    After North J’s judgment in WZAPN was published, WZARV applied for special leave to appeal on the ground that, on North J’s construction of s 91R(2)(a), the IMR had erred in finding that he would not face “serious harm” if he returned to Sri Lanka.

42    The High Court granted special leave in both matters. Subsequently, it allowed the Minister’s appeal in WZAPN and dismissed the appeal by WZARV. In summary, it held that, North J had erred in WZAPN and there is a qualitative element to the assessment of the threat to the person’s life or liberty within the meaning of s 91R(2)(a). At [71] the plurality stated:

It is persecution, involving serious harm inflicted by the violation of fundamental rights and freedoms, from which the Convention and s 91R of the Act are concerned to provide asylum. Both the Convention and s 91R of the Act embody an approach which is concerned with the effects of actions upon persons in terms of harm to them. That approach is not engaged automatically upon the demonstration of any breach, or apprehended breach, of human rights in their country of nationality or former habitual residence.

43    Gageler J agreed, adding some observations of his own. At [98] his Honour said that each of the instances of serious harm set out in paras (a)–(f) of s 91R(2) “is to be read as referring to a category of detriment or disadvantage of a severity that the person threatened cannot be expected to tolerate.”.

44    As it transpired, however, the question raised in these cases was not agitated by the appellant in the present case.

45    Before the primary judge the appellant merely took issue with the Tribunal’s decision on the merits. Before this Court, the appellant submitted that the Tribunal did not address his claim that he would be tortured if he were to return to Sri Lanka. Torture would certainly amount to serious harm within the meaning of s 91R(2). It would also amount to significant harm for the purpose of the complementary protection criterion. For this purpose torture has a defined meaning. It is defined in s 5(1) as:

an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)    for the purpose of obtaining from the person or from a third person information or a confession; or

(b)    for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)    for the purpose of intimidating or coercing the person or a third person; or

(d)    for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

(f)    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

46    Neither in his visa application nor in the statutory declaration accompanying the application did the appellant claim that he would be tortured if he returned to Sri Lanka. He apparently told the delegate, however, that he feared he would be harmed and mistreated on suspicion of being a supporter of the LTTE and for fleeing Sri Lanka illegally. Moreover, the prospect of torture was certainly raised by the appellant’s migration agents in their lengthy written submission to the Tribunal. At p 78 they submitted that the appellant was likely to face significant harm arising from torture should he be forced to return to Sri Lanka. The basis for that claim was outlined at p 79:

The Applicant has previously been beaten and interrogated by the authorities on account of his suspected LTTE affiliations. We submit that given the ongoing reports of torture, it is likely that our client will be tortured upon his return. It is likely that the fact that the Applicant fled the country illegally and sought protection in Australia is only further going to exacerbate this.

47    No transcript or recording of the Tribunal proceeding was placed before this Court or the court below, despite directions having been made in the Federal Circuit Court that that be done if the appellant intended to rely on it. Consequently, the Court is reliant on the decision record. The appellant did not contend that the decision record was inaccurate.

48    According to [35] of the decision record, the Tribunal put to the appellant during the hearing that the country of origin information suggested that people who left Sri Lanka illegally might be held on remand and then released and fined but rarely imprisoned beyond the remand and that did not appear to be significant or serious harm. The appellant did not then raise the possibility of torture. Rather, his response was that the Tribunal “may be correct but since he had been warned not to leave they will get angry with him and they may harm him”.

49    This may very well explain why the Tribunal did not expressly deal with the prospect of torture.

50    Be that as it may, the appellant’s submission should be rejected.

51    First, the submission was based, in part, on an assumption that the appellant had previously been beaten by Sri Lankan authorities because of his suspected LTTE affiliations. Yet, the Tribunal did not accept that the appellant was suspected by the authorities of having LTTE affiliations or, indeed, that he had been of any interest to the authorities.

52    Secondly, a claim that the appellant would likely be tortured supported the contention that he would likely suffer serious or significant harm on his return. The Tribunal squarely considered that question and identified the kind of harm that might befall him. That harm does not conform to the ordinary meaning of torture, let alone the more limited statutory meaning. Whatever the plight of others, it is implicit, if not explicit, that the Tribunal considered and rejected the proposition that the appellant might be tortured.

53    Ground 2 should be dismissed.

Ground 3: The alleged failure to give the appellant all the evidence on which it rejected his case for his comments

54    This ground, like the previous one, was argued differently on appeal.

55    In this Court the appellant submitted only that the Tribunal did not given him the evidence it relied upon to support the proposition that he would be questioned, gaoled and then released. He described this as unfair.

56    The evidence the appellant claimed should have been given to him was the evidence to which the Tribunal referred at [58].

57    The Tribunal’s failure to provide the appellant with all the evidence upon which it relied so that he could comment upon it does not constitute a jurisdictional error.

58    First, Pt 7 Div 4 (ss 422B–429A) contains an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with: Migration Act, s 422B.

59    The Tribunal was not obliged to give the appellant access to the country of origin information. The Tribunal is required in some circumstances to give an applicant clear particulars of information that would provide the reason or part of the reason for affirming the decision under review and invite him or her to comment on it: Migration Act, s 424A(1). But those circumstances do not apply 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”: see Migration Act, s 424A(3)(a).

60    Secondly, the Tribunal raised the tenor of the country information with the appellant during the hearing and gave him the chance to comment on it.

61    Thirdly, the proposition put to the appellant by the Tribunal during the hearing conformed to the extract from a Department of Foreign Affairs and Trade report which appears in the delegate’s decision. Thus, it is likely that the material in question was already in the appellant’s actual or constructive possession well before the Tribunal hearing.

62    Fourthly, to the extent that this ground of appeal was intended to capture more than the country of origin information and extend to the appellant’s evidence, as the primary judge observed, the obligation under s 424A(1) does not apply to information given by the appellant for the purpose of the application for review or during the process that led to the decision under review unless it was information provided orally by the appellant to the Department: s 424A(3).

63    Fifthly, the evidence of the appellant to which the Tribunal referred in its reasons was also raised with the appellant at the hearing. Furthermore, the Tribunal allowed further submissions to be made about the matters that arose during the hearing. The appellant’s migration agent took advantage of that opportunity, addressing various matters of concern to the Tribunal.

64    I am not satisfied that the Tribunal was obliged to provide the material upon which it relied to the appellant for his comments. There was in any event no practical unfairness that flows from any failure to do so, as the substance of the material was put to him.

65    Ground 3 should therefore be dismissed.

Ground 4: The reasons for rejecting the application were not supported by evidence

66    The appellant submitted that there was no evidence to support the Tribunal’s conclusion that the only harm to which he might be subjected upon his return to Sri Lanka would be questioning by the authorities, a short period of imprisonment on remand, and a fine.

67    I have already referred to independent country information mentioned by the delegate in his reasons. At [49] of its reasons the Tribunal extracted a more recent report from the Department of Foreign Affairs and Trade which also supported its conclusion.

68    Consequently, this ground should also be dismissed.

Conclusion

69    None of the grounds of appeal is made out. There is no apparent error in the primary judge’s reasons. It follows that the appeal must be dismissed. The appellant should pay the Minister’s costs. There will be orders accordingly.

Associate:

Dated:    31 August 2015