FEDERAL COURT OF AUSTRALIA

SZTED v Minister for Immigration and Border Protection [2015] FCA 1460

THE COURT ORDERS THAT:

1.    The applicants be granted an extension of time up to 26 November 2015 in which to file a notice of appeal in the form of the document titled ‘Amended Draft Notice of Appeal’ that was provided to the Court on 20 November 2015.

2.    The hearing be treated as a hearing of the appeal.

3.    The appeal be dismissed.

4.    The appellants pay the first respondent’s costs in the sum of $4,800.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This is an application for an extension of time in which to appeal from the decision of the Federal Circuit Court refusing the applicants’ application for constitutional writ relief in respect of the decision of the Refugee Review Tribunal given on 5 July 2013 to affirm the Minister’s delegate’s decision not to grant the applicants protection visas: SZTED v Minister for Immigration [2015] FCCA 2258.

2    The reason why an extension of time is sought is that the applicants’ pro bono solicitor, who acted for them in the proceedings below, made a mistake after receiving advice from counsel that the time in which an appeal could be filed was 28, rather than 21, days, as provided under r 36.03(a) of the Federal Court Rules 2011 (Cth). He explained that he was acting pro bono and because he was also engaged in proceedings being heard in the High Court on 9 and 10 September 2015, he was distracted and miscalculated the time in which the notice of appeal had to be filed. Hence the need to commence an appeal by way of the application for an extension of time, which was promptly filed on 14 September 2015, some four days late. The Minister has not suggested there is any prejudice. However, he argued that if I were of the view that the proposed appeal did not have merit, leave should not be granted. The matter has been argued today as a full appeal on the very short point that has arisen.

Background

3    The applicants are two brothers who, at the time of the Tribunal’s hearing, were aged 28 and 19 respectively. They were citizens of Sri Lanka of Tamil ethnicity. They applied for protection visas in September 2012. The delegate refused to grant the visas on 7 January 2013 and they then sought a review of that decision in the Tribunal, where they were assisted by a solicitor-migration agent, who is not currently representing them.

4    It is not necessary to go into any detail about the substantive claims except in one respect. The issue for consideration turns on a claim made by the younger brother. While the elder brother was away from their village in western Sri Lanka, the younger one claimed to have been at the family home in early April 2012 when several police officers and Criminal Investigation Department (CID) members in civilian clothes arrived there. He claimed that the officials had said that the CID had information indicating that the elder brother was a terrorist suspect and inquired about his whereabouts. The mother told them that the elder brother had visited a friend’s house in the middle of March 2012, but she did not know when he was going to return. The younger brother claimed that this angered the officials who said that if his brother did not hand himself over to the authorities within the next month he, the younger brother, would suffer the consequences. He claimed that while making that threat a police officer took out a gun, pointed it at his head and then beat him on his head with the gun. He claimed that the mother begged for forgiveness and the police officer then let him go.

5    The elder brother made claims, based on what he had been told, that corroborated his younger sibling.

6    During the course of the hearing, the Tribunal member questioned the younger brother about the incident as follows:

MCINTOSH: Have you got a scar on your head now, that you can feel, where they hit you?

INTERPRETER: Yes.

MCINTOSH: Well I wouldn’t normally do this, but can I, can I feel it? Just to see if you’ve got a scar there. Yeah?

INTERPRETER: OK, I’m just going to feel it because – [voice becomes quieter, sound of soft shuffling] – the way you are answering makes me feel like this incident didn’t happen so I think it’s important that I – I can’t see anything.

Maybe, it’s hard to feel isn’t it.

INTERPRETER: Yes that’s the place.

MACINTOSH: That’s the place. OK , I can’t really see anything or feel anything.

INTERPRETER: This incident happened but I think the injury that could be, its been heal, healed.

The Tribunal’s reasons

7    The Tribunal dealt in its reasons with the two brothers’ claims separately and sequentially, the younger brother’s after the elder’s. The Tribunal gave the following reasons at [92]-[96] in relation to the claim about the April 2012 visit to the brothers’ home:

92.    In response to my questions he said that a man in civilian clothes had pointed a gun at him and had struck him. He said that when his mother opened the door four or five men came in. Some were in police uniform and some in plain clothes. None said they were from the CID. They searched the house and told his mother that if her oldest son did not report to them they would take the applicant instead. The applicant said nothing to them, but saw the arrest warrant. One of the men struck him on the head with a gun, and he fainted. His head was bleeding but he did not need stitches subsequently.

93.    The applicant showed me where he had been struck, and I told him I was unable to see or feel any scar. No medical evidence has since been submitted attesting to scarring.

94.    He said he had not seen these men before 8 April and he was unaware they had previously visited (according to his brother they had come on 5 and 19 March 2012). After the April visit his mother had rung his brother, who was at a friend’s house in Colombo. The applicant could not recall what she had said to his brother and had not spoken directly to his brother himself.

95.    Asked roughly how long it was before he left Sri Lanka that the incident happened where they held a gun to his head and hit him, the applicant said it was three weeks before. His brother had then returned to Udappu to collect him and to pack on 25 April 2012, and on 2 May the two had travelled to Trincomalee district to meet the smuggler. Between 25 April and 2 May they had stayed at home with their mother. Asked if he could explain why he would have remained at home if he knew about the arrest warrant for his brother and, as he claimed, had been scared the police would come back, he said that was their last moment as a family.

96.    Although the applicant’s basic account is consistent with that of his brother, I do not consider it plausible that, if an arrest warrant had been issued for his brother and the applicant had been threatened by the police with being taken from his family home in his brother’s absence, the applicant would have remained at that address for three weeks after the police visit, including the week immediately before leaving the country. While I appreciate the wish to remain together as a family for as long as possible, a willingness to continue living at this particular address is so inconsistent with having any fear of being detained or seriously harmed by the authorities that I do not accept the authorities visited the family home in 2012. Therefore I do not accept that the applicant was assaulted by them as he has claimed. (emphasis added)

8    The issue which the applicants wish to raise as a sole ground of appeal, if they are granted an extension of time, is that the primary judge erred in construing the requirements of s 424A of the Migration Act 1958 (Cth) in two ways, first, by failing to find that the Tribunal’s statement that it was unable to see or feel any scar, following its physical examination of the younger brother’s head, was information for the purposes of s 424A, and, secondly, in finding that the absence of visible scarring, as identified in [93] of the Tribunal’s reasons, was not part of the reason for affirming the delegate’s decision the subject of the review.

The trial judge’s decision

9    The trial judge found that what the Tribunal set out at [93] was its report of what had occurred during the hearing concerning the younger brother’s claim to have been assaulted by the police. He held that what had occurred at the hearing was the Tribunal’s response to the younger brother’s claim that he had been hit and his evidence that, as a result, he had a scar on his head. The trial judge said that the Tribunal’s observation that no scarring was evident was simply an evaluation of the situation, and that, at its highest, that observation, of the absence of physical scarring, was not part of the reason for affirming the delegate’s decision.

10    His Honour found that the Tribunal’s reason for affirming the decision under review was the one that it gave solely in [96] of its reasons. He held that the Tribunal’s statement at [93], that no medical evidence had been submitted, was simply a reference to the absence of evidence in support of what the younger brother had proffered in evidence about his claim. His Honour also rejected a number of other grounds on which the Tribunal’s decision was challenged, but those matters are not relevant for present purposes. Accordingly, his Honour rejected the application.

The applicants’ submissions

11    The applicants argued that what the Tribunal did during the hearing was to make physical observations of the state of the younger brother’s head, and that the observation itself was a piece of direct evidence, not part of the Tribunal’s evaluative processes. They argued that the physical examination and the Tribunal’s observations about it occurred in a way that did not amount to the state of the younger brother’s head being information that he had given for the purpose of the application for review, within the meaning of s 424A(3)(b). The applicants argued that, relevantly, information about the state of the younger brother’s head was acquired knowledge concerning a particular circumstance or event, as Finkelstein J had explained in VAF v Minister for Immigration and Multicultural Affairs [2003] FCA 18 at [17]. They contended that this feature distinguished what the Tribunal had observed from the subjective appraisals, thought processes, or determinations, or its identification of gaps, defects, lack of detail or specificity in evidence before, or conclusions arrived at by, the Tribunal, when it considered evidence by reference to those matters, in the sense that Finn and Stone JJ had explained in the appeal in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at 477, as applied by Gleeson CJ, Gummow, Callinan and Heydon and Crennan JJ in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 614-615 [17]-[18].

12    The applicants argued that there was no purpose in the Tribunal setting out what appeared in [93] in its reasons, other than to demonstrate that it had used the information derived from its physical examination of the younger brother’s head as part of the reason for its conclusion, in the very last words of [96], that it did not accept that he had been assaulted by the Sri Lankan officials “as he has claimed”. In essence, the applicants submitted that the Tribunal’s use of its physical observation of the state of the younger brother’s head could only be used by it in its determination if it gave a notice under s 424A or used the oral procedure under s 424AA to do so. They contended that the departure from compliance with those provisions meant that the Tribunal had not accorded the applicants procedural fairness in the conduct of its review, entitling them to constitutional writ relief.

Consideration

13    In my opinion, the applicants should be granted leave to appeal and the appeal should be treated as instituted instanter. I will order the applicants to file a notice of appeal in the form of the draft, containing the ground that I have referred to above. The Minister suffered no prejudice from the appellants’ small delay in seeking to institute their appeal: Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] per Brennan CJ and McHugh J, 540 [66(4)] per Kirby J. The somewhat novel argument about the way in which the Tribunal engaged in a physical examination of the younger brother is sufficiently important to be dealt with on an appeal in an area of law that is yet not without the appearance of novel arguments.

14    The Tribunal, in reviewing a decision, was not bound by technicalities, legal forms or the rules of evidence, and had to act according to substantial justice and the merits of the case under s 420(2). When it made a decision on a review, the Tribunal had to make a written statement that set out its reasons for the decision, its findings on any material questions of fact, and referred to the evidence or other material on which those findings of fact were based (s 430(1)(b), (c) and (d)).

15    The Tribunal complied with the statutory requirements to set out findings on material questions of fact and refer to the evidence, or other material, on which the findings of fact were based, in [92]-[95]. However, I am of opinion that what it said in [93] was not a reason for the Tribunal’s decision. It noted, in the second sentence of that paragraph, that there was no medical evidence of scarring to the younger brother’s head submitted to it. That was an observation of present fact about the record of what was before the Tribunal.

16    The Tribunal set out its evaluative thought processes in [96]. At no point in [96] did the Tribunal mention or refer to the absence of scarring on the younger brother’s head or its thought process about that topic. Rather, the Tribunal considered that there was a lack of plausibility in the account of the two brothers, namely that the elder had been the subject of an outstanding arrest warrant and was being sought by the authorities.

17    The Tribunal did not accept that the younger brother had been threatened, as was alleged, in his home. This was because, as it said, it did not think he would have remained at home for three more weeks after such a frightening event, including the week immediately before he and his brother left Sri Lanka. The Tribunal member explained why that was so important in her reasoning process in the next sentence in [96], dealing with her appreciation of the fact that a family might wish to stay together. But she found that that desire was inconsistent with the younger brother having a fear of being detained or seriously harmed by authorities. And it was for that reason, in my opinion, as explained by the Tribunal, that it did not accept that officials had visited the family home at all in 2012. Accordingly, the Tribunal was not satisfied that an assault, as alleged by the younger brother, had occurred there.

18    It is important to appreciate that, as McHugh, Gummow and Hayne JJ explained in Minister for Immigration v Yusuf (2001) 206 CLR 323 at 346 [68]-[69], the requirement of s 430(1) requires that the Tribunal identify what it considered to be the material questions of fact on which it was making findings and set them out in its reasoning. The Tribunal set out its reasons for its decision. Whatever materiality in its fact-finding the physical examination of the younger brother’s head may have had, the Tribunal did not take those findings into account in the reason that it stated at [96], which was a logical, intelligible reason: see also SZSLM v Minister for Immigration and Border Protection [2015] FCAFC 164 at [32] per Rares, Flick and Griffiths JJ.

19    The requirement in s 424A engages by reference what the Tribunal considers to be information that would be the reason or part of the reason for affirming the decision under review. In my opinion, the reason that the Tribunal gave in [96] appears to be a comprehensive explanation of why it decided to affirm the delegate’s decision. That reason was, namely, that the Tribunal found that a person who had just been the victim of a serious assault by police or officials, who had declared their intention to harm that person if he or she did not cause a relative to be surrendered to them under an arrest warrant, would have a powerful motivation not to remain in a place where the police or officials could find him or her in circumstances where he or she did not intend to comply with the demand. In effect, that is the reason, and the only reason, that the Tribunal gave for not accepting the younger brother’s account. The Tribunal considered it was not plausible that if an assault, as alleged, had occurred, the younger brother would have remained at home where he could be found readily by the very people he feared would harm him.

20    Although it is not necessary to decide this question, I tend to think that the Tribunal would be able to compare the physical appearance of an applicant for review with a photograph in which that person claimed to be depicted, for the purposes of forming its view as to whether or not the photograph amounted to evidence of some matter, without having to give a notice under ss 424A or 424AA. Whatever the Tribunal did here in making observations about the state of the younger brother’s head is similar. If so, the Tribunal would not have been required to give a notice under ss 424A or 424AA about the mere statement that it made during the hearing, in the presence of the applicants’ solicitor/migration agent, that the Tribunal was unable to observe any scarring on its physical examination of the younger brother.

21    However, had the Tribunal observed such scarring on that occasion, that observation would have been a reason for not affirming the decision under review: SZBYR 235 ALR at 615 [17]. In that sense, any absence of scarring that the Tribunal could or did observe did not itself amount to a rejection, denial or undermining of the brothers’ claims to be persons to whom Australia owed protection obligations. That absence, or the Tribunal’s observations, were material to which the Tribunal might apply its thought processes or evaluations as to its consequence. The mere fact that there was no scarring observable to the Tribunal did not mean that the incident alleged happened or did not happen.

22    But, in any event, I am of opinion that whatever the answer to that hypothetical issue may be, the Tribunal here made a statement during the hearing as to what it had observed, and repeated that statement in [93] of its decision to which it added a factual finding that no medical evidence had been put before it to say that there was any scarring on the younger brother’s head. However, the Tribunal did not then use those matters so as to engage ss 424A or 424AA, because they were not the reason or part of the reason for it affirming the decision under review. The Tribunal stated its reason in [96] above for affirming that decision.

23    I accept the evidence of the Minister’s solicitor, Alice Yang, in her affidavit of 23 November 2015 that the Minister has incurred costs in excess of the amount he seeks be fixed, of $4800.

Conclusion

24    For these reasons, I am of opinion that the appeal, which I will allow to be filed, ought be dismissed. The appellants should pay the Minister’s costs fixed in the sum of $4,800.

Associate:

Dated:    18 December 2015