FEDERAL COURT OF AUSTRALIA

SZVYG v Minister for Immigration and Border Protection [2017] FCA 955

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal as assessed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia on 11 November 2016, dismissing the appellant’s application for review of a decision of the second respondent, the Refugee Review Tribunal (now the Administrative Appeals Tribunal). On 28 November 2014, the Tribunal had affirmed a decision made on 5 July 2013 by a delegate of the first respondent, the Minister for Immigration and Border Protection, refusing to grant the appellant a Protection (Class XA) visa.

2    The five grounds of appeal concern the Tribunal’s consideration of the appellant’s claim, advanced in a post-hearing written submission, that he feared religious persecution by reason of events occurring after the Tribunal hearing. It is primarily contended that the Tribunal fell into jurisdictional error by misconstruing the appellant’s claim and failing to invite him to a further hearing to address the issues arising from his post-hearing submission. Appealable error is asserted in the primary judge’s failure to find accordingly.

3    Following the hearing of the matter, the parties also filed further written submissions addressing an issue that had arisen as to whether an asserted failure by the Minister to file a notice of contention pursuant to r 36.24 of the Federal Court Rules 2011 (Cth) should affect the conduct of his case.

4    For the reasons set out below, the appeal should be dismissed with costs.

Before the Tribunal

5    The appellant, who is a citizen of Sri Lanka, arrived in Australia on 29 June 2012 as an irregular maritime arrival. On 27 August 2012, he applied for a Protection (Class XA) visa. On 5 July 2013, that application was refused by a delegate of the Minister. On 26 July 2013, the appellant applied to the Tribunal for a review of the delegate’s decision.

6    The Tribunal’s review hearing was conducted on 20 May 2014. In support of his application for a protection visa, the appellant primarily advanced a claim that he is a perceived ethnic Tamil who has been and will be imputed with links to the Liberation Tigers of Tamil Eelam (LTTE) due to his association with an abducted Tamil man.

7    As disclosed in the transcript of the hearing and reflected in the reasons at [54], the Tribunal, apparently on its own initiative, asked the appellant a number of questions concerning his perceived ethnicity, noting that the appellant was of Muslim religion according to the information on his file. The Tribunal queried what impact this might have on how he is perceived in Sri Lankan society. The appellant responded by saying, through an interpreter, that he had been brought up amongst Tamils “throughout his life”, having studied at a Tamil school and having been “brought up in a Tamil environment”. When asked by the Tribunal member whether he thought there was “any difference between the way he was perceived in society and by the authorities compared with being someone of Tamil ethnicity”, the appellant said “I think they look at me as a Tamil yes”. He said that the authorities would not be able to identify him as Muslim “straight away”, as Muslims “always wear a cap”. He said that he only carried a cap when he went to a mosque for prayers, only wore it inside, and when he left he would remove it. He also said that he attended Hindu temples with his friends and that “when I go with them I am also part and parcel of the Hindu youths”. On the face of what the appellant said, he seemed to be disavowing any concern about being identified as Muslim, let alone any fear of persecution upon that basis, that issue having been squarely raised by the Tribunal.

8    On 1 July 2014, subsequent to the Tribunal hearing, the appellant’s legal representative provided further information in writing to the Tribunal in support of a contention that the appellant feared there was a real chance he would be persecuted on the basis of his religious beliefs as a Muslim (post-hearing submission). This fear was only said to have arisen following a telephone conversation on 22 June 2014 in which the appellant’s parents advised him of attacks against Muslims in certain regions of Sri Lanka. The submission stated as follows (verbatim, omitting footnotes):

1.    Further to the Applicant’s Refugee Review Tribunal (Tribunal) Hearing on 20 May 2014, the Applicant would like to provide the following additional information.

2.    On 22 June 2014, the Applicant spoke to his parents who currently reside in Udappu, Mundalama Divisional Secretariat, Puttalam District, North Western Province, Sri Lanka (Udappu). The Applicant’s parents told him they were very frightened as there had recently been attacks against Muslims in Beruwala and Aluthgama which are only about 60 kilometres south from Colombo. The Applicant’s parents explained that there was a sense of tension in Udappu and that the local mosque was being guarded by Sri Lankan authorities. The Applicant’s parents are currently not attending the mosque as they are worried about their safety and do not trust that the Sri Lankan authorities will protect them.

3.    The outbreak of violence on 15 June 2014 occurred after the ultranationalist Buddhist Bodhu Bala Sena (BBS) organisation led a rally ‘purportedly to express concerns for the safety of Buddhists in the area’. The BBS leader Galagodaaththe Gnanasara Thera gave a speech at the rally in which he claimed ‘the majority Sinhalese population was in need of protection and that the government security forces deployed at the meeting were against them’. Soon after, a mob carrying poles and other weapons attacked Muslims and Muslim business resulting in the death of four Muslims and 80 Muslims being injured.

4.    Integrated Regional Information Network has called these recent attacks against the Muslim minority ‘the worst classes in five years’. They quote David Griffiths, Asia-Pacific deputy director at Amnesty International, warning that ‘there is a real risk of violence spreading elsewhere unless the government acts immediately… This is an issue that has been brewing for some time and that should have been addressed long ago’.

5.    The United Nations High Commissioner Navi Pillay has also stated:

I am very concerned this violence could spread to Muslim communities in other parts of the country… The authorities must immediately bring the perpetrators of such attacks to book and make it clear… that there is no place for inflammatory rhetoric and incitement to violence.

6.    Of particular concern is Amnesty’s 17 June 2014 report that indicates that sectarian violence has already spread to other towns in Sri Lanka.

7.    Given these recent attacks, the Applicant fears that if he were to be returned to Sri Lanka, there is a real chance that he would be persecuted on the basis of his religion. Accordingly, in reference to the above country information, the Tribunal should find that the Applicant’s fear is well-founded.

8.    Please call me on [telephone number] if you require any additional information regarding this matter.

Yours sincerely

[Agent’s name and details]

9    It may be observed that no request was made for any further hearing in the submission, nor subsequently. Nor was it suggested that any more information was able to be provided in support of the submission.

10    On 11 November 2014, a further letter was sent to the Tribunal on behalf of the appellant raising concerns about a visit to his parents’ home by the Sri Lankan Criminal Investigation Department. Nothing more was raised about the claims made in the 1 July 2014 submission. This further letter did not form any part of the case advanced in the Court below or on appeal to this Court.

11    On 28 November 2014, the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa. The Tribunal did not accept that the appellant was owed protection by reason of his imputed Tamil ethnicity, his imputed LTTE opinions or membership, his illegal departure from Sri Lanka or his prospective return to the country as a failed asylum seeker. No challenge in relation to the Tribunal’s rejection of these claims was pursued further before the primary judge or in this Court.

12    Similarly, having also considered the appellant’s post-hearing submission of 1 July 2014, the Tribunal did not accept the appellant’s religion-based claim. In particular, the Tribunal did not accept that the country information advanced related to Udappu and expressed doubt about the appellant’s claimed subjective fears having regard to the timing of his claim. The relevant aspects of the Tribunal’s decision were as follows:

54.    I accept the applicant’s consistent account that he is a Muslim. Despite the opportunity, the applicant did not advance any religion-based claim of past harm or future feared harm to the Department or the Tribunal (until after the hearing). This was despite me noting the applicant’s Muslim religion at the hearing and him mentioning his mosque attendance (in the context of arguing that he was perceived as Tamil). During the hearing, I invited the applicant to indicate any fear he had in returning to Sri Lanka, and he did not at all raise the matter of his religion. It has been entirely open to him to advance claims regarding his Muslim religion and he did not at all do so until after the hearing, through his representative.

55.    After the hearing, on 1 July 2014, the representative submitted as follows. On 22 June 2014, the applicant spoke to his parents who reside in Udappu. They told him they were very frightened as there had recently been attacks against Muslims in two named areas about sixty kilometres sought [sic] from Colombo. They said there was a sense of tension in Udappu and the local mosque was being guarded by the authorities. The parents are currently not attending the mosque out of worry for their safety and they do not trust the authorities will protect them.

56.    The representative cited Human Rights Watch indicating the June 2014 violence was prompted by ultra-nationalist Buddhists and resulted in the deaths of four and injuring of eighty Muslims. She cited the UN IRIN network calling these attacks “the worst clashes in five years” and quoted Amnesty International Warning there is a real risk of violence spreading elsewhere unless the government acts immediately. She quotes the UN High Commissioner stating her concern that this violence could spread to Muslim communities in other parts of the country and calling for the authorities to call the perpetrators to account and make it clear that there is no place for inflammatory rhetoric and violence. The representative argues that of particular concern is Amnesty’s June 2014 report indicating that sectarian violence has already spread to other towns in Sri Lanka. On these bases, the representative indicates the applicant fears he faces a real chance of persecution due to his religion, and argues – in light of the country information cited – that his fear is well-founded.

57.    I accept the incidents referred to in the reporting cited by the representative occurred and that the reporting points to escalating tension and increased reports of attacks on mosques and some Muslims in some areas, prompted by ultra-nationalist Buddhist sentiment. I note the June 2014 Amnesty report cited by the representative indicates it received “hundreds of reports of harassment, threats and attacks on Muslims and Christians and their place of worship in 2013” but does not indicate how many relate to Muslims or in which locations the claims leave me in real doubt about his claimed subjective fears. Regardless, I do not accept that the material cited relates to Udappu (which is well north of Colombo) specifically, and I am not willing to extrapolate from the reporting provided that the applicant as a Muslim personally faces a real chance of religiously-motivated attack or harm or serious harm in Udappu, now or in the reasonably foreseeable future.

58.    I do not accept that this aspect of the applicant’s claims feeds into his other cumulative claims for protection. That is, I do not accept this his religion is relevant to, or compounds the risks to him of any adverse profile on return to Sri Lanka, such that taken alone or cumulatively, his religion leads to any real chance of harm or serious harm now or in the reasonably foreseeable future.

13    It is the above treatment of the appellant’s asserted fear of religious persecution that occupied the totality of the proceedings in the Court below and on appeal to this Court. The issues raised all turned on the way in which that claim was dealt with, including, in particular, the asserted right to a further hearing to address the claims that the appellant made. That was so despite such a hearing not having been sought by him or by his migration agents. If the appellant’s contentions detailed below were correct, it would have the potential to change radically the way in which post-hearing submissions must be dealt with by the Tribunal, especially as to their subjective assessment and evaluation.

Before the primary judge

14    By application filed 2 January 2015, the appellant sought judicial review of the Tribunal’s decision by the Federal Circuit Court of Australia. An amended application filed on 29 June 2015 was relied on at the hearing. By way of a single ground of review with a number of subparagraphs, raising both background particulars and particulars of claims, the appellant pressed what were essentially four separate challenges to the Tribunal’s decision.

15    First, the appellant contended (ground 1(c) below) that the Tribunal misconstrued the appellant’s religion-based claim by failing to appreciate or comprehend that his fear of religious persecution had only arisen on 22 June 2014 following a conversation with his parents. The primary judge did not accept this characterisation of the Tribunal’s reasoning, noting that the Tribunal specifically addressed and appreciated the timing of the appellant’s claim at [55] to [57] of its reasons. His Honour stated further that the Tribunal was entitled to observe that the timing of the raising of the claim left the Tribunal in real doubt about the appellant’s asserted subjective fear. His Honour also accepted a submission on behalf of the Minister that the appellant’s claim was rejected on a different basis to that posited by the appellant, namely, because the Tribunal was not willing to extrapolate a risk of harm to the appellant based on events at locations well removed from the appellant’s home town or village. The issue of extrapolation was further advanced as a separate ground, considered below.

16    Secondly, in the alternative, the appellant argued (ground 1(d) below) that the Tribunal failed to have regard to a relevant consideration, namely, that the appellant did not have an opportunity to raise the religion-based claim earlier because the claim occurred in late June 2014 after the Tribunal hearing. His Honour considered that this ground of review bore the “hallmarks of unreality”. His Honour expressed a (perhaps unnecessary) personal view that he was unable to accept that the appellant felt fear for the first time after the Tribunal hearing following a conversation with his parents, stating that this “curious position” no doubt explained the Tribunal’s reluctance to accept the asserted fear.

17    Thirdly, the appellant argued (ground 1(e) below) that the Tribunal failed to take into account information from Amnesty International and other country information concerning the spread of anti-Muslim violence. It was submitted that the Tribunal’s finding that it was not willing to extrapolate a risk of harm to the appellant in Udappu was “manifestly unreasonable, arbitrary or capricious”. In rejecting this ground of review, the primary judge considered that the country information provided was not overlooked, but rather was “so vague as to be speculative”, with no reference to the spread of violence specifically near Udappu. Accordingly, there was no basis for the Tribunal to extrapolate the information as suggested by the appellant, let alone unreasonableness in its failure to do so.

18    Fourthly, by reference to the separate judgment of Besanko J in SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; 172 FCR 1 at [103], building on the High Court decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [36]-[37], the appellant contended (ground 1(f) below) that by reason of the matters raised in the post-hearing submission, an “issue” or “issues” had emerged after the hearing, requiring the Tribunal to give a second invitation to the appellant to appear before it. The primary judge rejected this ground of review. Although accepting that the post-hearing submission advanced the appellant’s fear of harm by reason of his religion as having arisen on and from 22 June 2014, being a date after the conclusion of the Tribunal hearing, the primary judge considered that the issue of persecution for religious reasons was one that had already been alive before the Tribunal. In those circumstances, his Honour considered that the date the asserted fear had emerged was a “mere particular” of an issue already on foot, and the Tribunal was under no obligation to invite the appellant to a further hearing.

19    In summary, the Federal Circuit Court did not accept that the Tribunal’s decision disclosed reviewable error. On 11 November 2016, the primary judge dismissed the appellant’s application for review.

20    By notice of appeal filed 2 December 2016, the appellant appealed from the orders of the primary judge. The appellant’s five grounds of appeal have been considered in turn below. As a preliminary matter, I have considered the issue of whether the Minister was required to file a notice of contention.

Notice of contention issue

21    At the hearing of the appeal, counsel for the appellant objected to the Minister raising arguments in response to the first ground of appeal that, whilst ostensibly advanced before the primary judge, were not expressly dealt with in his Honour’s reasons for judgment. This gave rise to the issue, dealt with in further written submissions filed by the parties with leave, as to whether the Minister had failed to file of a notice of contention as required by r 36.24 of the Federal Court Rules 2011 (Cth). That rule is in the following terms:

If a respondent does not want to cross-appeal from any part of a judgment, but contends that the judgment should be affirmed on grounds other than those relied on by the court appealed from, the respondent must, within 21 days after the notice of appeal is served, file a notice of contention, in accordance with Form 124.

22    In his supplementary written submissions, the appellant submits that the Minister is limited in this appeal to defending the arguments relied on by the primary judge because he has not filed a notice of contention. Reiterating r 36.24, it is stated that if a respondent does not want to cross-appeal, but contends that the judgment should be affirmed on grounds other than those relied on by the court appealed from, the respondent must file a notice of contention within 21 days after service of the notice of appeal. The appellant further submitted that a party is ordinarily bound by the conduct of his case at trial and, except in the most exceptional circumstances, cannot raise a new argument on appeal, whether it was not raised below deliberately or by inadvertence: University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; Coulton v Holcombe (1986) 162 CLR 1 at 7. Although the appellant’s objections at the hearing of the matter were directed to the submissions made under ground 1, the appellant’s written submissions raise objections to aspects of the Minister’s submissions on the balance of the appeal grounds.

23    In the circumstances, I do not consider there to be any merit in the appellant’s objections to the arguments put by the Minister. Adopting the submissions of the Minister, I do not accept that the Minister is a respondent who is contending that “the judgment should be affirmed on grounds other than those relied on by the primary judge”. As is borne out having regard to the submissions filed in the court below, the Minister “was in the position of someone who ran a primary case and an alternative case, whose primary case was accepted and whose alternative case was not, therefore, dealt with”: Tattsbet Ltd v Morrow [2015] FCAFC 62; 233 FCR 46 at [137]. It was not an argument that was rejected. Furthermore, as was observed by Buchanan J in Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145; 229 FCR 197 at [95], this Court has the power, under s 28(1)(b) of the Federal Court of Australia Act 1976 (Cth), “to uphold the orders made by the [Federal Circuit Court of Australia], even if it does not embrace the reasons for those orders”. The filing of a notice of contention, as his Honour said, “gives clear warning that orders will be supported on other grounds, but it is a procedural step, not a fetter on the Court’s power”.

24    In all the circumstances, I do not consider that a notice of contention was required for the Minister to rely on the arguments advanced on his behalf in submissions provided long before the hearing of the appeal. Those submissions largely defended the primary judge’s reasons and conclusions. Even if that is wrong, I am not prepared to determine the issues in this case in an artificial way, ignoring the primary obligation to do justice between the parties, having due regard also to the terms of ss 28(1)(b) and 37M(1) of the Federal Court of Australia Act 1976 (Cth). While detail and emphasis may have changed in the cases as run in the Court below and on appeal, the substance was the same. The Minister was not seeking to have the judgment affirmed on grounds that were different in any material sense. In any event, a procedural requirement should not stand in the way of achieving the correct outcome in the circumstances of this case. That is especially so when essentially the same grounds are being ventilated on appeal as in the court below.

GROUNDS OF APPEAL

Ground 1

25    The appellant’s first ground of appeal was stated as follows:

The court below erred in failing to find that the second respondent (Tribunal) had engaged in jurisdictional error by failing to comply with s 425 of the Act. The court below should have found that the Tribunal had breached s 425 of the Act by failing to invite the appellant to a further hearing to give evidence and present arguments in relation to the issues arising in the review relating to his religious based claim.

Legislative provisions

26    Section 425(1) of the Migration Act 1958 (Cth) relevantly provided as follows:

425    Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

27    Section 424A, providing as follows, was also made relevant by the arguments advanced, which focused on the terms of s 424A(3) in particular and their relationship with s 425(1):

424A    Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)    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; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

Appellant’s submissions on ground 1

28    The appellant submits that the primary judge erred in concluding that the Tribunal was not obliged under s 425(1) of the Migration Act to invite the appellant to a second hearing “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. In particular, counsel for the appellant contended that his Honour was incorrect to find that certain issues arising by way of the post-hearing submission – i.e. “the timing of the appellant’s claim” and “whether the violence could extend to Udappu” – were particulars of an issue that was already “alive” before the Tribunal.

29    What was in effect argued by counsel for the appellant on ground 1 was that a distinction should be drawn between the general matter of whether the appellant felt a fear of persecution by reason of his religion and what were said to be the “issues” of the appellant’s case specific to the claim that was ultimately put in the post-hearing submission, namely, the Tribunal’s concerns about the timing of appellant’s claim and the question of whether the violence referred to in the country information could extend to Udappu. In this regard, it was emphasised that these issues had only arisen following the hearing, and that the post-hearing submission was the very first occasion on which the appellant had in fact claimed that he feared being persecuted by reason of his religion, as had been recognised by the Tribunal itself in its comment at [54] that “[d]espite the opportunity, the applicant did not advance any religion-based claim of past harm or future harm to the Department or the Tribunal (until after the hearing)”. Having regard to the issue of timing, counsel for the appellant argued that the Court should not accept that the relevant “issue” or “issues” were raised and were live before the Tribunal purely because the Tribunal had asked questions about the interplay of the appellant’s religious beliefs and perceived ethnicity in the exchange summarised at [54] of the Tribunal’s reasons.

30    In developing the submission that the relevant issues were those particular to the appellant’s post-hearing claim, counsel for the appellant placed reliance on the following passage from Gray J’s judgment in SZHKA at [7]:

… First, the issues arising are not limited to the question whether the applicant is entitled to a protection visa, but are more particular than that. Second, initially the issues will be defined by the reasons given by the person who made the decision under review, but the issues may, and often will, undergo change in the course of the Tribunal’s conduct of the review of that decision. Third, because the Tribunal starts from the position of being unpersuaded by the material already before it, the hearing will inevitably explore the reasons why the Tribunal might not be persuaded by that material; the Tribunal will not perform its function adequately if it does not provide the applicant with the opportunity to satisfy the Tribunal’s specific reservations about the applicant’s case. Thus, to some extent at least, the issues arising in relation to the decision under review will depend upon the view that the ultimate decision-maker takes about the material before the Tribunal, and will therefore be shaped by that person’s thought processes. This is not to say that the Tribunal member must expose all of his or her thought processes to scrutiny by the applicant, as part of the hearing.  The High Court recognised this in SZBEL at [38]-[39].  The line between exposing every aspect of the reasoning process and making known to the applicant the issues that the Tribunal member sees as arising may not be easy to recognise in all circumstances, but it does exist.

31    It was submitted that, consistent with the passage from SZHKA extracted above, the “issue” capable of giving rise to an obligation to invite a review applicant to a further hearing was the issue “dispositive” of the review. Relevantly in this case, those issues were said to be the reasons adopted by the Tribunal for rejecting the religion-based claim. This was said to be supported by reference to Gray J’s comments in SZHKA at [9] that:

The view that the issues to be decided are those perceived to be issues at the time of the making of the ultimate Tribunal decision is also consistent with what the High Court has said in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2004] HCA; 53; (2006) 231 CLR 1; and NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54; (2006) 231 CLR 52, in relation to those applicants who come before the Tribunal seeking permanent protection visas after earlier having been granted temporary protection visas, which have expired.

32    Counsel for the appellant also placed reliance on the observations of Bromberg J in ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 at [27], where his Honour’s prior reasoning on the construction of “issues” in s 425(1) was restated as follows:

… On that basis, and on the basis of the relevant reasoning in SZBEL and SZHKA, I rejected the Minister’s contention in that case that the requirement to give notice of the issues was discharged at a high level of generality. I there found (at [162]) that “the critical issues to be considered … by the delegate needed to be identified at a level of specificity which gave meaning to the opportunity to respond”: SZMUF v Minister for Immigration and Citizenship [2009] FCA 182 at [22] (Flick J).

33    In relation to the Tribunal’s reasons in the present case, the relevant issues “dispositive” of the review were said to be the Tribunal’s specific concerns about the appellant’s religion-based claim, namely, the “timing of the appellant’s claim” and “whether the violence could extend to Udappu”. In circumstances where the Tribunal dealt with these issues without a second hearing, it was submitted that it had failed to put the appellant on notice of the issues critical to its decision or to identify them with sufficient specificity.

34    Counsel for the appellant also developed this submission with reference to the well-known reasoning of the Full Court in Commissioner for Australian Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592, which was quoted with approval by the High Court in SZBEL at [29]. That passage was as follows (emphasis added):

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”

35    It appeared to be submitted further, drawing on the reasoning in Alphaone, that the issues “critical” to the Tribunal’s decision on the appellant’s religion-based claim were “not apparent from [their] nature”. Accordingly, it was said that the Tribunal had failed to accord procedural fairness by disposing of the review without identifying those issues to the appellant. In particular, counsel for the appellant suggested that it was not obvious that the Tribunal would regard the appellant’s religion-based claim as something that he could have raised earlier, in circumstances where the claimed fear had only arisen following the hearing.

36    For these reasons, it was submitted that the primary judge erred in concluding that the Tribunal did not commit jurisdictional error by failing to invite the appellant to a second hearing.

Minister’s submissions on ground 1

37    The Minister’s submissions on the appellant’s first ground of appeal were fourfold.

38    First, it was submitted that the Tribunal’s decision could in no way be characterised as based on an unknown or unexpected issue which it had failed to disclose. As it was the appellant who advanced the relevant claim and material, the present case was therefore distinguishable from cases where the review applicant was unaware of the issue that had arisen: cf. SZHKA; ABV16; and Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069; 148 ALD 507.

39    Secondly, it was submitted that the “timing of the claim” and “whether the violence could extend to Udappu” were not “issues” within the meaning of s 425(1) as contended by the appellant, but rather questions or concerns that arose from the information contained in the post-hearing submission. Disclosure of those concerns would have resulted in the Tribunal providing a running commentary on its thought process, which s 425(1) does not require: SZBEL at [48].

40    Thirdly, it was submitted that the issue of the appellant fearing harm on the basis of his religious beliefs had been live before the Tribunal. At the hearing, the Tribunal had discussed with the appellant his religious beliefs, querying whether there was any difference between the way in which the appellant, as a Muslim Tamil, was perceived in society and by the Sri Lankan authorities compared with Tamils generally. It was submitted that this exchange was sufficient to put in issue the appellant’s religious beliefs and what impact, if any, they might have on his claims for protection. The matters raised in the post-hearing submission were therefore asserted not be to new issues, but rather sub-issues within, or further particulars of, the existing issue. Counsel for the Minister noted authority to the effect that there is a distinction between an issue, on the one hand, and a sub-issue or a further particular of that issue, citing: Minister for Immigration and Citizenship v SZKTI [2009] HCA 30; 238 CLR 489 at [51] per French CJ, Heydon, Crennan, Kiefel and Bell JJ; Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 at [18], [62]-[66].

41    Fourthly, and very much in the alternative, if, contrary to the Minister’s primary position, the matters raised in the appellant’s post-hearing submission constituted “issues” for the purposes of s 425(1), it was said that they did not have to be disclosed in the circumstances of the present case, as they arose from country information, particulars of which did not have to be given to the appellant by reason of s 424A(3)(a).

42    In relation to s 424A(3), counsel for the Minister suggested that, if necessary, the Court should not follow the obiter remarks expressed by Bromberg J in ABV16 at [53] to [58], where his Honour considered that s 424A(3) should be read as subordinate to s 425(1) to the extent of any conflict between the provisions.

43    The Minister submitted that the construction of ss 424A(3) and 425(1) favoured in ABV16 at [53] to [58] would produce absurd results and could not have been intended by Parliament. To illustrate this point, counsel for the Minister suggested a hypothetical case in which there might be information falling within s 424A(3) that directly contradicts a review applicant’s claims for protection. In such a case, the applicant might say that the information had given rise to a new issue for the purposes of s 425. Applying the construction suggested in ABV16, s 425 would therefore not be read down in light of s 424A(3), such that the provision would require the particulars of the relevant information to be disclosed through an issue identification process. Such an outcome was described as bizarre.

44    In response, it was submitted by counsel for the appellant that the question of s 424A(3) simply does not arise in this case, as it is not the appellant’s contention that the Tribunal failed to put to him “country information” falling within s 424A(3)(a). (That submission overlooks s 424A(3)(b), which addresses information that a review applicant gives for the purpose of the application for review by the Tribunal.) It should be observed that this submission appears to reflect the distinction drawn by the appellant for the purposes of s 425(1) between the country information itself, and the Tribunal’s specific concerns about that information, such as its refusal to extrapolate a risk of harm to Udappu. It was further said that s 424A represents a carve-out of s 424, and not of s 425.

Consideration of ground 1

45    A combination of the first three arguments advanced on behalf of the Minister should prevail. Relevantly, this was not a case where the review applicant was unaware of the issue that had arisen, as the information and claims giving rise to the asserted “issues” had been advanced on the appellant’s behalf. Furthermore, while the appellant’s post-hearing submission relied upon events post-dating the Tribunal hearing, it arose in the context of the question of whether there was any basis for the appellant to claim protection by reason of religious persecution, which had been explicitly raised as an issue by the Tribunal at the hearing. In this regard, the appellant’s disavowal of reliance on such a claim at the hearing did not mean that the issue was not present or did not exist. Rather, it meant that the appellant had not, at that time, provided information by which that possible basis for advancing a claim for a protection visa had any content. He chose to give that issue content after the hearing, by reason of events that also took place later. He provided all of the information upon which that claim was based, albeit also by reference to country information (which was accepted by the Tribunal). Having done so, the Tribunal was obliged to consider and assess the information so advanced, including by having regard to its inherent characteristics, strengths and weaknesses. The Tribunal’s reasons disclose the thought processes in carrying out that essential function.

46    It must have been known to the appellant and those who advised him that he had effectively disavowed any religious persecution claim when that had been raised by the Tribunal at the hearing. It must similarly have been appreciated that the information supplied, including country information referred to which was before this Court, did not directly relate to the appellant’s home town or village, but rather to places some distance away, and that the nexus asserted was indirect and inferential at best. The Tribunal was entitled to – indeed, obliged to – consider that information and evaluate it, including with regard to the context in which it arose. Those features were, in the terms of Alphaone reproduced above, readily apparent from the nature and contents of the information supplied, as understood in the context of the antecedent Tribunal hearing and, in particular, the raising of the possibility of such a claim. As Katzmann J pointed out in SZRTF at [62]:

In any case, the obligation to comment or respond only extends to “information” and “information” “does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.” (VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123 at [24] per Finn and Stone JJ, cited with approval by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18]).

47    I can discern no error on the part of the Tribunal and therefore no error on the part of the primary judge. The circumstances gave rise to no obligation under s 425(1) to hold a second hearing arising from the appellant’s post-hearing submission and pertaining to its assessment and evaluation. It follows that ground 1 must fail.

48    As I have determined that ground 1 cannot succeed, I do not need to resolve the dispute between the parties as to how the potentially competing or inconsistent operation of ss 424A(3) and 425(1) should be resolved. It should be noted that in BEV15 v Minister for Immigration and Border Protection [2016] FCA 507 at [54]-[60], I came to a somewhat different conclusion to that which was subsequently expressed by Bromberg J in ABV16, but did not go so far as is put in the Minister’s submissions in seeking to have s 424A(3) override s 425(1) in all circumstances. I do not consider that I should attempt to reconcile those two decisions now, especially as my observations would be obiter. The resolution of those competing contentions must await a case in which they squarely arise for determination.

Ground 2

49    The appellant’s second ground of appeal was stated as follows:

The court below erred in failing to find that the Tribunal had engaged in jurisdictional error by failing to correctly construe and deal with the appellant’s claim. The court below should have found that the Tribunal misconstrued or failed to understand that the appellant was claiming that his fear of persecution for religious reasons arose from events that arose after the Tribunal hearing.

Appellant’s submissions on ground 2

50    The central complaint advanced under ground 2 is that the primary judge should have concluded that the Tribunal misconstrued the appellant’s religion-based claim by failing to appreciate or comprehend that his fear of religious persecution had only arisen on 22 June 2014 following a conversation with his parents. The Tribunal’s misunderstanding of the appellant’s claim is said to be disclosed by the statement at [57] of its reasons that “It has been open to the applicant to make his case and the timing of these claims leaves me in real doubt about his claimed subjective fears”. This, it was submitted, should be read as a criticism of the appellant for not bringing his claim earlier, suggesting that the Tribunal did not appreciate that the appellant’s fear had only arisen on 22 June 2014. Citing Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at 394-5 [22]-[24] and [27], it was submitted that the Tribunal’s misconstruction of the claim that had been put meant that it had constructively failed to exercise jurisdiction.

51    The appellant also made a number of criticisms of the primary judge’s reasoning, which was described as non-responsive to the ground of review in question. In particular, it was submitted that the primary judge’s findings erroneously descended into the merits of the claim rather than adjudicating on the ground of review. At [24]-[25], his Honour stated “I find it impossible to accept that for the very first time, on 22 June 2014, the applicant sensed a fear on account of his conversation with his parents” and “I find it impossible to accept that the applicant was struck with fear, essentially for the first time, based on a conversation he had with his parents …”.

Minister’s submissions on ground 2

52    Counsel for the Minister resisted the contention that the Tribunal misunderstood the appellant’s claim. It was emphasised that the Tribunal’s observation at [57] about the timing of the appellant’s claim was not made because the Tribunal did not appreciate that his asserted fear arose on or after 22 June 2014. Rather, the Tribunal criticised his having raised the religion-based claim in July 2014 in circumstances where he relied, in part, upon country reports going to the safety of Muslims in Sri Lanka when those reports indicated that Muslims had been harassed, threatened and attacked well before 22 June 2014.

53    Acknowledging that the primary judge did not express his observations at [24] in the clearest of terms, the Minister submitted that his Honour should be taken only to have expressed agreement with the Tribunal’s observation about the credibility of the appellant’s fear.

Consideration of ground 2

54    There is no legitimate basis to conclude that that the Tribunal did not appreciate that the events relied upon in the post-hearing submission also took place after that hearing. In substance, the Tribunal was stating that it was difficult to accept that such a fear would genuinely have arisen as asserted in the absence of any prior basis for such a concern. This was a reference to the issue of religious persecution having been raised at the hearing and not asserted at that time. In that regard, it needs to be remembered that the appellant positively asserted an association, and thereby identification by authorities, with being Tamil and even Hindu, rather than Muslim. The Tribunal was entitled to evaluate the information in the post-hearing submission provided by the appellant in that context.

55    While it might have been better for the primary judge not to have expressed a personal view as to the merits of the post-hearing assertions, in context his Honour was doing no more than seeking to understand the approach taken by the Tribunal. The quotations relied upon by counsel for the appellant omit that contextual part of his Honour’s reasons.

56    Ground 2 must therefore fail.

Ground 3

57    The appellant’s third ground of appeal was stated as follows:

The court below erred in failing to find that the Tribunal had engaged in jurisdictional error by failing to take relevant considerations into account. The court below should have found that, when the Tribunal doubted the appellant’s religious claims on the basis of their timing, it failed to take into account that the appellant did not have the opportunity to raise the claim earlier because the claim was based on events and evidence that post-dated the Tribunal hearing.

Appellant’s submissions on ground 3

58    The appellant submitted that the Tribunal erred in failing to take into account a relevant mandatory consideration in making the finding that the appellant’s religion-based claim was not genuine because it had not been brought earlier. In particular, it was said that the Tribunal failed to take into account that the appellant did not have the opportunity to raise the claim earlier because:

(1)    the events complained of post-dated the hearing;

(2)    the fear arose after a conversation with the appellant’s parents that took place after the hearing; and

(3)    the claim relied on country information that was published after the hearing.

59    The appellant reiterated a number of submissions that were made to the primary judge. Given the importance that the Tribunal placed on the timing of the appellant’s claim, it was submitted that the above matters were central to the Tribunal’s decision-making process, and were therefore mandatory considerations as explained by Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [111]. It was further submitted that the proper inference to draw was that the Tribunal had failed to have regard to these matters because it had omitted to refer to them beyond the bare fact of the date on which the religion-based claim was made. It was said that, had the Tribunal taken these considerations into account, it would not have concluded that the appellant could have raised the claim at the hearing or that the “failure” to raise the claim earlier undermined whether he had a subjective fear.

60    The appellant also criticised the primary judge’s reasoning as unresponsive to the argument that had been advanced. It was said that, instead of asking the proper question of whether the relevant matters were relevant mandatory considerations, the primary judge rejected the ground of review on the basis that it did not accept the truth of the claim, demonstrated by its conclusion at [51] that it did not accept that “the applicant was struck with fear, essentially for the first time, based on a conversation he had with his parents”. This approach, it was submitted, was not a proper function of the Court below and was a diversion from the proper question to ask.

Minister’s submissions on ground 3

61    Counsel for the Minister submitted that the appellant’s third ground of appeal is based on two premises that ought to be rejected: first, that the Tribunal rejected the appellant’s religion-based claim on the basis that the claim had not been raised earlier than the event had occurred; and, secondly, that the Tribunal was not cognisant of the fact that the events referred to in the appellant’s post-hearing submissions took place after the hearing. It was said that the Tribunal’s reasons at [55]-[56] plainly reveal that it had regard to those matters.

62    Counsel for the Minister submitted further that the factors which precluded the appellant from raising the religion-based claim earlier do not bear the character of mandatory relevant considerations as described by Mason J (as his Honour then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. Nor did they comprise “relevant material” in the sense described by the High Court in Craig v South Australia (1995) 184 CLR 163 at 179 and by Robertson J in SZRKT at 130 [111]. The “evidentiary material” was the post-hearing submission, which the Tribunal considered.

63    The Minister accepted that some parts of the primary judge’s reasons at [49]-[51] did not appear to relate directly to the ground below.

Consideration of ground 3

64    It is a long way from reading the reasons of the Tribunal beneficially, as required (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2), to submit that it was not appreciated that the appellant did not have the opportunity to raise the specific details of his claim earlier for the various reasons identified. It does not take a particularly beneficial and contextual reading to form the view that the Tribunal was not suggesting that the specific event could have been referred to at the time of the hearing, but rather, that the lack of any basis for fear having been indicated or identified earlier, including when the issue was specifically raised by the Tribunal, pointed away from the asserted subjective fear that had arisen being genuine. The absence of such a claim at the hearing, expressed in relatively emphatic terms, was a matter that the Tribunal was entitled to take into account in assessing the veracity of the claims later made.

65    In any event, it is difficult to see how any of these essentially factual matters of circumstance could, in the context of this case, be elevated into a relevant consideration in the public law sense of being mandatory. While factual matters may, in some instances, bear such a character, this was not such a case. Undoubtedly, the appellant’s claim of fear in the post-hearing submission was one that was central to the appellant’s case, obliging consideration on the part of the Tribunal. However, this did not mean that each and every facet of the claim’s circumstances would of itself be material to the task of the Tribunal in conducting the review. The lack of materiality of those matters is demonstrated when regard is had to the possibility that, in different circumstances, the Tribunal might have accepted the appellant’s claim as being inherently reliable without regarding such circumstances as being important, let alone in any way determinative. Similarly, it was open to the Tribunal to reject the appellant’s claim, without regard to matters such as timing, on the basis that it was unwilling to extrapolate a risk of harm to the appellant from the country information advanced.

66    The appellant’s criticisms of the primary judge also founder upon proper consideration of what his Honour actually said. While his Honour did not use the words “relevant consideration”, the content of [49]-[50] of his reasons were plainly directed to the detail said to constitute that asserted consideration.

67    Ground 3 must also fail.

Grounds 4 and 5

68    The appellant’s fourth and fifth grounds of appeal were stated as follows:

4.    The court below erred in failing to find the Tribunal had engaged in jurisdictional error by failing to take relevant considerations into account. The court below should have found that, when finding that it was not willing to extrapolate a risk of harm to the appellant in Udappu, it failed to take into account country information advanced by the appellant concerning the risk of the violence in question spreading everywhere.

5.    The court below erred in failing to find that the Tribunal had engaged in jurisdictional error in respect of its finding that it was not willing to extrapolate a risk of harm to the appellant in Udappu. The court below should have found that the Tribunal’s unwillingness to extrapolate a risk of harm to the appellant was manifestly unreasonable, arbitrary or capricious.

Appellant’s submissions on grounds 4 and 5

69    The complaints in the appellant’s fourth and fifth grounds of appeal concerned the primary judge’s findings at [53] to [64] that the Tribunal did not engage in jurisdictional error by failing to extrapolate a risk of harm to the appellant in Udappu when considering the country information advanced in the post-hearing submission.

70    As was argued before the primary judge, error in the Tribunal’s decision is said to have arisen in two ways. First, it was submitted that the Tribunal failed to take into account the evidence advanced by the appellant concerning the risk of violence spreading to Udappu. In this regard, the appellant highlighted the various aspects of the material in the post-hearing submission which were said to be centrally relevant to the issue, such as the quotations referring to “recent attacks against Muslims” and the “risk of violence spreading elsewhere”. On the basis that the Tribunal did not identify any country information to contrary effect or reject any of this country information in finding that there was no risk of violence spreading to Udappu, it was submitted that this Court should infer that the Tribunal failed to take the appellant’s evidence into account, citing Minister for Immigration and Citizenship v MZYTS [2013] FCAFC 114; 230 FCR 431 at [38]-[39], [48]-[50].

71    Secondly, it was submitted that the primary judge erred in concluding that the Tribunal’s unwillingness to extrapolate a risk of harm to the appellant in Udappu was not manifestly unreasonable, arbitrary or capricious. Seeking to apply the test in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [40], it was submitted on behalf of the appellant that the Tribunal’s factual determination was illogical, irrational or lacked a basis in findings or inferences of fact supported on logical grounds. It was observed that the evidence before the Tribunal consistently referred to a risk of the recent violence against Muslims as spreading or having spread. In the absence of contrary evidence or any rejection of that material, it was said that there was no basis for the Tribunal’s unwillingness to accept that the risk could spread to Udappu. In those circumstances, the case bore the aspect of one determined by “tossing a coin” or by making a “snap decision” or by acting on instinct, a “hunch” or a “gut-feeling”: WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74; 80 ALD 568 at [21].

Minister’s submissions on grounds 4 and 5

72    As to the first aspect of the asserted failure to extrapolate a risk of harm to the appellant in Udappu by reason of not considering the country information referred to, counsel for the Minister pointed to the specific reference to that information in the Tribunal’s reasons at [56]. Further, it was submitted that there was no obligation on the Tribunal to set out any particular part of the country information, as it was only required to set out its findings on what it considered to be material questions of fact. Similarly, it was it not any part of the Tribunal’s function to rebut the material placed before it. It was further submitted that even if any of the country information had been overlooked (which was not conceded), there was no obligation to consider it, as that information was speculative, vague and did not relate to the appellant’s town or village.

73    Counsel for the Minister defended the Tribunal’s unwillingness to extrapolate a risk of harm to the appellant in Udappu as a conclusion that was fairly open to it. In those circumstances, it was not to the point that a different conclusion might have been reached. It was further submitted that, in any event, the language of manifest unreasonableness is inapt to be attached to factual findings, as opposed to the exercise of a statutory discretion.

Consideration of grounds 4 and 5

74    There is no merit in these grounds of appeal. To assert that the Tribunal failed to consider the country information flies in the face of the Tribunal’s reasons, specifically at [56], where it recapitulated the country information put on the appellant’s behalf. As was correctly observed by the primary judge, the Tribunal declined to extrapolate certain information. This, however, was very different to the position of failing to consider the country information relied upon by the appellant.

75    Furthermore, as correctly concluded by the primary judge, the information advanced by the appellant was so vague as to be speculative. Nowhere in that information was there reference to the spread of violence specifically near Udappu. In those circumstances, it was open to the Tribunal to decline to extrapolate a risk of harm to the appellant. There was nothing unreasonable, arbitrary or capricious in the Tribunal’s assessment of the information in the post-hearing submission, let alone to the degree necessary to constitute jurisdictional error.

76    Grounds 4 and 5 must fail.

Conclusion

77    The appeal is dismissed with costs.

Associate:

Dated:    18 August 2017