FEDERAL COURT OF AUSTRALIA

AQP15 v Minister for Immigration and Border Protection (No 2) [2018] FCA 1103

ORDERS

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

GLEESON J:

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (“FCCA”) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“Tribunal”): AQP15 v Minister for Immigration & Anor [2016] FCCA 599 (“FCCA judgment”). In its decision, the Tribunal affirmed a decision of a delegate of the first respondent (“Minister”) not to grant the appellant a protection visa.

2    On 9 August 2016, Logan J granted the appellant an extension of time to file a notice of appeal, limited to the prosecution of an appeal on the first of the grounds identified in the draft notice of appeal annexed to the originating application: AQP15 v Minister for Immigration and Border Protection [2016] FCA 943. The notice of appeal was filed on 2 December 2016.

3    On 24 February 2017, I granted leave to the appellant to argue additional grounds, and adjourned the appeal pending the determination of the decision of the High Court of Australia in SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405 (“SZTAL”).

4    Following SZTAL, the appellant did not pursue the additional grounds. The appeal was therefore limited to ground 1 of the notice of appeal, which stated:

The Federal Circuit Court should have found that the RRT failed to comply with s 425 of the Migration Act.

Particulars

The Federal Circuit Court should have found that the Tribunal failed to give the appellant the opportunity to present information and arguments at a hearing concerning the critical issues of whether a family member would provide surety to enable him to be bailed in the event that he was charged for illegally departing Sri Lanka.

Appellant’s claims to protection

5    The appellant is a Tamil Sri Lankan who arrived in Australia as an irregular maritime arrival in July 2012. He applied for a protection visa on 20 November 2012. As put by the appellant’s agent at his protection visa interview, the appellant claimed to fear harm or persecution if he returns to Sir Lanka on account of his perceived association with the Liberation Tigers of Tamil Eelam (“LTTE”) due to his Tamil ethnicity; his actual or imputed political opinion due his ethnicity; and because he departed illegally to seek protection in Australia.

Delegate’s decision

6    The delegate’s decision is dated 2 August 2013.

7    The delegate’s reasons include consideration of the treatment for asylum seekers who are returned to Sri Lanka through Colombo airport. The delegate’s reasons stated that the delegate considered whether the process of detention and interrogation would expose the appellant to a risk of serious harm amounting to persecution, having regard to country information available about the arbitrary nature of the detentions occurring, of human rights abuses during detention and interrogation, and the impunity of those responsible. The delegate found that the appellant would not face a real chance of persecution for this reason on return to Sri Lanka.

8    Counsel for the appellant, Mr D Godwin, referred to the following passage from the delegate’s reasons:

Notwithstanding possible charges arising out of an illegal departure, no information could be found to indicate that failed asylum seekers who have been returned to Sri Lanka from the West have been convicted of a crime due to an illegal departure. On the contrary, as cited above, the August 2011 Immigration and Refugee Board of Canada found no cases of returnees being detained on account of an illegal departure.

Tribunal’s decision

Tribunal hearing

9    In a lengthy submission dated 24 October 2013 made by BMA Lawyers, on behalf of the appellant, to the Tribunal, it was submitted that on return to Sri Lanka, “[the appellant] will no doubt be taken for questioning and is likely to face serious harm on account of his ethnicity and imputed political opinions whilst he is detained”.

10    By the time of the Tribunal’s hearing, there was new country information concerning the prospect of detention in Sri Lanka as a result of illegal departure.

11    Mr Godwin referred to the Tribunal member’s questioning of the appellant at a hearing on 8 December 2014, concerning any fears about returning home because the appellant had left illegally. The questioning included the following exchange:

MS IRISH: Because you were in Australia?

THE INTERPRETER:    Because I have left my country and come here, they are thinking I am the man who did it and they want to arrest me for that reason.

MS IRISH: We do have some country information that suggests that at the airport you would be likely to be questioned. And that you may be arrested for having left the country illegally. But that you would be likely to be released on bail, and you would likely to have a fine imposed ---

THE INTERPRETER:    Yes.

MS IRISH: --- if you are found guilty of leaving Sri Lanka illegally. Did you want to say anything about that country information?

THE INTERPRETER:    The fact that I had come illegally and going back, that itself is ….. when they – when they go there and they make inquiries about me, as I am from ….. in the Trincomalee district, they will have all these particulars and …..

MS IRISH: Do you think that if they didn’t know about the poster incident, do you think you would have any problems?

THE INTERPRETER:    This is the problem I am having. I don’t have any problem, other than the poster …..

MS IRISH: So if you didn’t have the problem with the poster, if you went back to Sri Lanka now, would you have any difficulties?

THE INTERPRETER:    No.

12    Mr Godwin observed that it was disclosed in the Tribunal hearing that the appellant was likely to be released on bail “but nothing [was said] about the circumstances in which that would occur”.

13    In a submission dated 17 January 2015, BMA Lawyers relevantly said:

Given the [appellant’s] past altercations with the authorities, we submit that there is a real risk that if he were to return, that he would firstly be investigated by the authorities as to his motivation for leaving the country illegally and seeking protection in Australia… We submit that the [appellant] is likely to undergo further questioning, not applicable to other returnees, and subsequently faces a real risk of being seriously harmed by the authorities.

We further submit that even if the [appellant] were to be released from custody by the airport authorities, he faces a more serious risk of being harmed when returned to his home area of Trincomalee.

14    As Mr P Knowles, counsel for the Minister, observed, the appellant was submitting here that he was not like a normal returnee. In particular, part of the appellant’s claim was that he would not be released from detention upon his return. This submission was reiterated in a submission to the Tribunal from BMA Lawyers dated 27 January 2015.

15    The Tribunal conducted a second hearing on 19 February 2015. Mr Godwin referred to a passage in which the Tribunal again raised the question of the treatment the appellant would suffer on return to Sri Lanka. The transcript includes the following:

[TRIBUNAL MEMBER]:    … One thing in relation to that is that the country information we have suggests that people returning who left illegally will be detained. So the country information we have suggests that they would be detained at the airport and questioned. They would be charged with having left illegally in breach of the Immigration and Emigration Act [sic].

They would then be held on remand for a short period of time before being brought back before a court where they would be released on bail, and at a later date they would then have a fine imposed them [sic] for having breached the law. The amounts of the fine might be variable but the information we have is the magistrate in Negombo is imposing fines of around 50,000 rupees.

THE INTERPRETER:    Excuse me, Member. Is it 50,000 rupees?

[TRIBUNAL MEMBER]:    Yes.

THE INTERPRETER:    Thank you.

[TRIBUNAL MEMBER]:    So – sorry. So from what you’ve told me of the report, that doesn’t necessarily sound inconsistent with what it says has happened to this person on his return. The issue that I have to look at is what kind of treatment I think you would suffer during that or that would be applied to you during that process and what consequences there would be for you. So I will talk to you more about that in a minute, but do you want to say anything about that information – about what the information tells us is likely to be the process that you will be put through?

THE INTERPRETER:    The people coming from Sri Lanka to here, if they don’t have any problem they will be put in the court, and they will leave it. The people who had problems will be detained there and take action. If I go back if they detain me for one reason – that is I left the country illegally. But because I have got more – more charges or more things, I will be having more problems so I will be facing more actions.

[TRIBUNAL MEMBER]:    Because of the allegations that were made of you – made against you about being with the LTTE; is that who you mean?

THE INTERPRETER:    In the first interview I said because I put the poster they – they think that I put the poster, and now because of that allegation they will arrest me.

16    The Tribunal also gave the appellant’s representative, Ms Conway, an opportunity to make submissions on a then-recent DFAT Country Report on Sri Lanka dated 16 February 2015. Paragraph 5.28 of that report is the passage set out at [19] below from the Tribunal’s decision record. Mr Godwin complained that the Tribunal did not draw attention to para 5.28 or give any indication of what it was about the report that required submissions.

17    The evidence above establishes, as Mr Knowles conceded, that the issue of bail was canvassed by the Tribunal without any reference for the need for a family member as surety. It also establishes that, at the Tribunal hearing, the appellant did not dispute that he would be released upon being questioned.

18    At para 31 of its decision record, the Tribunal stated:

The Tribunal accepts that persons with particular profiles may be subjected to serious harm if they are returned to Sri Lanka and that persons who left illegally are likely to be detained for a short period …

19    At para 34, the Tribunal stated that it had considered whether the possible treatment of the appellant returning involuntarily as a failed asylum seeker who left illegally would constitute Convention persecution. It referred to country information including the following:

5.28    DFAT was informed in March 2014 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was just a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future. The Magistrates Court in Colombo typically levies finds of around 5,000 Sir Lankan Rupees (around AUD 40) for persons attempting to depart Sri Lanka irregularly on boats. However, in Negombo, the magistrate, who handles a large number of these cases, typically levies fines of around 50,000 Sri Lankan Rupees (around AUD 400) to act as a deterrent. In most cases, returnees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor. Sometimes returnees then need to wait until a family member comes to court to collect them.

(Emphasis added.)

20    At para 35, the Tribunal said:

The Tribunal accepts that on return to Sri Lanka the applicant, like all persons who breach [the Sri Lankan Immigrants and Emigrants Act 1949], will be detained for questioning, and security and character checks will be undertaken. He will be remanded and charged with an offence under s.45(1)(b) of the I & E Act because he departed illegally. This is consistent with some of the reports referred to in the representative’s submission about returnees from Australia being detained. There is no evidence before the Tribunal, and the applicant has not claimed, that he was an organiser or people smuggler or that there are any outstanding criminal warrants for him. Therefore the Tribunal finds that any period of detention will be short and the applicant will be released on bail, with a family member as surety, to appear in court at a future date.

(Emphasis added.)

21    Mr Godwin identified the last sentence of para 35 as the “critical finding” for the purposes of the appeal.

22    At para 38, the Tribunal recorded that it had considered whether the fact that the appellant would be detained constituted persecution. Relevantly, it found:

[T]he fact that the applicant will be remanded for a short period of time does not amount to Convention persecution as the processing of returnees and any penalties to which the applicant may be subjected, will be applied on a non-discriminatory basis under a law of general application. When this was discussed with the applicant at the second hearing he stated that he agrees that everyone at the airport is treated in a non-discriminatory way, fined and then released but the problem is once he returns to his home area.

(Emphasis added.)

23    Mr Godwin drew attention to the following passages of the Tribunal’s decision record (at paras 39, 52 and 53):

39.    … The evidence does not establish that the applicant will be singled out or treated any differently if he is placed in remand for a short period because he is a Tamil, or he will be imputed with a political opinion, because he is a failed asylum seeker or for any of the other Convention reasons. The Tribunal considers that the cramped and uncomfortable conditions apply to persons in remand generally and are not specifically aimed at Tamils. The cramped and uncomfortable conditions, therefore, do not amount to systematic and discriminatory conduct as required by s.91R(1). Additionally, the evidence as set out above does not established that returnees and subject to mistreatment whilst in remand, despite there being evidence of some thousand returnees.

…

52.    The Tribunal has accepted that it is likely that he would face arrest on charges of illegal departure, that he could be placed on remand for a relatively brief period while awaiting a bail hearing, and he would later be fined if found guilty. …

53.    The Tribunal accepts that the applicant may be detained for a brief period of time but does not accept that mere detention constitutes significant harm. …

(Emphasis added.)

24    On the basis of these passages, Mr Godwin submitted that there is no doubt that for both serious harm and significant harm it is an important aspect of the Tribunal’s findings that the detention period would be short. Mr Godwin argued that the detention period is contemplated to be short because the Tribunal assumed that the appellant would be released on bail, with that proposition being predicated on the assumption that the appellant knows someone who will be willing to provide surety. In that way, Mr Godwin argued, the existence of the surety is a critical step in the Tribunal’s reasoning process, and a dispositive issue in the review because if the period of detention is not short then the situation is completely different.

Legal framework

25    Section 425 of the Migration Act 1958 (Cth) states:

(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.

(2)    Subsection (1) does not apply if:

(a)    the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)    the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)    subsection 424C(1) or (2) applies to the applicant.

(3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

26    Strict compliance with s 425 is required in order for a decision to be validly made by the Tribunal. A failure to comply with s 425 is a failure to comply with a statutory duty and the decision cannot stand: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [61] (Hayne, Kiefel and Bell JJ).

SZBEL

27    In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, the High Court explained the Tribunal’s obligation under s 425, including (at [33]-[35]) as follows:

[33]    The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. The reference to “the issues arising in relation to the decision under review” is important.

[34]    Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

[35]    The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

(Emphasis added.)

SZTAP

28    In SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404, Robertson and Kerr JJ (Logan J agreeing) stated (at [77]):

[T]he pertinent feature highlighted by SZBEL is that, in each instance, the Tribunal exercises a review jurisdiction in respect of a particular decisions in respect of which the Minister (or a delegate) will have given particular reasons.

29    Their Honours concluded that, on the facts of the case, it was not critical to the Tribunal’s finding that the appellant could apply for bail, that bail was routinely given, and that a family member was required to provide surety. Further, on the facts of the case, the Minister’s delegate had extensively set out relevant country information concerning what would happen to returnees to Sri Lanka who were believed to have left the country illegally. Consequently, there was no breach of the rules of procedural fairness because the appellant was informed of, and had the opportunity to respond to, that material.

30    Mr Godwin submitted that this case is distinguishable from SZTAP on its facts, noting that the delegate had proceeded on the basis of country information that no returning asylum seeker had been charged for offences arising from their irregular departure, so that the question of bail did not arise.

31    Mr Godwin submitted that, in contrast, this case is materially indistinguishable from two first instance decisions of this Court: SZTQS v Minister for Immigration and Border Protection [2015] FCA 1069 and ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419.

SZTQS

32    SZTQS was decided before SZTAP. In SZTQS, Griffiths J dismissed the Minister’s appeal from a decision of Emmett J who had found a breach of s 425. At [5] of his Honour’s reasons, Griffiths J recorded that one of SZTQS’s claims was that “failed Sri Lankan asylum seekers were detained on re-entry to Sri Lanka and suffered serious harm, constituted by detention in dire prison conditions”. At [26], his Honour noted that a matter canvassed at the Tribunal hearing was that “bail is routinely given, returnees go back to their lives and have to reappear in court to discuss the substantive issues of having left Sri Lanka”.

33    As in this case, the Tribunal found that the applicant would be placed on remand on return to Sri Lanka as he had departed illegally and would therefore be charged with an offence under Sri Lankan law. At [42] of his Honour’s reasons, Griffiths J noted that the Tribunal’s decision record referred to independent country information that “[b]ail is routinely given on the accused’s own recognisance although a family member is also required to provide surety”. At the same paragraph, his Honour set out the Tribunal’s finding “that returnees are only reported to be held in remand if they illegally departed Sri Lanka and for a short duration of a few days while waiting to be brought before a court to apply for bail, which is routinely given”.

34    At [41] to [45] of his Honour’s reasons, Griffiths J concluded that it was open to the FCCA judge to find that a “crucial plank” in the Tribunal’s reasoning was a finding that a member of SZTQS’s family would provide surety for him and that, accordingly, he would only be detained for a short period. The FCCA judge’s reasons, recorded at [16] of his Honour’s reasons, included that a fair reading of the Tribunal’s decision was that a family member would be required to pay surety to enable SZTQS to be granted bail.

35    At [47] and following, Griffiths J considered whether the FCCA judge erred in finding that an issue arising in relation to the review (for the purposes of s 425(1)) was whether SZTQS’s family would be able to provide surety for him in order that he might obtain bail.

36    At [48], his Honour noted that the Minister had identified the relevant issue in broader terms, namely whether SZTQS would be harmed on return to Sri Lanka by reason of his contravention of a domestic law concerning departure from Sri Lanka. The issue as identified by the FCCA judge was not raised by the delegate; the issue as identified by the Minister was raised by the delegate.

37    Griffiths J preferred the FCCA judge’s narrower identification of the issue saying, relevantly at [58]:

As the primary judge found, the Tribunal made a factual conclusion, which was a necessary link in the Tribunal’s chain of reasoning in rejecting SZTQS’s claim, without any notice to SZTQS that the conclusion might be made or that the factual question was in issue. That factual conclusion was to the effect that the applicant would only be detained for a short period because a member of his family would provide surety and he would be granted bail.

(Emphasis added.)

38    At [60], his Honour concluded that the question of whether a family member would provide surety for SZTQS was a crucial link in the Tribunal’s chain of reasoning and was an issue that, in order to comply with s 425(1), the Tribunal had to identify to SZTQS.

ABA15

39    In ABA15, Charlesworth J allowed the appeal, finding a breach of s 425. Her Honour recorded (at [14]) the Tribunal’s finding that the appellant “would likely be arrested upon his return to Sri Lanka for departing illegally, but that he would only be incarcerated for a brief period before being granted bail and would not therefore suffer significant harm”.

40    Charlesworth J noted (at [46]) the following country information referred to by the Tribunal:

The information before the Tribunal also indicates that under tightened procedures adopted in late 2012, returnees who are believed to have left the country in breach of the law on immigration and emigration (the Immigrants and Emigrants Act) are arrested at the airport and brought before a court to apply for bail. Bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety.

(Emphasis in original.)

41    At [47], her Honour noted the observation of Robertson and Kerr JJ in SZTAP (at [80]) that in SZTQS, it appeared to have been assumed by the FCCA that providing surety involved the payment of money, perhaps because of the earlier history that SZTQS’ mother had paid bail money for his release from a cell in a police station. Their Honours opined that no such assumption should be made in SZTAP.

42    At [48] and [49], her Honour said:

[48]    The appellant submits that the Tribunal’s reasons fairly indicate that the Tribunal found that the appellant would have a family member who could and would provide surety for his bail. That submission should be accepted. It is consistent with a fair reading of the Tribunal’s reasons as a whole.

[49]    The Tribunal held … that the appellant “would be subjected to such processes on return”. The Tribunal went on to accept that “there is a possibility the applicant will be held for a limited period in remand whilst awaiting bail, in conditions that can be poor due to overcrowding and in unsanitary conditions”. It held that the appellant “could be placed in remand for a relatively brief period while awaiting a bail hearing” and that the appellant “may spend up to a fortnight in gaol on remand”. It is clear that the Tribunal made assumptions peculiar to the appellant, namely that the appellant would in fact have a family member who would provide surety so as to secure his bail, thus bringing to an end his term of incarceration after only a brief period of time. That conclusion is supported by the absence on the Tribunal’s reasons of any attempt to estimate the period of incarceration in the alternative event that bail was not granted, because no relative could or would provide the surety.

(Emphasis added.)

43    At [68], her Honour observed:

There is little to distinguish the facts in SZTQS from those arising on this appeal. Although the Delegate in the present case did refer to the likelihood that the appellant would be remanded in custody, the Delegate made no finding as to the likely period of custody for the purposes of determining whether the period of incarceration would constitute “significant harm” for the purpose of s 36(2)(aa) of the Act. The Delegate did not reason from a premise that the appellant would be granted bail after a brief period of incarceration, and yet the Tribunal did.

(Emphasis added.)

44    At [70], her Honour concluded:

On the facts affecting this appeal, the Tribunal’s assumption that a relative of the appellant would provide surety for his bail was:

(1)    made without proper evidentiary foundation insofar as it involved an assumption about the appellant’s personal circumstances;

(2)    formed a critical plank in the Tribunal’s ultimate conclusion t+hat the appellant did not satisfy the criteria for the grant of the visa prescribed in s 36(2)(aa) of the Act; and

(3)    was not an issue dipositive of the Delegate’s decision such that the appellant would otherwise have been on notice of the assumption potentially forming a critical plank in the Tribunal’s own reasoning on review of that decision.

45    Mr Godwin submitted that the critical inference drawn in both SZTQS and ABA15 was that the Tribunal had reasoned implicitly that a surety would be available to ensure bail was granted. In the current matter, the Tribunal in its finding concerning bail expressly acknowledged that a surety would be required. Thus, the Tribunal in this case put it beyond doubt that the need for a surety was critical.    As in the case of SZTQS and ABA15 the question of whether a family member would provide a surety was not raised with the appellant for comment. It followed, according to Mr Godwin, that s 425 has been breached.

ACC15

46    In ACC15 v Minister for Immigration and Border Protection [2016] FCA 97, Gilmour J accepted the Minister’s submission that there was no breach of s 425 and that the matter was distinguishable from SZTQS on the facts. At [13] and [14], his Honour recorded the following Tribunal findings:

[13]    Based on country information, the Tribunal was not persuaded that the appellant was at risk of serious or significant harm by reason of being a failed asylum seeker, given that the appellant did not have the profile to be of interest to the Sri Lankan authorities or to be perceived as an on-going threat to the authorities.

[14]    The Tribunal was not satisfied that the appellant would be at risk of significant harm given there was not a real chance that he would be subject to a custodial sentence and, even if he were detained, any detention would be only a few hours in duration and the appellant would immediately be given bail. At most, the appellant was only at risk of “some possible harassment”.

47    At [24] of his Honour’s reasons, Gilmour J noted:

In considering the question of what will happen to the appellant as an illegal returnee to Sri Lanka, the Tribunal found as a fact that: “if he was taken before a magistrate, I am satisfied he would be immediately given bail”. In doing so, the Tribunal referred in the decision to country information which stated that returnees have been granted bail with the requirement that a family member act as guarantor. The Tribunal’s finding is at [71] and there is a similar finding noting the release on personal recognisance at [51].

48    At [26] and [27], his Honour concluded:

[26]    The facts of this case are distinguishable from those in SZTQS. In the present case the matter of bail was not an issue, either generally or in particular, as to the need for a family member to be a guarantor. There was no suggestion that the family member would be required to actually pay money before bail was granted. In SZTQS there was evidence that on a prior occasion the appellant’s mother had paid bail money for his release.

[27]    As in SZTAP at [79], on the facts of this case, I do not accept that it was critical to the Tribunal’s finding that the appellant could apply for bail and that bail was routinely given, that a family member was required to provide surety and that therefore it was plainly an issue for the Tribunal that the appellant’s family would be able to provide surety for him as an determinative factor in the mind of the Tribunal

BEV15

49    In BEV15 v Minister for Immigration and Border Protection [2016] FCA 507, Bromwich J considered a case in which the Tribunal assumed that bail would be granted to the appellant, and that a guarantor would be available to secure bail. His Honour found no breach of s 425(1), concluding (at [59] and [60]):

[59]    Irrespective of whether the obligation to bring the matter to the attention of the appellant was absolved by s 424A(3)(a), or instead was still required by s 425(1) to be raised by the Tribunal in the absence of it already being known by the appellant, there was no need for any additional notification in this case because the issue was plainly known. Moreover, the Tribunal raised with the appellant the fact that the country information suggested that he would be held briefly in a prison and when he went to court he would get bail.

[60]    The appellant was already aware, via his advisors, that country information indicated this would be subject to a family member at least being willing to be guarantor, because that was part of the submissions already made on his behalf. As there was no suggestion of a need for any financial commitment on the material before me, there is nothing to suggest that the Tribunal’s assumption of bail, as found by the primary judge, was ill-founded as a matter of fact-finding within jurisdiction, let alone was capable of constituting any jurisdictional error. There was nothing in the material before me, or in the submissions put to me orally or in writing, to suggest that there was any issue before the Tribunal in relation to a family member being unable to be a guarantor for bail, without any payment being required.

50    Mr Godwin distinguished BEV15 from this case, on the basis that there is no basis to infer that the appellant was aware of the relevant information through his adviser.

SZTJY

51    In SZTJY v Minister for Immigration and Border Protection [2016] FCA 1185, Burley J rejected an argument that the FCCA judge had erred in failing to find a breach of s 425. At [64], his Honour set out country information referred to by the Tribunal including:

We understand the current process for bail is that all persons are granted bail based on personal recognisance (on their own responsibility), with the requirement for a family member to stand as a guarantor. There is no payment required for bail.

52    At [69], his Honour noted the following Tribunal finding:

Depending on the day on which the returnee arrives at the airport in Colombo, that person may be briefly detained in remand before being brought to the court. In the Tribunal’s view, country information indicates that for departing the country illegally, the returnee will be granted bail and will, eventually, receive a fine.

53    At [71], Burley J noted that the appellant’s position had been consistently that “the only concern that he has on his return arises from an imputed suspicion that he is involved with M and the LTTE”.

54    At [77]–[79], his Honour concluded that the case shared comment elements with SZTAP and could be distinguished from SZTQS, saying:

[77]    … Nowhere in the Tribunal’s reasoning in the present case did the Tribunal signify that it was critical that the appellant could apply for and, upon the provision of surety by a family member, obtain bail. In this sense, as noted in SZTAP at [79], the issues framed by the Tribunal as important did not include obtaining bail.

[78]    Further, and significantly, in the present case it is apparent that the issue of bail in the context of the DFAT report of 4 March 2013 was squarely raised by the Tribunal …. It was addressed in terms by those representing the appellant in his supplementary submissions filed after the hearing ….

[79]    The only issue about the potential for prolonged detention upon his return that the appellant wished to raise was that he was in danger of a punishment “more severe than the standard fine for his illegal departure” based on this involvement with M and his evasion of the CID. As noted above, the Tribunal rejected all of those claims. The appellant had ample opportunity to submit that he feared detention for a prolonged period because of an inability to obtain surety, but he did not. In this connection, it appears to me that the Tribunal had satisfied the fundamental principle that the party affected be given the opportunity of ascertaining the relevant issues: SZBEL at [32].

(Emphasis added.)

SZTIS

55    In SZTIS v Minister for Immigration and Border Protection [2017] FCA 545, Burley J concluded (at [62]) that the reasoning in SZTAP compelled a conclusion adverse to the visa applicant. At [59], his Honour had found that SZTIS was on notice that the delegate did not regard the grant of bail to be a problem that would prevent him from being detained for only a short period. Accordingly, his Honour concluded, it was open to SZTIS to raise an issue before the Tribunal about the delegate’s finding, but SZTIS did not do so.

56    At [67], Burley J said:

In the present case the general issue of bail was raised prior to the hearing and the appellant had an opportunity to make submissions in relation to it. The provision of the further DFAT Information in the Letter did not raise, contrary to the appellant’s contention, a new “dispositive issue”. As in SZTAP there is no indication that the question of the provision of a guarantor to secure bail was a determinative factor in the mind of the Tribunal. The general issue of detention upon return to Sri Lanka was raised prior to the hearing. That, in itself, was sufficient to satisfy subs 425(1) of the Act.

Consideration

57    The particulars in the notice of appeal refer to the issue as being whether a family member would “provide surety”. This language reflects the country information as outlined in SZTQS. As noted earlier, the country information referred to by the Tribunal in this case referred to a requirement “for a family member to act as guarantor”.

58    The first instance decisions set out above are illustrations of the application of s 425 in a variety of circumstances. None of them appear to be cases in which the visa applicant agreed with the Tribunal that he was likely to be released on bail.

59    Mr Knowles accepted that the availability of bail was not a dispositive issue for the delegate. Thus, this case may be contrasted with SZTAP.

60    The duration of the appellant’s detention on return to Sri Lanka was an issue raised by the appellant’s lawyers in their written submissions to the Tribunal. The appellant’s claims included that, by reasons of facts peculiar to him, there was a risk that he would be detained on return to Sri Lanka and not released.

61    At the hearing, the Tribunal recognised that an issue arising in relation to the decision under review was whether the appellant would be detained on return to Sri Lanka and, if so, whether he would suffer harm as a result. The Tribunal raised that issue with the appellant including whether he would be released on bail. The appellant agreed that he would be released on bail but said that he would face persecution on his return to Trincomalee. Thus, at the Tribunal hearing, the appellant retreated from his previously stated position that he might detained and not subsequently released on his return to Sri Lanka. There is nothing in the reasons in either SZTQS or ABA15 to indicate that the visa applicants in those cases had made a similar concession.

62    Thus, the appellant was aware of an issue arising in the Tribunal which was not one that the delegate considered dispositive, namely, the issue of whether the appellant’s detention on return to Sri Lanka would constitute persecution. The appellant made written submissions on the issue and, at the Tribunal hearing, accepted that he would be released on bail. Section 425(1) did not require the Tribunal to identify as an issue that the appellant may be incorrect to accept that he would be released on bail because of a possible inability to locate a family member to act as surety.

63    Further, the Tribunal’s reference to the circumstances that the appellant would be released on bail “with a family member as surety” does not indicate that the existence of such a family member was an issue that the Tribunal considered important in its review. Rather, it appears to be a statement elaborating the circumstances in which the Tribunal found that bail would be given.

64    I accept that a critical element of the Tribunal’s reasoning was that the appellant would be detained on his return to Sri Lanka for a short time only. Implicit in that reasoning, as it is expressed, is an assumption that the appellant would be able to meet the usual bail condition, which the Tribunal identified as the provision of a family member to act as guarantor. However, that assumption was not in issue in the light of the appellant’s evidence that he was likely to be released from detention on bail following his return to Sri Lanka. Therefore, it was not an assumption that can be described as an issue “arising in relation to the decision under review”.

65    Accordingly, in my view, the Tribunal did not fail to comply with s 425 by failing to give the appellant an opportunity to present information and arguments concerning whether a family member would act as surety to enable him to be bailed in the event that he was detained for illegally departing Sri Lanka.

Conclusion

66    Accordingly, the appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    27 July 2018