FEDERAL COURT OF AUSTRALIA

BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291

ORDERS

THE COURT ORDERS THAT:

1.    The appellant has leave to appeal in the form of the Amended Draft Notice of Appeal dated 21 February 2018.

2.    The appeal be allowed.

3.    Orders 1 and 2 of the decision dated 22 September 2016 of the Federal Circuit Court of Australia be set aside.

4.    A writ of certiorari be issued to quash the decision of the Refugee Review Tribunal dated 25 June 2015.

5.    The matter be remitted to the second respondent to determine the appellant’s application according to law.

6.    The first respondent pay the appellant’s costs in this proceeding and in the proceeding in the Federal Circuit Court of Australia, as agreed or assessed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia in which the primary judge dismissed the appellant’s application for judicial review of a decision of the second respondent, then known as the Refugee Review Tribunal (the Tribunal), affirming a decision of a delegate of the first respondent (the Minister) that he was not satisfied that Australia owed protection obligations to the appellant under the Migration Act 1958 (Cth) (the Migration Act) under either s 36(2)(a) (i.e. pursuant to criteria in the Refugees Convention) or s 36(2)(aa) (i.e. pursuant to complementary protection provisions of the Migration Act).

2    In this court, the appellant contends that the primary judge erred by failing to find that the Tribunal had fallen into jurisdictional error in three ways: (1) by failing to provide a meaningful hearing in accordance with the requirements of s 425(1) of the Migration Act, including by denying the appellant an opportunity to give evidence or make arguments regarding the practical availability of bail upon his return to Sri Lanka; (2) by making a finding not open on the evidence, or not rationally supported by the evidence, because the Tribunal’s finding relied on the untested assumption that bail was practically available to the appellant; and (3) by failing to take into account the most recent country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) in relation to the availability of bail (see s 499 of the Migration Act and Ministerial Direction No 56).

3    For the reasons that follow, the appeal must be allowed.

Background

4    The appellant is a citizen of Sri Lanka. He is of Tamil ethnicity and is Catholic. In 2006, the appellant was injured in a shell attack in which he sustained scars on his legs and hands, suffered broken bones and lost fingers on his left hand.

5    The appellant arrived in Australia by boat on 3 August 2012. He applied for a Protection (Class XA) visa (the visa) on 5 December 2012.

6    The appellant made the following claims in support of his visa application:

(1)    After a shelling incident in 2009 in which his brother was killed, the appellant and his family left Mathalan with a group of people on 30-40 boats before being apprehended by, and surrendering to, the Sri Lankan navy;

(2)    The appellant and his family were then taken to the Nellyam refugee camp in Kaittadi Nelam Puri, where they remained for twelve months;

(3)    During this time, he was questioned on numerous occasions by members of the Criminal Investigation Department (the CID) who accused him of involvement with the Liberation Tigers of Tamil Eelam (the LTTE);

(4)    The appellant and his family were allowed to leave the refugee camp in 2010 and they settled in Polikandi East, but they were forced to register with both the Sri Lankan army and the CID;

(5)    Three months after his release from the refugee camp, the appellant was visited by the CID and questioned about involvement in the LTTE;

(6)    The appellant was taken to an army camp on numerous occasions and interrogated further, during which time he was subjected to various forms of torture. He also had to report to the army camp monthly and sometimes weekly;

(7)    On one such occasion, the appellant was taken for a whole day and beaten and made to sign papers confirming that he would stay in the area. His wife took him to hospital after this incident;

(8)    Before deciding to leave Sri Lanka, the appellant went into hiding for around five to six months and moved around to avoid authorities;

(9)    Since being in Australia, the authorities have been to the appellant’s house in Sri Lanka and enquired after his whereabouts;

(10)    If the appellant returns to Sri Lanka, he will be beaten, tortured and killed by the army and the CID.

7    The appellant sought protection on the basis of: (1) his Tamil ethnicity; (2) his imputed political opinion in support of the LTTE (in particular, the appellant claimed he was under heightened suspicion because of his noticeable and permanent physical injuries); and (3) his membership of social groups, relevantly including membership of the group comprising returnees to Sri Lanka who departed illegally.

8    On 11 October 2013, a delegate of the Minister refused to grant the visa. The appellant then applied to the Tribunal seeking review of the Minister’s decision.

The Tribunal

9    The hearing before the Tribunal took place on 21 April 2015. Because of issues raised on this appeal (and below) it is convenient to reproduce the following exchanges between the appellant and the Tribunal member:

TRIBUNAL: Now also in relation to – I just have to through [sic] what I understand what happens to people who have left illegally. If you’ve left illegally without a passport, then you have committed offences under the Immigrants and Emigrants’ Act and the Sri Lankan authorities are prosecuting people for those offences. What I understand happens is when you arrive at the airport, you are interviewed by CID, State Intelligent Service and the Sri Lankan immigration authorities. That’s to confirm your identity and to see if there’s any outstanding criminal charges for you or whether you’re on any watch lists.

You are then charged with offences and usually fingerprinted, photographed and taken before a magistrate. If for some reason you can’t be taken straight before a magistrate, you might be remanded for one or two days if it it’s a weekend, a public holiday or something else happens. And to date everybody who’s just charged with leaving illegally has been released on bail in their own recognisance through a family member has to come and collect them from the court. To date, people who have been convicted of those offences have received fines of between 5,000 or 50,000 rupees. And there’s provision to pay fines by instalment as well.

Why do you think you’d be treated more seriously than that?

APPELLANT: Because I came illegally on the basis of the law I think I will be gaoled.

TRIBUNAL: I understand people who came illegally are fined, not gaoled, unless they’re accused of being people smugglers or organisers.

APPELLANT: Sometimes even the court releases me, I will encounter problems in my village.

10    After the hearing was completed, the appellant’s solicitor, as he was entitled to do, made a further written submission to the Tribunal “to clarify certain aspects of [his] case and address concerns raised by [the Tribunal] at the [hearing]”. That submission made specific reference to the DFAT Country Information Report on Sri Lanka dated 16 February 2015 (the 2015 DFAT Report), and submitted “that there is a likelihood the [appellant] would be questioned, interrogated and subjected to [serious] harm upon re-entry to Sri Lanka”.

11    In its reasons dated 25 June 2015, the Tribunal affirmed the decision of the Minister not to grant the visa, finding that there was no real chance that the appellant would be seriously harmed on account of being Tamil (or a Tamil male from the north), being perceived to be a supporter of the LTTE, having visible injuries, having family being (or perceived as) members of the LTTE or illegally departing Sri Lanka and applying for asylum in Australia. It found that the appellant was not a person to whom Australia owed protection obligations either under the Refugees Convention criteria, or with respect to complementary protection.

12    The Tribunal did not accept that the appellant was regarded as connected with the LTTE, nor did it accept that the appellant had been in hiding or required to report to the Sri Lankan authorities. It held:

[44] In the Tribunal’s view the fact that the [appellant] was released indicated that they did not think he was a member of the LTTE. The [appellant] said that the reason why they let him go was because when he was questioned and taken away it was done in public. If he had gone missing after being publicly apprehended then people might have reported him to other organisations … The Tribunal does not accept that if the [appellant] was regarded as being connected to the LTTE they would not have kept him in detention or that they would have been concerned about people knowing that they had detained him.

…

[47] As discussed with the [appellant] the fact that he was released within a day and usually within 3 hours every time he was questioned and was not questioned in the 18 months before he left Sri Lanka indicated that the authorities did not regard him as a person of interest or as having connections to the LTTE. The fact he was not questioned in the 18 months before he left indicates to the Tribunal that he was no longer of interest to the authorities when he left.

[48] The Tribunal does not accept that the [appellant] was in hiding before he left Sri Lanka or that he was at risk of being abducted. His evidence as to the time period he was in hiding was contradictory…

[49] Further, the Tribunal refers to the letter and affidavit provided by the [appellant]’s wife. The [appellant] provided a letter his wife had written to the Divisional Secretary dated 12 August 2012. The [appellant] said that the letter said he had gone abroad due to poverty and to earn some money because they could not put down the real reasons why he was leaving Australia. He also provided an affidavit sworn by his wife on 2 March 2014. When the Tribunal discussed this with the [appellant] it noted that she had detailed the tragic events that occurred to his family but had not mentioned the fact that he had been interrogated or that the authorities were looking for him. He said she was unable to put this in the affidavit; they would not write these things down. It had been written by educated people who they had paid to write it. This affidavit was provided for his review and in the Tribunal’s view if he was wanted or required to report, or in hiding when he left his wife would have mentioned this and her concerns about what would happen to him on return.

13    With respect to the appellant’s claim that he would be under heightened suspicion on account of his visible injuries, the Tribunal held at [64] that:

In the [appellant]’s case the authorities have questioned him about his injuries and released him and have not questioned him for a considerable period before he left which indicates to the Tribunal that they are satisfied that his injuries were not sustained whilst fighting for the LTTE. The Tribunal does not accept that the [appellant] will be of interest on return because of his injuries …

14    Further, at [68], the Tribunal found that, in circumstances where the authorities had already questioned the appellant and been satisfied that he was not connected to (or a supporter of) the LTTE, it did not accept that the appellant would be suspected of having links with the LTTE solely on the basis that his is a Tamil or a Tamil from the north of Sri Lanka.

15    With respect to his status as a failed asylum seeker, the Tribunal found, by reference to country information and other sources, that the people who are at risk on return are the asylum seekers that are, or are perceived to be, affiliated with the LTTE, and the Tribunal did not accept that the appellant was or was perceived to be affiliated with the LTTE.

16    The Tribunal made the following findings with respect to the appellant’s claims that he would suffer harm upon return to Sri Lanka due to having left the country illegally:

(1)    The appellant left under circumstances that would be an offence under the Immigrants and Emigrants Act 1948 and might be prosecuted under that Act at [82];

(2)    The likely outcome of this prosecution would be a fine. This is supported by DFAT Country Information for Sri Lanka at [82];

(3)    If the appellant is not brought immediately before a court, he may “be remanded for one to several days;” and

(4)    The appellant “would be granted bail once taken before a court” at [88] and his “wife and his siblings are in Sri Lanka so would be available to sign him out if necessary” at [83], therefore the appellant would likely face only a “short period of remand” at [91], [95].

These findings informed the Tribunal’s ultimate view that the appellant did not have a real risk of suffering significant harm in the form of torture or cruel or inhuman or degrading treatment or punishment and its view that the appellant did not have a well-founded fear of persecution due to his status as someone who departed Sri Lanka illegally or as a failed asylum seeker.

17    While the Tribunal ultimately did not find that the appellant was a person to whom Australia owed protection obligations, the Tribunal accepted the following:

(1)    the appellant had been detained in Sri Lanka (at [30]);

(2)    the appellant had been beaten on at least one occasion by the Sri Lankan authorities (at [45]);

(3)    the appellant had been interrogated about suspected links with the LTTE (at [45]); and

(4)    the appellant had departed Sri Lanka illegally and would be liable to be charged and detained upon return (see [80]-[83], [88]).

18    Because the appellant’s case in this court turns on the manner in which the Tribunal expressed its reasons, it is convenient to set out the relevant paragraphs of the Tribunal’s reasoning in full ([80]-[83]):

80. The Tribunal accepts that the [appellant] left Sri Lanka without a valid travel document and left from a place other than [an] approved place of departure which are offences under the Immigrants and Emigrants Act 1948…

81. As discussed with the [appellant], DFAT advised that:

5.27 Most Sri Lankan returnees from Australia are questioned by police on return and, where an illegal departure from Sri Lanka is suspected, are charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by police at Colombo international airport. As part of this process, most returnees will have their fingerprints taken and be photographed. They are transported by police to the Magistrates Court in Negombo at the first available opportunity after investigations are completed, when custody and responsibility for the individual shifts to the courts or prison services. The Court makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before the times – for example, because of a weekend or public holiday – those charged are held at the nearby Negombo prison.

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 fines of around 5,000 Sri Lanka 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.

82. The tribunal acknowledges that the [appellant] might be prosecuted under the Immigrants and Emigrants Act of 1948. Whilst this Act provides for a penalty of imprisonment, the courts have discretion to suspend a sentence of imprisonment or conditionally discharge an offender without conviction. As discussed at the hearing even if the [appellant] was to be prosecuted under these provisions the likely outcome would be a fine.

83. As noted above DFAT indicates that in most cases bail is granted relatively quickly [citing Ben Doherty, 8 December 2012, “Asylum denied, a penalty waits at home”. Chris Bowen MP, More Sti Lankans involuntarily sent home, 7 November 2012] and on a person’s own undertaking and IOM is present while these procedures are undertaken [citing DFAT Country Information Report Sri Lanka 31 July 2013]. Other country information supports DFAT’s advice [citing “Elite police officer suspected of key role in smuggling bid”, The Age 8 July 2014]. The [appellant]’s wife and his siblings are in Sri Lanka so would be available to sign him out if necessary.

(Emphasis added. Footnotes omitted unless otherwise indicated.)

The Federal Circuit Court decision

19    The appellant advanced four grounds of appeal below, only one of which is pursued in this court. That ground of appeal is that “the Tribunal breached s 425 [of the Migration Act] by not inviting the [appellant] to comment on whether or not he would be granted bail and the ability of his relatives to travel to bail him out” (see the decision of the primary judge at [24]).

20    The primary judge considered this ground of appeal at [22]-[29]:

22. Ground three concerns procedural fairness. This again relates to the Tribunal’s findings about what is likely to happen to the [appellant] upon his return as a failed asylum seeker. The focus of this complaint is the Tribunal’s findings with respect to bail and the availability of family members to bail him out.

23. The [appellant] accepts that [s.424A(3)(a)] excludes country information from having to be put to the [appellant] but claims that the Tribunal’s findings went beyond that. The [appellant] argues that the finding that the [appellant] would be bailed was a ‘crucial plank’ in the Tribunal’s finding that the [appellant] would not face a risk of serious or significant harm.

24. The [appellant] argues that the Tribunal breached s.425 by not inviting the [appellant] to comment on whether or not he would be granted bail and the ability of his relatives to travel to bail him out.

25. The Tribunal dealt with the country information with respect to the application of Immigrants and Emigrants Act and the treatment of failed asylum seekers upon their return at [88] to [101]. The delegate also addressed this at Court Book (“CB”) 172-173 although it does not specifically mention bail in the body of its reasons. The respondent argues country information was identified in footnote 37. The first respondent relies on the affidavit of Ms Ness which annexes the country information referred to a footnote 37 of the delegate’s decision. That country information refers to returnees being granted bail on their own surety. Some then have to wait for a family member to come collect them from court.

26. The [appellant] relies on Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 (“SZTQS”). The [appellant] says a “near identical” situation arose in that case. However an examination of the facts in that case shows that this is not the case. In SZTQS the [appellant] had been arrested two days before he left Sri Lanka. His mother attended and paid bail. He was told to return to court two days later but he left the country. The factual circumstances in the present case are quite different.

27.The first respondent relies on SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175 particularly where the Full Court of the Federal Court held that SZTQS was fact-specific and “does not stand for the proposition that every reference to a family member being required to provide surety involves a breach of s.425(1) of the Act.”

28. The [appellant] argues that it is unfair to expect the [appellant] to be on notice about the issue from a reference to a footnote in the decision. There is merit in that point. However that footnote is referring to country information. The respondent argues that the [appellant] was represented by a migration agent before the delegate and was on notice [appellant] the issue of the conditions of return. I accept that is a standard issue to be addressed which a migration agent acting in these types of matters would be aware of.

29. Page 29 of the transcript of the proceedings before the Tribunal shows that the country information including the issue of bail and a family member attending. It clear from this that the [appellant] did have the opportunity to comment on this. The [appellant]’s migration agent indicated that she would put on written submissions after the hearing. That too is clear from transcript. Furthermore as this was country information, [section 424A(3)(a)] applies. In this regard the first respondent relies on ACC15 v Minister for Immigration and Border Protection [2016] FCA 97 at [29].

21    The primary judge is therefore to be understood as having rejected the appellant’s arguments with respect to this ground because:

(1)    The information that allegedly should have been put to the appellant was “country information”, and, given that finding, s 424A(3)(a) negated the need for the Tribunal to put that information to the appellant; and

(2)    In any event, the transcript of proceedings before the Tribunal showed that the appellant did have the opportunity to comment on the issue of bail and a family member attending.

22    The primary judge held that the other grounds also could not be made out and dismissed the appellant’s application for review.

These proceedings

23    The appellant raised three grounds of appeal in this court, viz:

1.    The Federal Circuit Court erred in failing to find that the Tribunal had failed to provide a meaningful hearing in accordance with the requirements of s 425(1) of the Migration Act.

…

2.    The Federal Circuit Court erred in failing to find that the Tribunal made a finding that was not open to it on the evidence, or that was not rationally supported by the evidence before the Tribunal.

…

3.    The Federal Circuit Court erred in failing to find that the Tribunal failed to comply with s 499 of the Migration Act, in that it failed to take into account the most recent country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT), namely DFAT Country Information Report – Sri Lanka, 16 February 2015, in relation to the availability of bail with the requirement that a family member act as guarantor, contrary to Ministerial Direction No 56.

...

24    It is convenient to deal first with Ground 3.

25    It is put in two ways – first, that the Federal Circuit Court erred in failing to find that the Tribunal failed to comply with s 499 of the Migration Act in that it failed to take into account the most recent country information assessment prepared by DFAT and secondly, that the Tribunal took into account an irrelevant consideration, viz the superseded DFAT Country Information Report for Sri Lanka dated 31 July 2013 (the 2013 DFAT Report) and thus fell into jurisdictional error. In my view, on a proper reading of the Tribunal’s reasons, those submissions must be accepted.

26    The submission arose in response to written submissions made by the Minister, and no objection was taken to it being raised.

27    In his written submissions filed on 14 February 2018, the Minister submitted that the Tribunal was relying not on the most recent DFAT country information, being the 2015 DFAT Report, which the Tribunal extracted at [81] of its decision record, but on the superseded 2013 DFAT Report.

28    Paragraph 83 of the Tribunal’s reasons is as follows:

83. As noted above DFAT indicates that in most cases bail is granted relatively quickly [citing Ben Doherty, 8 December 2012, “Asylum denied, a penalty waits at home”. Chris Bowen MP, More Sti Lankans involuntarily sent home, 7 November 2012] and on a person’s own undertaking and IOM is present while these procedures are undertaken [citing DFAT Country Information Report Sri Lanka 31 July 2013]. Other country information supports DFAT’s advice [citing “Elite police officer suspected of key role in smuggling bid”, The Age 8 July 2014]. The [appellant]’s wife and his siblings are in Sri Lanka so would be available to sign him out if necessary.

    (Emphasis added.)

29    It is tolerably clear that the Tribunal’s words “As noted above” at the commencement of [83] must be a reference to [81], which quotes from the 2015 DFAT Report. But the critical part of the Tribunal’s decision (in bold above) expressly cites, and must be taken to have relevantly relied only on, the 2013 DFAT Report. The appellant’s written submission (dated 30 April 2018) is as follows (at [12]-[21]):

The Minister asserts that the relevant difference between the July 2013 DFAT report and the February 2015 DFAT report is that the former report made no mention of the requirement of a family member acting as guarantor.

On this basis, the Minister asserts that there can have been no assumption on the part of the Tribunal that it was a requirement of bail that a family member act as guarantor, and thus the Tribunal's finding that the appellant would be bailed quickly, in the absence of any evidence about the availability of a guarantor, or its failure to ascertain whether or not a family member was willing and able to acts as guarantor for the appellant, cannot have been an error.

The appellant's primary submission in the first ground of appeal remains that a fair reading of the Tribunal's reasons, including the fact that     it extracted the relevant part of the February 2015 DFAT report in its decision record at [81], just two paragraphs before the relevant finding at [83], indicates that the Tribunal was aware of the requirement that a family member act as guarantor for bail and made its decision on that basis…

However, if the Minister maintains that the Tribunal chose to disregard the February 2015 DFAT report, relying instead on the superseded July 2013 DFAT report as the basis for its reasoning, the Tribunal has failed to comply with its mandatory obligation in s 499(2A) of the Migration Act to comply with a Ministerial direction made under s 499(1), specifically Ministerial Direction No 56 of 21 June 2013. If the Tribunal did so, it made a jurisdictional error.

Ministerial Direction No 56 requires that a decision maker must take into account a country information report prepared by DFAT for the purposes of protection status determination processes. The DFAT Country Report- Sri Lanka dated 16 February 2015 expressly states that it has been prepared by DFAT “for protection status determination purposes only”.

The February 2015 DFAT report further states, “The country report replaces the previous DFAT Country Report on Sri Lanka dated 3 October 2014.” By extension, it also replaces earlier DFAT Country Reports on Sri Lanka, including the July 2013 DFAT report, each of which was superseded by the report that immediately followed it.

It follows that in relying on the July 2013 DFAT report and disregarding a relevant aspect of the most recent February 2015 DFAT report, the Tribunal failed to comply with Ministerial Direction No 56, in failing to have regard to the provision in the February 2015 DFAT report that directed that that report replaced its predecessors…

Accordingly, if the Minister's submission that the Tribunal was not relying on the February 2015 DFAT report in making its decision, but instead relied on the superseded July 2013 advice, is to be accepted, it must follow that the Tribunal committed a jurisdictional error by failing to comply with its mandatory obligation in s 499(2A) of the Migration Act.

An alternative formulation of the same error is that the Tribunal took into account an irrelevant consideration. Given that s 499(2A) of the Migration Act, read with Ministerial Direction No 56, requires the Tribunal to have regard to the February 2015 DFAT report, and given that the terms of the 2015 DFAT report itself indicates that it replaces the previous DFAT Country Reports on Sri Lanka, the Tribunal is precluded from relying on superseded July 2013 report, at least to the extent that the superseded report diverges from the most recent report.

By having regard to a report that is expressly stipulated, for the purposes of s499(2A) of the Migration Act and Ministerial Direction No 56, to have been “replaced”, the Tribunal had regard to a consideration to which it was not permitted to have regard [citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [82]-[84] and Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, 39-40).]

30    During the course of oral argument, counsel for the Minister submitted that “at no point has the Minister submitted, written or otherwise, that the tribunal hasn’t relied on the 2015 DFAT Report. What the Minister submitted … is that the Tribunal didn’t rely upon the 2015 DFAT Report at paragraph [83]”.

31    That submission was correct. It seems to me that there is no other way to read the Tribunal’s reasons. On the critical question of the application of the relevant country information to the issue decided in [83] of the Tribunal’s reasons, the footnote (set out in the bolded parenthetical at [28] above) makes clear that the Tribunal decided the question of whether the appellant would or would not spend a short period of time in jail upon return by reference to the wrong country information. It was critically wrong because the 2013 DFAT Report makes no reference to the need to procure a guarantor to ensure prompt release. It is, of course, true that at [83] of the Tribunal’s reasons it sets out the relevant parts of the 2015 DFAT Report. But the reasons, even read as a whole, cannot be read, as the Minister effectively submits, as if the relevant words of the 2015 DFAT Report (including, “with the requirement for a family member to act as a guarantor”) were included in [83] and the footnote were read as if it also included a citation to the 2015 DFAT Report (or deleted the 2013 DFAT Report). That construction of the Tribunal’s reasons would be impermissibly to re-write them.

32    It follows that the Tribunal did not form any view at all about whether, as a matter of fact, the appellant had a family member to act as a guarantor – which, as I will explain briefly below, means that grounds 1 and 2 must fail.

33    Returning to ground 3, I accept the appellant’s submissions set out above. Section 499(2A) of the Migration Act requires a person or body (which relevantly includes the Tribunal) to comply with ministerial directions made under s 499(1) of the Migration Act. Ministerial Direction No 56 of 21 June 2013, which is made under s 499(1) of the Migration Act, requires that a decision maker must take into account a country information report prepared by DFAT for the purposes of protection status determination processes. It states:

… 3. Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision make must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.

The 2015 DFAT Report, at paragraph 1.1, states that “The country report replaces the previous DFAT country report on Sri Lanka dated 3 October 2014”, and the DFAT Country Report – Sri Lanka dated 3 October 2014 (the 2014 DFAT Report) contains a correlative provision stating that it replaced the 2013 DFAT Report. Therefore, in those circumstances, there is only one DFAT Report that must be taken into account in order to comply with Ministerial Direction No 56. At the time of the Tribunal’s decision, that was the 2015 DFAT Report.

34    By relying on the 2013 DFAT Report and failing to consider the relevant section of the 2015 DFAT Report (notwithstanding that the relevant section of the 2015 DFAT Report was extracted at [81] of the Tribunal’s reasons), the Tribunal failed to comply with Ministerial Direction No 56. It follows, as the appellant submits, that the Tribunal committed jurisdictional error by failing to comply with its mandatory obligation in s 499(2A) of the Migration Act. Alternatively, it took into account an irrelevant consideration (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 232 at [82]-[84]). This error could also be characterised as a failure to consider the relevant consideration, being the bail procedures set out in the 2015 DFAT Report.

35    The Minister accepted that the Tribunal was required to rely upon the most recent and up-to-date country information, but submitted (in the course of oral argument) that “there is nothing wrong with it relying upon older country information, provided that older country information isn’t flatly wrong and contradicts more recent information.” So much may be accepted. The Ministerial Direction expressly provides that “[t]he decision maker is not precluded from considering other relevant information about the country.” But in this case it is undeniable that, on the issue of bail, the 2013 DFAT Report set out a procedure for bail that was critically different to that described in the 2015 DFAT Report (reproduced at [81] of the Tribunal’s reasons), because it did not contain the requirement for a family member to guarantee bail. And the Tribunal, with respect, does not offer any explanation why, having set out at length in [81] the relevant parts of the 2015 DFAT Report (including that “[i]n most cases, returnees have been granted bail on personal recognisance … with the requirement for a family member to act as guarantor”), when it comes to decide the question of what could likely happen to the appellant were he to return to Sri Lanka (which is does by finding that the appellant’s “wife and siblings are in Sri Lanka so would be available to sign him out if necessary”), it does so expressly by reference to the 2013 DFAT Report and expressly without mentioning any “requirement” (the word used in the 2015 DFAT Report) that a family member act as a guarantor. In such circumstances, in my view, the Tribunal, merely by setting out parts of the 2015 DFAT Report at [81] cannot be said to have “take[n] into account” those parts within the meaning of the Ministerial Direction.

36    It is worth repeating that a decision maker is not precluded from considering other relevant information. That may, in certain circumstances, include older information. As the Full Court said in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (MZYTS) at [74]:

That is not to say decision-makers cannot rely on information which is several years old. They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps the older information is more specific to the visa applicant’s circumstances. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on older information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal’s reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.

37    In this case, however, the 2013 DFAT Report had been replaced by the 2014 DFAT Report and then by the 2015 DFAT Report. And, as I say, it was for current purposes, different in a critical respect. And the Tribunal does not provide any explanation (or, as the Full Court would put it in MZYTS, an “evaluation process”) for relying on the 2013 DFAT Report, including whether it was “other relevant information” within the meaning of the last sentence of the Ministerial Direction.

38    In such circumstances, the reliance on the 2013 DFAT Report constituted a failure to comply with the Ministerial Direction No 56.

39    For those reasons, the appellant’s case on ground 3 must succeed and the appeal must be allowed. I will make orders accordingly.

40    It is not necessary to decide the other grounds, but they fail precisely because, for reasons I have explained, the Tribunal did not make any assumptions regarding the availability of the appellant’s family member to act as a guarantor because it had regard to the wrong country information which did not mention that requirement. It cannot be said, therefore, that the Tribunal failed to put the issue of its assumption to the appellant for the purposes of s 425(1) of the Migration Act. Nor can it be said that it made a finding that was not open on the evidence or that was not rationally supported by the evidence before the Tribunal, and there was room for a logical or rational person to reach that decision on that material (cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135]).

Associate:

Dated:    24 August 2018