FEDERAL COURT OF AUSTRALIA

BCS16 v Minister for Immigration and Border Protection [2019] FCA 290

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court made on 15 June 2018 be set aside and in lieu thereof:

(a)    A writ of certiorari issue to quash the decision of the second respondent dated 14 April 2016; and

(b)    A writ of mandamus issue to remit the matter to the second respondent and require it to hear and determine the matter according to law.

3.    The first respondent pay the appellant’s costs of this appeal and the proceeding below as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

1    The appellant is a Sri Lankan Tamil man who arrived in Australia in 2012. On 21 November 2012, he applied for a protection visa on the basis that he feared persecution if he were to return to Sri Lanka for the purposes of s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the “Act”). That application was refused by a delegate of the first respondent (the “Minister”) on 18 September 2013. An application for review of that decision was made and, on 14 April 2016, the second respondent (the Administrative Appeals Tribunal or the “Tribunal”) affirmed the delegate’s decision. An application for judicial review of that decision was dismissed by a judge of the Federal Circuit Court on 15 June 2018. The appellant now appeals that decision to this Court.

The Tribunal Decision

2    The Tribunal found the appellant to be a credible and honest witness and accepted nearly all of his claims concerning his treatment in Sri Lanka in the period prior to his departure from that country. That included the following events:

(a)    The appellant became separated from his family in late 2008. His whole village was displaced. The appellant fled into the jungle with around eight other friends in order to avoid being caught up in the conflict between the Sri Lankan army (the “SLA”) and the Liberation Tigers of Tamil Eelam (the “LTTE”). In April 2009, the appellant entered an army-controlled camp. Because he was on his own, the SLA suspected that he was a member of the LTTE and frequently detained and interrogated him. The army released him from the camp in October 2009 and he went to Jaffna to live with his cousin.

(b)    In Jaffna, the appellant was made to report weekly to the Criminal Investigation Department (the “CID”) offices, where he was mainly questioned and then released. However, on two of these occasions, the CID tortured him. The torture included being raped, being burnt with cigarettes, having water sprayed in his face, and being hung upside down. The CID believed he was a member of the LTTE because he was separated from his family.

(c)    While living in Jaffna, the appellant obtained work in a mine as a driver. Members of the SLA also worked in the mine and they would try to take the appellant’s job away from him by reporting him to the CID.

3    One claim, which led to him fleeing Sri Lanka, was recorded in the delegate’s decision in the following terms:

The applicant stated that whilst at work, around 12 months after coming to Jaffna, the CID attended his home and told his sister in law that he should report to their offices again. He stated that boys that had been released from the camp were being taken into custody by the CID again. He stated that he was not too sure what was happening to them or where they were being taken. He stated two or three Tamil locals (not his friends) were taken and disappeared. He stated that there were 6 Tamils released from the camp in his area and the first three had disappeared and he was summonsed next. Due to the situation his sister in law advised him not to attend the CID office. He and the two other Tamil males in the area which came from the camp fled out of fear.

The reference to a “camp” is to an internally displaced persons’ camp controlled by the SLA. As already mentioned, when the appellant had been in this camp, he alleged that the SLA had interrogated him using harsh beating techniques. The SLA also took photos of him.

4    The extent to which the Tribunal accepted this claim remains unclear, for reasons which I will explain. Critically, it was said that the Tribunal had misunderstood this claim and had not considered it in full. This, it was contended, could be seen in the content of [27] of the Tribunal’s reasons for decision which were in the following terms:

I considered the applicant’s evidence that after he was released and living in Jaffna three of the people that were hiding in the forests with him during the conflict were required to attend an interview with the CID and did not return; and he said he was next, so he left. This gave me concern. However, there is no information before the Tribunal whether those three had a profile of interest to the authorities or why the applicant did not see them again. I also considered his evidence that as he registered alone and not with his immediate family because they were separated. The authorities then suspected persons that registered in this way to have been LTTE members or combatants. My concerns were outweighed by the applicant’s other evidence and relevant reports and information available to the Tribunal discussed further below, all of which lead to the conclusion that he was not suspected of involvement with the LTTE.

5    The Tribunal did not accept all of the appellant’s claims in relation to the period following his departure from Sri Lanka. In particular, it did not accept that, since fleeing Sri Lanka, the CID had gone searching for the appellant several times. Thus, at [25] of its reasons for decision, the Tribunal said:

I indicated to the applicant that I do not doubt his story and all the claims of displacement, questioning, beatings and torture he suffered. Having regard to country information from several sources including the DFAT reports, [US Department of State], UNHCR of the events during the civil war and for a period after the end of the war in Sri Lanka, I accept the account of all the incidents he described and the suffering he endured, the beatings, the sexual abuse, the torture, the horrors he witnessed especially around the end and immediately following the end of the war; and the fear he experienced over a very long period of time. He impressed me as a credible and honest witness. He spoke fluidly and clearly and I did not perceive any attempt by him to embellish his claims regarding past incidents. I indicated that I sympathise with him for the unimaginable suffering he has experienced. He left Sri Lanka a little over a year after the end of the war. I accept too that he continues to have some subjective fears. I do not accept however that the authorities have continued to ask his family for his whereabouts on the basis that I am satisfied he was of no interest to the authorities and he departed Sri Lanka on a valid passport without incident, discussed further below.

(Emphasis added.)

6    The Tribunal’s rejection of the appellant’s evidence concerning whether the CID continued to have any interest in him was the subject of a ground of appeal before me. In the appellant’s submission, he was told on a number of occasions by the Tribunal that his “story” had been accepted. Thus the transcript records, for example, the following:

SENIOR MEMBER: Yes. So I understand all of that and I am very sympathetic to some of the things that you experienced and suffered. I notice that you were tearful at some points. We are all acutely aware of what was going on during the war, especially in the closing stages in the war. I don’t doubt any of your story at all. It’s a slightly different version from what I read, really the difference is immaterial. I accept your story. I accept what you have told me, what you experienced in Sri Lanka. And I can understand that at some point you have perceived a real fear and you felt you wanted to leave Sri Lanka in 2010. But as you – and we all are aware – the situation now in 2015 is somewhat different, so let me ask you this, what is it that you fear now if you were to return to Sri Lanka – just suppose you were to return to Sri Lanka? What do you fear?

(Emphasis added.)

7    The Tribunal ultimately affirmed the delegate’s decision because of the changes that had taken place in Sri Lanka since the cessation of the civil war. For that purpose, it relied upon certain available country information and concluded at [53] as follows:

On the basis of the available country information I do not accept that the applicant is of interest to the authorities in Sri Lanka. I do not accept that he is of interest to the Karuna group or the [Eelam People’s Democratic Party] because he ‘did not inform them he was leaving’ or because in the period after the end of the war when registration was required, ‘he was not on his parents’ register’. I find that the applicant did not have any role or involvement with the LTTE while he was in Sri Lanka. There is no evidence or submissions that he engaged in any political activities outside Sri Lanka since he departed to raise any interest by the authorities of any activities in the diaspora.

The Tribunal otherwise accepted that the appellant would face “low levels of discrimination” and “social and economic disadvantage … because of his [Tamil] ethnicity and Hindu religion”, but that these detriments did not give rise to levels of serious or significant harm.

8    For essentially these reasons, the Tribunal rejected the appellant’s claims of fear for the purposes of both s 36(2)(a) and (aa) of the Act.

The Federal Circuit Court

9    The grounds of review in the Federal Circuit Court were in the following terms:

1.    The Tribunal’s decision dated 14 April 2016 is affected by jurisdictional error because the Tribunal failed to consider an integer of the applicant’s claim by failing to consider whether the applicant’s brother’s work for the LTTE raised the applicant’s profile and affected the applicant’s need for protection.

Particulars

a.    The applicant claimed that his brother had worked as a driver for the LTTE.

b.    The applicant’s claim in relation to his brother’s role in the LTTE was significant because, on the basis of the country information relied on by the Tribunal, it would put the applicant squarely within a category of persons who are assessed by the UNHCR as warranting protection. That is, as a person who is closely related to a former LTTE supporter who was involved in transporting LTTE personnel, or the supply and transport of goods for the LTTE.

c.    The Tribunal accepted that the applicant’s brother had worked for the LTTE.

d.    Having made this finding, the Tribunal was required to consider whether it raised the applicant’s profile and gave rise to a need for protection.

   e.    The Tribunal failed to consider this integer of the applicant’s claim.

2.    The Tribunal’s decision dated 14 April 2016 is affected by jurisdictional error because the Tribunal failed to properly understand and therefore consider the applicant’s claim that three of the six boys that had been released from the camp in Jaffna had been arrested and disappeared and that a CID officer had told his sister-in-law that all of the boys were being taken into custody again and he was to be next.

Particulars

a.    A claim of the applicant, made in written submissions to the Tribunal and before the delegate, was that he feared, if returned to Sri Lanka, that there was a real chance that he would be arrested and disappeared by the CID. This was because out of the six Tamil boys that had been released in Jaffna along with the applicant, three had been summonsed to the CID offices and never returned. A CID officer came to his [sister-in-law’s] house and told her that the boys who had been released from the camp were being taken into custody by the CID again and that the applicant should report to their offices again.

b.    Instead of considering this claim as made, the Tribunal considered only a claim that three of the people that were hiding in the forests with the applicant during the conflict were required to attend an interview with the CID and did not return, and the applicant said he was next, so he left [28].

c.    The Tribunal misconstrued the applicant’s claim and, in doing so, failed to consider the claim as made by the applicant.

3.    The Tribunal failed to accord procedural fairness to the applicant by failing to notify him that his claim in relation to the CID searching for him and interrogating his family since his departure from Sri Lanka, was open to doubt.

Particulars

a.    An important part of the applicant’s claim was that since he had fled Sri Lanka, the CID had been searching for him several times at his brother’s house in Jaffna and his mother’s home in Vanni. The CID demanded from his family the applicant’s death certificate, or, if he is still alive, to be told of his whereabouts. The CID also interrogated his family about his involvement in the LTTE.

b.    At the hearing, the Tribunal did not question the applicant in relation to this claim. Nor did the Tribunal indicate that this claim may be open to any doubt.

c.    Rather, the Tribunal repeatedly reassured the applicant that it found him to be a credible witness and accepted his story.

d.    Ultimately, the Tribunal did not believe the applicant’s claim that the authorities had continued to ask his family for his whereabouts and had interrogated them about his involvement in the LTTE.

e.    The finding was significant to the Tribunal’s finding that the applicant was not of ongoing interest to the Sri Lankan Authorities, and subsequent rejection of the applicant’s claims for protection.

f.    The Tribunal failed to put the applicant on notice that this important integer of his claims was open to doubt.

g.    Accordingly, the Tribunal failed to accord the applicant procedural fairness.

10    It is unnecessary for me to consider the first ground review, as it was not raised before me.

11    The second ground of review raised an alleged misunderstanding of the appellant’s claims concerning the event which prompted him to flee Sri Lanka. This was dismissed by the learned primary judge on the basis that the Tribunal was “clearly aware” of the real claim. Reference was made to [16], [27] (already reproduced above), [29] and [43] in the reasons of the Tribunal in support of that proposition. Paragraphs [16], [29] and [43] are in the following terms:

16    The submission reiterates the applicant’s claims: of being interrogated and on several occasions beaten and assaulted by the CID; and that three of the six that were released to Jaffna with the applicant attended the CID and did not return. The submission adds that the applicant was also sexually assaulted when he was taken into custody by the CID; a claim he was ashamed to raise with his previous, female, lawyer. The applicant fears serious harm and even death [at] the hands of the Sri Lankan Army due to his Tamil ethnicity and suspicion of LTTE support as he spent numerous years in hiding and successfully escaped the country he would undoubtedly be imputed with pro-LTTE sentiments.

…

29    I explained that my assessment of the risk to him is also based on his evidence that even at the end of the war, he was questioned and tortured as almost all the Tamil population in the north was but he was always released. He has consistently stated that he escaped the recruitment efforts by the LTTE and had no involvement. He was, as all Tamils in the North were, suspected. Soon after the end of the war, he was accepted and took a job working alongside ex-government soldiers clearing mines. He was able to renew his passport and depart Sri Lanka lawfully without incident even though, as he said, the authorities had a former LTTE operative placed at the airport to identify anyone with LTTE connections of interest to the authorities. His evidence that his brother, who had worked for the LTTE, is leading a normal life running a tyre shop in the North. His own evidence strongly suggests that he was of no interest to the authorities in 2009 and 2010, a time when several international reports indicate the government’s keen interest and efforts in rounding up any LTTE connected Tamils and reports of brutality were widespread. Given the recent reports of the circumstances under the current government, it may strongly suggest that he would be even less likely to be of interest to the authorities.

…

43    The Tribunal does not treat the lists in these reports as exhaustive and it has acknowledged that the applicant was questioned, beaten and abused in various ways around the end of the war. But it also notes that at that time of heightened security concerns and triumphalism most if not all the Tamil population was suspected of LTTE connections and reports of brutality against the Tamils was widespread and condemned by the international community. Relevantly, I have also considered that the applicant consistently stated that he was not involved with the LTTE and while he was held, questioned and abused, he was always released. In his evidence to the Tribunal the applicant stated that at the time he was placed in camps, he was aware that the authorities held those suspected of LTTE involvement in separate camps. The DFAT information also refers to Tamils with such profiles being held in rehabilitation camps. The applicant was not separated into one of those camps. It also appears that it would [have] been unlikely that he would have been accepted to work alongside former Sri Lankan soldiers in clearing mines, nor would he have been able to easily renew his passport and depart Sri Lanka through the normal channels at the international airport in Colombo without incident. DFAT advice indicates that the CID maintain a presence and have involvement in border control at the airport. The applicant also stated that a former LTTE man was engaged to collaborate with the authorities to identify any LTTE persons that might be of interest to the authorities. The applicant departed on a valid passport and without incident.

12    The learned primary judge found that what was said in [27], set out above, was a “factual misstatement”. The misstatement was the reference to three of the people that had been “hiding in the forests” being required to attend an interview with the CID. In fact, the claim was that the CID wanted to interview boys who had been released from the camp, not those who had been with the appellant in the jungle some time earlier. At [39] of the reasons for judgment below, the learned primary judge rejected this ground and concluded as follows:

The Tribunal clearly dealt with this claim in paragraphs 27, 29 and 43 of the Decision Record. … The Minister acknowledges that in paragraph 27 of the Decision Record the Tribunal refers to “three of the people that were hiding in the forests with him”, which is not factually accurate, in that the three persons claimed by the Applicant to have not returned from an interview with the CID were in a group of six with the Applicant after he was released and living in Jaffna. That factual misstatement, however, was not the Tribunal committing jurisdictional error. When the Tribunal decision is read as a whole and fairly, it is clear that what it was the Applicant claimed was understood by the Tribunal and that the Tribunal throughout directed its attention to the claim made. The Tribunal’s reference to “hiding in the forests” had no consequence in respect of the Tribunal’s decision.

13    The third ground of review concerned the complaint that the appellant was not told that the Tribunal might not accept his claim that the CID had looked for him after he had fled Sri Lanka. In essence, the appellant thought he had been told by the Tribunal member that his “story” had been accepted, and that this included his claims concerning the continuing interest of the CID. He was thus denied, it was submitted, the opportunity to pursue those claims further. Before the learned primary judge, this claim would appear to have been put as a breach of s 424A of the Act, which is in the following terms:

 (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.

(4)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

14    The learned primary judge rejected this ground of review for two reasons:

(a)    first, her Honour found that the Tribunal member had given sufficient notice of the possibility that this claim may not be accepted. For that purpose, the learned primary judge relied upon an exchange between the member below and the appellant concerning his family’s current situation, together with the following additional passages from the transcript of the hearing:

I accept what you told me about living in controlled areas and then moving to Jaffna ... I accept what you’ve told me about all the experiences that you had, and your perceived fear when you left in 2010.

...

But we understand from the country reports that the authorities in Sri Lanka now are not really interested in people who may have an unavoidable association with the LTTE when they lived in the north, and the LTTE was running every aspect of life in the north.

...

In your case, you, in various places telling your story, were not at all associated with the LTTE; you had no association, you managed to avoid being recruited by them. And while I accept you were questioned, the fact that you were always released and they had no further interest in you further indicated the authorities had no interest in you, even immediately after the war, except to question, as they were questioning everyone.

You also told me that you, in fact, renewed your passport in January 2010, very soon after the end of the war. And, you travelled legally on that passport out of Colombo International Airport, where you said they had specifically a man from the LTTE to identify people who might have been associated with the LTTE, and tell the authorities. You got through that, and you travelled without difficulty, other than the regular questioning.

Now, it’s for these reasons ... that I may not accept that the authorities in Sri Lanka have an interest in you at all, in terms of any imputed political opinion, or because you’re a Tamil. For these reasons, you had almost free movement: you could travel from the north to Colombo, you had no difficulty; you got your passport; you travelled legally.

…

I may not accept that there is a real chance of that happening in the foreseeable future because of any of these reasons.

…

I believe what you said about what happened to you in the past. The task that is required of me is to see, having regard to everything that you’ve told me that happened in the past, whether in the foreseeable future there’s a real chance of you facing serious or significant harm for a Convention reason or under complementary protection.

(b)    secondly, the learned primary judge decided that the non-acceptance of the appellant’s claim was not “information” required to be disclosed pursuant to s 424A but was instead “subjective appraisals, thought process or determinations”. For that purpose her Honour referred to SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 at [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). At [55], the learned primary judge concluded as follows:

The Applicant’s claim, that after his departure from Sri Lanka the CID continued to ask his family where he was, was directed by the Applicant to evidence which went to whether he was of interest in an ongoing way to the Sri Lankan authorities. The Tribunal found that he was not, on the totality of the evidence before it. I accept the submission of the First Respondent that contrary to the Applicant’s assertions the Tribunal did not represent to the Applicant that it accepted any part of his evidence about what happened to his family after the Applicant departed Sri Lanka. The Tribunal’s acceptance of facts raised by the Applicant related to that which happened to him and his family prior to his departure.

For these reasons the application for review was dismissed.

Grounds of Appeal

15    Before me, the remaining applicable grounds of appeal were as follows:

2.    The Learned Judge erred by not finding that [the] Tribunal’s decision dated 14 April 2016 was affected by jurisdictional error because the Tribunal failed to properly understand and therefore consider the appellant’s claim that three of the six boys that had been released from the camp in Jaffna had been arrested and disappeared and that a CID officer had told his sister-in-law that all of the boys were being taken into custody again and he was to be next.

a.    A claim of the appellant, made in written submissions to the Tribunal and before the delegate, was that he feared, if returned to Sri Lanka, that there was a real chance that he would be arrested and disappeared by the CID. This was because out of the six Tamil boys that had been released in Jaffna along with the appellant, three had been summonsed to the CID offices and never returned. A CID officer came to his [sister-in-law’s] house and told her that the boys who had been released from the camp were being taken into custody by the CID again and that the appellant should report to their offices again.

b.    Instead of considering this claim as made, the Tribunal considered only a claim that three of the people that were hiding in the forests with the appellant during the conflict were required to attend an interview with the CID and did not return, and the appellant said he was next, so he left [28].

c.    The Tribunal misconstrued the appellant’s claim and, in doing so, failed to consider the claim as made by the appellant.

3.    The Learned Judge erred by not finding that the Tribunal failed to accord procedural fairness to the appellant by failing to notify him that his claim in relation to the CID searching for him and interrogating his family since his departure from Sri Lanka, was open to doubt.

a.    An important part of the appellant’s claim was that since he had fled Sri Lanka, the CID had been searching for him several times at his brother’s house in Jaffna and his mother’s home in Vanni. The CID demanded from his family the appellant’s death certificate, or, if he is still alive, to be told of his whereabouts. The CID also interrogated his family about his involvement in the LTTE.

b.    At the hearing, the Tribunal did not question the appellant in relation to this claim. Nor did the Tribunal indicate that this claim may be open to any doubt.

c.    Rather, the Tribunal repeatedly reassured the appellant that it found him to be a credible witness and accepted his story.

d.    Ultimately, the Tribunal did not believe the appellant’s claim that the authorities had continued to ask his family for his whereabouts and had interrogated them about his involvement in the LTTE.

e.    The Tribunal failed to put the appellant on notice that this important aspect of his account was open to doubt.

f.    Accordingly, the Tribunal failed to accord the appellant procedural fairness.

The Appeal

16    Ms Grinberg of Counsel, who appeared for the appellant, put the appellant’s case in the following way:

(a)    As to the first ground of appeal, it was submitted that the Tribunal had erred by failing to consider a critical claim made by the appellant. The Tribunal had at [27] confused the narrative of events in mistakenly thinking that the incident which led the appellant to flee had involved those individuals who had been “hiding in the forests” with him. The actual claim was that the CID was seeking to interview six boys who had come from the internally displaced persons’ camp. The appellant’s hiding in the jungle had taken place earlier.

(b)    It was further submitted that the Tribunal failed to engage with all aspects of this claim. Ms Grinberg submitted in her written submissions that the following aspects of the claim had not been addressed:

(i)    That the particular reason the appellant feared being detained and/or questioned and tortured again by the CID was because he was part of the group of six Tamils that had been released from the camp into Jaffna in 2009. It was not enough for the Tribunal simply to make a finding that the appellant was not suspected of involvement with the LTTE in order to actively engage with and dispose of this claim.

(ii)    The Tribunal did not consider the appellant’s claim that the CID had attended the appellant’s home and told his sister-in-law that he should report to their offices.

(iii)    The Tribunal did not consider whether, if the appellant were taken into custody again by the CID, he would again suffer serious or significant harm, even if he was ultimately released. It is noted that the Tribunal accepted that, even though the appellant had ultimately been released in the past, he had been beaten, tortured, and raped while being held and questioned by the CID.

(c)    The appellant also disputed the proposition that the Tribunal must have understood this claim correctly because of what it wrote at [27], [29] and [43]. Those paragraphs, it was said, did not reveal any correct understanding of the appellant’s claim.

(d)    Finally, in relation to this ground, the appellant submitted that the Tribunal’s misunderstanding was significant. He contended, through his counsel, as follows:

The claim as made by the appellant was significant to his claims for protection; it was this event that led him to flee the country. Even on the basis of the more general and misconstrued claim the Tribunal did consider, it caused the Tribunal concern. The Tribunal found the appellant to be a credible and honest witness. If the Tribunal correctly considered the claim as made by the appellant, it is likely to have caused the Tribunal further concern, and potentially affect the Tribunal’s conclusion as to whether the appellant was in need of protection.

The appellant also relied upon a decision of the Full Court of this Court in SZTQP v Minister for Immigration and Border Protection (2015) 232 FCR 452. I shall return to this authority.

(e)    In relation to the second ground of appeal, the appellant submitted that it did not contend that there had been a breach of s 424A of the Act; rather there had been a breach of s 425 of the Act. That provision is in the following terms:

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.

  (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.

     (f)    The Minister did not submit that the appellant was not entitled to rely upon this provision.

    (g)    The appellant relied upon the following passage from the decision of the High Court concerning s 425 in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47]:

… there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

(h)    The appellant argued that he should have been asked to explain why his claim that he was of continued interest to the CID, should have been accepted.

(i)    The appellant submitted that the repeated assurances he had received from the Tribunal member as to the credibility of his evidence led him to believe that all his factual claims had been accepted. No notice of the possibility that some of his claims, in particular those concerning the continuing interest of the CID in him after he had left Sri Lanka, had been disclosed. The appellant relied upon the following additional passage from the transcript of the hearing:

I accept what you told me about living in controlled areas and then moving to Jaffna. More generally … I have found you to be really straightforward, forthcoming, broadly consistent in your story from the versions that I’ve read elsewhere, and in the decision record from the Department, which you’ve provided me a copy of. I accept what you’ve told me about all the experiences that you had, and your perceived fear when you left in 2010.

(j)    The appellant contended that there had been a denial of procedural fairness. He contended, through his counsel, as follows:

This failure of the Tribunal amounted to a failure to accord the appellant procedural fairness because ‘the Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions about this issue (SZBEL at [45]). The appellant was therefore denied a proper opportunity to develop this aspect of his claim by providing further evidence and explaining why his account should be accepted. For example, it would have been open to the appellant to provide further detail as to this claim and also to seek further evidence from his mother and brother to present to the Tribunal.

17    Mr Goodwin of Counsel appeared for the Minister and responded as follows:

(a)    In relation to the first ground of appeal, the Minister submitted that when the reasons for decision were read as a whole, it was evident that the Tribunal had fully understood the claim made about the incident which led to the appellant fleeing Sri Lanka. In addition to the other paragraphs already referred to by the primary judge, the Minister relied upon [13] of the reasons for decision which relevantly was as follows:

The delegate also summarised the applicant’s claims including material from the interview the applicant attended on 27 June 2013:

...

In late 2010, while in Jaffna, the CID summoned three of the six Tamils that were released with the applicant and they did not return. He was next called to attend the CID.

…

(b)    The Minister also submitted that if there had been a misstatement of the claim in [27], that mistake had been made within jurisdiction. In that respect, the Minister relied upon the following passages from the decision of Derrington J in Sidhu v Minister for Immigration and Border Protection [2017] FCA 889 at [25]-[29]:

25.    It must be kept steadily in mind that there is an important distinction between an error of fact within jurisdiction which is not reviewable on appeal, and an error of fact which will amount to a jurisdictional error (Minister for Immigration and Border Protection v Singh [2016] FCA 575 at [52]). In ascertaining whether the Tribunal’s decision fell into jurisdictional error, it is not for the Court to re-examine the merits of the exercise of the discretion to cancel the appellant’s visa. That the Parliament has intended to entrust the merits of the decision to the province of the Tribunal is clear from section 474 of the Act (SZRPT v Minister for Immigration and Border Protection [2014] FCA 24 at [22]). In Attorney-General (NSW) v Quin (1990) 170 CLR 1 Brennan J commented at 36:

The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

26.    The authorities are patently clear that an appellant wishing to disturb a Tribunal’s decision must identify something more than a merely erroneous finding of fact. The proper enquiry for this Court in reviewing the decision of the Tribunal, is whether the Tribunal has failed to perform the statutory task imposed upon it by the relevant provisions of the Act (Minister for Immigration and Border Protection v MZYTS and Another [2013] FCAFC 114; (2013) 230 FCR 431 at 442, [31]).

27.    As the Tribunal correctly identified, section 116 of the Act does not impose upon the decision made any mandatory considerations to be taken into account when exercising its discretion to cancel the appellant’s visa. The Act nevertheless requires that the Tribunal consider any “substantial and clearly articulated argument relying upon established facts” (Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24]). A failure to do so will amount to a constructive failure to exercise jurisdiction, which is a constructive failure to carry out the review required by the Act (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at 17, [55]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42]). As well as failing to consider a claim altogether, if the Tribunal makes an error of fact in “misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error” (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at 20, [63]).

28.    In an attempt to draw a bright line between impermissible merits review and legitimate judicial review, a line of authority emerged identifying a distinction between an error of fact that has resulted in the claim itself being misunderstood or misconstrued, and an error that can be simply limited to a single item of evidence. As observed by the Full Court of this Court in MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; (2010) 117 ALD 441, their [Honours] North and Lander JJ expressed [in] Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [27] - [28]:

[27]    Of course, if the RRT failed to consider an element of an applicant’s claim, that would amount to jurisdictional error because Division IV of Part 7 of the Act requires a review of the whole of the applicant’s claims. In that case, the RRT would have failed to discharge its “imperative duties”: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1.

[28]    However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.

29.    However, the distinction between a mere misconstruction of evidence on the one hand, and a misconstruction of a claim on the other was described by Robertson J in Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (SZRKT) as a useful tool of analysis, but subordinate to the fundamental question of “the importance of the material to the exercise of the tribunal’s function and thus the seriousness of any error” (at [111]). His Honour considered that SZNPG “is not authority for the proposition that it could never be a jurisdictional error to ignore a critical piece of corroborative evidence” (at [114]). His Honour’s analysis was expressly endorsed by the Full Court of this Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [70], and received further support in the decision of Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67. In SZSRS the Full Court comprising of Katzmann, Griffiths, and Wigney JJ commented on a submission by the Minister that a failure to consider evidence will only amount to a jurisdictional error if it means that the Tribunal ignored a claim (at [54]):

... His Honour did not suggest that the previous authorities which had drawn the distinction were wrongly decided. The point his Honour was making was that it is too narrow an approach merely to ask in a case such as this whether the ignored material is a claim or part of a claim on the one hand or evidence on the other. Such an approach may provide the answer in some cases, but not in all. That is because, as his Honour also pointed out (at [98]), the Tribunal can fail to exercise its jurisdiction or fail to consider a claim in a number of different ways, including by ignoring evidence that is important to a claim, or ignoring evidence that, having regard to the course of its decision-making, acquires importance to the exercise of its jurisdiction. Some cases, including the category of case just referred to, may not comfortably fall on either side of the supposed claims/evidence divide, yet the error in ignoring the material may be serious and go to the exercise of the Tribunal’s functions. We respectfully agree with Robertson J’s analysis.

(c)    The Minister further submitted that, if there had been misstatement of the appellant’s claim, that needed to be considered in the light of the Tribunal’s analysis of the country information. It was a consideration of that information which was dispositive of the rejection of the appellant’s claim to fear persecution in the future. In the Minister’s submission, [27] should be read as an acceptance by the Tribunal of the factual nature of the claim made. That is why the claim was described as being a “concern”. However, in the face of the country information before the Tribunal any such “concern” was displaced. This can be seen in the last sentence of [27] which, for convenience, I reproduce below:

My concerns were outweighed by the applicant’s other evidence and relevant reports and information available to the Tribunal discussed further below, all of which lead to the conclusion that he was not suspected of involvement with the LTTE.

(d)    In reaching that conclusion, the Tribunal did not err in not setting out all the details of the claim. It did not need to do so because the claims had been adequately summarised earlier in its reasons for decision at [13] and [16].

(e)    In relation to the second ground of appeal, the Minister submitted that sufficient notice of the Tribunal’s concern that the appellant might have ceased to be of interest to the CID, had in fact been given. The Minister relied upon the passages of the transcript identified by the learned primary judge, which I have set out above. The Minister supported the conclusion of the primary judge that the issue for consideration, and which the appellant had to grapple with, was the risk of his persecution in the future if he were returned to Sri Lanka, and the likelihood that he would remain of interest to the CID. In the Minister’s submission it was made clear to the appellant that this was a “live” issue.

Disposition

18    In relation to the first ground of appeal, it is well established that when a Tribunal fails to make a finding on a substantial, clearly articulated argument relying upon established facts, there can be both a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55] (per Black CJ, French and Selway JJ).

19    As aforementioned, the appellant relied upon SZTQP as it was said to bear similarities to the present case. SZTQP concerned an application by a Rwandian man for a protection visa. He claimed he had been a child soldier during the genocide that had taken place in Rwanda. He became a bodyguard or escort to a certain General who subsequently fled to South Africa. The man feared persecution in Rwanda because of his association with that General. Part of his claim included the contention that, prior to leaving Rwanda, threatening phone calls had been made to him by anonymous people which referred to his relationship with the General. This resulted in him changing his mobile phone number. The Tribunal decided that “if” such calls had been made, they did not constitute a threat of serious harm because the applicant was able to change his phone number and could always decline to answer calls from unknown numbers. Nicholas, Robertson and Griffiths JJ observed that the Tribunal had made no finding as to whether or not the calls had in fact been made, what their content was or their significance to the applicant’s claim for protection. In particular, the Full Court found that the Tribunal had misunderstood that the calls themselves were not the source of potential harm, but rather the threats that had been contained in those calls. At [54], the Court said:

… there is the curious reference at the end of both [99] and [107] of the Tribunal’s reasons for decision to the Tribunal’s finding that it did not accept in all the circumstances that the telephone calls could be considered to constitute persecution involving “serious harm” as required by s 91R(1)(b) of the Act. Those statements strongly suggest that the Tribunal viewed the appellant’s claims in relation to the telephone calls as being that the telephone calls themselves constituted persecution involving “serious harm” for the purposes of that provision. This constitutes a fundamental misunderstanding or mischaracterisation of the claim which was being made, or at least an element of it. The appellant was not claiming that the making of the telephone calls themselves constituted serious harm. Rather, it was the threats that were made to him in those calls that were claimed to constitute the serious harm and also to evidence that the claimed serious harm was related to the appellant’s relationship with the General. …

The Court concluded at [56] that this misunderstanding constituted jurisdictional error. It said:

The claims relating to the threatening phone calls were an element of the appellant’s claim to fear serious or significant harm if he were returned to Rwanda. The Tribunal appreciated that this was a claim which was expressly made and one which arose clearly on the materials before the Tribunal (see NABE at [61]-[62]). Because of the way the Tribunal dealt with that claim, it remains “unresolved”. As Flick J observed in not dissimilar circumstances in SZRRD v Minister for Immigration and Border Protection [2015] FCA 577 at [17]:

It matters not why the now Appellant’s claim remains unresolved; it may not have been resolved by reason of error, misunderstanding, or inadvertence on the part of the Tribunal. However it occurred, the jurisdictional error remains.

20    Here, the event that led to the appellant to flee Sri Lanka was described in the delegate’s decision in the terms set out above. The description of this integer of the appellant’s claim to fear persecution raised the possibility of potentially favourable findings that might have been made by the Tribunal as follows:

(a)    first, that immediately prior to the applicant fleeing Sri Lanka he was in fact of specific interest to the CID, being one of six individuals who had been released from the camp that the CID wished to interview. At that camp, the appellant was suspected of being a member of the LTTE and had been beaten and his photo was taken;

(b)    secondly, because he was of specific interest to the CID, the CID visited his home and told his sister-in-law that he needed to report to the CID’s office;

(c)    thirdly, that of the six boys sought to be interviewed, two or three had been taken and had disappeared;

(d)    finally, that the appellant had every reason to fear the CID when he fled Sri Lanka. That fear was not of a general kind or unspecified. It was bedded in the appellant’s particular history and was the product of precise events that were peculiar to the appellant, which occurred at the camp and with the CID. He thought he would be next to disappear.

21    In SZTQP, the Full Court had earlier said the following at [52]:

… in order to discharge its statutory review function, the Tribunal was required to consider the appellant’s claims and their integers. In the circumstances here, this obliged the Tribunal to determine whether or not it accepted that the threatening telephone calls had been made and, if it found that they had, to proceed to determine whether it accepted the appellant’s claims that he was threatened in those calls that he would “disappear from the earth” and that such threats were made because of his association with the General. If the Tribunal made findings of fact which were favourable to the appellant on these matters, they would be material in that they could indicate that, contrary to the Tribunal’s ultimate finding, the appellant remained a person of interest in mid-2011 because of his association with the General. If that fact was accepted, it indicated that the appellant was a person of interest well after he ceased reporting to the police the previous year, contrary to the Tribunal’s finding.

The error alleged in the first ground of appeal is similar to that found above in SZTQP. In my view, if the details of the claim set out above had been accepted by the Tribunal, it might have indicated that the appellant was a person of particular interest to the CID. The Tribunal’s failure to make such findings, together with its misunderstanding of this integer of the claim, was not an immaterial matter or of minor consequence. It should have made findings concerning each element of the claim which were important, and then have considered and weighed those findings against the findings made based upon the country information. It did not do this and instead weighed the country information against something else – namely its misunderstanding of this integer of the appellant’s claim. That misunderstanding was defective, not only because it confused the narrative of events, but also because it did not address the details which led the appellant to flee Sri Lanka. Critically, the Tribunal failed to consider two key elements to this claim: (i) that the boys the CID were seeking to interview were from the camp (not the forest); and (ii) critically, the events that had taken place at that camp and subsequently with the CID. In my opinion, I cannot be certain that the Tribunal would have made the same determination about the issue of fear if it had addressed this incident adequately and weighed it against the country information properly. I cannot say that it would have decided that the appellant was of no interest to the CID notwithstanding the events which the appellant claimed took place. It follows that in my view, and with great respect to Mr Goodwin, the Tribunal’s misunderstanding constitutes jurisdictional error.

22    In that respect, I respectfully disagree with the finding of the learned primary judge that [27] was only a factual misstatement. I also, and with great respect, am unable to agree that the other paragraphs in the reasons for decision referred to by both the learned primary judge and by Mr Goodwin, demonstrate that the Tribunal fully understood the details of this claim and had simply failed to describe it in sufficient detail or had only misdescribed it. None of the paragraphs identified include each integer of this claim as set out in the delegate’s decision. As such, given that at [27] there was a clear misstatement of this claim, I am not able to agree that when the Tribunal’s decision is read as a whole it is clear that the Tribunal fully understood this claim.

23    However, I do agree with the learned primary judge’s conclusion concerning the second ground of appeal. In my view, the appellant was given sufficient notice that his claim that he remained the subject of current interest of the CID after he left Sri Lanka was a “live” issue. The Transcript set out in the judgment of the primary judge makes that clear when the Tribunal member said to the appellant:

Now, it’s for these reasons ... that I may not accept that the authorities in Sri Lanka have an interest in you at all, in terms of any imputed political opinion, or because you’re a Tamil.

…

I may not accept that there is a real chance of that happening in the foreseeable future because of any of these reasons.

…

The task that is required of me is to see, having regard to everything that you’ve told me that happened in the past, whether in the foreseeable future there’s a real chance of you facing serious or significant harm for a Convention reason or under complementary protection.

These passages show that the appellant was on notice that he needed to persuade the Tribunal that he continued to be of interest to the CID. There was no denial of procedural fairness.

24    The appeal should be allowed with costs.

Associate:

Dated:    7 March 2019