FEDERAL COURT OF AUSTRALIA

ERY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 357

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.    The appellant be given leave to file an amended notice of appeal in the form lodged on 4 February 2019 to rely on ground 1 of that amended notice, and the proposed amended notice will stand as the amended notice of appeal raising ground 1.

3.    The appellant be refused leave to rely on grounds 2, 3 and 4 of the amended notice of appeal.

4.    The appeal be dismissed.

5.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The appellant is a citizen of Sri Lanka. He appeals a decision of the Federal Circuit Court of Australia, which dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the Minister to refuse the appellant’s application for a protection visa.

2    Within the appeal is an interlocutory application by the appellant to rely upon an amended notice of appeal, which seeks to raise two grounds that were not argued below. The appellant also sought leave to rely upon further evidence, being material that had been the subject of a certificate under s 438 of the Migration Act 1958 (Cth). The Minister consented to the Court receiving the further evidence, and I made interlocutory orders for leave accordingly. As to the applications to amend the notice of appeal, and to rely upon the new grounds, I heard full argument from the parties as if on appeal, and because the underlying merits of the arguments were a relevant consideration, I reserved my decision on those questions.

3    I shall identify the proposed grounds of appeal after setting out the background, and after referring to the primary judge’s decision.

Background

4    The primary judge’s reasons are published as: ERY17 v Minister for Immigration [2018] FCCA 738. The appellant accepted as correct the background facts set out in those reasons (footnotes omitted) –

3.    The [appellant] is a citizen of Sri Lanka who was born on 2 April 1988 in a named town in Jaffna District, Northern Province, Sri Lanka.

4.    The [appellant] arrived in Perth, Australia using a false Malaysian passport on 2 July 2015.

5.    Following his arrival, the [appellant] participated in an Entry Interview at Perth Airport.

6.    Subsequent to the Entry Interview, the [appellant] was examined by medical doctors at the detention centre in Perth and at Wickham Point Detention Centre.

7.    With the assistance of a migration agent, the [appellant] lodged a temporary protection visa application with the Minister’s Department (Department) on 25 August 2015.

8.    The [appellant] set out his claims for protection in a “Record of phone statement” consisting of four pages and 34 paragraphs. He claimed that if returned Sri Lanka, his life would be in danger due to the Terrorist Investigation Unit (TID), an organisation that had previously arrested and detained him.

9.    With his application, the [appellant] provided documents stating, among other things, that:

a)    he was detained at Boossa Detention Camp and Colombo Remand Prison between March 2009 and September 2009;

b)    he was detained in Colombo Remand Prison from 13 May 2009 to 22 September 2009;

c)    he was released “on order of the [court] after producing him to the … Chief Magistrate Court of Colombo, on 22 September 2009”;

d)    he was the subject of a Detention Order dated 6 April 2009 on the ground that there were reasons to suspect that he was involved in the commission of offences under the Emergency (Miscellaneous Provisions and Powers) Regulations, No.1 of 2005. The offence was described as “concerned in planning to attack in Trincomalee area and aiding and abetting the LTTE to commit unlawful activity”;

e)    the Sri Lanka Police had supplied an “Information … to the Magistrate” in respect of the [appellant]’s alleged aiding and abetting of terrorist activities; and

f)    a former militant who was not “re-habilitated” and said to be involved in the “return of the Liberation Tigers” had been arrested on 6 July 2015.

  10.    A case officer of the Department invited the [appellant] to attend an interview arranged for 12 May 2016.

11.    Following the above interview, the [appellant]’s migration agent emailed the case officer stating, among other things, that:

a)    on the basis of country information available, it was submitted that Tamil returnees/failed Tamil asylum seeker returnees being targeted by the authorities remains an ongoing issue in Sri Lanka despite that war having ended in 2009; and

b)    most recent country information seemed to indicate the [appellant] was likely to be harmed if returned. For example a recent article published online states:

1)    Tamils are continued to be detained and targeted under draconian laws such as the Prevention of Terrorism Act.

…

3)    More recently a UN official who visited Sri Lanka reported that the SL authorities continue to use torture as a means to extract information from LTTE suspects.

12.    The agent also sent to the case officer numerous country information documents and online links, including:

a)    a document entitled “Supporting Country Information – Sri Lanka, in which it is stated that:

Arbitrary arrests continue to this day with reports of Tamils being arrested under the notorious Emergency Regulations. Many Tamils have also been deprived of their liberty through rehabilitation camps. There are also reports of persons being imprisoned for prolonged periods of time without being charged of any crime. Cases of police mistreatment and deaths in custody continue to be reported.

b)    a news article dated 1 July 2015 stating that a Tamil youth, an ex-LTTE member, was arrested at the Katunayake airport on 27 June and was being detained for rehabilitation.

13.    On 29 August 2016 the Department received translations of further documents concerning the [appellant]’s arrest for offences relating to terrorist activities, imprisonment and release in 2009.

14.    On 22 and 28 December 2016, the Department received further documents from the [appellant] concerning his family circumstances and marriage in Sri Lanka.

15.    On 19 January 2017 the delegate decided to refuse the protection visa application. The Department renotified the [appellant] of the decision on 24 April 2017 after finding he had not been correctly notified earlier.

16.    On 12 July 2017 a delegate of the Minister issued a certificate and notification regarding the disclosure of certain information under s.438 of the Migration Act 1958 (Cth) (Migration Act).

17.    The [appellant], by then unrepresented, lodged an application for review with the Tribunal on 28 April 2017.

18.    The [appellant] provided further documents to the Tribunal including:

a)    a letter on the letterhead of Home for Human Rights dated 1 October 2009 stating that a lawyer from that organisation had appeared on the [appellant]’s behalf in the Supreme Court of Sri Lanka in an application for his release; and

b)    a document entitled “ASeTTS Torture and Trauma Assessment Report” stating that the [appellant] was experiencing active symptoms of anxiety and depression.

19.    The Tribunal arranged a hearing for the [appellant] that was held on 7 August 2017.

20.    Following the hearing, the [appellant] submitted further documents to the Tribunal. These documents consisted of reports of sexual violence and torture in internment camps run by the Sri Lankan security forces, reports of informers who were actively looking for any Tamils returning home from abroad in order to interrogate them and various news articles about the treatment of Tamils returning to Sri Lanka.

The Tribunal’s decision

5    The appellant claimed to fear harm on return to Sri Lanka because of his Tamil race, his imputed political opinion of being associated with the Liberation Tigers of Tamil Eelam (LTTE), and of opposition to the Sri Lankan government. He also claimed to fear harm on return to Sri Lanka as a failed asylum seeker returning from Australia. The appellant relied particularly on claims that from July 2014, the Sri Lankan Terrorism Investigation Division (TID) frequently visited his home or contacted him by telephone asking him to report to a named police station. The appellant claimed that due to the frequent visits of the TID, he departed Sri Lanka. The Tribunal had significant concerns about the credibility of the appellant in relation to material elements of his claims relating to the period after his release from detention in September 2009, and did not accept them. These concerns were summarised by the primary judge at [23] of his Honour’s reasons for judgment.

6    The Tribunal conducted a hearing at which the appellant appeared by video with the assistance of an interpreter. The hearing was transcribed, and the transcript is before the Court. The appellant took an oath at the commencement of the hearing, and he answered questions put to him by the Tribunal member.

7    During his protection visa interview, the appellant had told an officer of the Department that after he finished school in 2005, he did not start working, and stated that his father was a farmer, and that he helped him growing chilli and rice crops. The appellant answered a number of detailed questions about his farming activities. This issue attracted the attention of the Tribunal. During the course of the hearing, the Tribunal raised with the appellant a certificate made by a delegate of the Minister under s 438 of the Migration Act, which certified that s 438(1)(a) applied to some documents that were identified as internal working documents. The Tribunal identified that there was an issue as to whether the certificate was valid, and in its written statement at [17], the Tribunal stated that it considered the certificate was invalid. The documents that were the subject of the invalid certificate are before the Court, and they comprise internal documents of the Department that were prepared for the purposes of assessing the appellant’s identity, and include an identity assessment report. For the purposes of this appeal, there are three features of the identity assessment report that are material. First, the report included a photograph said to be from the Facebook account of the appellant which shows him wearing a uniform, which includes a military-style shirt, braids, and a beret bearing a badge. Second, the report included a photograph said to be of the appellant from another Facebook account, showing him standing in front of a taxi. The report stated that the taxi bore the appellant’s name on the front, which would indicate that he may have been employed as a taxi driver, and may have even owned the taxi. Third, the report included a comment by an officer of the Department about the significance of the first two features, which stated as follows –

The above Facebook accounts would raise concerns about the integrity of this applicant and the information that he has provided in relation to his employment.

8    The Tribunal raised with the appellant the first feature of the identity assessment report referred to above, namely the photograph of the appellant in a uniform, and identified it as information that was adverse to the appellant. The Tribunal stated to the appellant that if it were to rely on that information, it would lead it to find that the appellant was not a farmer, but was employed as a guard, that he was not a credible witness, and that he was not in need of protection. The Tribunal gave the appellant the opportunity to respond orally, or in writing, and to seek additional time. The appellant elected to respond orally at the hearing, and stated that the photograph had been taken when a friend had visited him, and that he was wearing his friend’s uniform.

9    In its written statement, the Tribunal addressed the s 438 certificate at [17] and [18] –

17.    The Department’s file relating to the applicant’s protection visa application contained a purported s.438 certificate. The certificate stated that disclosure of information contained in on [sic] the file would be contrary to the public interest because the information related to an internal working document and business affairs. The document relates to assessing the applicant’s true identity as contained at folios 75 to 85 in the Department file. The Tribunal advised the applicant at hearing that it considered the documents to be irrelevant to its assessment of the applicant’s identity as it accepted he is as he claimed on arrival in Australia. In any event, as raised with the applicant, the Tribunal considers the certificate to be invalid.

18.    Notwithstanding, it raised with the applicant via the process outlined in s.424AA that information within the document refers to the Facebook account of [redacted] (the applicant’s Facebook account) and shows the applicant wearing an official looking uniform. It raised with him that the photo was referred to the Colombo overseas post on 27 July 2016 to verify which agency would wear the uniform and that the Colombo post advised that “the uniform appears to be a standard uniform a guard would wear. Guards in Sri Lanka wear uniforms regardless of who they work for.” It outlined the relevance of the information that the applicant may not be a credible witness as to his claims as he had indicated he had only worked as a farmer in Sri Lanka. This is discussed further below.

10    The Tribunal did not accept that the appellant was a credible witness in relation to the difficulties that he claimed that he experienced after his release in September 2009, and at [39] to [49] of its written statement, the Tribunal set out its reasons, referring to a series of inconsistencies in the appellant’s evidence. In relation to the photograph of the appellant in a guard’s uniform, at [48] the Tribunal stated that it did not accept the appellant’s explanation as to why he appeared wearing a guard’s uniform. The Tribunal stated that this added to other findings that the appellant’s claims were not credible.

11    The Tribunal did not accept the appellant’s claims for protection. It accepted that from late 2008 to September 2009, the appellant had been arrested and detained by the Sri Lanka TID, was then transferred between detention centres, and that he was repeatedly beaten and tortured while in detention in 2008-2009. And the Tribunal accepted that the appellant was released on 22 September 2009, when a human rights group intervened on his behalf. However, the Tribunal did not accept that the appellant was thereafter of further interest to the Sri Lankan authorities. At [47], the Tribunal reasoned that if the Sri Lankan authorities had suspected the appellant of continued LTTE involvement, they would not have released him from detention. The Tribunal did not accept that having been released from detention in 2009, he would be questioned again five years later in 2014 as being suspected of having links with the LTTE. In the fifth sentence of [47] of the written statement, the Tribunal stated –

As raised with the applicant, information indicates that at that time in 2009 and afterwards if the authorities had continued to suspect him of involvement in the LTTE he would not have been released and would have continued to be questioned.5

12    Footnote (5) to the above sentence was in the following terms –

UNHCR 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December, pp.26; DFAT, DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014.

13    The Tribunal continued at [47] –

The information indicates that those perceived of being with the LTTE, even if low profile members were detained and arrested and sent to rehabilitation camps. The information indicates that those perceived of being LTTE members and actual members were detained and systematically abused by the Sri Lankan Government in the aftermath of the war, which ended in May 2009. The information indicates that the Tamils suspected of links to the LTTE were arrested and detained under the Prevention of Terrorism Act (PTA) which permits extended administrative detention, and shifts the burden of proof onto a detainee alleging torture or other ill-treatment.6 The Human Rights Watch (HRW) annual report 2016, Sri Lanka, observed that: ‘The PTA has long been used to hold suspected LTTE members and others without charge or trial for years.7 On the basis of the information before it, the Tribunal is of the view that a person who continued to be suspected of such links with the LTTE would not have been released, particularly around the end of the war in September 2009. The information therefore does not support the applicant’s claim that having been released from detention in 2009, he would be questioned again in 2014, approximately 5 years later as being suspected of links with the LTTE due to his former detention, particularly as there is no evidence he had done anything else to raise the suspicion of the authorities.

14    Footnotes (6) and (7) to the above passage referred, respectively, to an Amnesty International report, and a Human Rights Watch report.

15    At [50] of its written statement, the Tribunal stated –

It rejects in their entirety his claims as to difficulties faced at the hands of the authorities after his release in September 2009 as he was suspected of being with the LTTE. It follows that the Tribunal does not accept that at the time the applicant departed Sri Lanka he was of any interest to the authorities, including the NIB, CID, TID and Sinhalese army as being perceived or suspected as being involved in the LTTE. As noted above the Tribunal is of the view if they had continued to suspect him of involvement in the LTTE for any of the reasons claimed he would not have been released in 2009 and would have continued to be questioned. The latter which the Tribunal has rejected as true.8

16    Footnote (8) to the above paragraph was in the following terms –

UNHCR 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December, pp.26. CHECK

The primary judge’s decision

17    Before the primary judge, the appellant was represented by solicitors and counsel, who were not the solicitors and counsel who represented him on appeal. The appellant relied on a re-amended application dated 14 March 2018, which contained seven grounds of review. At [26] of the primary judge’s reasons, his Honour set out the seven grounds over the course of six pages. The grounds of review were lengthy and wide-ranging. The primary judge recorded at [27] that some of the grounds were not pressed by the appellant. Only grounds 2(a) and 7 are material to the issues raised on appeal –

2.    The Tribunal committed jurisdictional error by making unreasonable or illogical findings as to the credibility of the Applicant, alternatively by failing to give proper, genuine and realistic consideration to the Applicant’s claims, through:

a.    Finding at [47], (CB 451) that the UNHCR 2012 report UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka supported an inference that if the authorities had continued to suspect the Applicant of involvement with the LTTE he would not have been released and would have continued to be questioned whereas in fact, the report:

•    states “The issuance of ad hoc “release certificates” by these authorities, including with expiration dates, reportedly creates confusion as to the status of those who are released.” (p 28);

•    states “... generally members of the minority Tamil and, to a lesser extent, Muslim communities are reportedly more often subjected to arbitrary detention, abductions or enforced disappearances.” (p 26)

•    at footnote 179 (p 26) cites country information that:

o    “Human rights violations in Sri Lanka continue unabated against ethnic Tamils and Muslims who fear an increasingly nationalist government”;

o    “Nearly two years after the end of the war, minorities face daily repression and marginalisation in politics and development policies, particularly in the country’s north and east”; and

o    “Despite the end of the war, many Tamil and Muslim minorities in Sri Lanka continue to live in fear.”

…

7.    The Tribunal denied the Applicant procedural fairness and this constituted a jurisdictional error, of the kind found in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183, in circumstances where:

a.    a delegate of the First Respondent issued a certificate pursuant to section 438(1)(a) of the Migration Act 1958 (Cth) on 12 July 2017; and

b.    the documents subject of the certificate were relevant, or potentially relevant, to the issues arising on the review by the Tribunal.

The Tribunal fell into jurisdictional error by failing to comply with s 424A of the Migration Act 1958 (Cth) (the Act) as it did not put to the Applicant for comment information in folios 78-85 of Department file CLF2015/52857 that were relevant or potentially relevant to the issues under review.

18    At [27] of the primary judge’s reasons for judgment, his Honour stated that on 30 April 2018, the appellant’s representatives informed the Court that ground 7 was no longer pressed. The reasons for judgment also record that the date of last submission was 30 April 2018. As to ground 2(a), the primary judge rejected it for the following reasons (footnotes omitted) –

60.    The Tribunal relied on the 2012 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka (“Guidelines”) to find that it did not accept that at the time the applicant left Sri Lanka he was of any interest to the authorities. The Tribunal referenced page 26 of the Guidelines for its finding that if the authorities had continued to suspect him of involvement in the LTTE he would not have been released and would have continued to be questioned.

61.    The applicant contends that, in fact, page 26 of the Guidelines does not state that the authorities would not release a person suspected of involvement in the LTTE, and nor does a statement to that effect appear anywhere else in the Guidelines. The Guidelines do state on page 28 that the issue of ad hoc “release certificates” by the authorities creates confusion as to the status of those released. Further, there is a statement that human rights violations in Sri Lanka continue unabated against ethnic Tamils who fear an increasingly nationalist government. Further, the Guidelines on page 27 point to the applicant being a person whose profile would put him at risk through having family links to a person who was an LTTE combatant (i.e. the applicant’s deceased brother), an aspect of the Guidelines that was footnoted by the Tribunal but to which it gave no other consideration.

62.    Accordingly, the Tribunal is said to have reached a finding without any logical or probative basis. It was a finding that was critical to the ultimate conclusion that the authorities had no interest in the applicant after 2009 and beyond that to the conclusion that he would not face a real chance of serious harm or a real risk of significant harm in Sri Lanka.

63.    However, as the Minister notes in his submissions, the Tribunal’s reference to the Guidelines at [47] of the Tribunal’s reasons cannot be viewed in isolation. The Tribunal goes on at [47] to refer to further country information, including that from an Amnesty International Report 2015/2016 and the Human Rights Watch Annual Report 2016.

64.    Importantly, the Tribunal then stated at [47] that:

On the basis of the information before it, the Tribunal is of the view that a person who continued to be suspected of such links with the LTTE would not have been released, particularly around the end of the war in September 2009. The information therefore does not support the applicant’s claim that having [been] released from detention 2009, he would be questioned again in 2014, approximately 5 years later as being suspected of links with the LTTE due to his former detention, particularly as there is no evidence he had done anything else to raise the suspicion of the authorities.

65.    The reasoning of the Tribunal set out immediately above based upon a variety of country information does not demonstrate “extreme” illogicality or irrationality “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”.

66.    Further, and in any event, this was only one of many reasons why the Tribunal concluded at [49] that it did not accept the applicant as a credible witness in relation to his claims of being arrested, interrogated, detained and questioned between July 2014 and May 2015. Accordingly, even if there was error of the kind asserted by the applicant by Ground 2(a), it was not such as would have affected the Tribunal’s finding as to credibility of the applicant’s claims regarding the period July 2014 to May 2015, and therefore could not have affected the Tribunal’s decision.

The grounds of appeal

19    The appellant’s notice of appeal was filed by the appellant in his own name, and does not appear to have been settled by counsel. None of the grounds in the notice was directed to any claimed error in the primary judge’s decision, and they were not pursued at the hearing of the appeal. Rather, the submissions of counsel for the appellant proceeded by reference to three of four grounds set out in a proposed amended notice of appeal. A fourth proposed ground was abandoned. The three proposed grounds that were pressed are as follows –

1.    The Judge below erred by not finding that because the Tribunal made credit finding based on erroneous conclusions about country information before it:

(a)    the Tribunal’s decision was affected by jurisdictional error in that the decision was irrational, unreasonable, illogical or lacked an intelligible justification; and

(b)    the Tribunal failed to carry out its statutory review.

2.    The Judge below erred by not finding that the Tribunal breached s 425 of the Migration Act 1958 (Cth) (the Act) by not providing the Appellant with an opportunity to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

Particulars

(i)    The Appellant’s credit and employment background were in issue before the Tribunal

(ii)    The Tribunal was in possession of evidence relevant to those issues, namely, an Identity Assessment Report containing photographs of the appellant both as a guard and as a taxi driver which were stated to raise concerns about his integrity and the information he provided in relation to his employment (Prejudicial Material).

(iii)    The Identity Assessment Report was covered by an invalid certificate (Certificate) dated 12 July 2017 purportedly issued under s 438 of the Act.

(iv)    The Tribunal put some information from the Prejudicial Material to the Appellant under s 424AA in respect of the photograph in guard uniform, but did not give him an opportunity to give evidence and present arguments regarding whether he had worked as a taxi driver

…

4.    The Judge below erred by not finding that the Tribunal’s failure to disclose material subject to the invalid Certificate purportedly issued under s 438 of the Act to protect the public interest in non-disclosure of “internal working documents” was a jurisdictional error. It can be inferred that the Tribunal failed to find that the Certificate was invalid and instead acted on the notice and as a result did not follow the correct legal process.

20    Proposed ground of appeal 1 is aligned with ground of review 2(a), which was rejected by the primary judge at [60]-[66] of his Honour’s reasons (extracted at [18] above). Proposed grounds of appeal 2 and 4 are aligned with ground of review 7, which was abandoned by the appellant before the primary judge. The Minister opposed a grant of leave to the appellant to raise grounds 2 and 4.

The parties’ submissions

Proposed ground 1

Appellant’s submissions - proposed ground 1

21    In support of the first proposed ground of appeal, the appellant submitted that page 26 of the UNHRC 2012 report that was cited in footnote (5) of the Tribunal’s written statement, to which I referred at [12] above, did not support the Tribunal’s reasoning. The appellant also drew attention to the fact that the same reference appeared in footnote (8), to which I referred at [16] above, which appeared to be incomplete by reason of the reference to “CHECK” in the footnote. The appellant also submitted that the last sentence of [50], to which footnote (8) attached, was “strange”. The appellant submitted that the Tribunal drew conclusions that were not supported by the country information that it cited, and that it appeared that the Tribunal had intended to go back and check the country information that it cited, but failed to do so.

22    The appellant submitted that the primary judge had erred in rejecting the corresponding ground of review on the basis that the conclusion of the Tribunal at [47] was only one of many reasons why the Tribunal rejected the appellant’s claims. The appellant submitted by reference to CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260 at [33]-[35] (Lee J) that credibility findings cannot be compartmentalised in this way. The appellant submitted that the primary judge failed to recognise that credibility findings are not linear, and that credibility findings may be amenable to judicial review, citing AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 at [41] (Kenny, Griffiths and Mortimer JJ).

Minister’s submissions - proposed ground 1

23    The Minister submitted that there was no error in the primary judge’s analysis at [60]-[66], which I have set out under [18] above. The Minister submitted that there had been no erroneous findings of fact by the Tribunal, that the Tribunal took account of country information as a whole, and that a material aspect of the Tribunal’s decision was the inconsistencies in the appellant’s evidence such that his claims should not be believed.

24    In relation to footnotes (5) and (8) of the Tribunal’s written statement, the Minister accepted that page 26 of the 2012 UNHRC guidelines did not support the propositions for which it was cited. The Minister accepted that the reference to “CHECK” in footnote (8) was a typographical error. The Minister drew attention to the fact that footnote (5) was in the same terms as footnote (21), which appeared later in the written statement under [76]. The Minister submitted that the relevant sentence in [76] was supported by page 26 of the 2012 UNHRC guidelines. The Minister submitted that the appropriate reference to the UNHRC guidelines at footnote (21), together with the reference to “CHECK” in footnote (8), supported an inference that there had been a slip by the Tribunal.

25    In relation to the last sentence at [50] of the Tribunal’s written statement, the Minister submitted that while it was imperfectly expressed, all that the Tribunal was stating was that the Tribunal had rejected the appellant’s claim that upon his release in September 2009, he would continue to be questioned, to which the Tribunal had referred in the penultimate sentence of [50].

26    The Minister relied on the DFAT report that was also cited in footnote (5), and on the totality of the information before the Tribunal, as providing a foundation for the Tribunal’s findings. That information included other reports referred to in footnotes (6) and (7) of the Tribunal’s written statement, which the Minister submitted had not been the subject of any challenge by the appellant. In relation to the DFAT report cited by the Tribunal at footnote (5), the appellant did not oppose the Minister’s reliance on it, and a copy was made available to the Court. The Minister submitted that a number of paragraphs of that report, when read in the context of the report in its totality, supported the Tribunal’s finding at [47], which I have set out under [13] above.

Proposed grounds 2 and 4

27    Proposed grounds 2 and 4 both rest upon the Tribunal’s treatment of the s 438 certificate, and the question whether the Tribunal erred by failing to disclose to the appellant all of the information in the identity assessment report. Although proposed grounds of appeal 2 and 4 allege that the primary judge erred in his consideration of the s 438 certificate and the information to which it referred, the primary judge was not asked to consider these issues, because ground of review 7 was abandoned by the appellant after the appellant’s representatives received a copy of the identity assessment report. There was no error by the primary judge in not making findings in relation to issues that were expressly abandoned, and in these circumstances, the appellant requires leave of the Court to raise the arguments on appeal: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48].

Appellant’s submissions - proposed grounds 2 and 4

28    Counsel for the appellant acknowledged that the issues raised by grounds 2 and 4 required leave to argue. There was no direct evidence before the Court as to the reason why the appellant’s representatives abandoned ground of review 7 below. Nor was any explanation for the abandonment given by counsel for the appellant, who did not appear below, and whose instructing solicitors did not act below. Counsel for the appellant accepted that the identity assessment report that was the subject of the s 438 certificate became available to the appellant’s representatives after the primary judge had reserved, but before the decision was published. As to why the appellant now sought to raise the issues concerning the s 438 certificate, counsel submitted that the appellant’s new lawyers took a different view, and sought to press the grounds on his behalf.

29    In support of proposed ground of appeal 2, the appellant submitted that by not disclosing two features of the identity assessment report, being the photograph of the appellant standing in front of a taxi and the Department officer’s comment about the significance of the uniform photograph and the taxi photograph (see [7]-[8] above), the Tribunal did not comply with s 425 of the Migration Act in that it did not give the appellant an opportunity to present arguments relating to the issues arising in relation to the decision under review. By proposed ground of appeal 4, the appellant put the argument on the alternative basis that there had been a denial of procedural fairness by the Tribunal in not disclosing those two features of the material. The appellant relied on MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1 at [50]-[53] (Beach J). There was some debate at the hearing of the appeal as to whether, on the assumption that the Tribunal had treated the certificate under s 438 as being invalid, the applicable principles were the common law rules of procedural fairness, or whether any obligation to provide the appellant with the information that was the subject of the certificate was governed by s 424A and s 425 of the Act: see also, s 422B(1) which provides that Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with. Counsel for the appellant initially submitted that the source of the obligation on the Tribunal to disclose the information was the common law rules of procedural fairness (T9/14), but later clarified that this submission may have gone too far (T51/21). Counsel submitted that the Tribunal may “in some unspecified way” have relied upon an invalid certificate. Counsel submitted that there was nonetheless an obligation on the Tribunal under s 425 of the Act to disclose all three features of the information in the documents that had been the subject of the s 438 certificate. It was submitted that the two features of the identity assessment report that were not disclosed were material, because the Tribunal stated that it had concerns about the appellant’s credibility in relation to his employment, and the appellant had not been given an opportunity to explain why he was standing in front of a taxi, or to respond to the comment contained in the report.

Minister’s submissions - proposed grounds 2 and 4

30    As I have mentioned, the Minister opposed a grant of leave to the appellant to rely on the new arguments. The Minister submitted that no satisfactory explanation had been given for the failure to pursue the arguments before the primary judge. The Minister also submitted that the arguments lacked merit. The Minister submitted that the Tribunal was not obliged to put the two features of the identity assessment report to the appellant for comment, and in any event, there was no indication that the Tribunal took them into account. The Minister submitted that the Tribunal complied with its obligation under s 424A of the Migration Act by putting the one feature of the identity assessment report that it treated as being adverse to the appellant orally, as the Tribunal was entitled to do under s 424AA of the Act. The Minister submitted that the Tribunal did not consider the other two features to be relevant, and therefore no obligation of disclosure arose. In the alternative, the Minister submitted that any failure to disclose was not material.

Consideration

Proposed ground of appeal 1

31    I shall give leave to the appellant to file the proposed notice of appeal and to rely upon ground 1, which does not involve any substantial departure from ground of review 2(a) that was rejected by the primary judge.

32    I do not accept the premise of ground of appeal 1, namely that the Tribunal made credit findings based on erroneous conclusions about country information before it. The Tribunal’s written statement is to be read fairly, and as a whole. While the reference to p 26 of the UNHCR guidelines in footnote (5) does not support the particular sentence to which it is attached, the written statement, and particularly [47], is to be read in its entirety. There was no submission by the appellant that the country information referred to in footnotes (6) and (7) to [47] did not support the propositions for which they were cited, namely –

The information indicates that the Tamils suspected of links to the LTTE were arrested and detained under the Prevention of Terrorism Act (PTA) which permits extended administrative detention, and shifts the burden of proof onto a detainee alleging torture or other ill-treatment.

and -

The Human Rights Watch (HRW) annual report 2016, Sri Lanka, observed that: ‘The PTA has long been used to hold suspected LTTE members and others without charge or trial for years’.

33    Further, the DFAT report referred to in the second limb of footnote (5), which was made available on appeal without objection, stated the following at [2.11]-[2.14] and [3.9] –

High-profile former LTTE members

2.11    Those at highest risk of monitoring, arrest, detention or prosecution include the LTTE’s former leadership, regardless of whether they performed a combat or civilian role during the conflict. Although most of the LTTE’s military, political and administrative leadership were killed during the conflict, a number of others either surrendered or were captured and sent to rehabilitation centres or prosecuted. Some former leaders may have left Sri Lanka before, during or after the conflict (see also ‘Former LTTE members living outside of Sri Lanka’, below). In addition to the LTTE’s former leadership, a number of other former members were suspected to have committed terrorist or serious criminal acts during the conflict, or to have provided weapons or explosives to the LTTE.

2.12    DFAT assesses that these high-profile (‘high risk’ or ‘hardcore’) former members would likely be arrested, detained and prosecuted through Sri Lanka’s criminal courts, often following a period of detention in a rehabilitation centre. Although many high-profile members may have already been released following their detention and prosecution, any other high-profile members who remain at large or return to Sri Lanka would likely be arrested, detained and prosecuted in this way. Following their release from rehabilitation or prison, high-profile former LTTE members are likely to be intensely monitored by Sri Lankan authorities.

Low-profile former LTTE members

2.13    In addition to a relatively small number of high-profile LTTE members, many thousands of LTTE members have been arrested and detained in rehabilitation centres since the end of the conflict. Generally, this would include former combatants, those employed in administrative or other roles and those who may have provided a high level of non-military material support to the LTTE during the conflict.

2.14    DFAT assesses that, although the great majority of these low-profile (‘low-risk’) former members have already been released following their detention, any other low-profile LTTE members who came to the attention of Sri Lankan authorities would be detained and may be sent to rehabilitation centres. Following their release from rehabilitation centres, low-profile former LTTE members may be monitored but generally are not prosecuted.

…

3.9    In total, thousands of former LTTE members have been arrested and detained by Sri Lanka security forces under Emergency Regulations, the PTA or other criminal charges. According to Sri Lanka’s Minister for External Affairs GL Peiris, as of March 2014, a total of 12,288 LTTE members had been arrested and sent to rehabilitation centres since the end of the conflict. The majority of those in rehabilitation have since been released and DFAT understands that 130 former LTTE members remained in rehabilitation as of June 2014.

34    The critical passage in the Tribunal’s reasoning at [47] was as follows –

On the basis of the information before it, the Tribunal is of the view that a person who continued to be suspected of such links with the LTTE would not have been released, particularly around the end of the war in September 2009. The information therefore does not support the applicant's claim that having been released from detention in 2009, he would be questioned again in 2014, approximately 5 years later as being suspected of links with the LTTE due to his former detention, particularly as there is no evidence he had done anything else to raise the suspicion of the authorities.

35    There was no error in the primary judge’s finding at [65] (see [18] above) that the Tribunal’s reasoning in this passage was based upon a variety of country information. I add that the Tribunal’s conclusion was also based upon its view that there was an absence of evidence that the appellant had done anything to raise the suspicion of the Sri Lankan authorities. The erroneous citation of the UNHCR guidelines in the first limb of footnote (5) did not deprive the above conclusions of a rational foundation. The Tribunal’s conclusion did not demonstrate “extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [148] (Robertson J).

Proposed grounds of appeal 2 and 4

36    I refuse leave to the appellant to raise grounds of appeal 2 and 4. Before the primary judge, the appellant did not maintain the arguments underlying these grounds. I also consider that these grounds lack merit, which may explain why ground of review 7 was abandoned below.

37    In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [2], Bell, Gageler and Keane JJ held that a notification under s 438 of the Migration Act triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of the notification to an applicant for review. The source of the obligation to make that disclosure is a common law implication of an obligation of procedural fairness: SZMTA at [27]. In the present case, the Tribunal disclosed the existence of the s 438 certificate during the hearing. There was no requirement to give the applicant an opportunity to make submissions as to its validity, because the Tribunal treated the s 438 certificate as being invalid. That appears from the transcript of the hearing before the Tribunal, and is confirmed by the Tribunal’s written statement at [17], which I have set out at [9] above. I reject the submission of counsel for the appellant that the Tribunal may “in some unspecified way” have relied upon an invalid certificate. The invalidity of the certificate has not been put in issue by the appellant. Because the certificate was treated by the Tribunal as being invalid, no occasion arose for the Tribunal to consider exercising the discretionary powers under s 438(3) of the Act to take account of the information in the identity assessment report, or to disclose any of the information in the report: cf, MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1 at [50] (Beach J), on which counsel for the appellant relied.

38    Under the provisions of Division 4 of Part 7 of the Migration Act, the Tribunal was not obliged to provide the appellant with all of the information which it might ultimately take into account in making its decision on the review, much less all of the information contained within the documents given by the Secretary to the Registrar under s 418(3) of the Act: SZMTA at [10] (Bell, Gageler and Keane JJ). The Tribunal was empowered to give information to the appellant pursuant to s 427 of the Act, which was subject to an obligation to act reasonably in considering and exercising the power: SZMTA at [11] (Bell, Gageler and Keane JJ). And the Tribunal was obliged by s 424AA and s 424A to give the appellant “clear particulars of any information that the Tribunal [considered] would be the reason, or a part of the reason, for affirming the decision that is under review”. As to the obligation of the Tribunal under s 425 to invite the appellant to give evidence and to present arguments relating to the issues arising in relation to the decision under review, the appellant was entitled to know of the issues that were “in play”: SZMTA at [99] (Nettle and Gordon JJ).

39    The Tribunal was not obliged to give the appellant notice of the two features of the identity assessment report that the appellant relied upon, namely the photograph of the appellant standing in front of a taxi, and the Department officer’s comment about the significance of the uniform photograph and the taxi photograph, to which I referred at [7] above. At [36] of its written statement, the Tribunal stated that it had significant concerns as to whether the appellant had been a witness of truth in relation to his employment at the end of the war. At [48], the Tribunal referred to “the concern” that the Tribunal raised as to the credibility of his employment claim, which was the photograph from the Facebook page showing the appellant dressed in a guard’s uniform. As I stated at [8] above, the Tribunal raised this photograph with the appellant during the course of the hearing, and had identified it as adverse information. The Tribunal stated at [36] that it had difficulty accepting the appellant’s explanation that he was wearing a uniform belonging to a friend and that he would post such a photograph onto Facebook in these circumstances. The Tribunal stated that, while not determinative, this added to the its finding that the appellant was not credible as to the claims. The Tribunal did not refer to the photograph of the appellant in front of a taxi, or to the Department officer’s comment.

40    Under s 430(1)(c) and (d) of the Migration Act, the Tribunal was required to set out in its written statement its findings on any material question of fact, and to refer to the evidence or other material on which the findings of fact were based. I infer from the Tribunal’s reference in the written statement to the photograph of the appellant in the guard’s uniform, and from the absence of any reference to the photograph of the taxi, or the Department officer’s comment, that these latter features of the identity assessment report did not form any basis for any finding by the Tribunal on any material question of fact, including the Tribunal’s assessment of the credibility of the appellant’s claim in relation to his employment in the years following 2009: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69] (McHugh, Gummow and Hayne JJ).

41    The conclusion at [30 40] above speaks to the Tribunal’s reasoning process. However, the obligation under s 424A operates independently and in advance of the Tribunal’s reasoning: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [17] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ); Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [9] (Gageler, Keane and Nettle JJ). The obligation under s 424A depends upon the Tribunal’s consideration, that is, its opinion, that certain information would be the reason, or part of the reason, for affirming the decision under review: Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; 238 CLR 507 at [24] (French CJ, Heydon, Crennan, Kiefel and Bell JJ). And in order to engage s 424A, the information must be information that would, not could or might, be the reason, or part of the reason, for affirming the decision under review: SZLFX at [25] (French CJ, Heydon, Crennan, Kiefel and Bell JJ).

42    The following matters support an inference that the Tribunal did not consider that the two features of the identity assessment report on which the appellant relies would be the reason, or part of the reason, for affirming the decision under review –

(1)    the Tribunal referred at the hearing only to the photograph of the appellant in the guard’s uniform, in language that reflected its obligation under s 424A of the Act;

(2)    the Tribunal characterised that information during the course of the hearing as being adverse; and

(3)    the absence of any reference by the Tribunal during the hearing, or at all, to the other two features of the identity assessment report relied on by the appellant.

43    Although the Tribunal’s reasons set out in its written statement are not determinative of the question whether particular information attracts the obligation to give particulars under s 424A, the references in the written statement to the photograph of the appellant in the guard’s uniform, and to his responses when questioned about it, and the absence of any reference to the other features of the identity assessment report, give further support to the inference that the Tribunal did not consider that those other features of the report would be the reason, or part of the reason, for affirming the Tribunal’s decision. Accordingly, there was no obligation on the Tribunal under s 424A and s 424AA of the Migration Act to give the appellant particulars of the information to the extent that it included the photograph of the taxi, or the Department officer’s comment. Nor do I consider that the implied obligation to act reasonably in the exercise, or in considering the exercise, of the power under s 427(1)(c) of the Act to give information to the appellant required that the Tribunal give particulars of information that the Tribunal did not consider would be relevant to its decision, and on which no material finding was based. Further, in the circumstances of this case, s 425(1) of the Act had no residual operation requiring disclosure of the information. To adopt the metaphor used by Nettle and Gordon JJ in SZMTA at [99], the two features of the identity assessment report relied on by the appellant were not “in the playing field”.

44    In addition, even upon the hypothesis that the Tribunal was required to disclose the further information to the appellant, it has not been shown that any such failure was a material error in the sense explained by Bell, Gageler and Keane JJ in SZMTA at [45]-[46]. The appellant must show that compliance by the Tribunal with the putative obligation to disclose the information could realistically have resulted in a different decision. This is a question of fact on which the appellant bears the onus of proof, and is to be determined by inferences drawn from the evidence. The appellant has not shown that disclosure of the additional information realistically would have made any difference to the outcome. For the reasons referred to at [40]-[43] above, the appellant has not demonstrated that the information was relevant to the Tribunal’s decision. Nor has the appellant shown that disclosure of the information would have had any relevant effect on the appellant’s presentation of his claims, such that the Tribunal’s decision could realistically have been different.

Conclusions

45    The appellant will be given leave to file an amended notice of appeal to rely on ground 1, and the proposed amended notice will stand as the amended notice of appeal raising ground 1. Leave to argue grounds 2, 3 and 4 of the amended notice will be refused. Otherwise, the appeal will be dismissed with costs.

Associate:    

Dated:    19 March 2020