1510675 (Refugee)

[2018] AATA 1735

1510675 (Refugee) [2018] AATA 1735 (13 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510675

COUNTRY OF REFERENCE:                  Indonesia

MEMBER:Dr Colin Huntly

DATE:13 April 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 13 April 2018 at 10:29am

CATCHWORDS

Refugee – Protection visa – Indonesia – Divorced from permanent resident husband – Permanent resident children – Deprivation of Liberty due to separation from children – Credibility

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
AUB16 v MIBP [2017] FCCA 2634
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v MZYYL (2012) 207 FCR 211
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
MZAAJ v MIBP [2015] FCCA 151
MZAAJ v MIBP [2015] HCATrans 238
MZAAJ v MIBP [2015] FCA 478
Randhawa v MILGEA (1994) 52 FCR 437
SAAP v MIMIA (2005) 228 CLR 294
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167
SZRSN v MIAC  [2013] FCA 751
SZRSN v MIAC [2013] FMCA 78
SZSNX v MIBP [2015] FCCA 2271
WZARI v MIAC [2013] HCASL 201
MZAEN v MIBP [2016] FCCA 620
WZARI v MIMAC [2013] FCA 788

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Indonesia, applied for the visa on 29 August 2012 and the delegate refused to grant the visa on 28 July 2015.

3. A hearing was scheduled for the applicant with the Tribunal for 21 August 2017.  This hearing was postponed due to the unavailability of the applicant’s representative.  A hearing scheduled for the applicant with the Tribunal for 27 September 2017 had to be abandoned due to late notice of the applicant’s representative again being unavailable.  A hearing was then scheduled for the applicant with the Tribunal for 19 October 2017. 

4. The adjourned hearing with the applicant was resumed on 12 December 2017.  This hearing was also adjourned.  A further hearing with the applicant was held on 27 February 2018.  The Tribunal adjourned proceedings a further time at that date.  The applicant was invited to attend a resumed hearing with the Tribunal on 10 April 2018.  Neither the applicant nor the applicant’s agent attended on the day and at the time in the invitation. 

5. The Tribunal hearings were conducted with the assistance of an interpreter fluent in both the Indonesian and English languages.

6. The applicant was represented in relation to the review by her registered migration agent.

   APPLICANT IDENTITY

7. The Tribunal has had regard to the applicant’s most recent Indonesian passport. According to these documents, the applicant’s date of birth is [date]. The applicant’s most recent Malaysian passport has a date of expiry of [2021]. The Tribunal has had regard to the Departmental files relating to the Department of Immigration and Border Protection’s assessment of the applicant’s identity, which is referred to in the delegate’s record of decision.

8. On the basis of the foregoing evidence, and having had an opportunity to see the applicant in person, the Tribunal finds that the applicant has provided sufficient evidence of her identity.  For these reasons, the Tribunal is satisfied that the applicant is a national of Indonesia. 

9. The Tribunal further finds that the applicant has no right to enter and reside in another country other than Indonesia.  Accordingly, the Tribunal finds that the country of reference for the purpose of assessing Australia’s protection obligations to the applicant is Indonesia.

10. Indonesia is also the receiving country of the applicant, as identified in s.5 of the Act, with respect to complementary protection assessment. The Tribunal therefore finds that, pursuant to s.36(3) of the Act, the applicant does not have statutory effective protection in a third country.

    STATEMENT OF DECISION AND REASONS

    Relevant Law

11. The Tribunal is required to make an assessment of the applicant’s claims for protection with respect to section 36(2)(a) of the Act, with respect to the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (the Refugees Convention or the Convention) and section 36(2)(aa) of the Act, with respect to the applicant’s eligibility for protection on the basis of complementary protection.

    Decision Summary

12. The Tribunal has considered relevant country information that is discussed below in this decision; the applicant’s evidence provided in the application for protection; the Department’s files relating to this application; evidence referred to in the delegate’s record of decision; the Tribunal’s own files; and, evidence provided to the Tribunal by the applicant at hearings before the Tribunal. 

13. On the basis of the foregoing consideration, the Tribunal finds that it should affirm the decision made by the delegate not to grant protection to the applicant.  The reasons for this finding are discussed below.

    Country Information

14. The Tribunal notes that the delegate could not identify any Convention nexus with the applicant’s claims for protection.  The Tribunal also notes that the delegate could find no agent of harm or relevant significant harm for the purposes of an assessment of the applicant’s claims for protection under the complementary protection criteria.  Accordingly, the Tribunal was not required to discuss any survey of relevant country information contained within the delegate’s record of decision with the applicant at the hearing.  However, the Tribunal has, consistent with Ministerial Guideline No.56, considered the Department of Foreign Affairs and Trade Country Information Report, Indonesia, 22 December 2017.  The Tribunal particularly notes the following extract from that document, at [5.19] and [5.20]:

    Exit and Entry Procedures

    There is no requirement for Indonesian citizens to obtain an exit permit prior to undertaking foreign travel.  However, Indonesian citizens leaving Indonesia to reside externally are required to register with the closest Indonesian consular mission within 30 days of arrival.  No special entry procedures exist for Indonesian citizens who have been removed or deported from another country.  There are a large number of recognised entry ports into Indonesia, including 20 airports, 23 sea ports and one land crossing (at Etikong in Kalimantan).

    Conditions for Returnees

    Under the New Order regime, an Indonesian national who had actively and publicly criticised Indonesia or the government while in a foreign country would most likely have been questioned or sanctioned on return.  Today in Indonesia this is now far less likely to occur, due to an increased acceptance of public protest and dissent.  However, crossing acknowledged ‘red lines’—such as publicly advocating a separatist movement or displaying separatist symbols— may still result in additional attention on return to Indonesia.  Indonesians who are returned after unsuccessfully seeking protection overseas are unlikely to come to the attention of authorities, provided these ‘red lines’ have not been crossed.

    Claims considered in this review

15. During the hearing, the Tribunal discussed the refugee protection criterion and its source in Australian law.  The Tribunal took some time to discuss with the applicant the elements of a well-founded fear of persecution and the relevant law relating to complementary protection assessment which is referred to in Appendix A to this decision. 

16. The Tribunal notes that it must make an assessment of a visa applicant’s credibility.  In this context, the Tribunal notes a number of relevant decisions of both the High Court and Federal Court of Australia.  In these and other decisions, the Courts have made it clear that the Tribunal should be sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings on credibility.  In this respect, the Tribunal notes Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan,[1] in which Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted’.[2] 

    [1](1996) 40 ALD 445.

    [2]At 482.

17. The Tribunal notes that it is required to give the benefit of any doubt to asylum seekers who are generally credible.  The Tribunal also notes the High Court judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[3] particularly the comments of Kirby J, where His Honour said:[4]

    It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution ...

    [3](1996) 185 CLR 259.

    [4]At [25].

18. The Tribunal also notes that it is not required to accept uncritically any, or all allegations made by an applicant.  The Tribunal further notes that it is not required to have rebutting evidence available before it can find particular facts not to be made out.  There is no rule that a decision maker cannot reject an applicant’s testimony on credibility grounds, unless there are no possible explanations for any delay in the making of claims, or for any other evidentiary inconsistencies. 

19. The Tribunal notes that the applicant outlined her claims for protection in form 866C of her original application for protection.

20. The Applicant’s claims for protection, as written by the applicant in her application for protection, in their entirety, are as follows:

    ·I left Indonesia to accompany my husband of the time, whom was employed as a temporary skilled worker.  I travel to Australia with my natural dependent children who are now permanent residents of Australia being the dependents of my ex-husband.  Since arriving in Australia my partner and I have divorced and he notified of the change of circumstances in our relationship to the Department of Immigration and Citizenship which eventuated in my business Long Stay subclass 457 being cancelled.  Since this notification I have remained in Australia under [Visa 1] so I can remain with my dependent natural children and remain a family unit. (Form 866C, Question 43 “Why did you leave that country?”)

    ·No. I seek protection under the complementary protection criteria due to the arbitrary deprivation of my liberty which would result in significant and adverse long-term deprivation of my life.  (Form 866C, Question 44 ‘Have you experienced harm in that country? Give details’).

    ·I fear a life of deprivation of liberty being separated from my precious natural children.  (Form 866C, Question 45 ‘What do you fear may happen if you go back to that country?’)

    ·The inability to remain in Australia as a family unit with my natural Australian resident infant children will result in a arbitrary deprivation of my liberty and human right as a mother.  (Form 866C, Question 46 ‘Who do you think may harm/mistreat you if you go back?’)

    ·I will be subjected to the deprivation of my life and liberty as well as my human right to care and protect my children as a mother. (Form 866C, Question 47 ‘Why do you think this will happen to you if you go back?’)

    ·No. The Indonesian authorities will not intervene in this matter thus I seek protection under the complementary protection criteria to remain in Australia with my children due to a arbitrary deprivation of liberty.  (Form 866C, Question 48 ‘Do you think the authorities of that country can and will protect you if you go back?’)

    Background

21. A hearing was scheduled for the applicant with the Tribunal for 21 August 2017.  This hearing was postponed due to the unavailability of the applicant’s representative.  A hearing scheduled for the applicant with the Tribunal for 27 September 2017 also had to be abandoned due to late notice of the applicant’s representative being unavailable.  A hearing was then scheduled for the applicant with the Tribunal for 19 October 2017. 

22. Subsequent to this, the applicant’s agent sought a further postponement of the proceedings and, in the alternative, an offer to attend the hearing by telephone.  After considering this request, the Tribunal advised that it would proceed to the hearing as advised, with the agent being permitted to attend by telephone if necessary.  The hearing proceeded as advised, and proceedings were eventually adjourned to allow the applicant to consider certain potentially adverse information. 

23. The Tribunal wrote to the applicant on 20 October 2017 in order to clarify its concerns regarding the applicant’s evidence arising from the hearing on 19 October 2017 (the s424A Letter).  This letter included the Tribunal’s transcript extract of a relevant portion of the hearing.

24. The relevant portion of the s424A Letter were as follows:

    During the hearing before the Tribunal on 19 October 2017, you provided evidence that suggests you may have knowingly provided a misleading or inaccurate Statutory Declaration in connection with a related application for Permanent Residency.  You stated that the information in question related to the domicile and primary care arrangements of your children at the relevant time. The information contained within your application documents currently before the Tribunal suggests that the relevant Permanent Residency application was subsequently granted.

    At the hearing, I asked you to confirm in your own language, by means of the interpreter, what you had stated in English in the first instance about the information above. You did as I requested, and your statement was repeated in the same terms through the interpreter. At this point in the hearing, I advised you in terms consistent with the procedural requirements of the Act, about the fact that your disclosure amounted to adverse information.

    This information is relevant to the review because if the Tribunal accepts and takes to be correct, you have knowingly provided incorrect information to the Department in connection with an application for Permanent Residency on behalf of your children.

    This is a serious matter in its own terms, however, if the Tribunal this disclosure on your part appears to raise grave questions about your credit and character. Given that the Tribunal’s assessment of an applicant’s claims for protection are often made in reliance upon the credit and character of the applicant, your disclosure, if accepted would appear to materially undermine your claims for protection under both s.36(2)(a) and s.36(2)(aa) of the Act.

    If the Tribunal relies on your disclosure in making its decision, this would be the reason or a part of the reason for affirming the decision under review.

25. The adjourned hearing with the applicant was resumed on 12 December 2017.  After reviewing the material contained in the s424A letter, this hearing was also adjourned in order for the applicant and her agent to develop a clear narrative relating to the basic facts of her domestic arrangements leading up to the lodgement of her application for protection.  In particular, the circumstances of her estrangement, separation and divorce from her former husband, and her subsequent living arrangements. 

26. The applicant’s agent was invited to make written submissions, including a Statutory Declaration from the applicant for the purposes of assisting the Tribunal to understand the basic facts of the applicant’s domestic arrangements at all relevant times.

27. A further hearing with the applicant was arranged for 27 February 2018.  Immediately prior to this hearing, the Tribunal raised a number of concerns with the applicant’s agent about the conduct of proceedings in this application for review. 

28. At the hearing with the applicant, the Tribunal proceeded to question the applicant about the circumstances of her estrangement, separation and divorce from her former husband, based on statements made by the applicant at the first substantive hearing on 19 October 2017, by reference to the Tribunal’s own transcript extract of the relevant portion of that hearing.  In particular, the Tribunal referred to the applicant’s evidence that she was unaware that her husband had sought a divorce prior to it being granted.  In the course of the subsequent proceedings, the applicant’s agent handed up a copy of a care and custody agreement between the applicant and her former husband dated [February] 2011 relating to their two natural children. 

29. The Tribunal pointed out that this document was potentially at odds with the applicant’s earlier sworn evidence to the Tribunal on 19 October 2017 and, therefore, had implications for the Tribunal’s assessment of the applicant’s credibility.  The Tribunal also questioned why it had taken so long in the proceedings under review for such a material document to be produced.  At this point, the Tribunal warned the applicant that her lack of straightforwardness in answering the Tribunal’s questions and her inability or unwillingness to confirm the basic facts of her domestic arrangements while in Australia made it difficult for the Tribunal to accept that she was a credible witness.   The Tribunal then adjourned proceedings in order for the applicant and her agent to consider the credibility warnings put to her by the Tribunal.

30. The applicant was invited to attend a resumed hearing with the Tribunal on 10 April 2018.  Neither the applicant nor the applicant’s agent attended on the day and at the time in the invitation.  Calls to the applicant’s agent by the Tribunal at that time remain unanswered as at the date of this decision.  Accordingly, the Tribunal has proceeded to determine the application on the basis of the information before it.  Accordingly, the Tribunal notes that the applicant’s evidence to the Tribunal about her domestic arrangements while in Australia lacked appropriate clarity during hearings that she attended.  The Tribunal finds that this lack of clarity has not been ameliorated by the numerous written submissions buy the applicant and her representative. 

31. The Tribunal’s concerns about this continuing lack of clarity about the applicant’s domestic arrangements while in Australia were made known to the applicant and her representative.  The Tribunal notes the applicant’s failure to attend further hearings with the Tribunal for the purposes of providing sufficient clarity about her domestic arrangements while in Australia.  The Tribunal finds on the basis of the foregoing that it cannot place any weight on the evidence provided to it by the applicant relating to her domestic arrangements while living in Australia.  The Tribunal further finds that this failure to provide satisfactory information and the further failure to engage meaningfully with the Tribunal’s inquiry processes reflects in an adverse manner on her credibility as a witness and on the credibility of her claims for protection.

    Claims and Further Submissions

1. On July 7 2017, the Tribunal wrote to the applicant in the following terms:

   The Tribunal is considering the application review, for the purposes of arranging a hearing. 

   If the applicant or her authorized representative wishes to make a further written submission in support of the application for review, the Tribunal requests that they be received by the Tribunal not later than [date].

2. In the covering email form the applicant’s representative, the following statement was made:

   Please note review applicant has utilised the AAT process as a pathway to the Minister due to her exceptional and special circumstances that affect the better interests of two infant Australian resident children.

3. The Tribunal notes that no submission was received at this point addressing the visa criteria that forms the basis for the applicant’s application for protection.

4. On 20 November 2017, the applicant’s representative provided a submission to the Tribunal which, under the heading ‘Conclusion’, states as follows:

   In closing the primary concern(s) are the arbitral deprival of life of my client, coupled with the well being of Australian children whom permanently reside in Australia and have not known any other life then Australia for the last 8 years.

   Lastly, My clients attributes to Australia should be duly noted, [the applicant] works tirelessly in Australia providing a substantial service to the Australian [community] as a [worker] and I request all these special and exceptional circumstances be considered with the better interests of the Australian children in conjunction with my clients arbitrarily right of life with her Australian children.

   In closing I refer the member to several statutes of International Human Rights,

   Article 3 of the Universal Declaration of Human Rights, Everyone has the right to life, liberty and security of person, my client and the Australian children are of no exception.

   Convention on the Rights of the Child (CRC) Article 9, Separation from parents: You should not be separated from your parents unless it is for your own good (for example, if a parent mistreats or neglects you).

   Convention on the Rights of the Child (CRC) Article 12, Respect for the child’s opinion: When adults are making decisions that affect you, you have the right to say freely what you think should happen and to have your opinions taken into account. It should be noted that the children of [the applicant] strongly voiced their concerns at repeatedly being requested to leave the hearing.

5. Taking the last point made in the foregoing passage first, the Tribunal has reviewed the audio records of the relevant proceedings and can find no record of such concerns being voiced in the course of the hearings.

6. The Tribunal notes the additional matters raised by the applicant’s agent in this submission.

7. On 23 February 2018, the Tribunal received a further submission from the applicant’s agent with included the following observations:

   Firstly I would like to draw attention to my clients mental well being.  The questioning of the applicants divorce and the hearing and visa process in general has compounded what seems to be a untreated anxiety disorder which I feel has been exposed during the hearing process.  A disorder I have requested the applicant to address by a medical professional.

   The reluctance to not answer questions or the genuine forgetfulness under questioning by the applicant has in my opinion exposed an underlying anxiety disorder that has been left untreated for many years.

   …

   I am not a physcologist , nor a medical practioner but I feel my client is expressing genuine signs of a Anxiety Disorder in which I have recommended [the applicant] seek professional counseling and support for, however , I feel this matter is extremely relevant to my clients responses to date and I sincerely hope by acknowledging and seeking help for this untreated disorder it will most importantly help [the applicant] mental being whilst ultimately assist us all move forward with my clients review and I request the Tribunal Member take this information onboard at the scheduled resumption of hearing.

8. Attached to this submission was a preliminary assessment by the applicant’s General Practitioner, dated 22 February 2018, which referred the applicant for six sessions of counselling for depression and anxiety-related issues.  No diagnostic report from a suitably qualified health professional was attached to this submission for consideration by the Tribunal.  The Tribunal also notes that, as at the date of this decision, no such report has been provided by the applicant or her representative.  Accordingly, the Tribunal is unable to place any weight on the submission of the applicant’s representative that his client’s ‘reluctance to not answer questions or the genuine forgetfulness under questioning by the applicant has in my opinion exposed an underlying anxiety disorder that has been left untreated for many years’.

9. The same submission from the applicant’s representative also refers to the care and custody agreement referred to above, dated [February] 2011.  The Tribunal notes that no copy of this agreement was included in the attachments to this submission.  The Tribunal further finds that the chronology of events contained within the submission was not sufficient to address the Tribunals questions and concerns regarding the applicant’s earlier testimony of 19 October 2017.  These questions and concerns were surveyed by the Tribunal with the applicant and her representative at the hearing on 27 February 2018.

10. In particular, at the subsequent hearing on 27 February 2018, the Tribunal questioned the applicant about her prior evidence to the Tribunal on 19 October 2017 that she only discovered that her husband had divorced her when she was contacted by the court in Indonesia about the matter.  The Tribunal then adjourned the hearing to allow the applicant to confer with her agent so that the basic facts of her domestic life could be made clear in a way that addressed the Tribunals concerns about the applicant’s prior evidence, which appeared to be inconsistent with information subsequently provided by the applicant.

11. On 8 March 2018, the Tribunal received an email from the applicant’s representative repeating his request that his client’s request for Ministerial intervention be forwarded to the Minister.

12. Later on the same day, the applicant’s representative sent an email in the following terms to the Tribunal:

    Please note applicant has provided a further statutory declaration in support of relevant questioning put to [the applicant] during her three hearings.

    This statutory declaration is filed in the supporting documents file in which the AAT received today the 8th of March 2018.

    I note that is the second statutory declaration provided in responses to questions administered to [the applicant]

    To address any creditability concerns in my submission, I would first need to agree that there are indeed any credit ability concerns , in which I find there is most certainly not.

    We find [the applicant] responses within a further statutory declaration to be a sufficient response.

13. The Tribunal, therefore, finds that its concerns about the inconsistent evidence provided by the applicant were appropriately made known to the applicant by the Tribunal and that these concerns have not been addressed to the satisfaction of the Tribunal.  To the extent that the Tribunal has been able to question the applicant about her personal domestic circumstances, the Tribunal finds that the applicant has provided unsatisfactory and inconsistent evidence.

14. The Tribunal further finds that the applicant has elected not to participate in the Tribunal’s consideration of her application for review.  The Tribunal finds that the applicant’s failure to engage in the review process is without reasonable explanation.  Accordingly, the Tribunal makes an adverse inference regarding the credibility of the applicant’s claims for protection.

    Arbitrary deprivation of liberty/life

15. The Tribunal notes that the substance of the claims presented by the applicant can be found in her original application for review.  Namely:

    I seek protection under the complementary protection criteria due to the arbitrary deprivation of my liberty which would result in significant and adverse long-term deprivation of my life. 

16. There is not suggestion in the claims before the Tribunal that the applicant seeks protection for a Convention ground.  Accordingly, the Tribunal has proceeded to consider the applicant’s claims for protection under the complementary protection criteria.

17. The Tribunal notes that, under s.36(2A)(a) of the Act, a person will suffer significant harm if that person will be arbitrarily deprived of his or her life. This harm is not further defined by the Act but the words ‘arbitrarily deprived’ are to be given their ordinary meaning.[5]  While there is no restriction as to who must inflict the harm or why, judicial comments in Australia have suggested that this kind of harm concerns such things as extrajudicial killing and the excessive use of police force, and does not concern the consequences of scarce medical resources in developing countries.[6]

    [5]MZAAJ v MIBP [2015] FCA 478 (Pagone J, 18 May 2015) at [6].

    [6]MZAAJ v MIBP [2015] FCCA 151 (Judge Riley, 4 February 2015) in obiter dicta comments at [42]. In this case, the applicant claimed the Tribunal failed to consider that he might face arbitrary deprivation of life because of the prospect that he might die as a result of his inability to access dialysis in Sri Lanka. The Court held that the Tribunal, which had considered the claim against the definitions of cruel/inhuman/degrading treatment or punishment, had implicitly found that this did not fall within the concept of arbitrary deprivation of life, and was correct in so concluding: at [40]-[41] (upheld on appeal: MZAAJ v MIBP [2015] FCA 478 (Pagone J, 18 May 2015); special leave application dismissed: MZAAJ v MIBP [2015] HCATrans 238, (Gordon J, 15 September 2015).

18. Accordingly, the Tribunal finds that the harm referred to as the basis for the applicant’s claim for protection (namely, ‘arbitrary deprivation of [her] liberty which would result in significant and adverse long-term deprivation of [her] life’ as a result of ‘being separated from [her] precious natural children’), is not consistent with how the concept is understood to operate under the provisions of s.36(2A)(a) of the Act.

19. Although there is no express requirement that the arbitrary deprivation of life be intentional or arise from an intentional act or omission, the word ‘deprived’ itself may import an element of deliberateness.  ‘Deprive’ is defined in the Oxford Dictionary of English to mean ‘prevent (a person or place) from having or using something’[7] and in the Macquarie Dictionary as ‘to divest of something possessed or enjoyed; dispossess; strip; bereave’ or ‘to keep (a person etc.) from possessing or enjoying something withheld’.[8]  Words such as ‘prevent’, ‘keep … from’ may imply some form of positive action or omission rather than, for example, death which is a consequence of general conditions of poverty or a lack of facilities or services in a country.  However, the Complementary Protection Guidelines state that although intention can be a relevant indicator of arbitrary deprivation of life, it is not a necessary element.[9]

    [7]Oxford Dictionary of English (Oxford University Press, 2^nd edition, 2005).

    [8]Macquarie Dictionary (Macquarie Library, Revised 3^rd edition, 1997).

    [9]Department of Home Affairs, PAM3 ‘Complementary Protection Guidelines’, section 12.1, as re-issued 21 May 2015.

20. In the Macquarie Dictionary, ‘arbitrary’ is defined to mean: ‘subject to individual will or judgment; discretionary’; ‘not attributable to any rule or law’; ‘accidental’; ‘capricious; uncertain; unreasonable’; ‘uncontrolled by law; using or abusing unlimited power; despotic; tyrannical’; or ‘selected at random or by convention’.[10]  The Oxford Dictionary of English defines ‘arbitrary’ as: ‘based on random choice or personal whim, rather than any reason or system’ or ‘(of power or a ruling body) unrestrained and autocratic in the use of authority’.[11]

    [10]Macquarie Dictionary (Macquarie Library, Revised 3^rd edition, 1997).

    [11]Oxford Dictionary of English (Oxford University Press, 2^nd edition, 2005).

21. The Complementary Protection Guidelines refer to arbitrary deprivation of life as also involving elements of injustice, lack of predictability, or lack of proportionality and say that the concept of arbitrariness is broader than unlawfulness.[12]  The Guidelines provide various examples of circumstances in which potential harm may or may not be characterised as ‘arbitrary deprivation of life’, but emphasise that there must be a real and personal risk to the individual, saying that where the threat is from non-state actors, decision-makers should be satisfied that there are ‘extremely widespread conditions of violence and systematic breakdown of law enforcement, coupled with a particular risk to the individual in question’ before reaching a conclusion that there is a real risk that an applicant will be arbitrarily deprived of his or her life.[13]

    [12]Department of Home Affairs, PAM3 ‘Complementary Protection Guidelines’, section 12.1, as re-issued 21 May 2015.

    [13]Department of Home Affairs, PAM3 ‘Complementary Protection Guidelines’, sections 12.1 and 33, as re-issued 21 May 2015.  Note, however, that to the extent this guidance requires satisfaction of a ‘systematic breakdown of law enforcement’ it is inconsistent with MIAC v MZYYL (2012) 207 FCR 211 which establishes that, for the purpose of s.36(2)(aa) and s.36(2B)(b), a decision-maker may be satisfied that there is a real risk in circumstances where the level of protection is insufficient to reduce that risk to something less than ‘real’, rather than an absence of any protection as the Guidelines suggest here.

22. Section 36(2A)(a) derives from Articles 2 and 6 of the International Covenant on Civil and Political Rights (ICCPR).[14]  Article 6 states that every human being has the inherent right to life and that no one shall be arbitrarily deprived of their life. However, it should be noted that Article 6 of the ICCPR includes an express protection of the right to life, whereas significant harm within the meaning of s.36(2A)(a) is directed only at the arbitrary deprivation of life. As such, case law from other jurisdictions considering a positive right to life (such as the provision of medical treatment or measures to increase life expectancy or reduce mortality) may not be directly applicable to the interpretation of s.36(2A)(a).

    [14]Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 at [75].

23. The Tribunal further notes that the applicant’s claim amounts to an assertion that the very act of removal from Australia to a receiving country will result in harm of the sort envisaged by the complementary criteria.  That is, the consequential separation from her natural children.

24. The Tribunal notes that, in SZRSN v MIAC (SZRSN), it was claimed significant harm would arise from separating the applicant from his Australian children. The Federal Court found in this case that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A).[15]  

    [15]SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48]-[49], upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[65]. Similarly, in WZARI v MIMAC [2013] FCA 788 (Siopis J, 9 August 2013) at [31]-[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201 (Kiefel and Keane JJ, 13 December 2013). In SZSNX v MIBP [2015] FCCA 2271 (Judge Driver, 30 September 2015) at [70]-[72], the Court applied SZRSN v MIAC [2013] FCA 751 in different factual circumstances, upholding the Tribunal’s findings that any psychological suffering the applicant may experience in being removed from Australia would not be intentionally inflicted or intended to subject him to further harm.

25. The Court upheld the reasoning of the Federal Magistrate at first instance, which turned on the relationship between various aspects of the complementary protection provisions. Firstly, the Court had regard to the reference in s.36(2)(aa) to Australia’s ‘protection obligations’ as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country, rather than in the State where protection is sought.[16] Secondly, the Court reasoned that the qualifications in s.36(2B) expressly refer to harm ‘in a country’ which is necessarily the receiving country if the circumstances of s.36(2B)(a) (relocation) and s.36(2B)(b) (protection from an authority) are to have any application.[17]

    [16]SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[62].

    [17]SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [63].

26. Further, the Court noted the circularity in the operation of s.36(2)(aa) if the harm arose from the act of removal itself. Section 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The Court stated that the fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm.[18] 

    [18]SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [64]. The Federal Court also noted that being separated from one’s children is not an ‘act or omission’ as required by the relevant definitions of significant harm, but a consequence of an act. The relevant act is the act of removal from Australia: SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [47].

27. Lastly, the Court in SZRSN had regard to the ‘intention’ requirements in the s.5(1) definition of degrading treatment or punishment. The Court reasoned that separation from family (in that case, children) is the consequence of removal, and a consequence cannot be said to have an ‘intention’, so the act of removal itself cannot be said to be perpetrated by the State with the intention to cause extreme humiliation that is unreasonable.[19]

    [19]SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [65].

28. Although the Court in SZRSN was largely focusing on degrading treatment or punishment, by implication its reasoning appears to be equally applicable to the other types of significant harm in s.36(2A).[20]  As such, it appears that although the risk of significant harm envisaged by s.36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s.36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.[21]

    [20]Those aspects of the Court’s reasoning in SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) which turn on the definition of ‘degrading treatment or punishment ‘in s.5(1) of the Act would appear equally applicable to the definitions of ‘torture’ and ‘cruel or inhuman treatment or punishment’ which each require an ‘act or omission’ by which pain or suffering is intentionally inflicted. Although the other types of significant harm (the death penalty and arbitrary deprivation of life) are not further defined and do not expressly require an ‘act or omission’ or element of intention, the other aspects of the Court’s reasoning would be applicable to those types of harm. Further, it is unlikely that s.36(2)(aa) was intended to operate differently in respect of the various types of harm.

    [21]SZRSN was distinguished on its facts in MZAEN v MIBP [2016] FCCA 620 (Judge Riley, 24 March 2016), where a mother and her child claimed they would suffer significant harm as a result of being separated from one another in different receiving countries. The Federal Circuit Court commented in obiter that it may not be entirely correct that the consequences of the removal cannot be significant harm, given that the focus of s.36(2)(aa) is on the necessary and foreseeable consequences of the removal: at [49]-[50]. This aspect of MZAEN was followed in AUB16 v MIBP [2017] FCCA 2634 (Judge Riethmuller, 31 October 2017), a case involving a family unit consisting of two Malaysian citizens and two Nigerian citizens. However, neither judgment considered this issue in detail, nor the intention element of the definitions of ‘significant harm’. This question was considered in detail by the Tribunal in 1605592 (Refugee) [2017] AATA 914 (Deputy President Redfern and Member Caravella, 8 May 2017), with the Tribunal ultimately preferring the approach of SZRSN: at [154]-[155].

1. Accordingly on the basis of the foregoing, the Tribunal finds that, taken at their highest, the applicant’s claims do not demonstrate that the applicant would face a real risk of suffering significant harm, now or in the reasonably foreseeable future, if she was to be removed from Australia to Indonesia for the purposes of s.36(2)(aa) of the Act.

   Refugee Criteria

2. The Tribunal finds that, considered cumulatively, there is no real chance of persecution being faced by the applicant now or in the reasonably foreseeable future for the essential and significant reason of any convention ground, if she was returned to Indonesia for the purposes of s.36(2)(a) of the Act.

   Complementary Protection Criteria

3. The Tribunal notes that if a person is found not to meet the refugee criteria at s.36(2)(a) of the Act, they may nevertheless meet the criteria for the grant of a protection visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations, because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to the receiving country, there is a real risk that they will suffer significant harm as per s.36(2)(aa) of the Act (the complementary protection criteria).

4. As discussed above in the assessment of the evidence, the Tribunal has found there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia there is a real risk that she will suffer significant harm now or in the reasonably foreseeable future. The Tribunal notes that the threshold for the real risk element of the complementary protection criteria at s.36(2)(aa) of the Act is the same as that for the real chance test in the refugee criterion in s.36(2)(a) of the Act. The Tribunal further notes that the necessary and foreseeable consequence element in s.36(2)(aa) of the Act attaches to the risk of significant harm rather than the actual occurrence of significant harm.

5. The Tribunal has carefully considered each of the integers of the applicant’s claims to fear serious harm discussed above with respect to his claim for refugee protection in the context of the complementary protection criterion relating to the real risk of significant harm at s.36(2)(aa) of the Act. The Tribunal, therefore, finds there are no grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia there is a real risk that they will suffer significant harm for the purposes of s.36(2)(aa) of the Act, now or in the reasonably foreseeable future.

   CONCLUDING PARAGRAPHS

6. The Tribunal notes the applicant’s request for Ministerial intervention.

7. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

8. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

9. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

10. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Dr Colin Huntly
    Member

    
    

    APPENDIX A – RELEVANT LAW

    70.The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Refugee criterion

    71.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

    72.Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

    73.Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

    74.There are four key elements to the Convention definition.  First, an applicant must be outside his or her country.

    75.Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)).  Examples of ‘serious harm’ are set out in s.91R(2) of the Act.  The High Court has explained that persecution may be directed against a person as an individual or as a member of a group.  The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality.  However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

    76.Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm.  People are persecuted for something perceived about them or attributed to them by their persecutors.

    77.Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion.  The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution.  The persecution feared need not be solely attributable to a Convention reason.  However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

    78.Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear.  This adds an objective requirement to the requirement that an applicant must in fact hold such a fear.  A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason.  A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

    79.In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence.  The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad.  Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

    80.Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

    81.If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

    82.‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

    83.There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

    84.In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

Applicant credibility

85.The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.  In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[22]  In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility. 

[22]E.g.: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

86.In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan,[23] Foster J stated that “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”[24]  Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. 

[23](1996) 40 ALD 445.

[24]At 482.

87.The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[25] and the comments of the High Court on the correct approach to determining findings on credibility.  Kirby J observed:[26]

[25](1996) 185 CLR 259.

[26]At [25].

First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not.  An over-nice approach to the standard of proof to be applied here is undesirable.  It betrays a misunderstanding of the way administrative decisions are usually made.  It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination.  It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

88.The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”[27]  Nevertheless, as Burchett J counselled,[28] it is necessary to:

… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

89.The Full Court of the Federal Court noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”[29]  On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84-86.  Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[30]  Nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case.  However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[31]  In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[32]  The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[33]

… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

[27][1997] FCA 1198 ( accessed 10 October 2017).

[28]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].

[29]In Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167 ( accessed 10 October 2017).

[30]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9.

[31]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).

[32]MIMA v Rajalingam (1999) 93 FCR 220.

[33](1999) 197 CLR 510 at [191].

Statutory duty to disclose adverse information

1. Section 424A of the Act imposes a statutory obligation on Migration and Refugee Division of the Tribunal to give to applicants, in writing, ‘particulars’ of certain information which is adverse (in the sense that it would be the reason or a part of the reason for affirming the decision under review) and to invite applicants to comment on, or respond to, it.[34] 

   [34]SAAP v MIMIA (2005) 228 CLR 294 per McHugh, Kirby and Hayne JJ (Gleeson CJ and Gummow J dissenting).

2. The obligation to disclose information that would be the reason, or part of the reason for affirming the decision under review, contained in s.424A may be discharged orally at the hearing, or in writing.

3. Where s.424A applies, the Tribunal is required by s.424A(1) to:

   ·     give to the applicant clear particulars of information that the Tribunal considers would be the reason, or a part of the reason for affirming the primary decision; ^[35]

   ·     ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of it being relied on in affirming the primary decision;[36] and

   ·     invite the applicant to comment on or respond to it.[37]

   [35]The word, ‘clear’, was inserted by the Migration Amendment (Review Provisions) Act 2007 and only applies to review applications lodged on or after 29 June 2007.

   [36]The words, “and the consequences of it being relied on in affirming the decision that is under review”, was inserted by the Migration Amendment (Review Provisions) Act 2007 and only apply to applications lodged on or after 29 June 2007.

   [37]The words, “or respond to”, was inserted by the Migration Amendment (Review Provisions) Act 2007 and only apply to review applications lodged on or after 29 June 2007.

4. The Tribunal is also required by s.424A(2) to:

   ·     give the information and invitation to the applicant by one of the methods specified in s.441A; or

   ·     if the applicant is in immigration detention, by a method prescribed for the purposes of giving documents to such a person.

   Statutory duty to disclose adverse information

1. Section 424A of the Act imposes a statutory obligation on Migration and Refugee Division of the Tribunal to give to applicants, in writing, ‘particulars’ of certain information which is adverse (in the sense that it would be the reason or a part of the reason for affirming the decision under review) and to invite applicants to comment on, or respond to, it.[38] 

   [38]SAAP v MIMIA (2005) 228 CLR 294 per McHugh, Kirby and Hayne JJ (Gleeson CJ and Gummow J dissenting).

2. The obligation to disclose information that would be the reason, or part of the reason for affirming the decision under review, contained in s.424A may be discharged orally at the hearing, or in writing.

3. Where s.424A applies, the Tribunal is required by s.424A(1) to:

   ·     give to the applicant clear particulars of information that the Tribunal considers would be the reason, or a part of the reason for affirming the primary decision; ^[39]

   ·     ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of it being relied on in affirming the primary decision;[40] and

   ·     invite the applicant to comment on or respond to it.[41]

   [39]The word, ‘clear’, was inserted by the Migration Amendment (Review Provisions) Act 2007 and only applies to review applications lodged on or after 29 June 2007.

   [40]The words, “and the consequences of it being relied on in affirming the decision that is under review”, was inserted by the Migration Amendment (Review Provisions) Act 2007 and only apply to applications lodged on or after 29 June 2007.

   [41]The words, “or respond to”, was inserted by the Migration Amendment (Review Provisions) Act 2007 and only apply to review applications lodged on or after 29 June 2007.

4. The Tribunal is also required by s.424A(2) to:

   ·     give the information and invitation to the applicant by one of the methods specified in s.441A; or

   ·     if the applicant is in immigration detention, by a method prescribed for the purposes of giving documents to such a person.