AYX16 v Minister for Immigration
[2019] FCCA 35
•17 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYX16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 35 |
| Catchwords: MIGRATION – ITOA Assessment – procedural fairness – applicant claims that Assessor failed to put country information to the applicant – information concerned abatement of risk since cessation of hostilities in Sri Lanka and lessening of prospect that youths would be at risk of recruitment by Karuna group – applicant’s submissions in fact addressed both lessening of hostilities and potential of threat posed by Karuna group – in the totality of the facts and circumstances of the case, applicant was sufficiently on notice of information – no want of procedural fairness – whether application of erroneous standard by reference to intention as an element to be considered in the assessment of significant harm under international conventions relating to non-refoulement to receiving country – relevance of intention as an element in test of torture, cruel or inhuman or degrading treatment – Assessor refers to complementary protection obligations contained in Migration Act – whether erroneous in circumstances where ITOA entailed assessment upon international law – Assessor stated correct standard and test – any error in reference to intention or to concepts of complementary protection under Migration Act did not constitute jurisdictional error or warrant grant of relief – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36. 46A, 48B, 195A, 198, 359A, 375A, 417, 422B, 424A, 473DE |
| Cases cited: ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 APD15 v Minister for Immigration and Border Protection [2017] FCA 407 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 BPX17 v Minister for Immigration and Border Protection [2018] FCA 763 BRF038 v The Republic of Nauru [2017] HCA 44 BZAFM v Minister for Immigration and Border Protection (2015) 321 ALR 117 BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 CRI026 v The Republic of Nauru [2018] HCA 19 DAO v Minister for Immigration and Border Protection (2018) 353 ALR 641 HFM045 v The Republic of Nauru (2017) 350 ALR 34 Hossain v Minister for Immigration and Border Protection [2018] HCA 34 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 Minister for Immigration and Citizenship v Anochie (2012) 209 FCR 497 Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 MZYPY v Minister for Immigration and Border Protection [2014] FCAFC 68 |
| Applicant: | AYX16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ERNEST ZANATTA IN HIS CAPACITY AS MANAGER, TPV ASSESSMENT VICTORIA |
| File Number: | MLG 847 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 1 August 2017 |
| Date of Last Submission: | 20 September 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 17 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr McBeth |
| Solicitors for the Applicant: | Russell Kennedy Lawyers |
| Counsel for the Respondents: | Mr Mosley |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The further amended application filed on 27 June 2017 be dismissed.
The applicant pay the costs of the first respondent fixed at $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 847 of 2016
| AYX16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ERNEST ZANATTA IN HIS CAPACITY AS MANAGER, TPV ASSESSMENT VICTORIA |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By further amended application filed 27 June 2017, judicial review is sought of an international treaty obligation assessment (ITOA) undertaken by the second respondent on 12 March 2015 in his capacity as manager, TPB Assessment, Victoria (Assessor), and communicated to the first respondent (Minister) by a report dated 26 February 2016 (ITOA Report).
The ITOA was undertaken for the purpose of assessing whether Australia owed non-refoulement obligations in respect of the applicant under various international treaties. The Assessor concluded that Australia did not owe such obligations.
The matter has had a protracted procedural history including a Refugee Status Assessment, independent merits review, a post-review protections claims assessment (PRPCA) and the present ITOA which is the subject of this application for judicial review. In the intervening period, the matter has been the subject of an application for Ministerial intervention, three applications for judicial review and two appeals to the Full Federal Court. The following history is largely taken from the summary provided in Section 4 of the ITOA and, to the extent possible, as confirmed by the materials comprised the court book.
For the reasons which follow, I have concluded that the grounds of review, as further amended, are not made out. The applicant was sufficiently on notice that the cessation of hostilities in Sri Lanka and the risk posed to the applicant of recruitment by the Karuna group were reasons which the Assessor may take into account in forming an objective assessment whether the applicant had a well-founded fear of harm. So too, while the Assessor included reference to the provisions of the Migration Act as concerned complementary protection, I do not consider that if it constituted an error to do so, such error was material to the decision made or was of a kind as to constitute jurisdictional error. I would have declined to grant relief on those bases.
Background
The applicant is a Sri Lankan national of Tamil ethnicity aged 30 years.
The applicant first arrived in Australia as an unauthorised maritime arrival on about 18 June 2010. On 17 July 2010, the applicant attended an entry interview. The applicant stated that he was falsely suspected of involvement in a suicide attack on a Sri Lankan Minister which occurred in 2008. According to the details recorded in his Unauthorised Arrival Interview, he held a police identity card, birth certificate and passport (which had been taken from him in Malaysia).
On 20 August 2010, the applicant made a request for Refugee Status Assessment (RSA).
By a statutory declaration made on 20 August 2010, the applicant claimed a well-founded fear of persecution based on his Tamil ethnicity, his imputed political opinion as a person assumed to support the Liberation Tigers of Tamil Eelam (LTTE) and his membership of the particular social group comprising returned failed asylum seekers. He also feared significant harm based on his being a suspect having involvement in the murder by suicide bombing of a member of parliament, Jeyarai Fernando Pillai, in April 2008.
The applicant declared that following this incident he had fled Sri Lanka to Qatar where he had remained for a month, returning before the expiry of his passport. The applicant claimed that on return to Sri Lanka, he began to experience problems with a paramilitary group in 2008-2009, the Karuna, who suspected him of supporting the LTTE on account of his Tamil ethnicity. The applicant claimed that he then left Sri Lanka following a series of death and kidnapping threats.
On 31 January 2011, an officer of the Department determined the RSA, finding that the applicant was not a refugee as defined by the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. In a seemingly comprehensive assessment of the application, the Assessor concluded that the applicant was not a totally reliable witness and questioned the veracity of some of his key claims.
On 17 February 2011, the applicant requested an Independent Merits Review (IMR) of the RSA decision.
On 13 December 2011, the applicant was granted a Bridging visa E.
On 12 April 2012, the applicant was notified that the Department had, in accordance with policy, accepted the IMR being that the applicant not be recognised as a person to whom Australia had protection obligations. The Department provided a statement of reasons for that decision. Included in the statement of reasons at [103]-[104] was that the Assessor had placed some weight upon 2010 UNHRC Guidelines for Sri Lanka which found that following the cessation of hostilities, Sri Lankans originating from the north of the country were no longer in need of international protection. The Department found that the applicant did not in the reasonably foreseeable future have a real chance of persecution on the basis of his race or ethnicity as a Tamil.
On 30 May 2012, the Department reconsidered[1] the applicant’s protection claims following the IMR. The Department was not satisfied that the applicant’s case met the Minister’s guidelines and therefore should not be referred to the Minister for consideration. A Departmental manager agreed in that assessment on 31 May 2012.
[1]The Departmental reconsideration of the matter was explained by the coming into operation of amendments on 24 March 2012 whereby Australia recognised complementary protection obligations to persons who might otherwise be refugees: see letter dated 10 October 2012, Department to applicant.
On 31 May 2012, the applicant sought judicial review of the assessment made upon the IMR. On 9 October 2012, the application was dismissed.
On 12 October 2012, the applicant requested Ministerial Intervention under s 46A(2) of the Act and made detailed submissions in support.
It appears that in the period March – October 2013, the matter was the subject of two applications for judicial review and two appeals to the Full Federal Court, the first of which was withdrawn by the applicant, the second of which was withdrawn by the Minister.
On 20 March 2013, a five member bench of the Federal Court held that the respondent in that proceeding was entitled to a declaration that an ITOA had not been made according to law with the result that, being a non-citizen whose claims to complementary protection had not been properly considered, he was entitled to an injunction restraining his removal under s 198 without his claims being determined according to law: see Minister for Immigration and Citizenship v SZQRB.[2]
[2](2013) 210 FCR 505 [248]-[265] (Lander and Gordon JJ), [296], [342] (Besanko, Flick and Jagot JJ agreeing).
On 3 October 2013, the Minister consented to an order that the PRPCA had not been made according to law in that it failed to afford the applicant procedural fairness. A notation was made to a Departmental summary that this matter was ‘SZQRB affected’.
ITOA
On 12 March 2015, the applicant was notified that the Department would no longer rely upon the assessment of the IMR as confirmed upon re-assessment by the Department and would now undertake a further re-assessment of his protection claims as part of new International Treaties Obligations Assessment obligations.
On 7 May 2015, the applicant’s solicitor and migration agent made detailed submissions in support of the applicant’s claim for protection. In Part 2 of that submission, those lawyers confirmed that the applicant continued to rely upon both of his statutory declarations and a statement that he had provided. In Part 5 of the submission, which provided an overview of the applicant’s claims, the author stated that the applicant faced a real risk of torture and other significant harm as defined by s 36(2A) of the Act. Part 6 of that submission, which concerned country information, was arranged in six sections and considered:
a)Section 6.3, Tamils and the imputation of pro-LTTE political opinion, submitting, by reference to country information, that although there had been some improvement, ethnicity continued to be a critical factor in Sri Lanka and that the UNHRC guidelines published on 21 December 2012 continued to highlight the protection needs of those with perceived links to the LTTE. It stated that within a group of six categories of persons who may be in need of protection, members of the Tamil minority were reportedly subjected to arbitrary detention and other forms of mistreatment more often than Sri Lankans in those six categories;
b)Section 6.5, Karuna group, summarised the Karuna group’s documented history of child abduction and forcible recruitment, its joinder of forces with the Sri Lankan security forces and its efforts to push back the LTTE and eventual inclusion in politics, noting that Karuna himself had entered politics in 2008 and was deputy minister for resettlement. It was stated that Karuna had enjoyed immunity for some of the worst atrocities committed during the Sri Lankan conflict.
On 28 August 2015, the Department invited the applicant to attend an interview on 23 September 2015 regarding his ITOA so as to discuss his claims and comment on any adverse information. The letter of invitation did not in terms identify any such adverse information; however, by an email transmitted on 16 September 2015, the Department identified matters which would be the subject of discussion including his claim to be implicated in the suicide bombing, his travel to Qatar and his claimed difficulties with the Karuna group.
The applicant attended the interview with his legal representative. Following that interview, the applicant was invited to comment on issues and information and provide any additional submissions.
On 14 October 2015, the applicant’s solicitor provided the Department with further submissions which addressed: (1) the murder of Jeyaraj Fernandopulle[3]; (2) the Sri Lankan identity card, and; (3) the treatment of failed asylum seekers.
[3] Earlier, Fernando Pillai.
On 1 December 2015, the Department invited the applicant to comment on adverse information including, relevantly, country information. The Department’s letter, which spanned 13 pages, addressed in detail a series of topics about which the Department considered that it held adverse information and required a response to that request.
On 21 December 2015, the applicant’s solicitor provided a relatively brief response to the adverse information and attached a further statutory declaration which also addressed those issues. One of the matters addressed by his declaration was that the applicant accepted he had departed Sri Lanka legally.
On 26 February 2016, the applicant was notified that a finding was made that non-refoulement obligations were not engaged in his case. For reasons which are not entirely clear, on 26 September 2016, the Department wrote to the applicant’s lawyer and the applicant advising that his claims to protection had been considered and rejected.
ITOA Report
The Assessor’s ITOA Report was dated 24 February 2016 and confirmed by his Manager the following day. It was comprehensive in its analysis of the issues arising in relation to the applicant’s claims.
The ITOA was arranged in two parts: (Part A) Introduction, client details, non-refoulement obligations finding, migration history, protection claims/information, material before the Assessor, Australia’s non-refoulement obligations – relevant country information – findings of fact (credibility); (Part B) Assessment of non-refoulement obligations under the Refugees Convention.
In Part A, Section 5, the Assessor detailed his analysis of the protection claims and in doing so examined those claims at each stage of the process from biodata on arrival, entry interview, RSA request and assessment, IMR, PRPCA and ITOA assessments (CB 262-268).[4]
[4] Court Book references are provided as paragraphs in the ITOA are not numbered.
Findings of fact that are of significance to the present application are:
a)the Assessor accepted that because of the risk faced by him as a young Tamil male, the applicant had relocated in 2007 from his home village of Mannar to Negombo (CB 279);
b)the Assessor did not accept that the applicant was suspected (whether prior to or since leaving Sri Lanka), of involvement in the murder of the Member of Parliament, Jeyaraj Fernandopulle. Detailed reasons for that conclusion were provided (CB 280-285);
c)the Assessor accepted that the applicant had travelled to Qatar in 2008, but did not accept that the reason for doing so was because he feared being implicated in the death of the Member of Parliament (including by reason that he had obtained his passport before the murder had taken place) (CB 279-280);
d)the Assessor found that the target demographic for recruitment by Karuna in 2008-2009 was 15.9 years and that the applicant had been the subject of some attempts by the Karuna group to recruit him. The Assessor accepted that although aged 19 years in 2009 the applicant was within that target demographic (CB 285-286);
e)the Assessor found the applicant had departed lawfully on his own passport, but that as he no longer had his passport, he would be returning to Sri Lanka on a temporary travel document (CB 286-287);
f)the Assessor accepted that the applicant’s family had been visited by authorities periodically for the purposes of registration, and that in doing so, authorities had asked about the applicant’s whereabouts. However, the Assessor found that this was only for the purposes of accounting for all registered persons, and not an indication that the applicant was wanted personally in connection with any offence (CB 287-288);
g)the Assessor found that contact had been made, without the applicant’s consent, with the Sri Lankan Department of Immigration and Emigration (DIE) and considered that the implication of this contact should be taken into account (CB 288);
h)the Assessor accepted that if returned to Sri Lanka, the applicant would do so as a failed asylum seeker (CB 290);
Findings risk of harm that are of relevance to this application are:
a)the Karuna group or other paramilitaries did not pose a threat of serious harm to the applicant (CB 293);
b)the applicant would be temporarily detained and questioned during the process of his return, but temporary detention did not of itself constitute serious harm and questioning was not discriminatory (CB 295);
c)there was not a real chance that the applicant, as a returnee and young Tamil man from the north and/or a failed asylum-seeker, would face persecution (CB 296-299);
d)not being a person of interest to the authorities, the applicant’s circumstances did not give rise to a real chance of serious harm for reasons of his race, area of origin or membership of a particular social group relating to those factors (CB 298-299);
e)the applicant would not be denied medical treatment for his Hepatitis B (CB 303);
f)the applicant and his family would continue to face economic difficulties, but there was not a real chance that his capacity to subsist was at real risk for reasons of Convention related economic hardship or denial of basic services (CB 303).
The Assessor concluded that the applicant was not a refugee within the meaning of the Convention and Australia did not have non-refoulement obligations arising thereunder. (CB 305-309).
Procedural history
On 26 April 2016, the applicant filed an application for judicial review of the decision by the Minister following the making of the ITOA. Declaratory relief was sought that the ITOA had not been conducted according to law and injunctions preventing the Minister from acting or relying upon the ITOA or removing the applicant from Australia.
An affidavit in support of the application sworn on 26 April 2016 exhibited a copy of the delegate’s decision record but adduced no further evidence in support of the application for judicial review.
By a Response filed on 4 May 2015, the Minister sought that the application be dismissed on the ground that the decision under review was not affected by jurisdictional error.
When the matter was listed for directions hearing on 20 July 2016, orders were made, by consent, dispensing with a show cause hearing and listing the matter for final haring. Further orders were made regulating the filing by the applicant of any amended application, affidavits and written submissions.
On 5 May 2017, the applicant filed an amended application.
On 7 June 2017, orders were made by consent in chambers extending the time for filing material in preparation for trial.
On 27 June 2017, the applicant filed a further amended application and written submissions. The further amended application identified the ‘decision’ in respect of which judicial review was sought as being “A future decision or other action by the Minister or an officer under the Migration Act.” The assigning of that description to the decision may be understood as a means of invoking the jurisdiction to grant an injunction to restrain the exercise of the power of removal under s 198.
The matter was listed for final hearing on 1 August 2017. On that date, orders were made granting leave to the parties to file written submissions within 14 days of delivery of the reasons for judgment by the High Court in SZTAL v Minister for Immigration and Border Protection & Anor.[5] Judgment[6] was delivered in that proceeding on 6 September 2017 and both parties filed further submissions thereafter.
[5] [2017] HCA Trans 68.
[6] SZTAL v Minister for Immigration and Border Protection & Anor (2017) 91 ALJR 936.
Consideration
It was common ground that the ITOA was undertaken for the purpose of assessing whether Australia owed non-refoulement obligations in respect of the applicant under the 1951 Convention relating to the Status of Refugees (Refugees Convention), the Convention against Torture and Other Inhuman or Degrading Treatment or Punishment (CAT), or the International Covenant on Civil and Political Rights (ICCPR).
On the principles considered above, the conduct of an ITOA in the assessment whether Australia owed non-refoulement obligations to the applicant, and in connection with the possible exercise of power of removal under s 198, is properly characterised as a process undertaken with a view to informing the Minister as to the possible exercise of a non-compellable discretionary power and is accordingly of a character which is subject to an obligation to accord procedural fairness.
The applicant advanced two grounds of review.
Legislative regime
The Act confers discretionary powers on the Minister, certain of which are non-delegable.[7]
[7]For example, ss 48B, 195A and 417 respectively, confer powers on the Minister, each of which are expressed to be non-delegable (and where it is considered in the public interest to do so), to determine that the bar to the making of a further visa application be lifted, to grant a detainee a visa or to substitute a more favourable decision than that made by an administrative decision-maker in relation to the merits review of a Part 7 reviewable decision.
In Kioa v West[8], the majority held that there was neither a relevant statutory framework nor relevant authority supporting a general proposition that the requirements of natural justice or procedural fairness need not be observed in relation to the making of a deportation order under the Act. Mason J expressly disagreed with an earlier view that the Minister did not have a discretion to not to order the deportation of a prohibited immigrant.[9] Wilson J reasoned that the changes to the statutory framework did not evince an intention that in ordering deportation, the Minister was not obliged to observe the dictates of procedural fairness.[10] Brennan J considered that the Minister was not required to observe the principles of natural justice in every case.[11] Deane J agreed in the judgments of Mason and Wilson JJ.[12]
[8] (1985) 159 CLR 550 (Mason, Wilson, Brenna and Deane JJ, Gibbs CJ diss’).
[9] (1985) 159 CLR 550, 586.
[10] (1985) 159 CLR 550, 600.
[11] (1985) 159 CLR 550, 626.
[12] (1985) 159 CLR 550, 630.
Part 2 of the Act concerns the topics, arrival, presence and departure of persons from Australia. Within Part 2, Div. 8 concerns the removal of un-lawful non-citizens and is comprised of ss 197C-199.
Section 198 confers power to remove unlawful non-citizens from Australia in a variety of circumstances, including on request and, relevantly, in ‘other circumstances’. A cursory examination of s 198 confirms that, where it applies, an officer must remove an unlawful non-citizen from Australia. The nature of the obligation imposed by s 198 explains the present application for injunctive relief in this case.
The exercise and non-exercise of non-delegable discretionary powers do not attract an obligation of procedural fairness in the Minister, however, the exercise of administrative powers by a decision-maker which are anterior to the exercise of such Ministerial powers may do so: Minister for Immigration and Border Protection v SZSSJ.[13]
[13](2016) 259 CLR 180, [53] (The Court).
The process known as an international treaty obligation assessment is a process established by the Department to assist the Minister in the consideration of whether to exercise certain Ministerial powers.
In SZSSJ,[14] the Full High Court examined the true character of the ITOA process in the particular statutory context of the possible exercise of non-delegable discretionary Ministerial powers and stated:
. . . processes undertaken by the Department to assist in the Minister's consideration of the possible exercise of a non-compellable power derive their character from what the Minister personally has or has not done. If the Minister has made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department to assist the Minister's consideration has a statutory basis in that prior procedural decision of the Minister. Having that statutory basis, the process attracts an implied statutory requirement to afford procedural fairness where the process has the effect of prolonging immigration detention. If the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department on the Minister's instructions to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness.
[14](2016) 259 CLR 180, [54]; see also Verma v Minister for Immigration and Border Protection [2018] FCAFC 87, [31] (North, Farrell and Davies JJ).
Thus, it is apparent that to attract an obligation of procedural fairness, the Minister must have made a personal procedural decision to consider whether to make a substantive decision. If no such decision has been taken, no obligation of procedural fairness is attracted in relation to the undertaking of some other process by the Department.
It is a question of fact whether the Minister has personally made a procedural decision to consider whether to make a substantive decision, including of the kind in issue in the present case.[15]
[15] SZSSJ, supra (2016) 259 CLR 180, [55].
The conduct of an ITOA in connection with the exercise of power under s 198 is properly characterised as a process undertaken with a view to informing the Minister as to the possible exercise of a non-compellable power and is accordingly of a character which is subject to an obligation to accord procedural fairness. Such an obligation arises as an implied condition of the exercise of the power to engage the ITOA process.[16]
[16] (2016) 259 CLR 180, [77].
As stated, where an ITOA has not been made according to law and a non-citizen whose claims to complementary protection have not been properly considered, the court may grant a declaration to that effect together with an injunction restraining his or her removal under s 198: see SZQRB.[17]
[17](2013) 210 FCR 505 [248]-[265] (Lander and Gordon JJ), [296], [342] (Besanko, Flick and Jagot JJ agreeing).
This court has jurisdiction to undertake judicial review of an ITOA.[18]
[18] SZSSJ, supra (2016) 259 CLR 180, [71].
It is then of some importance to identify the scope of the task embodied in the ITOA process. The obligation of a Departmental officer to consider matters when conducting an ITOA has been described as a function of the instructions that were given to that officer: SZSLM v Minister for Immigration and Border Protection.[19] There Perram J held that:[20]
An inference is open from that material that the instruction which was given to the officer was specific and was to the effect that the officer was to consider whether Australia had non-refoulement obligations in relation to the Applicant. . . Regardless of its source, that instruction must have both provided the authority to, and delineated the jurisdiction of, the officer conducting the ITOA.
It follows from that, that the officer conducting the ITOA had no choice but to carry out what he was instructed to do; and further still, had no jurisdiction to carry out anything which he had not been instructed to do.
[19] [2017] FCA 413, [9].
[20] [2017] FCA 413, [13]-[14].
In SZSLM, as in this case,[21] the instructions were to review the applicant’s case against Australia’s non-refoulement obligations.
[21] See letter dated 12 March 2015 Department to the applicant and compare Section 1 of ITOA.
Upon the combined weight of SZSSJ, SZQRB and SZSLM, this court has jurisdiction to grant relief, including by way of declaration and injunction to restrain the removal of an unlawful non-citizen where the ITOA is shown not to have been made according to law (including by reason of a denial of procedural fairness) where the non-citizen’s claims to protection have not been properly considered.
Ground 1 – procedural fairness
Ground 1, the particulars to which were amended, reads:
The Second Respondent denied the Applicant procedural fairness
Particulars
a) The Second Respondent found that there was “no objective factual basis supporting the proposition that the Karuna group or other paramilitaries formerly operating in the Batticaloa area continue to pose a threat of serious harm to the claimant”, based on country information about the changed country conditions in Sri Lanka since the end of the civil war and former Karuna group leaders having entered Sri Lankan politics.
b) The Second Respondent failed to put that country information to the Applicant and give him an opportunity to respond.
The Assessor was obliged to afford the applicant procedural fairness. This meant that the applicant was entitled to a fair process. It was not the existence of the obligation, but its scope and operation in the circumstances of this case which are in issue.
In contrast with provisions governing the review of Part 5 and Part 7 reviewable decisions,[22] the Act does not prescribe an exhaustive code respecting procedural fairness in relation to the conduct of an ITOA. Instead, common law principles of procedural fairness apply.
[22] See ss 357A and 422B.
The parties drew attention to the well-known statement in Kioa v West[23] in which Brennan J considered what was required by the common law principles of procedural fairness in cases where a decision maker had information available that was adverse to the interests of the person who may be affected by an administrative decision. His Honour stated a number of propositions, including that “a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interest which the repository of power proposes to take into account in deciding upon its exercise.” Brennan J expressed the obligation in terms that a person was to be afforded an opportunity to deal with adverse information that was credible, relevant and significant to the decision to be made.[24] His Honour further held that the Minister was obliged to adopt a procedure which a reasonable and fair repository of the power would adopt in the circumstances.[25] Mason J expressed the content of the obligation in slightly different terms but considered[26] that where the decision-maker held information which was personal to the applicant and which had been obtained from a source other than the applicant, procedural fairness may require that he or she be given an opportunity of responding to the matter including in cases where grant or cancellation of an entry permit was a matter of absolute discretion.
[23] (1985) 159 CLR 550, 628-629.
[24](1985) 159 CLR 550, 629.
[25] (1985) 159 CLR 550, 627-628.
[26] (1985) 159 CLR 550, 587.
In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs,[27] the Court, citing Brennan J’s statements in Kioa, held that before making a decision upon the substantive application, the decision-maker must make a determination whether information was of a kind which would be taken into account, and that this in turn would affect whether the decision-maker must give an opportunity to the person affected to deal with that information. The Court held that principles of “procedural fairness govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised” and “are to be applied to the processes by which a decision will be reached.”[28]
[27] (2005) 225 CLR 88, [15]-[17] (Gleeson, CJ, Gummow, Kirby, Hayne and Heydon JJ).
[28]Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, [16].
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs,[29]the Court endorsed the correctness of a submission that procedural fairness is concerned with a fair hearing, not a fair outcome and that for this reason, it was not to the point to enquire whether a Tribunal’s factual conclusions were right but rather to focus upon its processes. Their Honours stated: [30]
It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires.
The Court further emphasised[31] the fundamental principle that, where the rules of procedural fairness applied, they would ordinarily require that the party whose interests may be affected be given the opportunity of ascertaining the relevant issues and be informed of the nature and content of adverse material.
[29] (2006) 228 CLR 152, [25] (The Court).
[30] (2006) 228 CLR 152, [26].
[31](2006) 228 CLR 152, [32], citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 590-591.
Identifying whether there has been a breach of the rules of natural justice requires attention to the precise facts and circumstances of the particular case. In Saeed v Minister for Immigration and Citizenship,[32] the Court confirmed that a fundamental principle of natural justice was that a person be afforded an opportunity to deal with adverse information that was credible, relevant and significant to the decision to be made.[33] The Court, referring to Kioa v West, observed[34] that although the scope of the obligation to inform a person of information that was credible, relevant and significant had been stated in different terms by Brennan and Mason JJ, this may not deny that in a particular case it may be necessary to bring to his or her attention a critical factor or issue on which the decision was likely to turn. Equally, their Honours recognised that not all information adverse to an applicant which might be influential in a decision to refuse a visa would qualify as relevant information[35] and cited country information as information which may not be so in all cases, notwithstanding that it may be influential in the outcome.
[32] (2006) 241 CLR 252, [2] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).
[33]See also HFM045 v The Republic of Nauru (2017) 350 ALR 34, [39] (Bell, Keane and Nettle JJ).
[34] (2006) 241 CLR 252, [19].
[35] (2006) 241 CLR 152, [21].
In Minister for Immigration and Border Protection v WZARH,[36] Gageler and Gordon JJ held that it followed from the nature of procedural fairness as being concerned with procedures rather than outcomes that a failure on the part of a decision-maker “to give the opportunity to be heard which a reasonable [decision-maker] ought fairly to give in the totality of the circumstances” would constitute a denial of procedural fairness. Their Honours stated that:
That approach to the determination of the existence and consequence of a breach of an implied condition of procedural fairness governing the exercise of a statutory power is wholly consistent with the often-repeated observation of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam that the concern of procedural fairness is to “avoid practical injustice”, and with his Honour’s conclusion in that case that there was no denial of procedural fairness where “[n]o practical injustice ha[d] been shown.” The absence of practical injustice in Lam lay in the fact that "[t]he applicant lost no opportunity to advance his case; it was not "shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment”. (footnotes omitted, emphasis added)
Their Honours held that “[w]hat must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process,[37] citing by way of illustration that there may be circumstances in which a person may be misled as a result of a decision-maker’s conduct into refraining from taking up an opportunity to be heard on an issue.[38]
[36] (2015) 256 CLR 326, [55].
[37] (2015) 256 CLR 326, [58].
[38] (2015) 256 CLR 326, [59]; cf [45]-[48] (Kiefel CJ, Bell and Gordon JJ).
In Minister for Immigration and Border Protection v SZSSJ,[39] the Full High Court held that:
Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[40], Kioa and Veal were cited as supporting those propositions.
[39](2016) 259 CLR 180, [83] (Applying SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [32], (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); see also BRF038 v The Republic of Nauru [2017] HCA 44, [58]-[59]).
[40] (2006) 228 152, [32] (The Court).
However, it is necessary to identify, at some level of specificity, the nature of the inquiry to be conducted and the issues that are to be considered. For example, in SZMUF v Minister for Immigration and Citizenship,[41] Flick J stated:
Wherever the line may be drawn in individual cases, a party must be sufficiently put on notice of those matters which place him in a position where he can meaningfully avail himself of an opportunity to be heard. But procedural fairness does not require “a running commentary upon an applicant’s prospects of success, so that there is a forewarning of all possible reasons for failure”[42]
Thus, the scope of the obligation of procedural fairness is not at large.
[41][2009] FCA 182, [22]. See also ABV16 v Minister for Immigration and Border Protection [2017] FCA 184, [27] (Bromberg J) and cases cited.
[42]Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at [31], 206 CLR 57 at 69 per Gleeson CJ and Hayne J.
In Snedden v Minister for Justice for the Commonwealth of Australia,[43] Middleton and Wigney JJ observed that:
The rules of procedural fairness do not have an immutably fixed content. . . What will be both sufficient and necessary to ensure a fair hearing in any given case will depend on, and vary with, the context in which a decision-maker acts. . .
[43] (2014) 315 ALR 352, [177].
Again, in WZARH,[44] Kiefel CJ, Bell and Keane J held that consideration of what procedural fairness required in a particular case would depend upon all the facts and circumstances of that case having regard to the legal framework in which the decision was to be made.
[44] (2015) 256 CLR 326, [30] (Kiefel CJ, Bell and Keane JJ).
Concerning the procedure to be adopted by a decision-maker, in SZSSJ the Full High Court held that:[45]
. . . compliance with an implied condition of procedural fairness requires the repository of a statutory power to adopt a procedure that is reasonable in the circumstances to afford an opportunity to be heard to a person who has an interest apt to be affected by exercise of that power. The implied condition of procedural fairness is breached, and jurisdictional error thereby occurs, if the procedure adopted so constrains the opportunity of the person to propound his or her case for a favourable exercise of the power as to amount to a “practical injustice”. (footnote omitted, emphasis added)
[45] (2016) 259 CLR 180, [82].
The authorities considered above demonstrate that where the obligation of procedural fairness is engaged, the precise statutory framework is of critical importance to defining the scope of that obligation as is consideration of the process by which the decision was reached. To that end, an applicant seeking relief by way of judicial review is required to identify the precise defect in the process which is complained of and to demonstrate how the process undertaken entailed practical injustice. As the underlying concern is with practical injustice, part of the analysis will be whether the applicant has been sufficiently put on notice of the relevant issues so that he or she could have a meaningful opportunity to be heard upon those issues. The inquiry is not concerned with whether the applicant had been given a running commentary upon, or forewarning of, all possible reasons for failure of an application.
Where they apply, the rules of procedural fairness will generally require that the applicant be given the opportunity of ascertaining the relevant issues and commenting on any adverse information that is credible, relevant and significant. As concerns the treatment of adverse information, the decision-maker must consider whether such information is of a kind that will be taken into account and if so, must ordinarily inform the person of the nature and content of information which might be taken into account as a reason for coming to a conclusion adverse to their interests. The assessment of whether the rules of procedural fairness were observed pays due regard to the totality of the facts and circumstances of the particular case and whether what was done in that case was sufficient and necessary in that case. Moreover, in the evaluation whether adverse information is of a kind which a decision-maker must draw to the attention of a person whose interests may be affected, a distinction is to be drawn between that which is truly personal and adverse to a person’s interests and that which is of a more general nature but which would be influential in the decision to be made. In the former case, the obligation would be engaged once it was decided that the information might be a reason for making an adverse decision. In the latter case, regard to the totality of the facts and circumstances would inform whether an applicant would not be sufficiently on notice of the relevant issues unless notice of the particular information was provided.
(1) Substantially changed conditions
Ground 1 centred upon Part B, Assessment of non-refoulement, Section 4 of the ITOA Report, where the Assessor considered whether the applicant had a well-founded fear of harm, including as concerned the stated fear of paramilitaries such as the Karuna group. The ITOA Report stated:
The claimant fears members of the Karuna group in Batticaloa owing to past experience where they attempted to recruit him.
Given substantially changed country conditions since the end of the civil war, the fact the Kaurna group’s leaders have since entered politics in Sri Lanka legitimately and the fact the claimant was able to avoid recruitment in the past due to a health condition which persists, I do not consider there is an objective factual basis supporting the proposition that the Karuna group or other paramilitaries formerly operating in Batticaloa area continue to pose a threat of serious harm to the claimant. (footnotes omitted)
The applicant identified three elements to the Assessor’s reasoning: (1) the substantially changed country conditions since the end of the civil war; (2) the entry of members of the Karuna group into Sri Lankan politics; (3) the applicant’s persisting health condition. Ground 1 focussed upon the first and second of those elements. The applicant eschewed any complaint in relation to the third element and did so on the basis that that information was derived from his own submission.
From footnote 90 to the ITOA Report (CB 293), it is apparent that in expressing the finding that there had been a substantial change in country conditions since the end of the Sri Lankan civil war, the Assessor had relied upon certain country information comprising: (1) UNHRC Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka, UN High Commission for Refugees, 21 December 2012; (2) DFAT Country Report, Sri Lanka, 16 February 2015, and update DFAT Country Report: Sri Lanka, DFAT 18 December 2015). The applicant submitted that none of that country information had been put to him for comment by the Assessor.[46]
[46] Applicant’s written submissions dated 27 June 2017, [19].
By way of illustration of the loss of opportunity to comment upon that information, the applicant noted that the Assessor had put to him for comment certain questions and country information by way of a letter dated 1 December 2015. It was submitted that while this letter had drawn the applicant’s attention to the need to address issues in relation to the Karuna group, no such opportunity had been given in relation to the country information upon which the Assessor had relied in expressing the finding that there had been a substantial change in country conditions since the end of the Sri Lankan civil war. It was said that it was not enough for the Assessor’s letter to have referred to country information without putting directly to the applicant that it would be relied upon for a finding that the considerations in Sri Lanka had changed substantially since the end of the civil war. The applicant submitted that procedural fairness in the circumstances of this case required that the country information be put to him in order that he might be afforded a chance to respond to it. It was further submitted that to have relied upon that information without affording the applicant that opportunity constituted a denial of procedural fairness.
In relation to the substantially changed conditions in Sri Lanka since the end of the civil war, the Assessor did rely upon the UNHRC Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka (UN High Commissioner for Refugees, 21 December 2012). However, the Assessor specifically drew the applicant’s attention to that country information at the time of the ITOA interview.[47] Moreover, as appears from the ITOA Report, that information was discussed with the applicant and he took the opportunity to respond to it. As stated in the ITOA at CB 273:
The claimant was presented with information from the current UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka (UNHCR Guidelines). In particular, it was put to the claimant that Tamils were not a designated group of people likely to need protection, and that, according to the guidelines, coming from an area formerly controlled by the LTTE is insufficient to engage international protection obligations.
The claimant responded that the place he grew up in was LTTE-controlled, and has since been army-controlled, and that people have trouble fishing freely in that area now. He responded that he is afraid due to his colleague being abducted from Konthapiddy in 2007 and his colleague Brian being detained from the internet café.
The claimant made a submission dated 14 October 2015 containing responses to adverse information and credibility issues discussed at interview.
[47] See ITOA Report, Part A, Section 9, Procedural Fairness, at CB 273, .
Further, I accept the Minister’s submission that the submission by the applicant’s lawyers to the Assessor dated 7 May 2015 acknowledged that progress had occurred in relation to ethnic relations since the cessation of the civil war and in doing so, referred specifically to the 2012 UNHRC Eligibility Guidelines.
The Assessor also drew to the applicant’s attention the country information comprised in the DFAT Country Report, Sri Lanka, 16 February 2015, CISEC96CF1164. This country information was drawn to the applicant’s attention in the letter dated 1 December 2015 at p.10 under the heading, Claim regarding ethnicity and area of origin. Under that heading, reference was made to that information at fn 25-26. The topics considered by the author under this heading included: (1) the applicant’s claim to fear serious harm on the ground of race and for being a young Tamil from the north; (2) country information as to the large number of persons who had been repatriated to their places of origin; (3) the reduction in the number of military personnel in the Northern Province of Sri Lanka; (4) the replacement of those personnel with civilian police and administrators; (5) the tentative view that individual young Tamils would not face a real risk of serious harm. The author stated in conclusion that: “I may come to the conclusion that, although it may amount to an imposition on daily living, repeated attention from the authorities in the manner described by country information above falls short of serious harm.”
While the applicant’s lawyers responded to that letter on 21 December 2015, no issue was taken with this aspect of the Department’s letter.
From my examination of the materials, the only country information which was not drawn to the applicant’s attention was that contained in Update DFAT Country Report: Sri Lanka, DFAT 18 December 2015 and the Political Handbook (see at [85] below).
(2) Karuna entry into Sri Lankan politics
The second limb of the applicant’s submission in relation to Ground 1 hinged upon his claim to having been targeted by the Karuna group who, he claimed, had threatened to kill him, suspecting him of being a LTTE member by reason of his Tamil ethnicity and as having origins in Vaduthalevu. The ITOA Report addressed the Karuna group as follows:
a)in Part A, Section 10, Credibility, the Assessor considered the applicant’s claims respecting the Karuna group (CB 285-286). As noted above, the Assessor accepted that the applicant was in the target demographic for recruitment by Karuna in 2008-2009 and that he had been the subject of some attempts by the Karuna group to recruit him;
b)in Part B, Section 4, the Assessor considered whether the applicant’s fear of harm was well-founded including, in relation to the Karuna group. The impugned passage is set out at [75] above.
The applicant noted that certain country information had been relied upon by the Assessor in making the finding that Karuna’s leaders had entered politics since the end of the civil war. The country information referred to in footnote 91 to the ITOA Report (CB 293) was cited as Political Handbook of the World 2015 – Sri Lanka, DCCQ Press, 01 January 2015 (Political Handbook).
The applicant submitted that in both Part A, Section 9, Procedural Fairness (CB 271-276), and in Part B, Section 4 of the ITOA Report in relation to the Karuna claim specifically (CB 286), no prior mention had been made to the applicant of the country information that the Assessor had relied upon in making the impugned finding upon an objective assessment of the applicant’s claim to fear harm from the Karuna group.
The Minister submitted that the finding in Part B, Section 4 (that there was not an objective factual basis supporting the conclusion that the Karuna group or other para-militaries formerly operating in the Batticaloa area continued to pose a threat of serious harm to the claimant) was not itself adverse information which the Assessor was obliged to put to the applicant.
No denial of procedural fairness
There was no issue that the conduct of the ITOA was a process undertaken with a view to informing the Minister as to the possible exercise of a non-compellable power and was accordingly of a character which attracted an obligation to accord procedural fairness.
Upon an objective assessment[48] of the matter, I do not accept that the applicant was denied procedural fairness in relation to the matters complained of. As the authorities confirm, in seeking to establish a denial of procedural fairness it is necessary to focus upon the precise defect alleged to have occurred in the decision-making process. In this case, the applicant complained of the failure to put to him directly the country information listed in footnotes 90-91 to the ITOA Report as information which might be a reason for concluding that objectively, the claim to fear harm from the Karuna group was not well-founded.
[48] Applicant VEAL, supra (2005) 225 CLR 88, [16]-[17] (The Court).
Since procedural fairness was concerned with the ITOA process and not its outcome, the overriding question is whether the Assessor had adopted a procedure which a fair and reasonable Assessor would have adopted in all of the facts and circumstances of this case. There was no issue that the applicant was a person whose interests were likely to be affected by the ITOA and accordingly that he was entitled to a reasonable opportunity to be heard. It must also be accepted that ordinarily, a person in the position of the applicant was entitled to be sufficiently put on notice of information that the decision-maker might take into account in coming to a conclusion that is adverse to his interests.
In my opinion, it is at the point of focussing upon the alleged defect in the process and, in particular, the nature of the information which is the subject of the complaint that Ground 1 falls for determination. The information was not information personal to the applicant. The information was country information which related to the abatement of hostilities in Sri Lanka and the involvement of the Karuna group in politics since the end of the civil war. The applicant’s claim had not been that he was at any stage a specific target of the Karuna and on the Assessor’s findings, the mean age for recruitment by the Karuna was of Tamils aged 15.9 years. The Assessor noted that the applicant was aged 19 at the relevant time but proceeded on the basis that he fell within the demographic target range for recruitment. The question then remained whether the applicant had a well-founded fear of harm from the Karuna. Consideration of that issue arose in the context that the applicant had submitted that he had been able to avoid recruitment by reason of his (continuing) medical condition (Hepatitis B).
The present case may be contrasted with Kioa v West[49] inasmuch as the information in this case was country information and not information adverse to the applicant which related to him personally. While the exhaustive statements of the natural justice hearing rule embodied in Parts 2, 5, 7 and 7AA of the Act respectively do not apply, it may be noted that in each case, there is excluded from the obligation to give an applicant information which would be the reason or a part of the reason for affirming the decision under review, information that is not specifically about that person or which that person has himself or herself provided for the purposes of the review.[50] A corollary of the exclusion from the obligation to make disclosure of such information is that it may be employed as the reason or part of the reason for making the subject decision notwithstanding that it may be generally adverse to the interests of the person who may be affected by the decision.[51]
[49] (1985) 159 CLR 550, 602, 628.
[50] See ss 359A(4), 424A(3), 473DE(3).
[51] Cf Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362, [27] (Kenny J).
Further, as was observed in Saeed, while it is fundamental that a person is to be afforded an opportunity to deal with adverse information that was credible, relevant and significant to the decision to be made,[52] not all information adverse to an applicant would qualify as relevant information, notwithstanding that it might be influential in the decision to be made.[53] In particular, the Court held that country information may not attract obligations of procedural fairness in all cases notwithstanding that it may become influential in the outcome. In making that observation, I note that Saeed was decided in a statutory context and so did not involve the application of common law principles of procedural fairness.
[52]See also HFM045 v The Republic of Nauru (2017) 350 ALR 34, [39] (Bell, Keane and Nettle JJ).
[53] Saeed, supra (2006) 241 CLR 252, [21].
Principles respecting the use of country information were considered in SZQHH v Minister for Immigration and Citizenship[54] where Rares and Jagot JJ stated:
An administrative decision-maker must determine whether particular information he or she has is credible, relevant and significant before arriving at a final decision: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. If the decision-maker determines that he or she has information that is first, credible, relevant and significant and, secondly, apparently adverse to the interests of a person who will be affected by the decision, then, ordinarily, procedural fairness requires that the decision-maker must give that person an opportunity to deal with the information. The person whose interests may be affected should be given the substance of the potentially adverse information, so that he or she may respond to it. However, it is not necessary for the decision-maker to give the person whose interests may be affected a copy of any document containing the information or to identify its source: Applicant VEAL of 2002 at [15], [29].
This statement was endorsed by the Full Court in MZYPY v Minister for Immigration and Border Protection.[55] Thus, in the context of disclosure of country information, the obligation is to provide the substance of the potentially adverse information, so that he or she may respond to it.
[54] (2012) 200 FCR 223, [27].
[55] [2014] FCAFC 68, [38] (Flick, Griffiths and Gleeson JJ).
In SZQGL v Minister for Immigration and Citizenship,[56] Cowdroy J held:
A reviewer is not obliged to place the entirety of country information before an applicant for comment. Rather, a reviewer is required to make the substance of the information clear to the applicant so that they may respond to it. So much is seen from the decision of the Full Court in [SZQHH].[57]
His Honour at [62] noted that the same principles had been stated in M61/2010E v Commonwealth of Australia[58] and continued:[59]
It is apparent that the issues of displaced Tamil persons now being in a position to return to their homes in the north of Sri Lanka and the concerns about the treatment of persons who departed Sri Lanka illegally were both issues which the appellant had made submissions on during the RSA process. These were not new issues which were raised only for the first time before the Reviewer.
The relevant question is whether, contrary to the finding of the learned Federal Magistrate at [72] of his decision, the Reviewer was obliged to put the country information to the appellant at the hearing.
In SZQHH Rares and Jagot JJ stated at [30]:
However, the reviewer’s obligation of procedural fairness did not require the reviewer to put to the applicant every piece of country information that the reviewer was considering. Rather, procedural fairness required that the applicant be given the substance of the credible, relevant and significant information available to the reviewer on an issue in the review, of which the applicant was not already on notice. The purpose of giving a person in the position of the applicant the substance of such information is to enable him or her to have an opportunity to take into account the person’s answer to the substance of the information that has the potential of being used adversely to his or her interests.
[56] (2012) 206 FCR 474 [61].
[59] (2012) 206 FCR 474 [63]-[67].
Further at [35] their Honours stated:
The CSM article’s references to the history of Hazaras and their interaction with the Taliban and Pashtuns, including past and continuing threatening conduct, were all matters substantively in the country information of which the applicant and his advisor were aware. There was no information of substance in the CSM article of which the applicant had not been on notice at the latest by the time he received the DFAT report.
The decision in SZQHH leads to the conclusion that provided an applicant is on notice that a particular issue discussed in country material is a relevant issue upon which the reviewer could rely in the course of the review process, there is no obligation to provide the specific country material to the applicant for comment. (emphasis added)
The Assessor was obliged to and, in my opinion, did put to the applicant the substance of the country information concerning the abatement of hostilities from the end of the civil war and of the involvement of the Karuna in politics from that time. The Assessor was not obliged to put every piece of country information to him. The applicant was plainly on notice of the relevance of the end of hostilities and of the Karuna as issues upon which the Assessor might rely in undertaking the ITOA.
Consideration must also be given to whether: (1) the procedure that was adopted by the Assessor in this case was a procedure which a reasonable and fair repository of the power would have adopted in all the circumstances; (2) the Assessor’s failure to draw every piece of country information to the applicant’s attention constituted a failure to give an opportunity to be heard which a reasonable Assessor ought fairly to have given the applicant in the totality of the circumstances. As held in Snedden,[60] what will be both sufficient and necessary to ensure a fair hearing in any given case will depend on, and vary with, the context in which a decision-maker acts.
[60] (2014) 315 ALR 352, [177].
As stated above at [31], in the present case, the Assessor detailed his analysis of the protection claims and in doing so examined those claims at each stage of the process from biodata on arrival, entry interview, RSA request and assessment, IMR, PRPC and ITOA assessments. In the course of those processes, consideration had been given to the consequences of the end of hostilities in Sri Lanka and to the Karuna. In particular, detailed consideration had been given in the IMR at [103]-[104] to the then current guidelines that the cessation of hostilities in Sri Lanka had stated that persons originating from the north of the country were no longer in need of international protection and that this was not a matter which had been challenged by the applicant’s lawyers (being the same lawyers who represented the applicant in the ITOA).
For the purposes of assessing whether, following the end of the Sri Lankan civil war, the applicant had an objectively well-founded fear of harm from the Karuna group, I consider that those issues were, at the least, sufficiently addressed in the Department’s letter dated 1 December 2015. Issues relating to the cessation of the civil war and the Karuna group were directly addressed by the submissions filed by the applicant’s lawyers dated 7 May and 21 December 2015 respectively.
Further, the Assessor specifically drew certain country information to the applicant’s attention at the time of the ITOA interview.[61] The ITOA Report confirms that this information was discussed with the applicant and that he took the opportunity to respond to it. This was not a case in which the issue had not been discussed and had emerged for the first time as an unheralded statement in the ITOA Report. Indeed, the applicant’s submission dated 7 May 2015 acknowledged that progress had occurred in relation to ethnic relations since the cessation of the civil war and had referred specifically to the 2012 UNHRC Eligibility Guidelines. There was force in the contention that the content of the applicant’s submission indicated awareness of those Guidelines. In my opinion, no practical injustice was occasioned to the applicant in any failure to provide more fulsome or specific reference to country information.
[61] See ITOA Report, Part A, Section 9, Procedural Fairness, at CB 273, .
I do not consider that the failure to draw to the applicant’s attention the country information comprised in the update DFAT Country Report: Sri Lanka, DFAT, 18 December 2015 or the Political Handbook which contained information respecting the entry of Karuna members into politics resulted in a process which was procedurally unfair to the applicant. Not every passing citation to country information gives rise to a failure to accord procedural fairness.[62] In relation to Ground 1, no attempt was made to identify a specific defect in relation to either of these items of country information which would satisfy the Kioa test as to adverse information which should have been explicitly put to the applicant. It was not personal information and it was not information which was of decisive significance to conclusions that there had been an end to hostilities after the civil war or that, because the Karuna group had entered politics, the applicant’s fear of harm from that group was not well founded. In addition, the applicant’s own submission had been that his illness was a reason why he might not be targeted for recruitment and that he was aged 19 years at a time when the mean age for recruitment was 15.9 years. In the context that the ITOA was a process which followed all of the earlier administrative processes in which these issues had been raised, I do not consider that the Assessor failed to adopt a procedure which a reasonable and fair repository of the power would have adopted in all the circumstances of this case.
[62] SZQII v Minister for Immigration and Citizenship [2011] FMCA 789, [78].
I also accept the Minister’s submission made in reliance upon SZSSJ[63] that the procedure adopted in this ITOA did not so constrain the opportunity of the applicant to propound his case for a favourable exercise of power as to constitute practical injustice. In this case, the applicant was directly on notice of the topic of changed conditions in Sri Lanka since the end of the civil war. His attention had also had also been drawn, and he had responded, to country information on this issue. His lawyer had filed submissions which referred to that information.
[63] (2016) 259 CLR 180, [82].
I do not ignore that the Assessor provided as an additional reason for the conclusion that the applicant’s fear of harm from the Karuna was that the applicant had been able to avoid recruitment by reason of his (continuing) medical condition. This issue arose from the applicant having been diagnosed with Hepatitis B, a subject which was addressed with the applicant in the Department’s letter dated 1 December 2015 at p.11 under the heading, Medical and subsistence claims.
I do not consider that any basis exists in this case for a conclusion that the applicant had been misled as a result of any conduct by the Assessor into refraining from taking up an opportunity to be heard on the issues arising in relation to his fear of harm and whether it was well-founded having regard to the abatement of tensions since the end of the civil war in 2009 or having regard to the claim that a risk was posed to him from the Karuna group. The applicant had been given the opportunity of ascertaining the relevant issues and was sufficiently put on notice of those matters so as to place him in a position where he could meaningfully avail himself of an opportunity to be heard.
Ground 1 is rejected.
Ground 2 – application of erroneous standard
Ground 2 reads:
The conduct of the ITOA by the Second Respondent was affected by jurisdictional error, in that the Second Respondent applied the wrong standard in assessing whether or not Australia’s international treaty obligations were engaged in relation to the applicant.
Particulars
a) The Second Respondent was instructed to assess whether Australia owed non-refoulment obligations to the Applicant under international law, specifically the Refugees Convention, the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights and its Second Optional Protocol.
b) The Second Respondent found that prison conditions in Sri Lanka have been held to breach the prohibition on inhuman or degrading treatment or punishment under article 7 of the ICCPR and the analogous provision in article 3 of the European Convention on Human Rights.
c) The Second Respondent nevertheless found that the Sri Lankan government would not intentionally inflict significant harm on the applicant, applying Australian case law interpreting the Australian Migration Act, and therefore found that Australia owed no obligation of non-refoulment to the Applicant under international law.
In Part C of the ITOA Report, Assessment of non-refoulement obligations under the ICCPR and CAT, Section 3 addressed the question whether there were substantial grounds for believing that there was a real risk of significant harm to the applicant. In assessing whether the applicant faced a real risk of significant harm, the Assessor applied SZQRB as providing guidance as to the test to be applied. There, Lander and Gordon JJ had accepted[64] (Besanko, Flick and Jagot JJ agreeing) the applicant’s submission that, for the purposes of assessing whether Australia owed protection obligations to a person under international conventions, the real chance test “is as for s 36(2)(a) . . . is there a real chance that SZQRB will suffer significant harm . . . were he to be returned to Afghanistan.” As the Tribunal had applied a test of whether it was “more likely than not” (as opposed to whether there was a ‘real chance’) that SZQRB would suffer significant harm, the ITOA had not carried out the assessment according to law.[65] Declaratory and injunctive relief was granted.
[64] (2013) 210 FCR 505, [242], [246].
[65] (2013) 210 FCR 505, [247]-[248].
The Assessor was not satisfied that the applicant would face a real risk of significant harm by reason of his Tamil ethnicity but proceeded to assess the issue by reference to other risk factors. The Assessor found that the enforcement of a law of general application for a legitimate reason, such as border control, did not generally constitute persecution under the Refugees Convention. The Assessor also found that, as the applicant was not implicated in the murder of the Sri Lankan politician and had not departed Sri Lanka unlawfully, the risk of his being arrested and detained or facing torture for those reasons was remote. The Assessor also found that as the applicant was not a people smuggler he was unlikely to be given a custodial sentence on that account. The Assessor also considered, and discounted, both extreme economic deprivation and exceptional circumstances for the provision of medical treatment as warranting the conclusion that the applicant would suffer significant harm.
In the result, the sole basis on which the Assessor considered the question of Australia’s non-refoulement obligations under the international conventions was in consequence of the risk of temporary detention.
The Assessor found it highly likely that the applicant would be detained temporarily but found that such detention did not amount to serious harm. The Assessor cited three Full Court authorities for that proposition, the joint judgments which were delivered, in each case, by Robertson, Griffiths and Mortimer JJ: SZTEQ v Minister for Immigration and Border Protection;[66] SZTIB v Minister for Immigration and Border Protection;[67] BZAFM v Minister for Immigration and Border Protection.[68]
[66] (2015) 321 ALR 44, [59]-[60].
[67] (2015) 321 ALR 81, [43]-[44].
[68] (2015) 321 ALR 117, [40]-[41].
Upon that footing, the Assessor considered whether temporary detention amounted to serious harm and in doing so had regard to advice from:
a)the UK Home Office that the prison conditions in Sri Lanka were likely to breach Art 3 of the European Convention of Human Rights (Art 3). The Assessor attached significant weight on this assessment by reason that the text of Art 3 reflected that of the ICCPR Articles;
b)the US State Department which had observed very cramped conditions with a lack of ventilation and that prisoners were forced to sleep on concrete floors; which conditions had been held to breach Art 7 of the ICCPR.
Those references notwithstanding, I accept the Minister’s submission that the Assessor did not make an explicit finding that prison conditions in Sri Lanka breached or violated international conventions.
The Assessor had regard to MZZZR v Minister for Immigration, in which the Assessor stated that the court had held[69] it was open to a Tribunal to conclude that prison conditions in Sri Lanka would not amount to significant harm in the circumstance that they came about due to a lack of resources and so did not reflect an intention to inflict harm. The ITOA Report stated that the circumstances of MZZZR were similar to those of the applicant and that in MZZZR the Tribunal had found the applicant was likely to be detained for between one and several days. The ITOA Report concluded as to this issue:
I am not satisfied that the Government of Sri Lanka would intentionally inflict significant harm upon the claimant as a result of imprisonment such that reach the threshold of significant harm.
[69][2014] FCCA 1551, [21(m)] (Lucev J). While no complaint was made about this issue, his Honour’s reasons at [21(m)] appear to summarise the Tribunal’s finding to this effect.
The Assessor’s finding that it was highly likely that the applicant would be temporarily detained was expressly based upon the reasons in Part B of the ITOA Report where, relevantly, the Assessor had made a finding that the applicant had left Sri Lanka illegally. Contextually, before me the applicant had made, but withdrawn, a submission that the ITOA Assessor had accepted the applicant had departed Sri Lanka illegally. The withdrawal of the submission was explained by the applicant’s statutory declaration made on 22 December 2015 that he had departed Sri Lanka legally using his own passport.[70] The applicant’s withdrawal of that submission implicitly accepted that the ITOA had been in error in stating that the applicant had departed Sri Lanka illegally. The erroneous finding served to mark out a distinction from this case and MZZZR in which illegal departure had been an express claim for protection.[71] In the present case, the applicant had always claimed to hold a valid passport and not to have left Sri Lanka illegally. That being so, there was no reason to assume that a person who had left Sir Lanka legally would likewise be detained for between one and several days.
[70] The same correction was made in the applicant’s submissions dated 21 December 2015.
[71] [2014] FCCA 1551, [8(h)], [9(c)], [19(a)], [26(d)].
The gravamen of Ground 2 was that the reliance on MZZZR involved error in that MZZZR turned upon ss 5, 36(2)(a) and 36(2A) of the Act. Further, the Assessor had erred in considering the absence of an intention on the part of Sri Lankan authorities to cause harm as being relevant under the international law treaties in the determination of whether the applicant would suffer significant harm, it being said that intention formed no part of the applicable international law.
The applicant further submitted that in SZTAL v Minister for Immigration and Border Protection,[72] the Full Court had considered the relevance of international jurisprudence to the determination of an application for complementary protection under par 36(2)(aa). Paragraph 36(2)(aa) provides a criterion for the grant of a Protection visa; being that the applicant is a person 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.
[72] (2016) 243 FCR 556.
Content to the meaning of ‘significant harm’ is given by ss 36(2A)-(2B). Relevantly, paras 36(2A)(c)-(e) provide that a non-citizen will suffer significant harm if they will be subjected to torture or cruel, inhuman or degrading treatment. In turn, s 5(1) supplies definitions of the expressions cruel or inhuman, degrading treatment and torture each of which incorporate a requirement that the particular significant harm be intentionally inflicted. In SZTAL, Kenny and Nicholas JJ held[73] that properly construed, ss 5(1) and 36 of the Act showed that Parliament did not intend by those provisions to implement the relevant obligations of the international conventions in their entirety. In SZTAL, the Full Court held that the question of intention required consideration of an actual subjective intention and not an intention objectively ascertained. Before me, it was noted that the relevance of intention under ss 5, 36(2)(aa) and 36(2A) of the Act was under consideration by the High Court in SZTAL v Minister for Immigration and Border Protection.
[73] (2016) 243 FCR 556, [61]. To similar effect, see Buchanan J at [101]-[102].
The applicant also relied upon APD15 v Minister for Immigration and Border Protection in which Perram J held[74] that the consideration whether Australia owed non-refoulement obligations to a person was a related, but not identical, inquiry to that to be applied to complementary protection under s 36(2)(aa). His Honour referred to the three non-refoulement obligations arising under the relevant conventions and stated that the ITOA officer had been obliged to consider those obligations. Perram J noted that the approach taken by the officer had been:
. . . to ask himself whether, by reason of the forced removal of the Applicant to Sri Lanka, whether it could be said that there were ‘substantial grounds for believing that, as a necessary and foreseeable consequence of the [non-citizen] being removed from Australia to a receiving country, there [was] a real risk [the non-citizen would] suffer significant harm’.
Perram J held[75] that this represented a correct statement of the obligations arising under international law.
[74] [2017] FCA 407, [12].
[75][2017] FCA 407, [16] citing Minister for Immigration and Citizenship v Anochie (2012) 209 FCR 497.
The applicant also submitted that the interpretation of the Migration Act was of no relevance to an ITOA and to the extent there was a divergence between the Australian jurisprudence respecting the Act and Australia’s non-refoulement obligations under international law, it was an error to use the Migration Act as a proxy for the international obligations.
By way of amplification of the material considered by the Assessor (in particular, reference to the UK Home Office and US State Department), my attention was also drawn to an Operational Guidance Note of the Home Office in relation to Sri Lanka issued in July 2013. The document was tendered without objection. Part 3 of the Guidance Note concerned the main categories of claims and at:
a)Section 3.9, the position of Tamils was addressed including in relation to Tamils with suspected links to the LTTE. At sub-s 3.9.7, the six categories of Tamils were identified as being potentially subject to more close attention. Those categories were described (in descending order) from persons who had held senior positions in LTTE to combatants and others and lastly persons with family links to persons more closely related to those with a higher Tamil profile;
b)Section 3.16, the question of prison conditions was addressed, the conclusion expressed at sub-s 3.16.10 being that conditions in prisons and detention centres remained poor and were likely to reach the Art 3 threshold such that a grant of humanitarian protection may be appropriate.
It does not appear that the applicant readily fell within any of the six categories of persons identified in sub-s 3.9.7 of the Guidance Note. In the nature of the process of judicial review, I take this issue no further.
No error in approach (or error was not jurisdictional)
The applicant correctly submitted that the scope of the instruction[76] which had been given to the Assessor was to review his case for the purpose of assessing whether Australia’s non-refoulement obligations under certain international conventions were engaged and that one of those obligations[77] was not to return a person to a place where he would face a real risk of cruel, inhuman or degrading treatment or punishment as a consequence of being returned to that country.
[76] See letter from initial ITOA assessor to the applicant dated 12 March 2015.
[77] See Art 7, ICCPR.
The Department’s letter dated 12 March 2015 expressly stated that the ITOA would assess Australia’s non-refoulement obligations under the relevant international conventions and treaties. However, the letter further stated that:
Various provisions of the Migration Act 1958 contain concepts relevant to assessing the non-refoulement obligations arising under the above treaties and reflect Australia’s interpretation of those obligations. Therefore, this assessment will use relevant provisions contained in the Act, even though this is not an assessment of a protection visa application.
The terms in which the letter referred to the use of the Act expressly recognised that the ITOA was not an assessment of an application under the Act. To the contrary, it identified the Act as containing some provisions that used concepts relevant to assessing non-refoulement.
The same propositions were restated in Part A, Section 1, Introduction, of the ITOA Report. The content of Australia’s non-refoulement obligations under the international conventions and treaties was set out at greater length in Part A, Section 7, Australia’s non-refoulement obligations.
Part C of the ITOA Report addressed Assessment of non-refoulement obligations under the ICCPR and CAT. Part C was not headed, for example, Assessment under s 36(2)(aa). The correct topic was being identified. It is a separate question whether the correct law was applied.
In Part C, Section 3, the Assessor had addressed the question whether there were substantial grounds for believing that there was a real risk of significant harm to the applicant. In assessing whether the applicant faced a real risk of significant harm, the Assessor applied SZQRB as providing guidance as to the test to be applied. As stated at [107], Lander and Gordon JJ accepted[78] that, for the purposes of assessing whether Australia owed protection obligations to a person under international conventions, the real chance test was the test that was applied for s 36(2)(aa); namely, was there a real chance an applicant would suffer significant harm (as defined in s 36(2A)) were he or she to be returned to the receiving country. I do not suggest that SZQRB examined the issue of intention. The decision at least affirmed that it was acceptable for an Assessor to approach an assessment of non-refoulement under international obligations by reference to the same test as applied under s 36(2)(aa). SZQRB did not disapprove the reference to the Act or jurisprudence concerning ss 36(2)(a)-(aa) insofar as it may inform questions of non-refoulement under international law. I note that special leave to appeal was refused,[79] and that the statement of principle in SZQRB at [246] has been followed on numerous occasions and applied in the Full Court most recently in BZD17 v Minister for Immigration and Border Protection[80] and DAO v Minister for Immigration and Border Protection.[81] I do not consider the Assessor was in error in referring to those provisions of the Act which address complementary protection or to adapting the concepts employed in relation to those provisions: see also SZRFP v Minister for Immigration and Border Protection.[82]
[78] (2013) 210 FCR 505, [242]-[247].
[79] [2013] HCATrans 323.
[80] [2018] FCAFC 94, [39] (Perram, Perry and O’Callaghan JJ).
[81] (2018) 353 ALR 641, [36] (Kenny, Kerr and Perry JJ).
[82] [2016] FCA 522, [11]-[12] (Perry J).
Applying the analysis of Perram J in APD15 set out at [117] above, I consider that the Assessor did identify the correct standard upon which an assessment of Australia’s non-refoulement obligations was to be undertaken.
In Minister for Immigration and Citizenship v Anochie,[83] Perram J held that the determination whether a person had a well-founded fear of persecution under the Refugees Convention was a fundamentally different inquiry to asking whether a State owed an obligation under another treaty to ensure that a person’s rights under that treaty required that they not be deported. His Honour considered that the flaw in the Tribunal’s approach (though understandable), was to assume that the inquiries were interchangeable when they were in fact different. Perram J also recognised that the answer may not be any different but found error, consisting in a failure to take into account a relevant consideration; namely, the correct principles of international law. Not without hesitation, his Honour declined to refuse relief on discretionary grounds.
[83] (2012) 209 FCR 497, [79]-[82].
I respectfully agree in the analysis in Anochie. Where it applies, it would involve error for an ITOA to be undertaken by reference to the test for whether a person was a refugee. The question is whether Australia owes non-refoulement obligations not to return a person to a receiving country and that is to be determined upon the applicable international convention. However, the reasoning in Anochie may be distinguished from the present case inasmuch as here the Assessor did identify the correct standard upon which the assessment of Australia’s non-refoulement obligations was to be undertaken. The present case is not one in which the Assessor failed to take into account a relevant consideration. Rather, the problem arose at the next level; namely, the application of those standards. In particular, the difficulty which intruded in this case was the Assessor’s reference to MZZZR and the use of intention as a matter to take into account in concluding that no non-refoulement obligations were owed. The question arises whether the Assessor took into account an irrelevant consideration; namely, the role of intention, including under s 5(1) of the Act, as applied to the concepts of cruel, degrading or inhuman treatment or torture.
It was submitted that international law did not require that intent be considered for the cruel, inhuman, degrading treatment. I consider that the applicant’s primary submission overstated the position in suggesting that intention was relevant only under the Act. Although I was not referred to the passage, in SZTAL, Kenny and Nicholas JJ observed[84] that under the CAT, the definition of ‘torture’ in Art 1 required that severe pain and suffering be intentionally inflicted and that it was only in the other conventions referred to that intention was not an element of other forms of significant harm. Accordingly, it would not be correct to conclude that the Assessor’s reference to and use of intention was erroneous. To the contrary, it would have been erroneous not to have considered the relevance of intention in the context of Art 1 of CAT and whether the conditions of Sri Lankan prisons met the definition of torture.
[84] (2016) 243 FCR 556, [62].
As the applicant submitted, the question was not whether complementary protection was engaged under s 36(2)(aa) but whether the test for non-refoulement was made out under international law. The submission concluded that “it all comes down to whether the tests converge. And if they do diverge which path do you follow? And in my submission, following the Migration Act path is an error.’ As concerned consideration whether the applicant faced a real risk of significant harm from torture under Art 1 of CAT, there was no divergence between the Act and the international convention.
Having regard to the whole of the reasons, I consider that the Assessor had identified the appropriate standard and had correctly considered the question of intention insofar as that was required by CAT. I consider that the conclusion expressed by the Assessor at [112] above should not be read with an eye keenly attuned to error but read fairly and in the context of the ITOA Report as a whole.[85] The Assessor’s conclusion may be understood as indicating a cumulative assessment that, intention aside, the prison conditions in Sri Lanka would not reach the threshold of significant harm under those conventions. In this regard I note that the reasoning in Anochie was endorsed in CRI026 v The Republic of Nauru.[86] There, Kiefel CJ, Gageler and Nettle JJ considered the provisions of the ICCPR, Art 2 of which was held to impliedly obligate States Parties not to remove a person from their territory where substantial grounds were shown for believing that there was a real risk of irreparable harm of the kind contemplated by the relevant Articles. Their Honours stated that:
“Substantial grounds” means, however, that it must be a necessary and foreseeable consequence of refoulement that the person would suffer the kind of harm identified in Arts 6 and 7. As Perram J observed in Minister for Immigration and Citizenship v Anochie, that is a high hurdle for the applicant to meet. The risk of harm must be both necessary and foreseeable and, according to the weight of relevant international jurisprudence. (emphasis added)
See also BPX17 v Minister for Immigration and Border Protection.[87] In relation to Ground 2, the submissions were made without reference to the high hurdle to be met for establishing substantial grounds for believing that as a necessary and foreseeable consequence of refoulment, there is a real risk that the applicant would suffer significant harm.
[85]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272, 291; Collector of Customs v Pozzolanic (1993) 43 FCR 280, 286-287.
[86] [2018] HCA 19, [24]
[87] [2018] FCA 763, [64] (Barker J).
Following delivery of judgment in SZTAL,[88] the parties filed submissions. The applicant relied on a statement by Edelman J in SZTAL as confirming[89] that the definition of cruel or inhuman treatment in s 5(1) of the Act departed significantly from that provided by the ICCPR. So much may be accepted. Again, attention was not drawn to the earlier statement[90] of his Honour, or its endorsement by the plurality[91] and acceptance by Gageler J,[92] that the definition of ‘torture’ in Art 1(1) of CAT was substantially reproduced in s 5(1) and required conduct involving the intentional infliction of pain or suffering. Otherwise, I agree in the applicant’s submission that the High Court’s decision in SZTAL is not directly applicable to the present case. I further agree in the Minister’s submissions that nothing in the High Court’s reasoning or decision in SZTAL casts any doubt upon the correctness of the Assessor’s decision.
[88] SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936.
[89] (2017) 91 ALJR 936, [78].
[90] (2017) 91 ALJR 936, [74].
[91] (2017) 91 ALJR 936, [4].
[92] (2017) 91 ALJR 936, [47] (diss’).
For the reasons above, I conclude that Ground 2 is not made out.
If I am wrong in that conclusion, I have considered whether the error was jurisdictional in nature and, if so, whether relief should be refused on discretionary grounds. In this context, I note the express concession properly made by counsel that the applicant had not departed Sri Lanka illegally. By extension, the applicant was not for that reason in the same position as MZZZR (who as, an illegal departee, was considered likely to be detained for between one and several days). No challenge was raised to the Assessor’s reliance on the trilogy of Full Court decisions in which it had been held that temporary detention did not amount to serious harm.
In the event, the applicant further submitted that for the most part the task of assessment under s 36(2)(aa) and the relevant international convention overlapped but that the proper test was that applicable under international law. In reply, it was further submitted that on most facts it would make no difference whether the test applied was that obtaining under s 36(2)(aa) or the international law. Perram J made a similar observation in Anochie.Applying the pluralities holding in SZTAL, intention would be relevant under CAT in considering whether there were substantial grounds for believing that as a necessary and foreseeable consequence of refoulement, there was a real risk that the applicant would suffer torture as a result of temporary detention such as to constitute significant harm
In all of the circumstances, if error was committed by the Assessor in the analysis of whether Australia owed the applicant non-refoulement obligations, I would not have characterised the error as being jurisdictional. Upon examination of the comprehensive reasons in the ITOA Report, I consider it is clear that the decision made by the Assessor sufficiently complied[93] with the obligation to consider the matter upon the applicable international conventions and that it did so in a way which observed the requirements of procedural fairness. And in the exercise of discretion I would have refused relief on discretionary grounds.[94] Aside from the submission as to the irrelevance of intention in the consideration of whether a non-citizen would suffer significant harm as a result of cruel or inhuman or degrading treatment (as distinct from torture), the applicant did not make a submission as to why it might have made any difference on the facts of this case for such questions to have been separately addressed and in a way which was completely divorced from the Assessor’s consideration of intention as was otherwise relevant to the question of significant harm.
[93] Cf Hossain v Minister for Immigration and Border Protection [2018] HCA 34, [23], [42].
[94] SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, [29], [85], [91].
Conclusion
As the grounds of review are not made out, the further amended application must be dismissed.
I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 17 January 2019
[57] (2012) 200 FCR 223, [27].
[58] (2010) 243 CLR 319, [91].
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