BSR16 v Minister for Immigration
[2019] FCCA 2306
•23 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BSR16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2306 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether Tribunal failed to consider an integer of Applicant’s claims or failed to put information to the Applicant for comment such as to amount to jurisdictional error – certificate under s.438 of the Migration Act 1958 (Cth). |
| Legislation: Migration Act 1958 (Cth), ss.36, 424A, 438 |
| Cases cited: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 SZSSC vMinister for Immigration and Border Protection [2014] FCA 863; (2014) 317 ALR 365 |
| Applicant: | BSR16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1781 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 25 July 2018 |
| Date of Last Submission: | 12 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2019 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1781 of 2016
| BSR16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 30 May 2016. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. The Applicant sought review by application filed on 5 July 2016.
The Applicant required an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act). The Minister consented to such an extension of time. In circumstances where the application was filed 1 day outside the period provided for in s.477(1) of the Act and the Applicant provided some explanation for the delay, I made an order extending the time for making the application.
The Applicant, a citizen of Sri Lanka, arrived in Australia in June 2012. On 30 September 2013 he applied for a protection visa. In support of his application he provided a statutory declaration in which he claimed he was of Tamil ethnicity and was born in 1982 in Jaffna in Sri Lanka, with no right to enter or reside in any other country. He explained that in 1990, when he was about 8 years old, he had moved to India with his mother and sister. They then lived in a refugee camp. He married and had two children. He had not returned to Sri Lanka. He claimed that while he had not been in Sri Lanka for many years, he had read about the situation for Tamils and therefore feared being arrested and tortured and even killed by the Sri Lankan government and authorities.
He also claimed that two sons of his mother’s cousin (the “cousins”), who had joined the Liberation Tigers of Tamil Eelam (the LTTE) after he and his family left Sri Lanka, had visited them several times in the camp in India, most recently in 2008. He claimed that the cousins had told him that they had come to India to do some work for the LTTE. The Applicant claimed he had not heard from or received any news about these relatives since their last visit and believed that they were probably killed in 2009. He claimed it was well-known by other Tamils in the camp in India that the cousins were in the LTTE and were visiting the Applicant and his family. He claimed to believe that the Sri Lankan government would have become aware of this and hence he would be suspected of being a LTTE member or supporter if he returned to Sri Lanka.
The Applicant also claimed that in 2009, during the final phase of the civil war in Sri Lanka and after he learnt about abuses against Tamils in Sri Lanka, he had attended protest meetings and put up posters in the street outside the refugee camp in India. He helped at meetings in which people in the camp were involved and which were supported by some local Tamils. He claimed that as a result of these activities he had been questioned by the Q Branch of the Indian police about six or seven times in a two or three month period from April 2009 and asked if he was a LTTE supporter. He claimed that he had told the Q Branch police that he did not support the LTTE, but wanted to protest about abuses against Tamils. He claimed he was warned and threatened with jail if these activities continued. While some people were assaulted by the police, he was never jailed or assaulted. However he claimed to believe that the Sri Lankan authorities would know about these activities if he returned to Sri Lanka and he would therefore face problems.
The Applicant also claimed that he had no relatives in Sri Lanka and had no Sri Lankan identity documents apart from his birth certificate. He claimed that the fact there would be nobody to help him if he returned to Sri Lanka made him particularly vulnerable.
The Applicant attended an interview with a delegate of the First Responded. He provided the delegate with supporting documents, including an Indian identity document for his family and an untranslated document in Tamil which is discussed below.
For the purposes of the decision, the delegate accepted that the Applicant was the person he claimed to be, that he was born in Sri Lanka, that he moved with his family to Tamil Nadu, India in 1990 and that thereafter he lived in refugee camps until 11 June 2012 when he departed India for Australia.
In its reasons for decision the delegate referred to the fact that there had initially been a decision on 22 January 2013 “to screen the applicant out of the protection process”. The delegate recorded that while this decision was overturned on 25 July 2013 (following the provision of additional information relating to the Applicant’s protection claims), in the meantime departmental staff members had commenced procedures to obtain a Sri Lankan travel document and involuntarily remove the Applicant from Australia. On 15 March 2013 an officer of the Department had sent a follow-up email to the Sri Lankan High Commission in Australia, to which a consular officer had replied (about the Applicant and another person named in the email): “They are seems (sic) to be not Sri Lankans. They don’t have any relatives in Sri Lanka. Regret to inform you that we will not be able to process them”.
The delegate noted that this response did not explicitly find that the Applicant was not a Sri Lankan citizen, but rather that the absence of relatives in Sri Lanka had prevented the consular officer from confirming the Applicant’s nationality and providing him with a Sri Lankan travel document. The delegate expressed concern that the information provided by the Sri Lankan consular officer may be the result of an administrative oversight, given the Applicant’s provision of a document purporting to be a Sri Lankan birth certificate and other information regarding his nationality that was discussed at the interview. Taking this into consideration, the delegate gave this communication little weight in determining the Applicant’s citizenship. The delegate accepted that the Applicant was a citizen of Sri Lanka.
The delegate refused the application for a protection visa.
The Applicant sought review by the Tribunal. He provided a copy of the delegate’s decision to the Tribunal. He attended a Tribunal hearing. The only evidence before the court of what occurred at the Tribunal hearing is the Tribunal’s account in its reasons for decision.
The Tribunal decision
In its reasons for decision the Tribunal summarised the Applicant’s claims. It recorded that the Applicant was Sri Lankan by birth and claimed to fear persecution at the hands of security services and/or affiliated paramilitary organisations owing to his Tamil ethnicity, his past association with LTTE members and his involvement in protests against the Sri Lankan government in 2009. He also claimed that the fact that he left Sri Lanka illegally and applied for asylum in Australia would heighten his risk of serious mistreatment on return to Sri Lanka.
The Tribunal also referred to the fact that in his entry interview the Applicant had claimed that he left India because he was subject to restrictions, had no freedom, had not been granted citizenship and had difficulty finding work as a Sri Lankan national. He claimed that if he had stayed in India his life would not improve. The Tribunal recorded that the Applicant had also stated that his mother’s relatives were in Sri Lanka, but he did not know if they had a house and that the authorities would ask him where he had been all these years and what he had been doing.
The Tribunal referred to documents the Applicant gave the Department, including a photograph of his family; untranslated birth certificates issued by the governments of Tamil Nadu and Sri Lanka; a Sri Lankan Refugee Identity Card and an untranslated written statement. The Tribunal recorded that a departmental file note in the English language purported to translate the written statement. It indicated that the Applicant claimed to fear being tortured by the Central Intelligence Department (the CID) if he returned to Sri Lanka as he had no identity document and may be regarded as part of the LTTE due to his escape to India.
The Tribunal summarised the Applicant’s evidence at the interview with the delegate and referred in some detail to his oral evidence at the Tribunal hearing and to issues and information it had raised with him.
The Tribunal also referred to country information about matters such as the treatment of Tamils in Sri Lanka, the penalties for leaving Sri Lanka illegally and the processing of returnees, including refugees returning from India.
On the basis of the Applicant’s oral evidence and the identity documents on the Department’s file, the Tribunal accepted that he was a Sri Lankan national of Tamil ethnicity who was born in Jaffna and travelled to India with his mother and sister in 1990 when he was approximately 8 years old due to the then deteriorating security situation in his home area of Sri Lanka. It accepted that he remained in India in refugee camps until departing for Australia in June 2012 and that he had a wife and two children who lived in a refugee camp in India.
The Tribunal stated that it had “considerable difficulty” with the Applicant’s claim that he was visited in a refugee camp in India by two cousins on his mother’s side of the family who were affiliated with the LTTE. It referred to the fact that, as noted in the delegate’s decision and at the Tribunal hearing, this claim was not mentioned during the Applicant’s entry interview, but was raised for the first time in the protection visa application. However the Tribunal did not place significant weight upon this circumstance, given that the Applicant was unrepresented at that time and having regard to the nature and purpose of entry interviews.
The Tribunal also noted that there had been some discrepancy in the Applicant’s evidence with regard to the frequency of his contact with these cousins. Having regard to the significant passage of time since the events in question and the fact that the Applicant’s evidence on this issue had been “consistently opaque”, the Tribunal did not consider it safe to place weight on the relevantly minor discrepancy as to whether there were two or three visits or six or seven visits by the cousins.
The Tribunal was “more troubled” by the Applicant’s evidence as to how the cousins had entered the camp and how their visits became known. It had difficulty accepting his claim that his cousins were able to enter the camp on multiple occasions, having regard to his evidence about the tight restrictions on entry and exit from the refugee camps. It noted his suggestion at the hearing that there were fewer restrictions at the particular camp at which he was visited by his cousins. However the Tribunal also had regard to the fact that, as it stated it had put to the Applicant at the hearing, country information indicated that Indian intelligence officers were present in the Indian refugee camps at the relevant time and monitored movements and the Q Branch was actively arresting suspected LTTE volunteers and supporters. It found that although the Applicant claimed his cousins looked like anyone else in the camp, entered the camp at night and only stayed for a short period, his claim that they were able to enter the camp on up to seven occasions lacked credibility in this context.
The Tribunal found that even if it were to accept that the cousins were able to enter the refugee camp as claimed, it was not satisfied that it was well-known that the cousins were associated with the LTTE. It had regard to the Applicant’s evidence at the hearing that the cousins were reluctant to tell even him much about their activities. The Tribunal also found that the Applicant’s claim that he had told other residents in the camp about his cousins’ LTTE activities lacked credibility, given the potential risk to the Applicant and his cousins were this information to become known. The Applicant’s response that he only told young people did not overcome the Tribunal’s concerns.
The Tribunal was not satisfied that the Applicant was ever visited in India by cousins who were affiliated with the LTTE. Nor was it satisfied that it was well-known by others in the camp that the Applicant was being visited by cousins with LTTE connections.
Further, the Tribunal found that even if it was wrong in these conclusions and there were Karuna spies in the refugee camp (as suggested by the Applicant) such that his familial connection with the LTTE could have been communicated to the Sri Lankan authorities through this or some other source, it was not satisfied that there was or would in the reasonably foreseeable future be a real chance or risk of the Applicant being seriously or significantly harmed as a result. In reaching this conclusion the Tribunal had regard to the Applicant’s evidence that he had had no contact with the cousins since 2008 and suspected that they had died in 2009 and his denial that any other member of the family had any actual involvement with the LTTE. It observed that from 1990 onwards the Applicant’s contact with his relatives was minimal. The Tribunal acknowledged that United Nations High Commission for Refugees (UNHCR) Eligibility Guidelines suggested that persons who were close family members of persons with certain links to the LTTE may be subject to risks which required particularly careful examination. It also referred to country information indicating that the Sri Lankan government was now primarily concerned with identifying those in the diaspora who were working for Tamil separatism and trying to destabilise the unitary Sri Lankan state. In the circumstances described and given the Applicant’s relatively distant relationship to his cousins, the Tribunal was not satisfied that the familial links to the LTTE he described would be of any interest to the Sri Lankan authorities.
The Tribunal considered the Applicant’s claim that he was involved in pro-Tamil activities while in India. It found that the activities he described did not suggest that he had expressed or shown support for the LTTE, but rather that he was involved in general meetings and protests about the ill-treatment of Tamils. The Tribunal was prepared to accept that the Applicant had attended such meetings and engaged in associated activities, including putting up posters or setting up chairs. It was prepared to accept that he had some interactions with Q Branch authorities as a consequence and was warned to stop his involvement and that he did in fact do so owing to a fear of the impact on his family were he to be arrested. The Tribunal also accepted the Applicant’s evidence that he was one of many people involved in this type of activity in the camp.
The Tribunal referred to country information it had discussed with the Applicant at the hearing which indicated that Q Branch was active in refugee camps in India arresting people who were suspected of supporting or working for the LTTE. It was of the view that if the Q Branch officers who had questioned the Applicant had genuinely suspected that he supported the LTTE, they would have arrested him.
The Tribunal was not satisfied that the Sri Lankan authorities, if they were aware of the Applicant’s activities, would impute him with any LTTE connection or opinion which could be viewed as a threat to Sri Lankan stability or security, given the nature of the meetings and the Applicant’s low level involvement with their organisation. The Tribunal was not satisfied there was a real chance or risk of the Applicant suffering serious or significant harm as a consequence of his activities in the refugee camp in India. It noted that he had not claimed, and it was not satisfied that he had, a desire to engage in any political activity should he return to Sri Lanka.
The Tribunal also considered whether there was anything else in the Applicant’s profile, considered individually or cumulatively in light of its factual findings, which would lead to a real chance or risk of serious or significant harm. It accepted in this context that the Applicant was a young Tamil male whose family originated from the north of Sri Lanka and who fled Sri Lanka during the conflict and remained in India in refugee camps. It also accepted that it may become known that the Applicant had sought asylum in Australia and that he would be returning to Sri Lanka without the support of any immediate family members and with limited forms of identification.
However, having regard to information from UNHCR, the Tribunal accepted that simply being of Tamil ethnicity and originating from an area formerly controlled by the LTTE no longer of itself gave rise to a need for protection. It referred to country information suggesting that thousands of Sri Lankan refugees had safety returned to Sri Lanka from India, many of them to the area from which the Applicant’s family originated, and that their return was actively encouraged and facilitated by the Sri Lankan government. It found that there was no independent information before it to support the Applicant’s claim that he would be viewed as a LTTE supporter simply by virtue of having fled to India during the conflict.
Further, the Tribunal found that thousands of asylum seekers had returned to Sri Lanka from Australia since 2009 with only a few allegations of torture or mistreatment. It found that the Applicant was in possession of sufficient documentation to help him establish his identity and past movements.
The Tribunal accepted that on return to Sri Lanka the Applicant would be questioned and checked at the airport in a process that could take several hours. On the information before it the Tribunal was not satisfied that there was a real chance or risk the Applicant would be charged with having departed Sri Lanka illegally, given that he had departed Sri Lanka as an 8 year old child. The Tribunal had regard to DFAT advice that minors were not charged with offences under the Immigrants and Emigrants Act (I & E Act) of Sri Lanka. It was not satisfied on the information before it that there was a real chance or risk that the Applicant would be suspected of or charged with any other criminal offence upon arrival in Sri Lanka.
The Tribunal went on to observe that country information indicated that returnees to Sri Lanka were treated in the same way in processing at the airport regardless of ethnicity or religion and were not generally subject to mistreatment. It found that being subjected to this type of questioning and checks did not give rise to a real risk or chance of the Applicant suffering discriminatory or intentional mistreatment amounting to serious or significant harm, and nor was there such a chance in the course of any continued monitoring or registration after arrival. The Tribunal was not satisfied that the Applicant had a profile that would lead to a real chance or risk of him suffering serious or significant harm in Sri Lanka now or in the reasonably foreseeable future.
The Tribunal accepted that the Applicant may be unwilling to resettle and may experience some difficulty in establishing himself in Sri Lanka as a consequence of having been absent since he was a child and his lack of family support. However it had regard to his personal circumstances including his age, qualifications and work experience and his ability to speak Tamil, and the fact that country information suggested only a low level of societal or official discrimination. In addition, the Tribunal had regard to general country information regarding the economic and security situation in Sri Lanka, as well as the fact that substantial assistance was provided to returnees by the International Organisation for Migration (the IOM) as well as the UNHCR. In light of this information the Tribunal was not satisfied there was a real chance or risk of the Applicant suffering any difficulties in establishing himself or continuing to live in Sri Lanka which would amount to serious or significant harm.
The Tribunal found that the Applicant did not meet either the Refugees Convention or the complementary protection criterion and affirmed the decision not to grant him a protection visa.
These Proceedings
As indicated, the Applicant sought review by application filed on 5 July 2016. That application failed to include an application for an extension of time. The Applicant filed an amended application on 20 March 2018 in which he made an application for an extension of time, but did not include any grounds of review. The First Respondent and the court understood from this that the Applicant intended to rely on the grounds of review in his original application.
In circumstances where issues in relation to a certificate issued under s.438 of the Act arose at the hearing, the Applicant was given the opportunity to file post-hearing written submissions addressing such issues. He filed submissions which went beyond the matters in relation to which leave had been granted and raised new “grounds” of review. However, the First Respondent addressed these additional “grounds” in further written submissions. I have taken all of the issues raised by the Applicant into account.
It is convenient to consider first the grounds in the application. While the Applicant was given the opportunity at the hearing to elaborate on these grounds or to raise other concerns about the Tribunal decision or procedures, his oral submissions did not go beyond seeking merits review and a contention that the Tribunal had not given him a fair hearing or (as considered further below) taken everything into consideration. There is no transcript of the Tribunal hearing in evidence. The Applicant acknowledged that his concern was that the Tribunal had not believed all his claims and had not accepted that he was a refugee. This aspect of his contentions seeks impermissible merits review.
Ground 1
Ground 1 in the application is as follows:
The RRT has failed to deal with the full integers of the Applicant's claims pursuant to section 36(2)(aa) of the Migration Act 1958.
Particulars
a) The Tribunal has failed to consider the claim that the Applicant falls into the uniquely vulnerable category of “involuntarily returned Sri Lankan Refugees in India”
b) The [58] of the decision of the tribunal is confined to the Sri Lankan Refugees in India who are returned under the UNHCR sponsored scheme.
c) The tribunal has failed to consider the specific category of involuntarily returned Sri Lankan Refugees who escaped India to flee to Australia seeking asylum who were subsequently involuntarily returned to Sri Lanka without the involvement of the UNHCR
The Applicant made no submissions in relation to this ground, which relates to the Tribunal’s consideration of the complementary protection criterion in s.36(2)(aa) of the Act. It involves a contention that the Tribunal failed to consider the Applicant’s claim to fear harm as in the “category” of “involuntarily returned Sri Lankan Refugees in India”. First, the Applicant would not be returning to Sri Lanka from India, but rather from Australia. It has not been established that he made a claim to fear harm on the basis contended for in particular (a) to this ground.
Beyond this, it appears to be contended that the Tribunal confined its assessment to the situation for Sri Lankan refugees who had lived in India and who returned to Sri Lanka from India under the UNHCR sponsored scheme and did not consider the Applicant’s position as a returnee from Australia outside the UNHCR sponsored scheme. Particular (b) to ground 1 refers to paragraph 58 of the Tribunal decision. This paragraph is in the part of the Tribunal decision which outlined country information in relation to Tamils returning to Sri Lanka. In that context the Tribunal did refer to returnees from India under the UNHCR facilitated voluntary repatriation programme as follows:
58. All returnees from India under the UNHCR facilitated voluntary repatriation programme undergo a questioning session by Immigration Officials for one to two hours upon arrival, followed by security interviews by the State Intelligence Service (SIS), which can take from 30 minutes to five hours. UNHCR is not permitted to remain in the interview room during this process, but waits for the returnees outside the room. Individuals have been allowed to proceed from the security interviews to their destinations. UNHCR provides return and reintegration assistance, including support with onward transportation from the airport to home areas, a reintegration grant, and on-going protection monitoring post-return.
(footnotes omitted)
However in paragraph 59 of its reasons the Tribunal referred to ongoing assistance provided to returnees by UNHCR as follows:
A press release issued by UNHCR in May 2014, states “UNHCR is encouraged by the positive outlook of the Government of Sri Lanka towards the refugee returnees and is ready to extend our fullest cooperation in addressing refugee returnee related matters.” The press release indicates that UNHCR staff meet refugee returnees at the airport and facilitate their immigration, security and customs formalities. In addition, UNHCR in cooperation with the Bank of Ceylon deposits a reintegration grant and monetized NFI assistance intended for initial reintegration, such as purchasing household goods or repairing damaged housing, etc. on returnees’ newly opened bank accounts. All returning refugees are also provided with a transport grant to help them travel from the airport to their areas of origin in dignity. Once settled, returnees are advised to register with the UNHCR field offices for monitoring and referral purposes. UNHCR refers persons with special needs (e.g. persons with disabilities and elderly persons) to specialized institutions. Similarly, UNHCR refers those in need of legal counselling, civil documentation support, livelihood and education assistance to the relevant government authorities or other organisations that can provide targeted assistance. UNHCR have assisted more than 92,000 Sri Lankan refugee returnees since the inception of its voluntary repatriation programme in 1987. Thus far most refugees have been returning to the Northern District of Mannar, followed by, Vavuniya, and Jaffna in the Northern Province and Trincomalee District in the Eastern Province of Sri Lanka.
(footnote omitted)
The Tribunal also referred to assistance provided by the IOM to voluntary returnees, including failed asylum seekers from Australia, at paragraph 61:
The International Organisation for Migration (IOM) assists and facilitates the voluntary return of Sri Lankans – failed asylum seekers, stranded and irregular migrants – from the European Union, Australia and en route countries. IOM offers a wide range of services including:
- Pre-departure logistical arrangements: information outreach, assistance with travel arrangements, escort assistance to vulnerable returnees and transit support,
- On arrival assistance: airport assistance, onward transportation and medical escort, and
- Reintegration assistance: Training including business development, vocational and on the job, small scale business set up, job placement and referral services.
In addition, the programme also supports community infrastructure development in selected returnee receiving areas.
(footnote omitted)
If this ground is intended to contend that the Tribunal failed to have regard to difficulties the Applicant would have in establishing himself in Sri Lanka were he to return from Australia without the assistance of the UNHCR, such contention is not made out.
There is no evidence that the Applicant (or his agent) claimed that he faced a real risk of significant harm because he would be returned outside the UNHCR facilitated voluntary repatriation program. The Tribunal considered the Applicant’s claims that he feared harm as a returned failed asylum seeker (and a person who departed Sri Lanka illegally when he was 8 years old). In that context, it considered not only the risk or chance of harm from processing at the airport and any continued monitoring or registration requirements, but also the Applicant’s claims about difficulty establishing himself or living in Sri Lanka, as follows as paragraph 76 of its reasons:
76. The Tribunal does accept that the applicant may be unwilling to resettle in Sri Lanka and may experience some difficulty establishing himself in that country as a consequence of having been absent from the country since he was a child and his lack of family support. The Tribunal finds, however, that the applicant is a relatively young person of working age who completed an apprenticeship and found work as a tradesman whilst in India. The application speaks the Tamil language, which is the only language spoken by a significant proportion of the Sri Lankan population. The country information suggests that there is only a low level of societal or official discrimination against Tamils. Having regard to the general country information regarding the economic and security situation in Sri Lanka, as well as the evidence that substantial assistance is provided to returnees by the IOM and UNHCR, the Tribunal is not satisfied that there is a real chance or risk of the applicant suffering any difficulties in establishing himself, or continuing to live in Sri Lanka, which would amount to serious or significant harm.
As the First Respondent submitted, the Tribunal did not limit its consideration of country information to information about the treatment of returnees from India under the UNHCR facilitated voluntary repatriation programme. Rather, it considered a range of information about the situation for Tamil Sri Lankan returnees (including involuntary returnees, returnees from Australia and failed asylum seekers). As part of that consideration it referred to information about the policy of encouraging the return of Sri Lankan Tamil refugees from India, the UNHCR facilitated programme and also reintegration and referral assistance provided to returnees.
It has not been established that the Tribunal confined its assessment of the risk of harm to returned asylum seekers to those who returned voluntarily with UNHCR assistance or that it failed to understand or consider the fact that the Applicant would not be returning from India. It was open to the Tribunal to have regard to assistance (such as from IOM and, in some respects, UNHCR) which country information suggested was available in Sri Lanka to returnees.
Further, it is clear from the Tribunal’s consideration of the situation for returnees, its reference to the Applicant’s personal characteristics and to evidence about discrimination and the economic situation in Sri Lanka, as well as the references to assistance provided to returnees by the IOM and UNHCR, that it considered the risk of future harm to the Applicant as a returned failed asylum seeker who had departed Sri Lanka for India and later travelled to Australia.
The Tribunal also clearly understood and took into account the fact that the Applicant was a Tamil who had a history of residence in a refugee camp in India before coming to Australia. There is no evidence that the Applicant claimed to the Tribunal that his “escape” from India to Australia in some way increased or contributed to his risk of harm in Sri Lanka, that he claimed to fear harm as a member of a particular social group of “involuntarily returned Sri Lankan Refugees in India”, or that he claimed that such persons had a unique vulnerability.
In any event, the Tribunal addressed the Applicant’s profile on a cumulative basis in considering whether he would face a real chance of serious harm or a real risk of significant harm in Sri Lanka. In this way it addressed both the ss.36(2)(a) and 36(2)(aa) criteria. It accepted that the Applicant’s family had originated from the north, that they fled Sri Lanka during the conflict (and that at that time departed Sri Lanka illegally) and that the Applicant thereafter remained in India in refugee camps until he came to Australia. It accepted that the Applicant would be returning to Sri Lanka from Australia, without the support of any immediate family members and with limited forms of identification.
The Tribunal also accepted that it may become known that the Applicant had sought asylum in Australia. As indicated, in considered whether he faced a risk of serious or significant harm for this reason, either as a returnee to Sri Lanka from India (via Australia) or from Australia. In that context the Tribunal had regard to country information that indicated that the return of Sri Lankan refugees from India was actively encouraged and facilitated by the government. It also found that there was no independent information before it to support the Applicant’s claim that he would be viewed as an LTTE supporter simply by virtue of having fled to India from Sri Lanka. The Tribunal took into account to the fact that thousands of asylum seekers had returned to Sri Lanka from Australia with few allegations of harm. It concluded that it was not satisfied that the Applicant was at risk of serious or significant harm simply by virtue of having fled to India during the conflict. The Tribunal did not fail to deal with an integer of the Applicant’s claim relating to his departure from Sri Lanka and/or his situation as a former resident of refugee camps in India.
As the First Respondent submitted, it has not been established that the Tribunal failed to consider an integer of the Applicant’s claims in a manner constituting jurisdictional error.
Ground 1 is not made out.
Ground 2
Ground 2 is as follows:
The Tribunal has failed to consider the full integers of the claim of the Applicant
Particulars:
a) The Tribunal has failed to consider the claim of the Applicant will be arrested for suspicion of violating the Immigrants and Emigrant Act of Sri Lanka.
b) [74] of the decision states that the Applicant will not be charged for the offence of departing the country illegally because he was 8 years old at the time of “illegal departure”
c) However, the tribunal has failed to consider that the decision to pursue charges will happen subsequent to arrest of the Applicant and the findings being communicated to the Attorney General of Sri Lanka.
(errors in original)
Except to claim that even if he was escorted by UNHCR back to Sri Lanka there was no guarantee that the authorities would not arrest him, the Applicant did not address this ground in submissions. He claimed that he had no-one to bail him out or to stand surety for him because he had no relatives in Sri Lanka.
In submissions in support of the protection visa application, the Applicant’s agent had referred to information that those who had departed Sri Lanka illegally would be charged with a criminal offence and held on remand, and had submitted that there was no reason to suppose that the Applicant (who left Sri Lanka illegally in 1990) would be treated differently from those who had left Sri Lanka more recently. It was claimed that there was a real risk he would face arrest and detention on his return. The agent had also submitted that there was no reason to dispute information that “all returnees are subject to provision of the I & E” Act.
While the delegate considered the Applicant’s claims on this basis, the Tribunal recorded that it had discussed with the Applicant information in a recent DFAT Country Report for Sri Lanka about the process for involuntary returnees and what followed for those who had departed Sri Lanka illegally. It also recorded that it put to the Applicant its doubt as to whether he would be charged or penalised for having departed illegally, given that he was a minor at the time he left Sri Lanka for India. He was said to have responded that if he was charged there would be no-one to bail him out and that he might remain in prison indefinitely.
In its reasons the Tribunal accepted that the Applicant would be questioned and checked at the airport on return to Sri Lanka in a process that would take several hours but, based on the information before it, was not satisfied that such questioning and checks on arrival would amount to serious or significant harm. Importantly, the Tribunal was not satisfied on the information before it that there was a real chance or risk that the Applicant would be charged in relation to illegal departure, given that he had departed Sri Lanka as an 8 year old child. The Tribunal stated:
74. The Tribunal accepts that upon return to Sri Lanka, the applicant would be questioned and checked at the airport in a process that could several hours. The Tribunal is not satisfied on the information before it that there is a real chance or risk that the applicant would be charged with having departed Sri Lanka illegally, given that he departed Sri Lanka as an 8 year old child. In this regard, the Tribunal notes that DFAT advised the Refugee Review Tribunal in 2013 that minors were not charged with offences under the Immigrants and Emigrants Act. The Tribunal is not satisfied on the information before it that there is a real chance or risk that the applicant would be suspected of or charged with any other criminal offence upon arrival in Sri Lanka.
(footnote omitted)
Reading the Tribunal findings in context, it is clear that it considered, but rejected, the possibility that the Applicant would be arrested at the airport on suspicion of violating the I & E Act for illegal departure from Sri Lanka (or other criminal offences), having regard to the initial questioning and checking process he (and all other returnees) would undergo upon arrival.
Further, contrary to particular (c) in ground 2, there is no evidence that there was material before the Tribunal to the effect that that “the decision to pursue charges will happen subsequent to arrest of the Applicant and the findings being communicated to the Attorney General of Sri Lanka”, such as to raise the claim now asserted that the Applicant would be “arrested” for suspicion of violating the I & E Act and hence face possible detention on remand or until a decision was made about “pursuing” charges.
Finally, as the Tribunal was not satisfied that there was a real chance or real risk that the Applicant would be charged with illegal departure or other offences, it was not necessary for it to go on to consider whether he would be held on remand while awaiting release on bail or whether he would be released on bail in the absence of a relative in Sri Lanka to provide surety.
Ground 2 is not made out.
Ground 3
Ground 3 is as follows:
The Tribunal has relied on facts that were not put to the Applicant for adverse comment
Particulars
a) In [57] the Tribunal has relied on a newspaper article dated 5 May 2016.
b) The newspaper article is critically used to highlight the attitude of the Sri Lankan government towards Sri Lankan Refugees in India.
c) This newspaper article has not been put for comment to the Applicant
The article of 5 May 2016 referred to in this ground is described in paragraph 57 of the Tribunal reasons for decision as an article in “The Hindu” which reported that Sri Lanka’s Prime Minister “had reiterated that it was the policy of his government to encourage the return of Sri Lankan Tamil refugees living in India by removing legal and other hurdles”. The article, “Colombo to encourage return of refugees living in India”, post-dated the Tribunal hearing. It was cited in a footnote to the Tribunal decision.
The information in this article did not enliven the Tribunal’s obligations under s.424A(1) of the Act because it fell within the exception in s.424A(3)(a) of the Act as information that was not specifically about the Applicant or another person and was just about a class of persons of which the Applicant or another person was a member.
If this ground is intended to contend that the Applicant was not put on notice of a determinative or dispositive issue at the hearing, it is clear that an article of 5 May 2016 could not have been put to the Applicant at the hearing that was held on 24 February 2016. However, according to the Tribunal’s account of what occurred at the Tribunal hearing (the only evidence before the court in that respect), it put to the Applicant information about the positive attitude of the Sri Lankan authorities towards returning refugees and the fact that the information before it indicated that Sri Lankan authorities were willing to provide identification documents to Tamils who had been born in or resided in refugee camps in India, thus alerting him to the relevance of the attitude of the Sri Lankan government to returnees. The subsequent article, which referred to a reiteration of this policy, was not in itself and did not raise a separate dispositive issue. In the absence of a transcript of the Tribunal hearing it has not been established that the Tribunal failed to raise any dispositive issue with the Applicant at the Tribunal hearing in the sense considered in SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152.
Issues raised in post-hearing submissions for the Applicant
Before considering the s.438 certificate, I note that the Applicant’s post-hearing submissions, apparently prepared with some unacknowledged assistance, raised additional issues.
First, issue was taken with what was said to be a refusal by the Tribunal to accept that the Applicant was visited at the camp in India by his cousins who had LTTE involvement and with its finding that hence there was no real chance of the Applicant being seriously or significantly harmed for this reason. The submissions for the Applicant contended that the Tribunal’s finding in this respect was “pure conjecture”. It was submitted that there was room for “speculation” on the part of the Tribunal. This appeared to be suggested on the basis that in circumstances where most returnees from India returned to Sri Lanka voluntarily, the Applicant’s “reluctance” to do so could be seen as due to his “involvement” with the LTTE.
It also appears that these contentions may be intended to suggest a failure by the Tribunal to give the Applicant the benefit of the doubt, or possibly a lack of logic or irrationality.
However the Tribunal’s detailed reasoning in relation to this issue does not reveal any such jurisdictional error. The Tribunal accepted some of the Applicant’s factual claims, but stated that it had considerable difficultly with his claim that he was visited in one of the refugee camps in India by two cousins on his mother’s side who were affiliated with the LTTE. It did not place significant weight on the fact that the Applicant had not raised this claim during his entry interview. Nor did it place weight on what it saw as the relatively minor discrepancy in the Applicant’s evidence with regard to the frequently of his contact with his cousins. However the Tribunal was “troubled” by the Applicant’s evidence as to how the cousins entered the camp and how their visits became known. The Tribunal had difficulty accepting the Applicant’s claim that the cousins were able to enter the camp on multiple occasions, having regard to his evidence about the tight restrictions on entry to and exit from the camps. It took into account the Applicant’s explanations at the hearing, but it also had regard to country information (which it stated it had put to the Applicant at the hearing) indicating that Indian intelligence officers were in the refugee camps at the relevant time and monitored movement and that Q Branch was actively arresting suspected LTTE volunteers and supporters.
In light of its consideration of the evidence the Tribunal found that the Applicant’s claim that the cousins were able to enter the camp on up to seven occasions lacked credibility.
Nonetheless, the Tribunal went on to find that even if it were to accept that the cousins were able to enter the refugee camp as claimed, it was not satisfied that it was well-known that they were associated with the LTTE. In making that finding it had regard to the Applicant’s own evidence in this respect and the potential risk to the Applicant and his cousins were such information to become known. It was not satisfied that the Applicant was visited in India by cousins “who were affiliated with the LTTE” or that it was well-known by others in the camp that he was being visited by cousins with LTTE connections.
Critically, the Tribunal made a further finding (again giving the Applicant the benefit of the doubt) that even if it was wrong in these conclusions and if there were Karuna spies in the Indian refugee camp such that his familial connection with the LTTE could have been communicated to the Sri Lankan authorities, it was not satisfied there was, now or in the reasonable foreseeable future, a real chance or risk of the Applicant being seriously or significantly harmed as a result. In other words (and contrary to the Applicant’s submission), it considered his claims on the basis that he was visited by cousins who were affiliated with the LTTE.
In this context the Tribunal took into account the Applicant’s evidence he had had no contact with his cousins after 2008; his suspicion that they died in 2009; his denial that any other member of his family had any active involvement with the LTTE; and the fact that from 1990 onwards his contact with his relatives had been minimal. The Tribunal had regard to the fact that UNHCR Guidelines suggested that persons who were “close” family members of persons with certain links to the LTTE may be at risk, but also took into account recent country information which indicated that the government of Sri Lanka was primarily concerned with identifying those in the diaspora who were working for Tamil separatism and were trying to destabilise the unitary Sri Lankan state. In light of these matters, and given the Applicant’s relatively distant relationship to the “cousins”, the Tribunal was not satisfied that the familial links to the LTTE described by him would be of any interest to the Sri Lankan authorities. This sufficiently addressed the objective issue of whether the Applicant faced a real chance or real risk of harm on this basis. Contrary to the Applicant’s submission, it was not necessary for the Tribunal to determine (or to speculate about) whether the Applicant subjectively had such a fear.
More generally, the Tribunal’s findings in relation to the consequences of the Applicant’s claim that he was visited by cousins with LTTE affiliations in the refugee camp in India were not “pure conjecture”. Rather, such findings were based on the Tribunal’s assessment of the Applicant’s own evidence and country information. As the First Respondent submitted, the Tribunal considered this claim on the basis that it was wrong (and that the Applicant was visited by cousins who had LTTE involvement), but nonetheless was not satisfied that there was a real risk or real chance of serious or significant harm to the Applicant as a result, having regard to the nature of his claimed contact with those relatives and country information. The Tribunal’s reasoning in that respect was reasonably open to it on the material before it for the reasons which it gave. It is not such that can be said to be illogical or irrational in a manner constituting jurisdictional error (see Minister for Immigration and Citizenship v SZMDS [2010] FCA 16; (2010) 240 CLR 611). This claim does not establish jurisdictional error.
The next issue raised by the Applicant in post-hearing submissions was a contention that as the Tribunal had accepted his evidence about his involvement in anti-government demonstrations in the refugee camp in India, this enlivened the possibility of persecution and imposed a duty on the Tribunal to consider the possible consequences and to ask “what if the surmise, of there being no possibility of harm to the Applicant is wrong”. It was contended that to the extent that the Tribunal had not taken this approach it had failed to complete its statutory task and had failed to consider an integer of the Applicant’s claims. This was said to be either a failure to consider a substantial, clearly articulated argument in the sense considered in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] (and see SZTFI v Minister for Immigration and Border Protection [2015] FCA 322; (2015) 231 FCR 222 at [53]) or a failure to consider a claim that arose “squarely” on the material before the Tribunal (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58], Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] and SZSSC vMinister for Immigration and Border Protection [2014] FCA 863; (2014) 317 ALR 365 at [81] – [82]).
As the First Respondent submitted, the Tribunal was not required to ask “what if I am wrong” in relation to its assessment of the likelihood that the Applicant would be persecuted due to his claimed involvement in Tamil separatist activities in India (see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at 572). The Tribunal considered this claim. It was not uncertain in its finding that even if the Sri Lankan authorities were aware of that activity, it was not satisfied that the Applicant would be imputed with pro-LTTE opinions on the basis of the particular kind of protest activity in which he was involved in while in the refugee camp in India. It was of the view that the Applicant would not be imputed with any LTTE connection or opinion which could be viewed as a threat to Sri Lankan security or stability, given the nature of the protest meetings and the Applicant’s low level involvement with the organisation of such meetings. The Tribunal also considered the prospect of future political activity on the part of the Applicant. However it had regard to the fact that he had not claimed that he had any desire to engage in any political activity should be return to Sri Lanka. The Tribunal expressly found that it was not satisfied that there was a real chance or risk of the Applicant suffering serious or significant harm as a consequence of his activities in the refugee camp in India. It considered, but rejected, the possibility that the Applicant would be imputed with any LTTE connection or opinion because of his past involvement in general meetings and protests in India about the ill-treatment of Tamils.
Insofar as the Applicant submitted that the Tribunal had failed to consider a claim that there was a real chance that he would be persecuted due to his involvement in protest activity in the refugee camps in India, the Tribunal considered such claim. As indicated, it was not satisfied that the Applicant would be imputed with such a pro-LTTE political connection or opinion.
These contentions do not establish jurisdictional error.
The s.438 Certificate
On 7 October 2014 an officer of the Department issued a certificate and notification regarding the disclosure of certain information, purportedly under s.438(1)(a) of the Act which is as follows:
(1) This section applies to a document or information if:
(a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or …
The certificate of 7 October 2014 certified that s.438(1)(a) applied to the information in two folios (47 and 71) in the Applicant’s departmental file. It asserted that disclosure of this information:
… would be contrary to the public interest because:
(a) folios 47, 71 contains information relating to an internal working documents and business affairs.
Copies of these documents were provided to the court at the hearing. Folio 47 is an undated one page document from the Applicant’s departmental file which lists the Applicant’s name, Boat ID, Client ID and date of birth, and is headed “Overview of additional information provided by client to support refugee claim”. It records that a particular case manager met with the Applicant on 14 May 2013 “to collect an overview of information supplied by client to support refugee claim in Arrival Interview”. It is not disputed that this document is an English translation (the “translation”) in summary form of a handwritten statement, apparently in Tamil, provided by the Applicant to the case manager on 14 May 2013 and is referred to in the Tribunal reasons. The handwritten statement in Tamil appears at pages 136 – 138 of the Courtbook.
The translation continues:
Paragraph 1 Is an introduction by the client, detailing his name, DOB and place of birth, Father’s name. He advises that he lived in an Indian Refugee camp for 22 years till 2012. He promises to tell the truth.
Paragraph 2 explains that he lost his father in 1990 during the war. That there were riots, violence and round ups by the Army. Every day was a struggle as the Army checked to see if they were members of the LTTE. Because of this harassment his Mother took them to India by boat in 1990. They lived there for 22 years, his Mother, himself and his sister in [name of refugee camp]. In 2008 he married a Tamil girl from the [name of wife’s refugee camp] and have 2 children.
Paragraph 3 He advises that he was not able to return to Sri Lanka because of these circumstances. Their lives were threatened if they returned (CID). He didn’t have anyone to return to if he went back to Sri Lanka. He only has a Sri Lankan Birth Certificate and no other Sri Lankan Identity forms.
He fears torture by the CID if he returns because he has no ID and that they might consider him as part of the LTTE for escaping to India.
Paragraph 4 He explains that he travelled to Australia on 11/06/2012 to protect his family and his life. He arrived on CI on 27/06/2012. He advises that his life is in danger from the Army if he returns, as he has changed his name and address. He advised that they will torture or kill him.
Paragraph 5 He is asking for mercy and to provide protection for him and his family in Australia. He is the only person that can take care of his family
Folio 71 consists of a copy of an email exchange of 15 March 2013 between an officer in the Returns and Removals Program Support section of the Department and an officer in the Sri Lankan High Commission in Australia. In an email of 15 March 2013 a departmental officer asked the consulate to “follow up” regarding two Sri Lankan “clients” that the departmental officer had “submitted with you”. One of these was named as the Applicant. In reply, as discussed in the delegate’s reasons, a consular officer stated, briefly, “They are seems (sic) to be not Sri Lankans. They don’t have any relatives in Sri Lanka. Regret to inform you that we will not be able to process them”.
There is no evidence that the Tribunal disclosed the existence of the certificate to the Applicant. However, as noted at [9] – [10] above, the delegate considered the email from the Sri Lankan High Commission in his reasons for decision (a copy of which the Applicant provided to the Tribunal). The Tribunal also referred to the departmental file note purporting to translate the untranslated written statement the Applicant had provided to the Department and recorded the claim made in paragraph 3 of the translation.
In oral submissions the Applicant took issue with the accuracy of the translation in folio 47. He also expressed concern that he had only received the affidavit of Anna Davyskib (to which copies of the certificate and the documents the subject of the certificate were attached) the week before the hearing. He was given the opportunity to file post-hearing written submissions in relation to the s.438 certificate and any issues arising out of the documents the subject of the certificate.
In post-hearing submissions the Applicant contended, without further explanation, that he had sought access to “the relevant documents” but had been denied such access. It appears that this must be a reference to a request while the matter was before the Department or the Tribunal. The Applicant also addressed the material in folio 71 (the email enquiry to the Sri Lankan High Commission and the response). He contended that such inquiries may have had an adverse (thought subtle) impact on the mind of the decision-maker. In particular, the Applicant asserted that the Tribunal had failed to consider the subtle adverse impact the issue of whether he was in fact a Sri Lankan citizen may have had. This was said to be another reason for the contention that the Tribunal failed to consider an integer of the Applicant’s claims.
The Applicant did not address the translation or any concerns in that respect in his post-hearing submission.
The First Respondent accepted that the certificate was invalid (see MZAFZ v Minister for Immigration and Broder Protection [2016] FCA 1081; (2016) 243 FCR 1) and that the Tribunal did not disclose to the Applicant the existence of the certificate.
Initially the First Respondent had submitted that there was no denial of procedural fairness, but that if there was, relief should be refused on discretionary grounds. However, after judgment was reserved, the High Court delivered its judgment in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3; (2019) 363 ALR 599. The parties were given the opportunity to make further submissions. The First Respondent made further submissions. The Applicant did not.
In post-SZMTA submissions, the Minister accepted that the fact that the certificate was issued triggered an obligation of procedural fairness on the part of the Tribunal to disclose the fact of the notification (the certificate) to the Applicant (see SZMTA at [2] per Bell, Gageler and Keane JJ). To the extent that the Tribunal did not disclose the certificate to the Applicant, the Minister accepted the Tribunal breached the obligation of procedural fairness.
However it was pointed out that, as the majority reasoned in SZMTA, a breach of this obligation of procedural fairness would constitute jurisdictional error on the part of the Tribunal if, and only if, the breach was material. As the First Respondent contended, such a breach would be material if it operated to deny the Applicant an opportunity to give evidence or to make arguments to the Tribunal and thereby to deprive the Applicant of the possibility of a successful outcome (see SZMTA at [2] and [38] per Bell, Gageler and Keane JJ). As Bell, Gageler and Keane JJ also stated in SZMTA at [45], a breach of procedural fairness is material to a decision only if “compliance could realistically have resulted in a different decision”. The Minister submitted that in this case the breach was not material and thus did not give rise to jurisdictional error.
The Minister also accepted that the certificate in the present matter was invalid because the notification by the Department was incorrect for the reasons set out in MZAFZ. However it was pointed out that, as the majority had reasoned in SZMTA, an incorrect notification (that is to say, an invalid certificate) would result in jurisdictional error if, and only if, the incorrect and invalid notification was material, again in the sense that it operated to deprive the Applicant of the possibility of a successful outcome (see SZMTA at [3] per Bell, Gageler and Keane JJ). The Minister also submitted that this breach was not material and thus did not give rise to jurisdictional error.
I have borne in mind that where materiality is in issue in the context of an application for judicial review (and except in a case where the decision made was the only decision legally available), the question of the materiality of a breach is an ordinary question of fact in respect of which the Applicant bears the onus of proof (see SZMTA at [46] per Bell, Gageler and Keane JJ). As their Honours observed, like any ordinary question of fact, materiality is to be determined by inferences drawn from evidence adduced on the application.
I have also borne in mind that the Applicant is in this case a self-represented litigant from a non-English speaking background. Hence, I have had regard to all the material before the court.
As the First Respondent submitted, where non-disclosure of a certificate has resulted in a denial of procedural fairness, the question that arises for the court is whether there is a realistic possibility that the Tribunal's decision could have been different if the notification had been disclosed so as to allow the Applicant a full opportunity to make submissions (see SZMTA at [49] per Bell, Gageler and Keane JJ).
The majority in SZMTA also pointed out that in the case of an invalid notification, it is necessary to consider whether an inference can be drawn that the Tribunal left the notified information out of account in reaching its decision and, if so, whether there is a realistic possibility that its decision could have been different if it had taken that information into account (SZMTA at [48] per Bell, Gageler and Keane JJ).
In determining how the Tribunal acted in relation to the documents the subject of the certificate and the information set out therein and whether the Tribunal’s decision could realistically have been different if the relevant breach had not occurred, evidence of the content of the documents or information the subject of the certificate is relevant and admissible (see SZMTA at [50] per Bell, Gageler and Keane JJ). It is appropriate for the court to review the documents that were the subject of the certificate, to review the Tribunal's reasons, and to consider whether to draw inferences as to whether the breach of the Tribunal's procedural fairness obligation or the provision of an invalid notification was material to the outcome.
As indicated above, the certificate covered two folios from the departmental file relating to the Applicant's application for a protection visa.
The information set out in folio 47 was an English language translation in summary form of written information provided by the Applicant to the Department in the Tamil language. The information was in the nature of a summary of the Applicant's protection claims and in that sense was the Applicant’s own information.
Insofar as the Applicant initially took issue with the accuracy of the translation, this issue was not addressed in his subsequent written submission. There is no evidentiary basis for any such contention.
In its reasons the Tribunal had regard to the untranslated written statement and to the English language file note which purported to translate the statement. It referred to claims recorded in the translation in paragraph 22 of its reasons. Although it did not otherwise expressly refer to the translation in its findings, the Tribunal considered the Applicant’s claims as summarised therein. It did not rely on the translation in a manner adverse to the Applicant. At the same time, it is not apparent that the Tribunal failed to have regard to or misunderstood any integer of the Applicant’s claims.
This is not a case in which it can be inferred that the Tribunal left the information in folio 47 out of account in reaching its decision. There is also no basis on which to infer that the Tribunal's failure to provide the Applicant with the translation of his own statement materially affected the outcome of the review. The Applicant has not demonstrated any basis upon which he was denied the possibility of a successful outcome by not being given an opportunity to give evidence or to make arguments about the s.438 certificate or about the translation. Nor is any such basis apparent on the material before the court.
Folio 71 is the email exchange of 15 March 2013 between an officer in the Returns and Removals Program Support section of the Department and a consular officer at the Sri Lanka High Commission in Australia. Relevantly, the consular officer informed the departmental officer that the Applicant did not seem to be a Sri Lankan, did not have any relatives in Sri Lanka, and that the High Commission would not be able to process the Applicant.
Importantly, the substance of the email correspondence between the Department and the High Commission was disclosed in full in the decision of the delegate. The Applicant provided a copy of this decision to the Tribunal as part of his application for review. Insofar as it was suggested that the Tribunal should have expressly addressed the delegate’s approach to this information, the Tribunal was conducting a de novo review.
Relevantly, the Applicant was on notice of the information in folio 71 prior to the review. It is not apparent that there would have been any utility in the Tribunal disclosing the notification or the content of the information in folio 71 of which the Applicant was already aware. While the delegate gave this communication little weight in determining the Applicant’s citizenship, had the Applicant wished to comment on this information, he was on notice of it and was in a position to address the Tribunal on its relevance, should he have wished to do so.
Even if it could be inferred that the Tribunal did not have regard to this communication, given the absence in the Tribunal reasons of any reference to it or to the delegate’s consideration of this material, as submitted in the Minister's further written submissions, the email correspondence did not go to the issue of the Applicant's protection claims, but rather to the practicality of his potential removal from Australia and how the Sri Lankan High Commission might facilitate such a removal. While the email correspondence did raise a question as to the Applicant's nationality, the Tribunal recorded that at the hearing it had put to the Applicant that there was information that the Sri Lankan authorities were willing to provide identification documents to Tamils born or residing in refugee camps in India and that the information suggested that the Applicant would be able to establish that he was a Sri Lankan citizen (as he claimed to be) and that he would be provided with relevant documentation by the Sri Lankan authorities.
The Applicant did not claim to be stateless. He consistently claimed to be a Sri Lankan national. He had a birth certificate and a Sri Lankan Refugees Identity card. The Tribunal accepted on the basis of the Applicant’s oral evidence and the identity documents in the Departmental file that he was Sri Lankan and found that he was in possession of sufficient documentation to help him establish his identity and past movements. Given the fact the Applicant was on notice of the email from the Sri Lankan High Commission and the Tribunal’s positive finding as to his nationality, disclosure by the Tribunal of the certificate or the email from the High Commission (or any denial of access to these documents during the decision-making process) could not in any way have made any difference to the result of the review. It has not been established that the fact or content of this email correspondence could have made any difference to the Tribunal’s conduct of the review or its decision. In particular, in circumstances where the Applicant claimed, and the Tribunal accepted, that he was Sri Lankan, I do not accept the Applicant’s submission that the material in folio 71 may have had an “adverse (though subtle) impact” on the mind of the decision-maker.
As the First Respondent submitted, any breach of procedural fairness by the Tribunal in not inviting the Applicant’s comment on the certificate and/or in not putting to him the content of the documents the subject of the certificate (assuming, for present purposes, that this did not occur at the Tribunal hearing) did not deny him an opportunity to give evidence or make argument to the Tribunal such as to deprive him of the possibility of a different decision. Any breach of procedural fairness of the nature considered in SZMTA was not material to the outcome of review.
The same may be said in relation to the existence of the incorrect and invalid notification. In the particular circumstances of this case this could not have deprived the Applicant of the possibility of a successful outcome.
In light of the lack of materiality of any breach of procedural fairness by the Tribunal or in connection with the incorrect notification, no jurisdictional error arose as a consequence of such breach or the incorrect and invalid notification.
As no jurisdictional error has been established, the application must be dismissed.
I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 23 August 2019
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