CME15 v Minister for Immigration
[2017] FCCA 3042
•8 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CME15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3042 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal breached s.425 of the Act – consideration of determinative issues in the review – whether matters form part of the substratum of facts relevant to the issues in the review – whether the Tribunal put to the applicant the question of his family providing surety for his bail – jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.360, 425, 476 |
| Cases cited: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 |
| Applicant: | CME15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3216 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 2 May 2017 |
| Date of Last Submission: | 13 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 8 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms T Baw |
| Solicitors for the Applicant: | Craddock Murray Neumann Lawyers |
| Solicitors for the Respondents: | Mr J Pinder of Minter Ellison |
ORDERS
A writ in the nature of certiorari issue quashing the decision of the second respondent dated 26 October 2015.
A writ in the nature of mandamus issue directing the second respondent to reconsider and determine the matter according to law.
The first respondent pay the applicant’s costs set in the amount of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3216 of 2015
| CME15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 24 November 2015, and amended on 2 May 2017, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 26 October 2015, affirmed a decision of the Minister’s delegate (“the delegate”) to refuse a protection (Class XA) visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed by the Minister and tendered by the applicant (“the Court Book” – “CB”, “AE1”), and the affidavit of Tina Nematian, Solicitor, made on 2 February 2016, annexing a transcript (“T”) of the hearing before the Tribunal.
Background
The applicant is a citizen of Sri Lanka (CB 14). He is of Tamil ethnicity and Hindu religion (CB 14). The applicant arrived in Australia on 2 August 2012 as an “unauthorised maritime arrival” (CB 15). The applicant applied for the protection visa on 16 January 2013 (CB 1 to CB 96). The applicant’s claims to fear harm were set out in a written statement attached to the visa application (CB 33 to CB 36).
The applicant was invited to, and attended, an interview with the delegate on 16 October 2013 (CB 102 to CB 108 and CB 151.2). The delegate refused the grant of the visa on 4 April 2014. The applicant was notified by letter of the same date and sent to his representative authorised to receive correspondence on his behalf (CB 134 to CB 167).
The applicant applied for review to the Tribunal on 8 April 2014 (CB 168 to CB 174). The applicant was invited to, and attended, a hearing before the Tribunal on 7 July 2015 (CB 187 to CB 196 and CB 276 to CB 279). The applicant’s representative sent written submissions to the Tribunal prior to the hearing on 30 June 2015 (CB 197 to CB 272). The Tribunal affirmed the delegate’s decision on 26 October 2015. The applicant was notified by letter sent to his representative authorised to receive correspondence on his behalf dated 27 October 2015 (CB 288 to CB 312).
I am satisfied on the evidence before the Court, that the Minister’s written submissions filed on 26 April 2017 provide an accurate summary of the applicant’s claims to fear harm, and the relevant Tribunal decision. For the purposes of this judgment, I adopt the relevant paragraphs as follows ([5] – [14] of the Minister’s written submissions filed on 26 April 2017):
“[5] The applicant claimed to fear harm on the basis of his Tamil ethnicity, his imputed political opinion (perceived supporter of the Liberation Tigers of Tamil Eelam (LTTE)), membership of particular social groups (comprising ‘Tamil businessmen’ and ‘failed asylum seekers’), and on account of his illegal departure. In support of those claims, the applicant recounted the following key events:
(a) in 1998, two of the applicant’s brothers were rounded up by security forces and killed;
(b) in 2000, the applicant was rounded-up by the authorities, beaten, threatened and accused of being a member of the LTTE. The applicant was released after being detained for one day;
(c) in 2007, the applicant was rounded-up by the army and detained for a month, beaten, threatened and questioned about his LTTE connections;
(d) in May 2012, the applicant was abducted by members of the Karuna group and the Criminal Investigation Department (CID). The applicant was accused of having LTTE connections, threatened and subjected to extortion;
(e) After the 2012 incident, the applicant went into hiding and the applicant’s family was the subject of continued harassment and threats at the hands of the Karuna group and the CID; and
(f) in January 2013, the applicant’s third brother was killed.
[6] The Tribunal accepted that the claimed instances of harm in 1998, 2000, 2007 occurred. However, the Tribunal found that they did not give rise to a risk of harm given the time that had elapsed since the incidents, the change in circumstances in Sri Lanka, and because there had been no further problems in relation to each incident (CB 298-299: [13]-[14], [16]-[17]).
[7] The Tribunal also accepted that the May 2012 incident occurred. However, the Tribunal found there was no risk of harm because the applicant and/or family had not been harmed since (CB 300-302, 306: [23], [26], [43]), the time that had elapsed (CB 303: [32]), and because the applicant was not a ‘serious LTTE suspect’ and their ‘primary’ objective was to extort money (CB 300: [22]).
[8] The Tribunal accepted that the applicant’s brother died in January 2013. However, the Tribunal found that the applicant’s account of his brother’s death was ‘implausible’ and concluded that it was not caused by the Karuna Group nor the CID (CB 302: [26]-[28]).
[9] After considering relevant country information and the applicant’s submissions, the Tribunal considered that the risk of the applicant being a victim of extortion in the future was ‘remote’ (CB 303: [32]).
[10] Having regard to country information, the Tribunal found that the applicant would not suffer harm ‘solely on account’ of his Tamil ethnicity (CB 304: [36]).
[11] The Tribunal accepted that ‘Tamil businessmen’ constituted a particular social group (CB 305: [41]). However, while the Tribunal accepted that the applicant was the victim of extortion and would return to work as a jeweller, the chance of harm in the future was nevertheless ‘remote’ (CB 306: [43]). Further, the Tribunal found the extent of paramilitary activity had reduced and ‘no one group is targeted’ (CB 306: [43]).
[12] In relation to the applicant’s claims about being a failed asylum seeker, the Tribunal accepted that the applicant may face questioning on return to Sri Lanka. However, the Tribunal found that such questioning would ‘quickly establish’ that he is not an LTTE supporter and of no interest to the authorities
(CB 307: [52]).
[13] The Tribunal did not accept that the applicant would face harm because of his illegal departure for the following reasons:
(a) the applicant did not have a profile that would cause him to be targeted on return (CB 308: [55]);
(b) the Sri Lankan departure laws were ‘laws of general application’ that were not applied in a ‘discriminatory way’ (CB 308-309: [57]-[58]);
(c) there was ‘nothing to suggest’ that the applicant’s family could not ‘stand as guarantor’ should the applicant be detained on return (CB 309: [59]); and
(d) despite poor conditions, any time spent in prison would not amount to serious harm (CB 309: [61]).
[14] For these reasons, the Tribunal was not satisfied that the applicant met the refugee criterion under section 36(2)(a) of the Migration Act 1958 (the Act) (CB 309-311: [63]-[64], [71]). For the same reasons, and providing specific findings relevant to the definition of ‘significant harm’ under the Act
(CB 310-311: [67]-[69]), the Tribunal found that the applicant failed to satisfy the complementary protection criterion under section 36(2)(aa) of the Act (CB 311: [70], [71]).”
Before the Court
Orders were made, by consent, by a Registrar of the Court on 27 January 2016 which, amongst other things, set the matter down for final hearing on 2 May 2017, and provided for the filing of written submissions by both parties. The applicant filed written submissions on 20 April 2017 (“the applicant’s first written submissions”), and the Minister filed written submissions on 26 April 2017 (“the Minister’s first written submissions”). At the hearing, the applicant was represented by counsel, and the Minister by a solicitor. The applicant’s first written submissions also attached an amended application and leave was granted at the hearing on 2 May 2017, for the applicant to rely on that amended application.
The Application to the Court
The ground of the amended application to the Court is in the following terms:
“1. The Second Respondent (the ‘Tribunal’) fell into jurisdictional error by breaching s.425(1) of the Migration Act 1958 (Cth).
Particulars
a. The Tribunal failed to invite the applicant to give evidence and present arguments relating to the following issues arising in relation to the decision under review.
i. the nature of the harm inflicted on his daughter at D[23];
ii. the date of the corroborating documentary evidence of the injury suffered by his daughter at D[23];
iii. the photographs of the dead body of the applicant’s brother and the identity of that body, at D[27]; and
iv. the assumption made by the Tribunal that a family member would be able to pay any surety imposed on the applicant if he is arrested at the airport and later convicted, upon his return to Sri Lanka.”
Consideration
Following the hearing on 2 May 2017, orders were made that provided the parties with the opportunity to make further written submissions. Further written submissions were filed by the applicant on 23 May 2017 (“the applicant’s second written submissions”), and by the Minister on 13 June 2017 (“the Minister’s second written submissions”), in relation to a matter that arose from a dispute at the hearing as to the question of what an “issue” is for the purposes of s.425 of the Act, with reference to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”), and the Minister’s reliance on SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 (“SZJUB”).
Both parties provided comprehensive and helpful written submissions.
While there were large areas of agreement between the parties, there remained points of dispute about the relevant principles, and in particular, the application of those principles to the facts of this case.
Therefore it is helpful to set out the following. Both parties agreed that the starting point for current purposes is the High Court judgment in SZBEL.
In that case, the High Court emphasised that the consideration of procedural fairness, in any particular case, necessitates attention being given to the relevant statutory framework (SZBEL at [26]).
In SZBEL, as in the current case, the wording of s.425 of the Act was important (see SZBEL at [27]). Further, s.425(1) of the Act was relevantly in the following terms:
“Section 425
Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
That is, the applicant must be given the opportunity to address determinative issues in the review, which were not “live” issues as a result of the delegate’s decision (SZBEL at [34] – [36] and [44]).
In SZBEL, the High Court provided direction as to what steps the Tribunal must take to identify dispositive issues, not raised as a result of the delegate’s decision, as follows (SZBEL at [47]):
“First, there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the applicant is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.”
There did not appear to be any dispute between the parties that the Tribunal did not need to explicitly put to the applicant, that the Tribunal may not accept that his evidence was true, or that the Tribunal may ultimately find that the applicant had embellished parts of his account of events.
It may be that the Tribunal’s statements and questions at the hearing may “sufficiently indicate” that the entirety of the applicant’s account was at issue (SZBEL at [47]).
When specific elements of an applicant’s account are in doubt, the Tribunal is obliged to give the applicant the opportunity to expand on those parts of the evidence that are important to the Tribunal’s decision.
Differences between the parties emerged before the Court on the question of what actually constitutes an “issue” for the purposes of s.425 of the Act. The Minister raised the question of a difference between an “issue”, and “factual matters forming the substratum to that issue”, with reference to SZJUB at [25] (see [20] of the Minister’s first written submissions) which is as follows:
“The Tribunal clearly put the appellant on notice that it was having real difficulty in accepting that she would take the risk of being involved in a smuggling operation and being the target of the PSB. Those statements and questions by the Tribunal sufficiently indicated to the appellant that everything she said on this subject was in issue (SZBEL at [47]). The issue for the Tribunal was whether to believe the appellant. That raised the issue of whether she would have smuggled Bibles in view of the potential risk. The question is whether the fact that she had a business and a dependent child were issues in themselves or factual matters that related to the issue of risk. If they are factual matters that go to the issue arising in relation to the decision under review (ie, risk generally), the Tribunal is not obliged to put each of those factual matters to the appellant. The Tribunal is obliged to inform her of the issue but not each fact that relates to it.”
The applicant’s position is that attention should be focused on SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1 (“SZHKA”). SZHKA post-dates SZJUB, and in the applicant’s emphasis, is a Full Federal Court judgment, which directly made findings on what an “issue” is for the purposes of s.425(1) of the Act.
The applicant drew attention to SZHKA at [7] (per Gray J, Gyles J agreeing) (see [8] of the applicant’s second written submissions) as follows:
“The second important aspect of s425(1) is that the evidence and arguments are to relate to ‘the issues arising in relation to the decision under review.’ The focus on this element of the subsection was the basis for what the High Court of Australia decided in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. For present purposes, it is not necessary to quote the whole of what the High Court said in [33]-[40], but certain points emerge clearly from that passage. First, the issues arising are not limited to the question whether the applicant is entitled to a protection visa, but are more particular than that. Second, initially the issues will be defined by the reasons given by the person who made the decision under review, but the issues may, and often will, undergo change in the course of the Tribunal’s conduct of the review of that decision. Third, because the Tribunal starts from the position of being unpersuaded by the material already before it, the hearing will inevitably explore the reasons why the Tribunal might not be persuaded by that material; the Tribunal will not perform its function adequately if it does not provide the applicant with the opportunity to satisfy the Tribunal’s specific reservations about the applicant’s case. Thus, to some extent at least, the issues arising in relation to the decision under review will depend upon the view that the ultimate decision-maker takes about the material before the Tribunal, and will therefore be shaped by that person’s thought processes. This is not to say that the Tribunal member must expose all of his or her thought processes to scrutiny by the applicant, as part of the hearing. The High Court recognised this in SZBEL at [38]-[39]. The line between exposing every aspect of the reasoning process and making known to the applicant the issues that the Tribunal member sees as arising may not be easy to recognise in all circumstances, but it does exist.”
[Emphasis added by the applicant.]
Further, the applicant drew attention to SZHKA at [113] – [115] per Besanko J as follows (and see [9] of the applicant’s second written submissions):
“[113] .... Whether a matter such as this constitutes an issue depends upon two requirements.
[114] The first is that the matter play a part in the Tribunal member’s decision on the application for review. Matters not playing any part cannot, in my view, be said to arise in relation to the decision.
[115] The second question is that the matter be substantial enough to constitute an issue. That depends, obviously enough, on the interpretation of the word issues in s 425(1). On a narrow interpretation, issues might be defined only as the main elements of an applicant’s claim. I do not think that such a narrow interpretation would be correct. In SZBEL, the High Court said that the reasons given by a delegate for refusing to grant an application identify the issues that arise in relation to that decision. Matters much more specific than the main elements might become issues in relation to a delegate’s decision by virtue of the delegate’s reasons. Equally, matters much more specific than the main elements, which the Tribunal considers to be in question irrespective of the delegate’s reasons, may constitute issues arising in relation to the decision under review within s 425(1). In my view, issues, relevantly, are all matters not of an insubstantial nature which the Tribunal considers to be in question.”
[Emphasis added by the applicant.]
The applicant submitted that this “guideline” on the content of an “issue” was applied recently in ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 (“AVB16”) at [27] (per Bromberg J) as follows (and see [10] of the applicant’s second written submissions):
“I recently considered and applied those authorities, to the extent that they related to the content of procedural fairness obligations, in BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530. While that case was not concerned with the proper construction of “issues” in s 425(1), I drew upon the reasoning in those authorities to inform my determination in relation to the identification of issues in relation to procedural fairness obligations at common law. There, I noted (at [161]), by reference to the judgment of Mason J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 587, the need for a decision-maker to bring to an applicant’s attention ‘the critical issue or factor on which the administrative decision is likely to turn’ and (at [162]) that ‘the guiding principle is one of fairness’: VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [28] (Allsop J, with whom Gyles and Conti JJ agreed on this point). Further, I observed (at [166]) that the purpose of the imposition of the obligation to accord procedural fairness is the avoidance of a ‘practical injustice’: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 (Gleeson CJ). On that basis, and on the basis of the relevant reasoning in SZBEL and SZHKA, I rejected the Minister’s contention in that case that the requirement to give notice of the issues was discharged at a high level of generality. I there found (at [162]) that ‘the critical issues to be considered ... by the delegate needed to be identified at a level of specificity which gave meaning to the opportunity to respond’: SZMUF v Minister for Immigration and Citizenship [2009] FCA 182 at [22] (Flick J).”
[Emphasis added by the applicant.]
On the question of the level of specificity required in framing what is an “issue”, the applicant also referred to ABV16 at [24] and [30] as follows (and see [11] – [12] of the applicant’s second written submissions):
“[24] In SZBEL, an applicant for a protection visa made a claim for protection on the basis of feared religious persecution, having become interested in Christianity. The Tribunal had rejected the visa applicant’s claim on the basis of the implausibility of three aspects of his account of his conversation. Only one of those three elements was not accepted by the delegate at first instance. The Minister in that case contended that it was the credibility of the applicant’s conversation which was in issue, and not the individual aspects of the account. In a unanimous judgment, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ found (at [42] – [43]) that the issues should have been identified at a higher level of granularity than the more broadly-framed issue of the applicant’s credibility, for which the Minister had contended.
…
[30] I am unable to accept the Minister’s submission. The formulation of the relevant issue at such a level of generality overlooks, or fails to capture, the number of variables within which it could, depending on the evidence before the Tribunal, become critical or determinative. Each of the elements of the Minister’s proposed ‘issue’ could, for a variety of reasons, prove to be determinative in a judgment as to whether the appellant may or may not become an unregistered ‘black child’ and face discrimination on return to China. For instance, had the Tribunal had reason to believe that the appellant’s parents were in fact married at the time of his birth, that factor would have been sufficient to defeat the claim. It follows, on the Minister’s characterisation of the issue, and putting to one side any parallel requirement under s 424A, that had an anonymous tip provided the appellant’s parent’s marriage certificate to the Tribunal following the hearing, the Tribunal would have no obligation under s 425(1) to give notice to the appellant that his parents’ marital status at the time of his birth was now in issue, even in circumstances where it had conducted the hearing on the acceptance that the appellants’ parents were, at that time, unmarried. That scenario clearly betrays an unfairness that s 425(1) was intended to prevent.”
[Emphasis added by the applicant.]
The applicant’s position was helpfully summarised in written submissions as follows ([14] of the applicant’s second written submissions):
“All of the above authorities discussed above (sic) are subsequent to SZJUB, and additionally SZHKA overrides it in authority as it is by the Full Federal Court. The principles elucidated by the above authorities in relation to ‘issues’ under s.425(1) of the Act may be summarised as follows:
a. The tribunal will not perform its functions adequately if it does not provide the applicant with an opportunity to satisfy the tribunal’s specific reservations about the applicant’s case: SZHKA at [7].
b. Issues are all matters not of an insubstantial nature which the tribunal considers to be in question: SZHKA at [115].
c. If there are specific aspects of an applicant’s account, that the tribunal considers may be important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted: SZBEL at [47].
d. a decision-maker needs to bring to an applicant’s attention the critical issue or factor on which the administrative decision is likely to turn and a guiding principle is one of fairness: SZBEL, SZHKA, ABV16 , and VHAP.
e. 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: SZMUF.”
[Footnotes omitted.]
The Minister’s second written submissions directed attention to Hazra & Anor v Minister for Immigration & Anor [2017] FCCA 688; (2017) 319 FLR 81 per Judge Smith (“Hazra”), who considered the question of what is an “issue” within the meaning of s.360 of the Act (which is analogous to s.425 of the Act for current purposes) as follows (Hazra at [13] – [16]):
“[13] In light of the Minister’s first argument in these proceedings, it is necessary also to consider the meaning of the word ‘issue’. A review of the appellant authorities since the decision in SZBEL reveals that there has been very little specific consideration of that word. That is not surprising, given that it is a word commonly used in litigation and apparently well understood by lawyers. In the context of litigation it means a point of contention between parties, ordinarily defined by reference to written statements of a case including pleadings. However, given that there are no parties to a review conducted by the Tribunal, the word as it appears in s.360(1) is better understood as including any question of significance that the Tribunal considers it needs to decide. That accords with the opinion of Besanko J in SZHKA v Minister for Immigration & Citizenship (2008) 172 FCR 1; [2008] FCAFC 138 where his Honour said, at [115]:
The second question is that the matter be substantial enough to constitute an issue. That depends, obviously enough, on the interpretation of the word issues in s 425(1). On a narrow interpretation, issues might be defined only as the main elements of an applicant’s claim. I do not think that such a narrow interpretation would be correct. In SZBEL, the High Court said that the reasons given by a delegate for refusing to grant an application identify the issues that arise in relation to that decision. Matters much more specific than the main elements might become issues in relation to a delegate’s decision by virtue of the delegate’s reasons. Equally, matters much more specific than the main elements, which the Tribunal considers to be in question irrespective of the delegate’s reasons, may constitute issues arising in relation to the decision under review within s 425(1). In my view, issues, relevantly, are all matters not of an insubstantial nature which the Tribunal considers to be in question.
Cf Aporo v Minister for Immigration & Citizenship [2009] FCAFC 123; (2009) 113 ALD 46 at [34].
[14] Understood in that way, an issue may be just as much one of fact as one of law, or mixed question of fact and law, and may be general in nature or very specific. An issue might be a factual matter arising from country information relevant to the Tribunal’s decision[1], factual claims made by an applicant[2], what might fall within the national interest[3], whether an applicant has supplied particular evidence referred to in a policy[4], or whether a particular factual claim will be accepted[5].
[15] I do not understand Bennett J to have said anything different in SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 at [25] (‘SZJUB’).
[16] In light of those principles, it is necessary to consider in some detail, both the relevant criteria and the facts. This includes the applicant’s claims, the reasons for the delegate’s decision, the evidence and arguments before the Tribunal and the Tribunal’s reasons for decision.”
[1] Minister for Immigration & Border Protection v SZTQS (2015) 148 ALD 507; [2015] FCA 1069.
[2] Minister for Immigration & Border Protection v SZSNW (2014) 229 FCR 197; [2014] FCAFC 145.
[3] Durani v Minister for Immigration & Border Protection (2014) 314 ALR 130; [2014]
[4] Yao v Minister for Immigration & Border Protection (2014) 140 ALD 1; [2014] FCAFC 17.
[5] SZQJH v Minister for Immigration & Border Protection (2013) 140 ALD 11; [2013] FCAFC 147.
However, the parties agreed that an “issue” for the purposes of s.425 of the Act, are matters “not of an insubstantial nature which the Tribunal considers to be in question” (SZHKA at [115]).
On the question of the nature of an “issue” the Minister sought to highlight (with reference to various authorities) the distinction between a matter “not of an insubstantial nature which the Tribunal considers to be in question”, and whether the Tribunal has doubts about that matter, or what the doubts may be said to be ([16] of the Minister’s second written submissions).
In my view, that distinction must be accepted given the various authorities to which the Minister refers, including Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162; (2007) 163 FCR 285 at [87] – [88] as follows (see [18] of the Minister’s second written submissions):
“[87] The applicant submits that the following passage from SZBEL (at [47]) encapsulates his complaint regarding the RRT’s failure to comply with s 425:
‘But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.’
[88] The short answer to the applicant’s submission based upon SZBEL is that s 425 does not require the RRT to identify the significance of the questions that it puts to a claimant or the ultimate matter or issue to which those questions go. That is not what is required by SZBEL, and is an attempt to import the requirements of s 424A(1) into s 425.”
See also SZMUF v Minister for Immigration and Citizenship [2009] FCA 182 at [22] and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [92] (see [17] – [23] of the Minister’s second written submissions).
In relation to the Tribunal’s obligation to put the applicant on notice of an “issue”, the Minister submitted ([24] of the Minister’s second written submissions):
“In AZAAD v Minister for Immigration and Citizenship (2010) 189 FCR 494; [2010] FCAFC 156 (AZAAD), Besanko J considered, at [60], a situation in which the Tribunal adopted a procedure of ‘questions put by the Tribunal and answers given by the first appellant’ with respect to ‘the adverse credibility issues’ and ‘other issues of concern’. His Honour was satisfied that, ‘[i]n the course of that procedure, the first appellant was given an adequate opportunity to expand on her evidence on those issues and explain why her account should be accepted’. His Honour emphasised that it was not ‘incumbent on the Tribunal to give the first appellant advance notice of those matters. To do so would be very difficult and would involve the Tribunal having to reveal its provisional state of mind at particular points in time’. However, his Honour was satisfied that, ‘by the end of the hearing the matters raised with the first appellant by the Tribunal were such that it ought reasonably to have been appreciated that they were going to cast doubt on the entirety of her claim’.”
Finally, the parties disagree as to the currency of authority in SZJUB. The applicant argued that SZHKA “overrides it in authority” ([14] of the applicant’s second written submissions). I agree with the Minister that in SZJUB Bennett J was not sitting as a Judge at first instance, but was exercising the appellate jurisdiction of the Federal Court. As such, there was no right of appeal to a Full Court. In this light, that judgment stands until overruled by a superior Court or found to be plainly wrong by the Federal Court. This has not occurred.
What can be taken from the above, and of which is relevant for current purposes, is the following.
One, the words of s.425(1) of the Act impose procedural fairness obligations on the Tribunal to give applicants sufficient opportunity to give evidence and make submissions about determinative issues arising in relation to the review (SZBEL at [44]).
Two, issues arising in the review are the issues that the delegate considered determinative, unless the Tribunal considers other issues to also be dispositive of the review.
Three, the Tribunal must provide the applicant with an opportunity to address the Tribunal’s “specific reservations” (SZHKA at [7]) about the applicant’s evidence or submissions.
Four, in doing this, the Tribunal is not required to specifically identify the significance of its questions, or to expose its thought processes, or evaluations.
Five, issues are those matters not of an “insubstantial nature which the Tribunal considers to be in question” (SZHKA at [115]).
Six, an “issue” can be seen to go beyond a high level of generality. The critical issues need to be identified at a level of specificity which gives meaning to the opportunity given to the applicant to respond (see SZMUF at [22]).
Seven, as was said in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 (“Kaur”) per Mortimer J, “the identification of the issues arising in a review is fact dependent” (Kaur at [147]).
The applicant pleads four particulars to the ground which he says are issues in the review, and in respect of which the Tribunal breached its obligations pursuant to s.425(1) of the Act. The first three particulars do not reveal jurisdictional error. The fourth particular for the reasons set out below, does. However, it is appropriate to deal with the first three particulars given they were the subject of argument by the parties, and provide context for the consideration of the fourth particular.
Particular “i” is said to be “the nature of the harm inflicted on his daughter” (the “the daughter’s incident”).
The background to this particular is as follows. In a written statement lodged with his protection visa application dated 14 January 2013, the applicant referred to an incident involving his daughter as follows ([30] at CB 35):
“Since I have been in Australia, the same men have regularly visited my house. In one incident, my three-year old daughter was struck by one of the men. My wife and daughters stopped sleeping at the house and spent most of her time at her mother’s house.”
The delegate summarised what she understood to be the “applicant’s material claims” (CB 151.1), which included (see CB 152.1):
“These men have continued to regularly visit the applicant’s home in Sri Lanka. In one incident the applicant’s daughter was struck by one of the men. His family has moved to the applicant’s mother-in-law[‘]s house…”
The delegate refused the application for the protection visa. The delegate’s decision record contains the following (see CB 156.5):
“The applicant claims to have been abducted and extorted in May 2012. He departed Sri Lanka in July 2012. He then claims that these people continued to come to the applicant’s home seeking to find the applicant. Given I do not accept that the applicant was ever abducted and that he may have been extorted on a single event, I do not accept that these people continued to visit the applicant’s home after July 2012 and I do not accept that they would continue to pursue the applicant by way of visiting his wife at his mother-in-law[‘]s house in January 2013…”
[Emphasis added.]
The applicant’s first written submissions (at [11]) directed attention to the Tribunal’s finding at [23] (at CB 301) of its decision record as follows:
“…The Tribunal also notes the applicant’s oral evidence about what happened to his daughter when these men visited his home was inconsistent with his written statement to the Department in some respects. That is in his written statement the applicant states that his daughter was ‘struck’ by one of the men however at the Tribunal hearing he said his wife dropped her when dragged by one of the men, which is consistent with the information in the diagnosis ticket that his daughter fell from a height…”
The applicant now submits that the Tribunal identified an inconsistency between his written statement, and what he told the Tribunal at the hearing. That is, in his written statement, the applicant said his daughter was struck on the head, and in oral evidence, he said his wife dropped her.
The applicant argues that whether the daughter was struck on the head or dropped was an “issue” in the review. That “issue” was not the subject of any finding by the delegate.
In my view, to focus initially on the question of whether a matter is an “issue” in the review, or a part of the substratum of the facts to an “issue” in the review, is to run the risk of ignoring the principles set out in relevant authorities and to divert attention from the substance of those principles.
As set out above, the starting point must be one of procedural fairness, and whether an applicant was on sufficient notice that a matter “not of an insubstantial nature is in question”, and if so, whether the applicant has been given the opportunity to comment on, or respond to it.
It is important to note that in the current case, one of the applicant’s claims to fear harm was that after he had left Sri Lanka for Australia, the men who had targeted him while he was in Sri Lanka (generally referred to as people from the Karuna group), regularly “visited” his house, and on one occasion his daughter was injured by, or because of, those men.
The delegate rejected the claim that these men came to the applicant’s house after he left Sri Lanka (CB 156.5). The delegate made that finding in the context of acknowledging the applicant’s claim that his daughter was struck by one of the men during one of these claimed “visits”.
It is not necessary in the current case, to divert attention from the central question of procedural fairness by asking whether the daughter’s incident was an “issue”, or part of the substratum of facts to an “issue” in the review.
That is because the delegate’s finding that rejected the applicant’s claims that the men “visited” his house, was made in circumstances where the delegate acknowledged that the applicant had claimed that his daughter had been injured during one such visit. The delegate also rejected the claim that his daughter had been injured as the applicant had claimed in his written statement. If the visits did not take place, then it reasonably follows, as a logical consequence, that the delegate had found that the daughter was not injured in the circumstances claimed by the applicant. The applicant would have been on notice of this following the delegate’s decision.
The Tribunal came to the same conclusion as the delegate. That is, the Tribunal found that the daughter was not injured by, or because of, men coming to the home of the applicant after he had left Sri Lanka ([23] at CB 300 to CB 301).
The authorities to which the parties have referred, make clear that the consideration of the resolution of this particular dispute is governed by the overarching principle of procedural fairness.
That is, in the current case, was the applicant given the opportunity of ascertaining that the question of whether the men (the Karuna group) came to his house after he left Sri Lanka, and that on one occasion his daughter was injured, was at issue in the review. Further, was the applicant given the opportunity of addressing this issue at the Tribunal hearing (given s.425 of the Act).
The answer to the first question is to be found in the delegate’s decision itself. That is, in the decision under review by the Tribunal. The delegate’s finding in relation to this matter (as referred to above at [52] – [54]), made clear that the applicant’s account of these events was at issue.
It cannot be said that before the Tribunal, the applicant would not have known that the entirety of his account of claimed events that occurred after he left Sri Lanka, was at issue in the review.
The applicant’s representative at the time, made specific reference to this issue in written submissions provided to the Tribunal before the Tribunal hearing ([10] at CB 199 to CB 200):
“In light of the above-noted findings as to [the applicant’s] credibility, the Delegate did not accept that ‘these people continued to visit [the applicant’s] home after July 2012’, nor that these people ‘would continue to pursue [the applicant] by way of visiting his wife at his mother-in-law[‘]s house in January 2013’. We submit, in light of the above-noted arguments, that [the applicant] has provided a plausible and credible account of his profile and experiences in Sri Lanka – sufficient not only to put himself at risk, but to expose his family to continuing harm (as noted above under the heading ‘New Claims’).”
It is the case that the detail concerning the daughter in this context was not raised in the applicant’s representative’s submissions. However, the matter of what specifically occurred in relation to the daughter was raised at the Tribunal hearing. This was the context of the applicant’s claim to have had “problems” with the Karuna group (see T34 line 1 to line 42).
Following the Tribunal hearing, the applicant, through his representative, made further written submissions to the Tribunal (CB 281 to CB 287). Those submissions included a reference to “the injuries inflicted upon [the applicant’s] daughter following his departure from Sri Lanka (as noted in his [p]rotection [v]isa [a]pplication, and has consistently maintained in his subsequent claims)” (CB 281.4) (also see further below at [68] – [72]).
On the evidence before the Court, the applicant was on notice, following the delegate’s decision, of this issue (that is, the claimed “problems” with the Karuna group after he left Sri Lanka). The applicant made written submissions on two occasions. He was also given the opportunity to give evidence and present arguments at the Tribunal hearing about the issue.
As set out above, the applicant’s submissions before the Court drew attention to [23] (at CB 301) of the Tribunal’s decision record (see at [46] above).
The Tribunal’s relevant finding was based on its view of the applicant’s own evidence. That is, that the applicant’s oral evidence given at the Tribunal hearing was inconsistent with his written statement attached to his protection visa application, as to how he claimed his daughter was injured ([23] at CB 300 to CB 301).
I agree with the Minister that the identification of this inconsistency by the Tribunal, was part of the Tribunal’s reasoning process, in relation to whether the Karuna group came to the applicant’s home after he left Sri Lanka, and that on one occasion, his daughter was injured. The Tribunal’s reasoning process is not an “issue” in itself. Particular “i” to ground one does not support the proposition in the ground as pleaded.
Particular “ii” asserts that the Tribunal’s legal error can also be seen by reference to the Tribunal’s failure to invite the applicant to give evidence in relation to the “date of the corroborating documentary evidence” that the applicant had provided in relation to the “injury suffered by his daughter”.
The background set out above in relation to particular
“i”, is also relevant to particular “ii”. In its decision record, following what it said at [23] (at CB 300 to CB 301 and as reproduced at [46] above), the Tribunal stated ([23] at CB 301):
“…Another concern is an inconsistency about the timing of this event between the applicant’s oral evidence to the Tribunal that this occurred about a year prior (i.e. around July 2014) yet the diagnosis ticket submitted indicates that the applicant’s daughter was admitted to hospital on 21 December 2012 (and discharged on 22 December 2012). The Tribunal also notes that initially at the hearing the applicant said his wife and daughters had moved to his mother-in-law’s house about three months after he came to Australia, yet claimed that members of the Karuna Group/CID had attempted to capture his wife (and harmed his daughter) at their home. When this was pointed out to the applicant at the hearing he said that is wife and daughters went occasionally to their home. The Tribunal is not persuaded by this explanation…”
The “diagnosis ticket” (see at CB 283) was submitted by the applicant to the Tribunal, after the Tribunal hearing. It was annexed to written submissions made by the applicant’s representative as follows (CB 281.4):
“- This ‘diagnosis ticket’ was issued in relation to the injuries inflicted upon [the applicant’s] daughter following his departure from Sri Lanka (as noted in his Protection Visa Application, and as consistently maintained in his subsequent claims).
- [The applicant] instructs that the ticket indicates that his daughter ‘[fe]ll from a height’ because she was being carried by her mother at the time of the assault; the assault caused [the applicant’s] daughter to fall, leading to the injury.
- [The applicant] further instructs that the ticket does not indicate that the injuries occurred as a result of an assault (by the Karuna Group or otherwise) because his wife could not openly make allegations against the Karuna Group, and that even if she had the hospital would have refused to write these allegations. (Such instructions are plausible given the significant influence and capacity for intimidation wielded by such groups.)”
It is clear that the “diagnosis ticket” was submitted to support the applicant’s claim that his daughter had been injured by the Karuna group men, whom he claimed were looking for him at his house, after he had come to Australia.
The “diagnosis ticket” contained the following information (see CB 283):
“[Age]: 3 yr
[Reg. No]: 79028
[Date of admission]: 21/12/2012
[Date of discharge]: 22/12/2012
In for [illegible] fall
Fall from a height
Vomiting – 2 times
[Illegible]/faintishness
No bleeding.”
The Tribunal found that the diagnosis ticket was in conflict with the applicant’s oral evidence as to the date of his daughter’s injury ([23] at CB 301).
Given what had occurred at the Tribunal hearing, the applicant was plainly on notice that his account of the visits of the Karuna group to his house, including the injury to his daughter, was at issue. In his letter to the Tribunal, the applicant’s representative makes clear that the submissions (including what is set out at [69] above), were prepared in support of the applicant’s claims. Particularly that they were seeking to address what had been discussed at the Tribunal hearing (CB 281.3).
In addition to what is set out above in relation to particular “i”, the applicant therefore was on notice of this issue. The applicant provided the “diagnosis ticket” as evidence to address the Tribunal’s concerns.
In the circumstances, and as the Minister correctly submits, as the applicant was already on notice of the issue, the Tribunal was not obliged to provide the applicant with a further hearing, so as to put him on notice that the documents submitted in corroboration of the issue would be given “little weight” in relation to that issue (see Applicant S124 of 2003 v Refugee Review Tribunal [2006] FCA 375; (2006) 90 ALD 632 at [33] per Edmonds J, SZMUF at [20], Minister for Immigration and Citizenship v SZKTI [2009] HCA 30; (2009) 238 CLR 489 at [51] and SZTIS v Minister for Immigration and Border Protection [2017] FCA 545 at [66] per Burley J, and see [49] of the Minister’s second written submissions). Particular “ii” does not reveal legal error as pleaded in the ground of the application.
Particular “iii” asserts a breach of s.425 of the Act because the Tribunal failed to give the applicant the opportunity to comment on the photographs of a dead body said to be that of the applicant’s brother. In particular, the breach is said to be that the Tribunal failed to give him the opportunity to comment on the identity of that body.
In his written statement, the applicant relevantly stated
([32] – [33] at CB 35):
“[32] Yesterday, I received news that my brother, Manokaran, had been killed. His body was found in a canal. His body had been beaten. I believe he was killed by the same men who (sic) looking for me.
[33] This crime is now being investigated by the authorities. I do not believe my family will receive justice because the system does not work for Tamils and because it is corrupt and accepts the lies from those in authorities.”
On 7 March 2014, the applicant (through his representative) submitted a number of documents to the delegate in support of his claims (CB 112 to CB 129). Amongst these documents were two photographs (see CB 129). The representative’s covering letter (at CB 112), made no reference to these photographs, nor was their inclusion otherwise explained at that time.
In her decision record, the delegate made reference to the applicant’s claims concerning his brother as follows (CB 152.3):
“…In January 2013 these men asked the applicant’s wife about the applicant’s brothers. She told them of their whereabouts. On 13 January 2013 the applicant received news of his brother being killed and found in a canal. The applicant believes he was killed by the men who were after the applicant. The applicant’s brother’s death is now being investigated however he does not believe they will receive justice as the system disadvantaging (sic) Tamils.”
The delegate also recorded oral submissions made by the applicant’s representative following an interview with the applicant as follows (CB 152.7):
“The applicant’s brother’s death which was due to the authorities searching for the applicant originally indicates that the authorities have an ongoing interest in the applicant and that the applicant’s fears of serious or significant harm are
well-founded.”
The delegate also recorded the following under the heading of “Incident after the applicant’s arrival in Australia” as follows (CB 156.3):
“…In January 2013 these men asked the applicant’s wife about the applicant’s brothers. She told them of his whereabouts. On 13 January 2013 the day before the applicant’s interview with his lawyer in Australia, he received news of his brother being killed and found in a canal. The applicant believes he was killed by the men who were after the applicant. The applicant’s brother’s death is being investigated however he does not believe they will receive justice as the system disadvantaging (sic) Tamils.”
The delegate found that (CB 156.6):
“…The applicant claims that his brother was killed by these people in January 2013 and that his death was due to the authorities searching for the applicant. The evidence provided by the applicant stated that the verdict on his brother’s death was inaccurately published in the paper. The authorities put to the applicant’s brother’s wife that they would not release the body to the family unless the family accepted that the applicant’s brother was killed by alcohol. There is no evidence however to support that the death of the applicant’s brother was linked to the applicant and as such I do not accept that his death is linked to the applicant.”
The applicant’s representative also made written submissions to the Tribunal before the hearing as follows ([10] – [11] at CB 199 to CB 200):
“[10] In light of the above-noted findings as to [the applicant’s] credibility, the Delegate did not accept that ‘these people continued to visit [the applicant’s] home after July 2012’, nor that these people ‘would continue to pursue [the applicant] by way of visiting his wife at his mother-in-law[‘]s house in January 2013’. We submit, in light of the above-noted arguments, that [the applicant] has provided a plausible and credible account of his profile and experiences in Sri Lanka – sufficient not only to put himself at risk, but to expose his family to continuing harm (as noted above under the heading ‘New Claims’).
[11] The Delegate noted that ‘[t]here is no evidence … to support that the death of [the applicant’s] brother was linked to [the applicant]’, and hence did not accept that his death was linked to [the applicant]. We submit that it is inappropriate to require direct corroboration of such claims (particularly in circumstances where, as [the applicant] has claimed, the Sri Lankan authorities have sought to coerce his family to assent to the notion that [the applicant’s] brother died of alcohol-related causes), particularly where such documentary evidence does not exist or, if it existed, would place [the applicant’s] family in danger. As the UNHCR’s Handbook observes, ‘[t]he requirement of evidence should … not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself.”
[Footnotes omitted.]
At the hearing, the Tribunal questioned the applicant about the claimed death of his three brothers (T27 line 26). The Tribunal specifically asked the applicant to tell it about his brother that he was claiming was “killed more recently” (T27 line 45 to line 46).
The applicant responded and made reference to what he said was his brother’s death certificate, a newspaper article and two photographs (T28 line 34 to T29 line 45). In relation to the photographs, the Tribunal specifically asked questions about them (T31 line 23 to line 45).
As set out above, after the hearing, the applicant’s representative made further written submissions to the Tribunal. In addition to the “diagnosis ticket”, the applicant also submitted a death certificate in support of his claim concerning his brother (CB 285). The submissions asserted that the applicant’s representative was instructed by the applicant, to submit that what was written on the death certificate was “false, and the result of fraud and intimidation by those parties responsible for his brother’s death” (CB 281.8).
The answer posed by particular “iii” derives from the context discussed above in relation to particulars “i” and “ii”.
One of the applicant’s claims to fear harm on return to Sri Lanka, was that after his arrival in Australia, he continued to be of “interest” to the Karuna group.
In his initial written statement attached to his protection visa application, he claimed that this “interest” was demonstrated by members of the Karuna group coming to his house, and subsequently to his mother-in-law’s house looking for him (CB 33 to CB 36).
He claimed that on one of these occasions his daughter was injured. Further, the same people (from the Karuna group) that were looking for him had also killed his brother ([30] – [33] at CB 35).
The delegate unequivocally rejected the proposition that members of the Karuna group came to the applicant’s house on several occasions after he left Australia (CB 156.5 and see [45] above). Further, the delegate rejected the proposition that the applicant’s brother’s death was linked to the applicant (CB 156.7 and see [82] above).
On the evidence, the applicant, and his representative, had been given a copy of the delegate’s decision record. The applicant was on notice of what the delegate had relevantly found. This is confirmed by written submissions by the applicant’s representative given to the Tribunal before the hearing, regarding the daughter’s incident and the applicant’s brother’s death.
Whether the issue dispositive of the review is described as being whether the applicant was of interest to the Karuna group after he left Sri Lanka, or separately as being whether the daughter’s incident, and brother’s death, are separate issues, or components of the one issue, does not matter in the current case.
That is because the applicant would have been, and evidenced by submissions made to the Tribunal was, on notice as a result of the delegate’s decision, that the question of the interest of the Karuna group, and the incidents involving his daughter and his brother’s death, were all rejected by the delegate, were at issue in the review.
Evidence given by the applicant subsequently, as to the nature of the harm suffered by his daughter, and corroborating evidence relating to that injury, and his brother’s death, were all matters directed to his addressing that issue or issues. Evidence given by the applicant at the Tribunal hearing, and subsequently, was, in the circumstances, his response to the procedural fairness opportunity provided to him by the Tribunal.
The Tribunal’s identification of inconsistencies in the applicant’s evidence, and its view of the corroborating evidence provided in relation to the dispositive issue, is not in itself an issue in the review. Particular “iii”, as with particulars “i” and “ii”, is not made out.
Particular “iv”, in the context of the ground as pleaded, concerns what is said to be the “assumption made by the Tribunal that a family member would be able to pay any surety imposed on the applicant if he [were] arrested at the airport and later convicted”, upon his return to Sri Lanka. That is, the Tribunal breached s.425 of the Act in this regard.
Particular “iv” was described by the applicant’s counsel before the Court as not in the same category, and was “less strong” than the other particulars. Nonetheless I find that it does reveal legal error.
The particular directs attention to the Tribunal’s finding at [59] (at CB 309) of its decision record as follows:
“The information suggests that in most cases returnees have been granted bail, based on personal recognisance, with the requirement for a family member to stand guarantor. The Tribunal notes that the applicant’s wife, parents and brother reside in Sri Lanka and there is nothing to suggest that they cannot stand as guarantor for him. The Tribunal therefore does not accept that the treatment the applicant may face on his return to Sri Lanka as a result of his illegal departure from the country, either on arrival at the airport, whilst on remand awaiting bail hearing or when he appears later before the court, constitutes serious harm amounting to persecution.”
This matter did not arise from the applicant’s claims as put by the applicant himself. It arose at the Tribunal hearing. The transcript of the hearing reveals that the Tribunal put to the applicant, a summary of certain country information concerning the treatment of failed asylum seekers on return to Sri Lanka (T38 line 31 to T39 line 20). The applicant responded (T39 line 22 to line 26).
The applicant’s complaint is that the country information raised by the Tribunal concerned a number of “points”. The Tribunal asked a general question of the applicant as follows (T39 lines 18 to line 20 and see [21] of the applicant’s first written submissions):
“[Member]…Now, do you have any comments about any of that country information that I’ve just discussed with you in relation to your departure by boat from Sri Lanka?”
It did not specifically ask the applicant whether or not he had a family member who would provide a surety for him. The applicant now describes this as a “significant issue” in the review. The applicant was denied the opportunity to address this issue ([22] of the applicant’s first written submissions).
The applicant submitted that the Tribunal went on to conclude as follows ([69] at CB 311):
“…The Tribunal has found that the applicant will granted bail on his own recognisance and that if convicted of charges under Sri Lanka’s I&E Act, he will likely face a fine of between LKR 5,000 and 50,000. There is nothing to suggest on the evidence before it that the applicant (or his family members) will be unable to pay such a fine if it is imposed upon him…”
In short, the applicant complains that the Tribunal invited the applicant to comment on “one issue”, but did not invite the applicant to comment on another issue raised in the same “conversation” ([25] of the applicant’s first written submissions).
The applicant relies on Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069; (2015) 148 ALD 507 (“SZTQS”), on appeal from SZTQS v Minister for Immigration & Border Protection & Anor [2015] FCCA 978. This was a case that also involved a Tamil from Sri Lanka who claimed to have suffered harm from the Sri Lankan authorities or their agents. On judicial review, this Court found that the Tribunal had breached s.425 of the Act, because the Tribunal had not given the applicant the opportunity to comment on the Tribunal’s suggestion that his family would, or could, provide surety for his bail.
In the current case, the applicant submitted that the Minister’s appeal to the Federal Court was unsuccessful. The appellate Court accepted the primary Judge’s finding “that a ‘crucial plank’ in the Tribunal’s reasoning was its earlier finding that a member of SZTQS’s family would provide surety for him and that he would be bailed and, accordingly, not be detained for long” (SZTQS at [45]). The appellate Court accepted this finding, and in applying it to the relevant principles in SZBEL, found no error in the primary Judge’s approach.
In his submissions to the Court, the Minister correctly identified the applicant’s complaint at particular “iv”, as being that the Tribunal failed to put the applicant on notice that “a family member would be able to pay any surety”. The Minister however describes this as “the bail issue” (see [21] – [23] of the Minister’s first written submissions).
The Minister submitted that the circumstances of the current case are distinguishable from those in SZTQS, because the Tribunal in the current case did put the applicant on notice of the “the bail issue” at the Tribunal hearing as follows (T39 line 16 to line 18):
“…the Tribunal may consider the chance that you or your family would be unable to pay a fine of that amount to be remote.”
[Emphasis added.]
The Minister’s argument is that the applicant was on notice of “the bail issue”, and it was therefore open to the Tribunal to conclude that there was nothing “to suggest”, that the applicant’s family could not stand as guarantor should the applicant be detained by the authorities on return to Sri Lanka. The Minister relied on various authorities (BEV15 v Minister for Immigration and Border Protection [2016] FCA 507 at [47], AVU15 v Minister for Immigration & Anor [2016] FCCA 3065 at [23] and notes that SZTQS has been held to be “fact specific” in SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404 and see [23] of the Minister’s first written submissions).
It must be said that the Minister’s submissions reflect, with respect, the Tribunal’s own confusion, and its conflation, of the matters of bail and the payment of a fine. The Minister’s submissions rely on the Tribunal’s statement at the hearing (at T39 line 16 to line 18) concerning the payment of a fine, and the reference there to the applicant’s family. I cannot see that this can be said to relate, for the purposes of the Tribunal’s analysis, to the matter of bail, and the willingness, or capacity, of his family to provide surety.
The “right” to be released from custody, of a person charged with an offence, on the condition of returning to Court at some required time, may generally be understood as involving the concept of the granting of “bail”. In this context, bail may be granted on a person’s own recognisance, or another person’s surety, to be answerable for the applicant’s conduct in relation to the release on bail. Relevant to this case, that would be the applicant’s family.
In the current circumstances, the matter of the payment of a fine to the Sri Lankan authorities or Sri Lankan Court, would be imposed as punishment for having left Sri Lanka in breach of the relevant law, following such a finding by the Sri Lankan Court.
“Bail” and “fine” are, in my view, separate concepts.
The Tribunal’s summary (see T38 line 31 to T39 line 20) of country information relevantly addressed both the granting of bail, and the payment of a fine. As the Tribunal reported in “most cases” bail is granted “immediately”, and the person is “later fined” (T38 line 45 to line 47).
The reference at the Tribunal hearing, in the context of the applicant’s family, occurs later in the Tribunal’s summary. It is in that context that the Tribunal said that it “may consider the chance that you or your family would be unable to pay a fine of that amount to be remote” (T39 lines 16 to line 18).
On any fair reading, I cannot see that the Tribunal directed its latter comments concerning the applicant’s family’s ability to pay any fine, to the matter of the willingness or capacity of them, to stand as surety in relation to the question of the applicant’s bail.
The question of the willingness or capacity of the applicant’s family to stand as “guarantor”, is raised for the first time by the Tribunal, in the context of its consideration of the matter of bail as to the likelihood of the risk of serious harm in its decision record (see at [59] at CB 309).
At [69] (at CB 311) of its decision record the Tribunal, in the context of the consideration of the matter of bail, found that the applicant would be granted bail on his own recognisance. There is no reference there to the need for any family member to stand as guarantor in relation to the applicant’s bail. The only such reference in relation to complementary protection is in relation to his, or his family’s capacity to pay any fine.
I note that while the delegate made reference to “bail hearing” (see CB 165.6), there is nothing in her decision record, even on a fair reading, to say that the applicant would have been on notice that the question of bail and any guarantee by his family was at issue.
For current purposes therefore, the immediate focus must be on what the Tribunal said at [59] (at CB 309) of its decision record. As set out above, the question now is whether an issue arising in the review was whether, in being granted bail, the applicant’s family could stand as guarantor for him.
In the current case, given that the delegate made no finding, or reference to the family’s surety, or guarantee, in relation to the granting of bail, it is not necessary, as in SZTQS, to consider whether the issue in the current case is to be characterised as being of lesser or greater particularity.
That is, given that the delegate’s decision did not raise the question of bail, or the family’s surety or guarantee for bail (it was assumed by the delegate that the applicant would only be detained on arrival for “purely operational reasons”, see CB 165.7), it is not possible or necessary to distinguish between bail, as an issue of generality, and the question of the family’s capacity to give surety for the bail, as being at a level of greater or lesser particularity.
The question therefore is, was the matter of the applicant’s family’s capacity to provide surety to the applicant, a “crucial plank” in the Tribunal’s chain of reasoning leading to the conclusion that the applicant would not suffer serious harm on return to Sri Lanka for reason of his illegal departure from Sri Lanka.
Any fair reading of [59] (at CB 309) of the Tribunal’s decision record, and in the context in which it appears, leads to the finding that it was a “crucial plank”. That is, the Tribunal found that the applicant would not suffer serious harm on return, for reason of his illegal departure, because the applicant’s wife, parents and brother, were resident in Sri Lanka, and there was “nothing to suggest they cannot stand as guarantor for him” ([59] at CB 309).
While the Tribunal, at the hearing, raised the matter of the applicant’s family’s ability to pay any fine that may be imposed on him, it was silent as to their capacity to stand in guarantee, or surety, for his bail.
In the circumstances, the Tribunal’s finding that there was “nothing to suggest” that they would not stand as guarantors would not have been an available finding if the Tribunal had raised this issue, at the hearing, with the applicant. As it did not do so, the applicant was denied a fair opportunity to address it.
Conclusion
Particular “iv” does reveal a breach of s.425 of the Act. In the absence of any other reason to the contrary, it is appropriate therefore to grant the relief the applicant seeks. I will make the appropriate order.
I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 8 December 2017
3
27
2