MZYPY v Minister for Immigration

[2013] FCCA 810

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZYPY v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 810

Catchwords:
MIGRATION – Review of departmental decision on complementary protection – whether the departmental officer applied the wrong standard of proof or denied procedural fairness considered – whether the departmental officer’s assessment was otherwise not a lawful assessment for the purposes of s.46A of the Migration Act 1958 (Cth) considered.

Legislation:  
Migration Act 1958 (Cth), ss.36, 46A, 48B, 54, 91R, 195A, 476

Migration Amendment (Complementary Protection) Act 2011 (Cth)

Ashmore v Commissioner for Superannuation [2000] FCA 1816, (2000) 62 ALD 97
Chen v Minister for Immigration (1994) 48 FCR 591
GJ & Ors (Post-Civil War: Returnees) Sri Lanka GJ [2013] UKUT 00319 (IAC)

Jankovic v Minister for Immigration (1995) 56 FCR 474
Kioa v West (1985) 159 CLR 550
Minister for Immigration v SZQRB [2013] FCAFC 33, (2013) 296 ALR 525
Minister for Immigration v Wu Shan Liang(1996) 185 CLR 259
MZYPY v Minister for Immigration & Anor [2011] FMCA 1003

MZYPY v Minister for Immigration [2012] FCA 877
NAHF v Minister for Immigration (2003) 128 FCR 359
Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319
Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1
Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437
SZGIZ v Minister for Immigration [2013] FCAFC 71
SZGUR v Minister for Immigration (2011) 241 CLR 594
SZQDZ v Minister for Immigration [2012] FCAFC 26, (2012) 200 FCR 207
SZQFY v Minister for Immigration [2012] FCA 486
SZQHH v Minister for Immigration (2012) 200 FCR 223

Applicant: MZYPY

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: JAMES BARKUS IN HIS CAPACITY AS CASE OFFICER, MINISTERIAL INTERVENTION (NSW & VIC), DEPARTMENT OF IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

File Number: SYG 17 of 2013

Judgment of: Judge Driver

Hearing date: 15 July 2013

Delivered at: Sydney

Delivered on: 23 August 2013

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitors for the Applicant: Michaela Byers, Solicitor

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

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

2. The application filed on 8 January 2013, as amended, is dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 17 of 2013

MZYPY

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

JAMES BARKUS IN HIS CAPACITY AS CASE OFFICER, MINISTERIAL INTERVENTION (NSW & VIC), DEPARTMENT OF IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of an assessment by an officer of the Minister’s Department concerning the applicant’s claims to complementary protection, pursuant to s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act). The applicant had previously sought protection as a refugee and those claims had been considered by an Independent Merits Reviewer (Reviewer) and rejected. At the time the Reviewer prepared his report and recommendation the complementary criterion had not been included in the Migration Act. In such cases the Minister had put in place an administrative process of assessment of claims to complementary protection following receipt of a Reviewer’s report and recommendation. The procedure put in place by the Minister is no longer generally operative as it affected only those claimants whose claims for protection were dealt with prior to 24 March 2012. However, the Minister’s solicitors have advised that in the event that the applicant succeeds in this proceeding a new International Treaties Obligations Assessment (ITOA) procedure would be applied to the applicant.

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant arrived in Australia by boat on 17 March 2010. He thereupon became an offshore entry person for the purposes of s.5 of the Migration Act. He was prevented from applying for a protection visa without the consent of the Minister.

4. The applicant made protection claims which were considered by the Minister’s Department and the Reviewer. That process was finalised on 7 July 2011. The assessment and review considered the operation of s.36(2) of the Migration Act prior to the commencement of the complementary protection criterion now contained in s.36(2)(aa) of the Migration Act.

5. The applicant sought judicial review of the Reviewer’s report and recommendation and that case was dismissed on 21 December 2011[1].  The applicant appealed to the Federal Court, which dismissed the appeal[2].

   [1] MZYPY v Minister for Immigration & Anor [2011] FMCA 1003

   [2] MZYPY v Minister for Immigration [2012] FCA 877

6. On 7 August 2012, Mr Chris Alexiou, Director of the Complex Case Resolution Section of the Minister’s Department, forwarded to the advisor of the applicant a letter containing the following:

   The Department subsequently assessed your case against the Minister for Immigration and Citizenship’s Guidelines for the consideration of post review application claims.  However, your case did not meet these guidelines, and therefore was not referred to the Minister for his consideration of whether it is in the pubic interest to allow you to apply for a visa.

7. On 10 September 2012, the applicant’s advisor, Ms Michaela Byers, apparently requested that the Minister lift the bar under s.48B of the Migration Act and allow the applicant to make a fresh protection visa application[3] addressing the complementary protection provisions on the basis that:

   a)he worked for the LTTE;

   b)the Karuna Group were looking for him;

   c)as a failed asylum seeker he would be questioned and detained upon return at the airport in Colombo. (emphasis added)

   [3] This was probably an unnecessary request as the applicant had not previously been permitted to apply for a protection visa

8. The applicant’s advisor provided further evidence regarding the use of torture in Sri Lanka, including a number of reports released between September and November 2011 “which document torture and other forms of ill-treatment in Sri Lanka”.  The advisor further stated:

   The applicant not only fears torture and ill-treatment from the Sri Lankan authorities when he returns through the airport in Colombo and at times when he comes in contact with the Sri Lankan authorities but persecution from the Karuna Group when he returns to his home village due to his involvement in the LTTE.

9. The applicant’s claims were then assessed in the Minister’s department under the Minister’s Post Review Protection Claims (PRPC) guidelines.  On 27 September 2012, a minute was issued by the second respondent (Mr Barkus – the PRPC officer) purporting to assess the applicant’s claims under the complementary protection provisions[4].

   [4] This is contained in the affidavit of Ms Byers of 24 April 2013, page 14

The judicial review application

1. These proceedings began with a judicial review application filed on 8 January 2013.  An amended application was filed on 10 May 2013.  At the trial of this matter on 15 July 2013 the applicant sought leave to rely upon a further amended application.  That leave was opposed by counsel for the Minister.  I reserved my position on the request for leave until I had heard argument on the legal issues advanced.  In the result, I agreed to grant leave on the basis that the Minister was not prejudiced.  The further amended application inappropriately sought an order in the nature of certiorari and an order for a writ of mandamus.  I struck out those claims for relief.  The remaining claim is for a declaration that the assessment of the PRPC officer concerning the complementary protection issue was not made in accordance with law and an injunction restraining the Minister from relying upon that assessment.  A third respondent (another departmental officer) had been inappropriately joined and was removed[5].

   [5] That officer’s assessment was effectively replaced by that of the PRPC officer

2. The further amended application contains the following grounds:

   1. As the Applicant is a person who has not yet made an application for a protection visa, s.35 of Schedule 1 of the Migration Amendment (Complementary Protection) Act (No. 121 of 2011) makes s.36(2)(aa) (as amended) applicable to the definition of “protection obligations” for the purposes of the Act in considering claims for protection made by the Applicant on and after 24 March 2012.

   2.The First Respondent has previously announced that all people who arrived and are offshore entry persons who provide claims or information which prima facie may engage Australia’s protection obligations would be assessed for the purposes of s.46A.

   3. The Applicant has made claims that prima facie engage Australia’s protection obligations as defined under the Act.

   4. The assessment of protection claims as defined by s.36(2)(aa) of the Act for the purposes of s.46A of the Act by the Second and Third Respondent has been attended by denial of procedural fairness and/or error of law for the reasons given below.

   5. The First Respondent cannot lawfully act of the basis of the “Reconsideration of Protection Claims – Following the Independent Merits Review Finding” assessment under the Consideration of Post-Review Protection Claims (“the Minister’s Guidelines”) because:

   a. The assessment applied the wrong standard of proof when assessing whether the First Respondent could have ‘substantial grounds for believing’ that the Applicant would be arbitrarily deprived of life, torture, suffer cruel, inhuman or degrading treatment/punishment; and/or

   b. The assessment [was] made by a process that denied the Applicant procedural fairness in that the Applicant was not given any opportunity to:

   i.      Be heard on the questions relevant to the assessments; and/or

   ii.      Respond to the substance and source of information that the assessors relied upon as being credible, relevant and significant in making the assessment.

   iii.     Have the full integers of his claim assessed.

   6. The purported assessment of the Applicant by the Second Respondent dated 27 September 2012 … [was not an assessment] for the purposes of s.46A of the Act.

   7. Accordingly, further and in the alternative, a declaration that the assessment by the Second Respondent dated 27 September 2012 … involved denial of procedural fairness to the Applicant in that he was not able to give evidence to the decision maker in person.

3. I received as evidence two affidavits by Michaela Byers (the solicitor for the applicant) made on 24 April 2013 and 1 May 2013.  Those affidavits introduced documents relevant to the complementary protection assessment undertaken.  I also received the affidavit of Matthew Alderton (solicitor for the Minister) made on 5 July 2013 which introduces additional documents, including the record of the prior independent merits review and refugee status assessment undertaken by the Minister’s Department and the Reviewer.

4. Both parties made written and oral submissions. 

Consideration

The legislative context

1. The applicant’s submissions deal with the applicable legislation.

2. The Migration Act provides criteria for a protection visa in respect of refugee and complementary protection in s.36 of the Migration Act:

   (1)  There is a class of visas to be known as protection visas.

   Note:  See also Subdivision AL.

   (2)  A criterion for a protection visa is that the applicant for the visa is:

   (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)  a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)     is mentioned in paragraph (a); and

   (ii)    holds a protection visa; or

   (c)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)     is mentioned in paragraph (aa); and

   (ii)    holds a protection visa.

   (2A)  A non-citizen will suffer significant harm if:

   (a)  the non-citizen will be arbitrarily deprived of his or her life; or

   (b)  the death penalty will be carried out on the non-citizen; or

   (c)   the non-citizen will be subjected to torture; or

   (d)  the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)   the non-citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)  it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

   (b)  the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

   (c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

   Ineligibility for grant of a protection visa

   (2C)A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

   (a)    the Minister has serious reasons for considering that:

   (i)     the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

   (ii)    the non-citizen committed a serious non-political crime before entering Australia; or

   (iii)  the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or

   (b)    the Minister considers, on reasonable grounds, that:

   (i)     the non-citizen is a danger to Australia's security; or

   (ii)    the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.

   Protection obligations

   (3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

   (4)However, subsection (3) does not apply in relation to a country in respect of which:

   (a)the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

   (b)  the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

   (5)  Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:

   (a) the country will return the non-citizen to another country; and

   (b)  the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

   (5A)Also, subsection (3) does not apply in relation to a country if:

   (a)  the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

   (b)  the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

   Determining nationality

   (6)  For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.

   (7)Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.

3. The statutory guidance in respect of complementary protection may be contrasted with the statutory guidance in relation to persecution in s.91R of the Migration Act:

   (1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

   (a)  that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

   (b) the persecution involves serious harm to the person; and

   (c)   the persecution involves systematic and discriminatory conduct.

   (2)  Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)  a threat to the person's life or liberty;

   (b)  significant physical harassment of the person;

   (c)   significant physical ill-treatment of the person;

   (d) significant economic hardship that threatens the person's capacity to subsist;

   (e)   denial of access to basic services, where the denial threatens the person's capacity to subsist;

   (f)   denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

   (3) For the purposes of the application of this Act and the regulations to a particular person:

   (a)  in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

   disregard any conduct engaged in by the person in Australia unless:

   (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

4. The Migration Amendment (Complementary Protection) Act 2011 (Cth)[6] (Complementary Protection Act) states at Schedule 1 item 35:

   The amendments made by the Schedule apply in relation to an application for a protection visa (within the meaning of the Migration Act 1958):

   (a) that is made on or after the day on which this item commences; or

   (b) that is not finally determined (within the meaning of subsection 5(9) of that Act) before the day on which this item commences.

   [6] Act No 121 of 2011

5. In applying the test contained in the legislation, guidance is provided by the second reading speech of 24 February 2011, where the Minister explained the effect of s.36(2)(aa) of the Migration Act as inserted by Schedule 1 item 12 as follows:

   The Migration Amendment (Complementary Protection) Bill 2011 amends the Migration Act to eliminate a significant administrative hole in our protection visa application process.

   Under the Migration Act, as it currently stands, only those people fleeing persecution for one of the five reasons outlined in the Convention Relating to the Status of Refugees – race, religion, nationality, social group or political opinion – are eligible to receive a protection visa through the usual process.

   Applicants who fall outside these categories are not considered refugees and, consequently, their applications must be rejected by the Department of Immigration and Citizenship and also by the Refugee Review Tribunal.

   But some of these people are fleeing significant harm – be they women fleeing so called “honour killings” or, in some certain circumstances depending on the nation, people fleeing persecution on the basis of their sexual preference.

   These people can fall outside the categories recognised by our current protection visa process.

   So their application will be rejected at first instance – and again at review – even where Australia’s nonrefoulement obligations and other international treaties ensure that we cannot and will not send them back to their countries of origin.

   These treaties are the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other, Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (CROC).

   Protection from return in situations that engage our non-refoulement obligations under these treaties is known as “complementary protection”, in the sense that it is complementary to the protection given under the Refugees Convention.

   Under the current system, these people, who have often fled countries in fear of their lives, must go through our administrative processes knowing they are going to be rejected.

1. The Minister went on:

   The Bill establishes new criteria for the grant of a protection visa in circumstances that engage Australia’s non-refoulement obligations under human rights treaties other than the Refugees Convention.

   Australia will not return a person to a place where there is a real risk that a person will suffer particular types of significant harm contained in the relevant human rights treaties, namely:

   - the arbitrary deprivation of life;

   - having the death penalty carried out;

   - being subjected to torture;

   - being subjected to cruel or inhuman treatment or punishment; or

   - being subjected to degrading treatment or punishment.

   The prohibitions of these types of harm are found in articles 6 and 7 of the ICCPR and in the Second Optional Protocol to the ICCPR.

The applicant’s contentions

1. The applicant contends that the PRPC officer has simultaneously conflated the tests pursuant to ss.36(2)(a) and 36(2)(aa) of the Migration Act and otherwise applied the wrong standard of proof in regard to the complementary protection provisions. Further, the applicant is said to have been denied the opportunity to give evidence to the decision maker in person, despite the request by his advisor for him to do so.

2. The applicant submits:

   a)that the findings of the Reviewer, at [55]-[60] of his report and recommendation, involved an acceptance on his part that the applicant “was a citizen of Sri Lanka and has no other country of habitual residence”[7];

   b)the findings are otherwise confined to credit applied to the test under the Refugee Convention as opposed to the complementary protection provisions, noting that at [57] the Reviewer found “his behaviour in Malaysia was not consistent with his claim to fear persecution in Sri Lanka” and that “I find that he did not and does not have a genuine fear of persecution in Sri Lanka”;

   c)However, the findings in respect of the claims made by the Reviewer were ultimately “bound up” in Convention related reasoning – confined as they were to the “genuine” nature of the fears of the applicant that he would face persecution in Sri Lanka – a factor which is not relevant to the test under the complementary protection provisions;

   d)the findings by the Reviewer in respect of his claims were contrary to their characterisation by the Departmental Minute.  The Reviewer, in confining the issues to the test of “well-founded fear as to persecution”, did not deal with the claim squarely raised by the applicant during an interview with the Reviewer and otherwise outlined on page 7 of his report and recommendation as follows:

   He said that, if he were to return [to Sri Lanka], he would be arrested immediately.  No Tamil could pass the airport without enquiry and he did not hear about people being released later on.

   [7] At [55]

   e)the assessment of this integer of the applicant’s claim under the Refugee Convention was effectively “bound up” in Convention related reasoning; in regards to the “genuine” nature of his fear[8] or alternatively as to whether there is a “risk factor in the claimant’s background that leads me to conclude that there is a real chance that he would suffer harm amounting to persecution for reason of his ethnicity, his real or imputed political opinion or for any other Convention related reason”[9];

   f)this integer of the applicant’s claim was then expressed in different terms under the applicant’s claim to complementary protection provisions as advanced by the applicant’s advisor on 10 September 2012:

   [8] See [56]-[57]

   [9] See [58]

   As a failed asylum seeker he would be questioned and detained upon return at airport in Colombo.

   Some documented evidence was then advanced on behalf of the applicant on pages 2-3 of the advisor’s letter dated 10 September 2012.

3. In the circumstances, the applicant submits:

   a)the applicant has not been accorded the opportunity to put his case in person under the complementary protection provisions;

   b)the evidence advanced by the applicant’s advisor in pages 2-3 of the letter from Ms Michaela Byers dated 10 September 2012 does not appear to have been dealt with in any particularity in the Departmental Minute issued by the officer of the Minister’s Department dated 27 September 2012;

   c)the applicant’s advisor was not placed on notice that the PRPC officer would reject the contents of these reports in global as “not credible”, denying him the opportunity to lead further evidence on this point or indeed to meet the case that was against him;

   d)the PRPC officer did, however, note under “Treatment of Failed Tamil Asylum Seekers in Sri Lanka” in the Departmental Minute various reports including “a DIAC Country Information Research  Response dated 16/12/2011” and “a UK Home Office Report of 26/6/2009” to ground the adverse proposition that the applicant “may be questioned to a minor degree” by authorities at the airport but that this would be “standard procedure applied to all ETD holders”;

   e)these reports were simply not disclosed to the applicant’s advisor – again amounting to a denial of procedural fairness.

4. The applicant further submits that the Departmental Minute effectively imports an erroneous standard of proof in assessing those claims as advanced by the applicant.  This is as stated by the PRPC officer as follows:[10]

   Despite any risk of harm he may face, it is unlikely that [the applicant] would be considered to meet the high threshold for a real risk of significant harm.  He may be subjected to questioning but there is not indication that this questioning will result in [the applicant’s] arbitrary detention or subsequent harm as a foreseeable consequence of his return.

   [10] See affidavit of Ms Byers of 24 April 2013, page 21

5. The applicant submits that the PRPC officer has imported into his reasoning a higher threshold than the “real chance” threshold appropriate to the consideration of the applicant’s claims under complementary protection.

6. The grounds pleaded in the application, in this sense, concern the correct test in law under the complementary protection provisions as enacted by Schedule 1 of the Complementary Protection Act, making s.36(2)(aa) applicable to the definition of “protection obligations” for the purposes of the Migration Act in considering claims for protection made by the applicant on and after 24 March 2012.

7. In Plaintiff M61/2010E v Commonwealth of Australia[11] the High Court held that the decision to establish and implement the Refugee Status Assessment (RSA) and Independent Merits Review (IMR) procedures was a decision by the Minister to consider whether to exercise s.46A or s.195A of the Migration Act in respect of any offshore person who made a claim that Australia owed that person protection obligations[12]. As one of the powers being considered was that pursuant to s.46A to lift the bar to allow offshore entrants to make an application for a protection visa the exercise of the power would be pointless unless the RSA and IMR processes were undertaken according to the criteria and principles of the Migration Act, as construed and applied by the Courts of Australia[13].

   [11] (2010) 243 CLR 319

   [12] At [66]

   [13] At [88]

8. In M61 the High Court found the RSA assessment and subsequent IMR were subject to procedural fairness as these processes extended the claimants period of detention.  Hence the Court found the assessment and review must be procedurally fair and must address the relevant legal questions[14].

   [14] At [77]

9. The applicant adopts the characterisation of the process as made by the High Court in M61 at [38]-[52] and [73]. The applicant submits that these very processes of RSA and subsequent IMR were undertaken by the Department in consequence of the Minister’s decision to exercise his powers under ss.46A and 195 of the Migration Act.

10. The applicant further adopts the reasoning of the Federal Court in SZQDZ v Minister for Immigration[15] as follows at [8]-[10]:

    [15] [2012] FCAFC 26

    A provision of crucial importance to the resolution of these questions, but not mentioned in them, is s.46A of the Act. Subsections 46A(1)-(3) and (7) of the Act provide:

    46A Visa applications by offshore entry persons

    (1)An application for a visa is not a valid application if it is made by an offshore entry person who:

    (a)     is in Australia; and

    (b)     is an unlawful non citizen.

    (2)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.

    (3)The power under subsection (2) may only be exercised by the Minister personally.

    ...

    (7)The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.

    The Minister has similar powers in respect of detainees under s.195A of the Migration Act.

    The reviews conducted by the Independent Merits Reviewers were part of a process conducted under administrative arrangements established by the Minister’s Department. In Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 (Plaintiff M61) at 342-345 [38]-[52] and 351-352 [73] the High Court described the process. The inquiries undertaken in that process were made under the Act in consequence of the Minister’s decision to consider exercising his powers under ss 46A and 195A. The purpose of the process was to inform the Minister of matters that were relevant to the decision whether to exercise his statutory powers in favour of an offshore entry person or detainee.

    Under that process an officer of the Department interviewed each applicant. If the officer considered that the applicant was a person owed protection obligations under the Convention, a submission to that effect was made to the Minister for his consideration as to whether to exercise the power reposed in him by s 46A(2) of the Act by lifting the s 46A(1) bar to allow an application for a visa to be made. If the officer was of the opinion that an applicant was not a person to whom protection obligations were owed under the Convention, the applicant might then seek a review by an Independent Merits Reviewer. These reviewers were appointed by the Minister. Their function was to report their assessment and recommendation to the Minister. Under the administrative arrangements which were in place, the reviewer’s assessment and recommendation were made available to the Minister for his consideration. This occurred as a matter of administrative practice. By virtue of s 46A(7) of the Act, the Minister was not obliged to take the reviewer’s assessment or recommendation into account in deciding whether or not to lift the s 46A(1) bar.

11. The Full Court continued at [29] and [44]:

    As is apparent from the reasons of the plurality in Bodruddaza at 659-660 [4]-[9], the point was that the plaintiff’s application for mandamus sought to replace a decision to refuse a visa with a decision to grant it. Notwithstanding that the application was in form an application for mandamus, it was in substance an application for a remedy in relation to the earlier, allegedly invalid, decision because it was sought to replace the latter with the former. In the present case, the Minister has not yet made a decision of any kind. Each reviewer’s recommendation was not a decision upon an application for a visa. Indeed, it is not even a step required by the Act in the Minister’s decision making process under s 46A. If the Minister makes that decision, that will be the only decision which has any legal effect under the Act. Importantly, so far as the Minister’s reliance on Bodruddaza is concerned, each reviewer’s recommendation is not a decision apt to be replaced by the Minister’s decision. No relief is sought in any of the applications to the Federal Magistrates Court for the Minister to make a decision in lieu of the recommendation. Rather, the applicants seek an order that the Minister refrain from making a decision which takes the recommendation into account.

    …

    The Minister can ignore entirely a reviewer’s assessment and recommendation. However, as in Plaintiff M61 at 358-360 [99]-[104], declaratory relief and, perhaps, an injunction would be an appropriate remedy to ensure that the Minister understands that a assessment or recommendation is affected by demonstrable error if he or she were otherwise minded to act upon them. In this regard, to say that the assessment and recommendation of the review was not an administrative decision is not to say that the review process was not required to be fairly and lawfully conducted. As the High Court explained in Plaintiff M61 at 353-356 [76]-[78]:

    76 Contrary to the submissions of the Commonwealth and the Minister, the Minister's decision to consider whether power should be exercised under either s 46A or s 195A directly affected the rights and interests of those who were the subject of assessment or review. It affected their rights and interests directly because the decision to consider the exercise of those powers, with the consequential need to make inquiries, prolonged their detention for so long as the assessment and any necessary review took to complete. That price of prolongation of detention is a price which some claimants may have paid without protest. After all, they sought entry to Australia and this was the only way of achieving that end. And they claimed that return to their country of nationality entailed a real risk of persecution. But even if it were the fact that individuals were content to have detention prolonged, that must not obscure that what was being done, for the purposes of considering the exercise of a statutory power, had the consequence of depriving them of their liberty for longer than would otherwise have been the case.

    77 Because the Minister was not bound to exercise power under either s 46A or s 195A, no matter what conclusion was reached in the assessment or review, it cannot be said that a decision to consider exercising the power affected some right of the offshore entry person to a particular outcome. The offshore entry person had no right to have the Minister decide to exercise the power or, if the assessment or review were favourable, to have the Minister exercise one of the relevant powers in his or her favour. Nonetheless, once it is decided that the assessment and review processes were undertaken for the purpose of the Minister considering whether to exercise power under either s 46A or s 195A, it follows from the consequence upon the claimant's liberty that the assessment and review must be procedurally fair and must address the relevant legal question or questions. The right of a claimant to liberty from restraint at the behest of the Australian Executive is directly affected. The claimant is detained for the purposes of permitting the Minister to be informed of matters that the Minister has required to be examined as bearing upon whether the power will be exercised.

    78 The Minister having decided to consider the exercise of power under either or both of ss 46A and 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead at some point to the result that further consideration of exercise of the power is stopped does not deny that the steps that were taken were taken towards the possible exercise of those powers. Nor does it deny that taking the steps that were taken directly affected the claimant's liberty. There being no exclusion by plain words of necessary intendment, the statutory conferral of the powers given by ss 46A and 195A, including the power to decide to consider the exercise of power, is to be understood as "conditioned on the observance of the principles of natural justice". Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.

    [Footnotes omitted, bold emphasis added.]

12. The applicant adopts the reasoning of the majority of the Full Federal Court in Minister for Immigration v SZQRB[16] at [200] and at [230]-[231]:

    If on judicial review a Court determines that in the assessment of a non-citizen’s claims the assessor or reviewer did not accord the person procedural fairness, or proceeded on an error of law, the Court will grant a declaration to that effect. That declaration will warn the Minister that the Minister should not take the person into detention (if not already in detention) for the purpose of removing that person from Australia, or attempting to remove the person from Australia, until a lawful assessment is made.

    If the Minister proceeded to remove the unlawful non-citizen without obtaining a further RSA or IMR, the Minister would be liable to be restrained by the Court granting an injunction, not because the Minister will not exercise his powers under s 46A, s 91L, or s 195A, but because the Minister would be removing that non-citizen in breach of Australia’s international obligations to accord protection to those who are entitled to protection under the Refugees Convention, the CAT or the ICCPR. Whether SZQRB is entitled to any injunctive relief will depend upon SZQRB making out his claim that the ITOA is infected with jurisdictional error.

    [16] [2013] FCAFC 33; (2013) 296 ALR 525

13. In the circumstances the applicant submits that the correct contemporaneous test under s.36(2)(aa) of the Migration Act has not been applied to the applicant’s claim in the findings as made by the PRPC officer at pages 21-22 of Michaela Byers’ affidavit dated 24 April 2013.

14. The applicant further adopts the reasoning of the majority of the Full Federal Court in SZQRB at [246]-[248]:

    In our opinion, the test is as for s 36(2)(a) and as stated by SZQRB – is there a real chance that SZQRB will suffer significant harm (as that is defined in s 36(2A)) were he to be returned to Afghanistan.

    That being the case, the ITOA applied the wrong test in considering SZQRB’s entitlement for Australia’s protection obligations under the CAT and ICCPR as defined in s 36(2)(aa) and s 36(2A). The ITOA assessed SZQRB’s claims as against whether it was “more likely than not” that SZQRB would suffer significant harm, which was not the appropriate standard. The “Departmental policy”, if the ITOA was right to describe it that way, was not in accordance with Australian law.

    SZQRB’s contention that the ITOA was not carried out according to law must be accepted on that ground alone.

15. Further and in consideration of the above reasoning by the Full Federal Court in SZQDZ, the applicant submits:

    a)the applicant has not had an opportunity, in person or in writing, to put his claim under the complementary protection provisions;

    b)the Reviewer’s recommendation relates only to s.36(2) of the Migration Act as it was – and there was no consideration of s.36(2)(aa) of the Migration Act as it now stands;

    c)the RSA and IMR process was created by the Minister to determine whether an offshore entry person meets the criteria under s.36(2) of the Migration Act in exercising his powers under s.46A of the Migration Act to lift the bar if it is “ in the public interest to do so”;

    d)the Minister would now be acting under erroneous advice if he acted on the recommendation of the Reviewer as made on 7 July 2011 because it is based on a superseded version of s.36(2) of the Migration Act;

    e)whilst the Minister’s powers to lift the bar under s.46A of the Migration Act remain extant, the M61 decision of the High Court means that the assessment and review “must be procedurally fair and must address the relevant legal questions”[17];

    f)adopting the reasoning of the Full Court in SZQRM, the correct legal questions have not been applied in the instant matter;

    g)relevant findings made in the “Findings and Reasons” in the IMR report are “bound up” in Convention related reasons and admit the possibility that, should the correct test be applied under s.36(2)(aa) of the Migration Act, the claim will be disposed in favour of the applicant;

    h)there is a necessary inference which flows from consideration of the Departmental Minute contained in the annexure “E” to Ms Byers’ affidavit of 24 April 2013 that the incorrect test has been applied and that there has been a denial of procedural fairness in the assessment of the applicant’s claims to complementary protection as squarely raised by the applicant in his advisor’s letter contained in the affidavit of Ms Byers dated 1 May 2013.

    [17] At [77]

1. In the circumstances, the applicant submits that this process embarked upon by the Minister for determining his decision on whether to lift the bar under s.46A of the Migration Act is not at an end, because the Minister has not yet turned his mind to rejecting/making a ruling under s.46A. However, this administrative process remains relevant to the Minister’s exercise of powers under s.46A, that is whether the person would meet the criteria under s.36(2)of the Migration Act.

The Minister’s contentions

1. The PRPC Guidelines, developed by the Minister, are designed to give guidance to officers of the Minister’s Department as to which cases involving offshore entry persons should be referred to the Minister for consideration as to whether he should lift the statutory bar in s.46A(2) of the Migration Act. In particular, the PRPC Guidelines are intended to provide guidance for assessing whether additional information provided to the Minister’s Department, after the RSA and IMR processes have been finalised, should be referred to the Minister for his consideration. The PRPC Guidelines also provide guidance in relation to offshore entry persons who have received a negative assessment during the RSA and IMR processes but who have not yet had an ITOA. Further, the PRPC Guidelines make it clear that it is not intended that the PRPC assessment process will involve a wholesale reassessment of whether the offshore entry person is a person in respect of whom Australia owes protection obligations. The PRPC assessment process has a rather narrower focus, and is directed towards a consideration of whether the particular offshore entry person has presented new claims or evidence that would suggest he would satisfy the criteria for the grant of a protection visa under s.36(2) of the Migration Act (were he or she permitted to make an application for a protection).

2. Although the Minister’s position is that Minister for Immigration v SZQRB[18] was wrongly decided, the Minister accepts that, for the present purposes, the effect of SZQRB (which is binding on this Court) is that the Court has jurisdiction to “review” the PRPC Assessment under s.476 of the Act. Subsection 476(1) provides as follows:

   Subject to [section 476] the Federal [Circuit] Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution (emphasis added).

   [18] Op cit

3. The Minister makes this limited concession on the footing that the reasoning in SZQRB suggests that because the applicant has sought to enjoin the Minister from relying upon the PRPC assessment (which itself is not a “migration decision”) the applicant has made an application “in relation to a migration decision”, that is, in relation to a future decision as to whether or not the Minister should exercise his powers under s.46A of the Migration Act, thus attracting the jurisdiction of the Court[19].  I have proceeded consistently with the Minister’s concession.

   [19] SZQDZ v Minister for Immigration (2012) 200 FCR 207 (FC) at [46]

4. As to the grounds of review advanced, the applicant’s submissions at [8] and [9] first make complaints concerning the Reviewer’s recommendation.  It is not clear to the Minister what relevance these complaints have.  The Reviewer is not named as a party in the amended application, and nor is any relief sought in respect of it.  That is appropriate, since this Court and the Federal Court have already reviewed the Reviewer’s recommendation.  It therefore cannot be reviewed again[20].

   [20] SZQRB at [56]-[57] per Lander and Gordon JJ, [298] per Besanko and Jagot JJ, [342] per Flick J

5. The applicant’s submissions at [10] then make a number of complaints concerning the recommendation made by the PRPC officer of 27 September 2012 as to whether the applicant meets the PRPC Guidelines.  The PRPC officer’s recommendation appears at pages 15-22 of Ms Byers’ affidavit filed on 29 April 2013.

6. The applicant’s first complaint appears to be that he was not afforded a hearing in person by the PRPC officer.  The applicant’s submissions do not develop the argument, or cite any authority in support.

7. The High Court has held that what the rules of procedural fairness require in any given case is to be assessed by reference to what is “fair” in all the circumstances, and that “fairness is not an abstract concept” – “[i]t is essentially practical”[21].  The content of a decision-maker’s (or persons in analogous positions, such as the PRPC officer) procedural fairness obligations “depends on the circumstances of the case and they will include… the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting”[22].  The question of whether procedural fairness might require a hearing at which evidence would be given orally before an administrative decision is made is “not susceptible of a single answer of universal application”.  The question has arisen in a variety of contexts and the answer almost invariably lies in the terms of the applicable statute and the circumstances of the particular case[23].

   [21] Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1, Gleeson CJ at [37]

   [22] Kioa v West (1985) 159 CLR 550 at 584-585

   [23] see Chen v Minister for Immigration (1994) 48 FCR 591 (FC) at 597; NAHF v Minister for Immigration (2003) 128 FCR 359 (Hely J) at [33]; Ashmore v Commissioner for Superannuation [2000] FCA 1816, (2000) 62 ALD 97 (Moore J) at [58] and the cases cited therein.

8. The applicant, in his written submissions, gives no indication as to why the rules of procedural fairness, which are directed to the “avoidance of practical injustice”, required the PRPC officer to conduct an oral hearing before the making of the PRPC Assessment. Critically, the applicant does not identify what it is about the PRPC assessment process (which is directed to informing the Minister as to whether he should exercise his non-compellable powers under s.46A(2) after the RSA and IMR processes have been finalised) that leads to the conclusion that PRPC assessments can only be made following an oral hearing. Furthermore, the applicant’s bare assertion that an oral hearing was required overlooks the fact that by the stage at which PRPC assessments are made, persons such as the applicant will have already had the opportunity to advance their claims (both orally and in writing) through the RSA and IMR processes, where the factual issues relevant to a complementary protection claim will often substantially overlap with those arising under the Refugees Convention.

9. The processes in issue here, while serving a function under the Migration Act, are of a less formal nature. This is significant where the Migration Act does not compel the Minister or his delegates to give oral hearings before deciding whether or not to grant visas (s.54(3)). It would be curious if persons making recommendations were bound to give oral hearings, when delegates are not bound to do so (even when there is no right of merits review).

10. Further, the applicant did not request an oral hearing, and it may be noted that none of the Court in SZQRB suggested, in a comparable fact situation, that an oral hearing was required.

11. Accordingly, the Minister submits that the applicant has not made good his claim that the PRPC officer was required to conduct an oral hearing before the making of the PRPC Assessment.  The suggestion that an oral hearing was required must therefore be rejected.

12. The applicant’s second complaint is that the evidence advanced in the applicant’s agent’s letter of 10 September 2012 to the PRPC officer was not “dealt with in any particularity”.  Again the argument is not developed and no authority is cited in support of it.  The PRPC officer refers to the applicant’s agent’s letter of 10 September 2010, summarises its contents in detail and addresses it[24].  Without more explanation from the applicant this vague complaint does not establish any legal or procedural error by the PRPC officer.

    [24] Pages 18-22

13. The third complaint is that the applicant and his advisor were not “placed on notice” that the PRPC officer would reject the contents of the reports submitted by the applicant “in global as ‘not credible’”.  Again, the argument is not developed and no authority is cited in support of it.  The PRPC officer did not, contrary to the formulation of this complaint, reject the reports submitted by the applicant as not credible, but found that they did not provide a credible basis to contradict the Reviewer’s findings.   Procedural fairness did not require that he give the applicant advance notice of this conclusion[25].

    [25] SZGUR v Minister for Immigration (2011) 241 CLR 594 at [9], Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 (HCA) at [54]

14. The fourth complaint appears to be that the PRPC officer did not disclose to the applicant’s adviser some country information concerning questioning of returnees at Colombo airport cited at pages 20.7-21.2.  Once again, the applicant provides no argument or authority in support of this complaint.  Procedural fairness did not require the PRPC officer to provide every piece of country information before him to the applicant[26].  In any case, the country information cited by the PRPC officer is not substantially new or different to that quoted by both the RSA and Reviewer (at [51] of his report) concerning the treatment of returnees at Colombo airport, so no breach of procedural fairness is made out[27].  The applicant specifically complains of the PRPC officer’s conclusion at page 21.2 that he may be questioned to a minor degree, but this would be standard procedure applied to all ETD holders.  This is a factual conclusion, not country information, and so did not need to be disclosed in advance (see the previous paragraph), and in any case is the same in substance to the conclusions already reached by the RSA and Reviewer.  No breach of procedural fairness has been established.

    [26] SZQHH v Minister for Immigration (2012) 200 FCR 223 at [30] per Rares and Jagot JJ

    [27] See similarly SZQHH at [33] per Rares and Jagot JJ; SZQFY v Minister for Immigration [2012] FCA 486 (Siopis J) at [60]-[61]

15. The final complaint at [11] and [12] of the applicant’s submissions is that the PRPC officer applied the wrong test when considering the “complementary protection” provisions in s.36(2)(aa) of the Migration Act. SZQRB at [246]-[247] per Lander and Gordon JJ, [297] per Besanko and Jagot JJ, [342] per Flick J holds that the test is whether there is a real chance of “significant harm” (as defined). The Minister formally submits that SZQRB was wrongly decided in so holding.

16. Unlike in SZQRB at [240], the PRPC officer here did not explicitly refer to departmental policy that a balance of probabilities test applied to s.36(2)(aa). On a fair reading, consistent with Minister for Immigration v Wu Shan Liang[28], it should not be concluded that the PRPC officer has in fact applied the wrong test.

    [28] (1996) 185 CLR 259 at 271-272

17. However even if a contrary conclusion is drawn that the PRPC officer did apply a balance of probabilities rather than a real chance test, relief should be refused in the exercise of the Court’s discretion as any error could have made no difference to the PRPC officer’s conclusion.  The facts found by the Reviewer and accepted by the PRPC officer were that the applicant was not truthful and did not genuinely fear persecution in Sri Lanka.  The only relevant factual claim accepted by the PRPC officer was that the applicant may face questioning at Colombo airport “but that he would not be subjected to differential or excessive treatment in this process, because there is no credible evidence to indicate that he is of any interest to the Sri Lankan authorities for any reason, and also because he departed the country lawfully by his own admission”[29].  The PRPC officer further noted that the applicant “may be subject to questioning but there is no indication that this questioning will result in [his] arbitrary detention or subsequent harm as a foreseeable consequence of return”[30]. Given these findings, the application of a real chance test could not have resulted in a conclusion by the PRPC officer that the applicant was owed protection obligations under s.36(2)(aa), so any error in the statement of the test was immaterial and should not lead to the Court granting relief[31].

    [29] Page 21.2

    [30] Page 21.8

    [31] Jankovic v Minister for Immigration (1995) 56 FCR 474 (FC) at 477F-G

The issue of discretion

1. At the trial of the matter, I discussed with counsel whether, if reviewable legal error in the assessment were demonstrated, I should nevertheless withhold relief in the exercise of discretion.  I expressed difficulty in considering that issue as I did not know what process might apply to the applicant in the event that error was found in the process under review.  In the light of that discussion, I invited post hearing submissions from counsel on that issue.  The Minister’s solicitors advised on 29 July 2013 that no further submissions would be made but confirmed that if, as a result of the Court’s decision, further consideration needed to be given to the applicant’s claims, a new ITOA process would be available.  The applicant’s solicitor also advised on 7 August 2013 that no further submissions would be made.

Resolution

The report and recommendation of the Reviewer

1. As noted in the Minister’s submissions, it is not open to me to consider whether the report and recommendation of the Reviewer is affected by any reviewable legal error.  I am bound by the decision of the Federal Court in MZYPY v Minister for Immigration on that question. The report and recommendation of the Reviewer is only relevant insofar as it provides context in which to consider the assessment of the PRPC officer. That context is set out conveniently in the Federal Court decision at [16]-[21]:

   The appellant’s claim of a well founded fear of persecution is essentially based on the following claims:

   (a)he is a Tamil and during the period April 2003 to February 2007 he had been forced by the Liberation of Tamil Tigers of Elam (“LTTE”) to work in two different political/administrative offices of that organisation;

   (b)in about May 2004 Colonel Koruna broke away from the LTTE and started assisting the Sri Lankan government forces;

   (c)in May 2007 he had been forced to leave his home village and go to Colombo because he heard that militia controlled by Colonel Koruna (“the Koruna Group”) were rounding up Tamils suspected of working with or helping the LTTE;

   (d)in about November 2007 to January 2008 two friends of his who worked with him at the LTTE offices were kidnapped and remain missing;

   (e)on 15 January 2008 the Criminal Investigation Department (“CID”) came in search of him in Columbo, and he was forced to leave and stay elsewhere until September 2009;

   (f)on 14 September 2009 when he returned home for a religious festival he was captured by the Koruna Group. He claims he was interrogated and beaten for 18 days during which time he was fearful of being killed;

   (g)on 17 October 2009 he escaped from the Koruna Group and went to Colombo where he was able to obtain a false passport, fly to Indonesia and then make his way to Australia by boat.

   He claims a well founded fear of being killed by the Koruna Group as they know that he worked for the LTTE. He claims that the Koruna Group works with the Sri Lankan government and with the CID to round-up Tamils, and that he can therefore expect no protection from the authorities.

   In the Reviewer’s Statement of Reasons he traverses the appellant’s claims in some detail and then concludes that there are numerous contradictions and inconsistencies in the appellant’s version of events and that the appellant is not telling the truth. This was a critical conclusion to the Reviewer’s finding that the appellant was not a person to whom Australia owed obligations of protection.

   The contradictions and inconsistencies in the appellant’s claims found by the Reviewer include three different versions provided by the appellant as to how he had escaped from the Koruna Group on 17 October 2009. These inconsistencies appear to be a principal concern of the Reviewer with regard to his rejection of the appellant’s credit. In each of the versions the appellant said that he was being transported by motorcycle by the Koruna Group when the motorcycle broke down, but the Reviewer found inconsistencies in his versions of events thereafter. It is apparent from the reasons that the Reviewer found that:

   (a)In the appellant’s first statement he said that he was asked to stand by the roadside until some relief transport approached, and whilst he was standing there a bus approached which he boarded, eventually travelling to Colombo;

   (b)In the appellant’s second statement he said that while the members of the Koruna Group were repairing the motorcycle he was placed in a nearby food shop, the owner of which was asked to watch him. He said that he asked to go to the toilet and then escaped through the back door. He said that he ran until he came across a bus and got on, eventually travelling to Colombo.

   (c)In the appellant’s third statement he said that while one member of the Koruna Group was repairing the motorcycle, he was placed in a nearby food shop with another member of the group in front of a shop and with the owner also being asked to watch him. He again said that he asked to go to the toilet and then escaped through the back door and found himself on a road. Only a little further on he came upon a bus stop where he waited until a bus came, eventually travelling to Colombo.

   (d)In his fourth statement the appellant said that he did not “escape”, but rather he was allowed to go through payment of a bribe. When the motorcycle broke down one person was sent to find somebody to repair the motorcycle, and while he was away the appellant was allowed free. They were near a small village and there was a bus stop close by. He caught a bus, eventually travelling to Colombo.

   The appellant sought to explain the inconsistencies primarily on the basis that he did not want to reveal that a bribe had been paid, as it might have had repercussions in Sri Lanka for those involved. The Reviewer was unconvinced by this explanation, in part because the bribe was not the only inconsistency as to that event, and also because he found inconsistencies in relation to other matters.

   The other inconsistencies found by the Reviewer include the following:

   (a)In the appellant’s first statement he said that in about April 2004 Colonel Koruna released all of the conscripts as he was about to flee. However, in his second statement he said that in about May 2004 he was sent home for a month when the Koruna Group broke away from the LTTE. In his fourth statement he said that Colonel Koruna did not free the conscripts, and instead told the other officers that if the conscripts wanted to leave then they could. At another point of his fourth statement he said that after Colonel Koruna left the LTTE he and the other conscripts escaped.

   (b)In the appellant’s first statement he said that after the Sri Lankan army took control of the eastern province in February 2007 and the LTTE fled the area, he escaped the custody of the LTTE and went to a displaced persons camp. In his second statement he again said that at that time he used an opportunity to escape and return home, where he was placed in a displaced persons camp. In his third statement he said that in fact he had spent most of the time not staying in a displaced persons camp but staying with his sister nearby, only going to the camp when required to register.

   (c)In the appellant’s first statement he did not suggest that when he was captured and interrogated by the Koruna Group in September 2009 that he was interrogated about a friend who was a former manager of the LTTE who he said had disappeared in about January 2008, or about his possession of and the whereabouts of his friend’s laptop. In his second and third statements he again did not suggest that his friend or the laptop, had been a matter of interest in his interrogation. However, in his fourth statement he said that his friend had left his laptop in the appellant’s room before he disappeared, and that a significant part of the interrogation related to his friend and what the appellant knew about the whereabouts of the laptop.

   The Reviewer accepted that some of the inconsistencies were minor and could be explained by the circumstances under which the appellant’s claims were made, but he considered that others could not be properly explained or excused. He globally rejected any reliance on the appellant’s claims.

   The Reviewer also considered that the appellant’s failure to seek protection while he was in Malaysia was not consistent with his claim to fear persecution in Sri Lanka. The Reviewer did not accept that if the appellant was forced to return to Sri Lanka in the foreseeable future he faced a real chance of persecution by reason of his being of Tamil ethnicity, his real or imputed political opinion, or any other Refugee Convention reason. He recommended that the appellant not be recognised as a person to whom Australia has protection obligations under the Refugee Convention.

1. I accept the applicant’s submission that the process of assessment of the applicant’s claims was not completed in the report and recommendation of the Reviewer, for the purpose of the Minister considering the exercise of his power to lift the bar pursuant to s.46A of the Migration Act, because the Reviewer did not (as he was not able to) give any consideration to the complementary protection criterion introduced subsequently to the preparation of his report and recommendation. The applicant, through his advisor, made claims for complementary protection which were assessed pursuant to the PRPC guidelines. The Minister’s consideration, if any, was therefore open to be informed by both the report and recommendation of the Reviewer and the assessment of the PRPC officer.

The PRPC assessment

1. For the purposes of the PRPC assessment, it was open to the applicant to do at least three things:

   a)he could invite reconsideration of his claims considered by the Reviewer, by reference to the complementary protection criterion;

   b)he could advance fresh factual claims in support of his claim to complementary protection;

   c)he could advance new factual claims in support of his claim to be a refugee.

2. On my reading of the applicant’s advisor’s submission, under cover of her letter dated 10 September 2012, the applicant pursued option (a). 

3. In his minute, the PRPC officer reviewed the prior consideration of the applicant’s claims and the findings made by the Reviewer about his claims of having a well-founded fear of persecution.  The PRPC officer had regard to a prior PRPC assessment undertaken on 10 May 2012 which preceded the invitation to the applicant (through his advisor) to submit further material bearing upon the issue of complementary protection.  The PRPC officer had regard to the submission made by the applicant’s advisor and the supporting documentation provided with it, which was general in nature concerning circumstances in Sri Lanka.

4. The PRPC officer found that there was no reason to alter the earlier assessments which had been made on the applicant’s claims to be a refugee.  The PRPC officer then addressed the complementary protection criterion in the following terms:

   Complementary Protection (CP) Obligations:

   ·    With the implementation of the Migration Amendment (Complementary Protection) Act 2011 on 24 March 2012, claims relating to Australia’s non-return obligations are now considered under section 36(2)(aa) of the Act. On this basis, it has been further considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.  Significant harm includes Arbitrary Deprivation of Life and the Death Penalty, in addition to Torture, Cruel or Inhuman Treatment or Punishment and Degrading Treatment or Punishment.

   Arbitrary Deprivation of Life (ADL) and the Death Penalty

   ·    Under the CP components, the definition of “significant harm” includes arbitrary deprivation of life (ADL) and the Death Penalty.  There is no credible evidence before the Department to indicate that [the applicant] is wanted for any crimes in Sri Lanka, therefore it does not appear that he is at risk of being imprisoned and/or facing the death penalty if he were to return to this country.

   ·    There is no credible information to indicate that [the applicant] is a person of adverse interest to the authorities or will be at the risk of arbitrary killings by the security forces or officials of Sri Lanka.

   ·    Despite any risk of harm he may claim to face, it is unlikely that [the applicant] would be considered to meet the high threshold for a real risk of significant harm.  He may be subject to questioning but there is no indication that this questioning will result in [the applicant’s] arbitrary detention or subsequent harm as a foreseeable consequence of his return.

   Torture, Cruel or Inhuman Treatment or Punishment and Degrading Treatment or Punishment

   ·    Under the CP components, the definition of “significant harm” also includes torture, Cruel or Inhuman Treatment or Punishment (CITP) and Degrading Treatment or Punishment (DTP).

   ·    The 2010 US Department of State Human Rights Report: Sri Lanka (24/05/2012) states that Sri Lankan law makes torture a punishable offence and mandates a sentence of not less [than] seven years’ imprisonment, however, there were credible reports that security forces tortured and abused citizens.  It states that specifically in the east and north, military intelligence and other security personnel, sometimes working with armed paramilitaries, were responsible for the documented and undocumented detention of civilians suspected of LTTE connections.  Detention reportedly was followed by interrogation that frequently included torture, and there were reports that detainees were warned upon release not to reveal any information about their arrest or detention under the threat of re-arrest or death.

   ·    In spite of this, there is no credible evidence to indicate that [the applicant]  is wanted by the Sri Lankan authorities or any other person, therefore it does not appear that he is personally at risk of being subjected to torture, CITP or DTP in the context of detention or imprisonment.

5. The PRPC officer found that he was not satisfied that the case met the Minister’s PRPC guidelines. 

6. I accept, from the decision of the Full Federal Court in SZQRB that this Court has jurisdiction to review the PRPC officer’s assessment for reviewable legal error.  However, I reject the grounds of review advanced by the applicant in these proceedings.

7. First, I accept the Minister’s submission that procedural fairness did not require that the applicant be afforded an oral hearing.  In that regard, the applicant was in a different position from an applicant before the Refugee Review Tribunal.  Under present authority of the Full Federal Court[32], an applicant who had been refused a protection visa by the Tribunal prior to the introduction of the complementary protection criterion is entitled to make a fresh protection visa application. That application, if rejected by the Minister’s delegate and reviewed by the Tribunal, would have to be dealt with afresh in accordance with the Tribunal’s code of procedure. Offshore entry persons like the present applicant, however, have no right of access to the Tribunal and the statutory code of procedure governing its operations unless they are permitted by the Minister to make a protection visa application pursuant to s.46A. It is a matter for the Minister to determine what administrative process he chooses to put in place for the purposes of the possible consideration of the exercise of his Ministerial discretion.

   [32] SZGIZ v Minister for Immigration [2013] FCAFC 71

8. There is no doubt that a Reviewer, under the administrative process previously put in place by the Minister for the examination of refugee claims by offshore entry persons, was obliged to observe procedural fairness and, by analogous reasoning, it may be accepted that an obligation of procedural fairness is also borne by PRPC officers examining post IMR claims.  Whether that PRPC assessment requires an oral hearing must depend upon the circumstances.  I have already observed that the applicant did not advance any new factual claims concerning himself for the purposes of the PRPC assessment.  He, through his advisor, simply sought an assessment of his existing claims against the complementary protection criterion, with reference to general material about circumstances in Sri Lanka.  In my view, the PRPC assessment, thus confined, did not require an oral hearing.  It was sufficient that the PRPC officer gave consideration to the material submitted on behalf of the applicant.  That occurred. 

9. I also reject the applicant’s contention that the PRPC officer failed to deal with the material advanced in the applicant’s representative’s letter of 10 September 2012 with sufficient particularity.  That letter, and the material supported with it, was general in nature.  The letter and the material was sufficiently identified in the PRPC officer’s minute and he undoubtedly gave consideration to it.  Nothing material was overlooked. 

10. I likewise reject the applicant’s third complaint for the reasons advanced by the Minister at [48] above.

11. As to the applicant’s fourth complaint (about the failure of the PRPC officer to disclose country information concerning the question of returnees at Colombo airport) I accept that, depending on the circumstances, procedural fairness may require the disclosure of such material.  In the present case, however, in my view, the material referred to by the PRPC officer added nothing to the material already considered by the Reviewer.  The applicant and his advisor must be taken to have been aware of the material considered by the Reviewer from his report and conclusions in it[33].

    [33] See SZQFY v Minister for Immigration op cit at [61]

12. The applicant’s final complaint is that the PRPC officer applied the wrong test when considering the complementary protection criterion.  I accept from SZQRB that the correct test is whether there is a real chance of significant harm as defined in the Migration Act. The applicant appears to complain that the PRPC officer implicitly applied the balance of probabilities test dealt with by the Full Federal Court in SZQRB. I disagree. The PRPC officer made no reference to that discredited test. On the contrary, the PRPC officer referred to the test as whether there is a “real risk” that the applicant would suffer significant harm. It is true that the PRPC officer referred to the “high threshold” for a real risk of significant harm. The words “high threshold” may convey several meanings. They may relate to quality of the harm the applicant might face, which is the subject of statutory guidance, or they may relate to the probability of such harm occurring. In my view, the words “high threshold” were intended by the PRPC officer to refer to the former, that is the quality of the harm that the applicant faced. I reach that conclusion by reference to the immediately following sentence which is intended, in my view, to be a reference to the statutory guidance provided in the Migration Act. Further, the words “substantial grounds for believing” identified in the applicant’s grounds of review are taken directly from s.36(2)(aa) and no complaint can be made about the use of them.

Conclusion

1. I conclude that the applicant has failed to establish that the PRPC officer committed reviewable legal error in, or in relation to, his minute.  For completeness, I add that if I were wrong in that conclusion I would not withhold relief in the exercise of discretion.  I am not confident that if the applicant’s claims were considered pursuant to a fresh ITAO assessment, the assessment would be the same.  Circumstances in Sri Lanka are evolving over time, as has been made clear in the recent country guidance decision by the United Kingdom Upper Tribunal in GJ & Ors (Post-Civil War: Returnees) Sri Lanka GJ[34].

   [34] [2013] UKUT 00319 (IAC)

2. I will hear the parties as to costs.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  23 August 2013