MZYRD v Minister for Immigration and Citizenship
[2012] FCA 830
FEDERAL COURT OF AUSTRALIA
MZYRD v Minister for Immigration and Citizenship [2012] FCA 830
Citation: MZYRD v Minister for Immigration and Citizenship [2012] FCA 830 Appeal from: MZYRD v Minister for Immigration and Citizenship [2012] FMCA 219 Parties: MZYRD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and SUE ZELINKA IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER File number: VID 303 of 2012 Judge: MURPHY J Date of judgment: 8 August 2012 Catchwords: MIGRATION - Refugees - Application for refugee status - Offshore entry person - Refugee status assessment process - Independent merits review - Error of law -Denial of procedural fairness - Reviewer in receipt of new country information post-dating hearing - Whether new country information was “credible, relevant and significant” -Failure to put country information post-dating hearing for consideration and comment by applicant for refugee status Legislation: Migration Act 1958 (Cth), s 46A Cases cited: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2005) 225 CLR 88
Bushell v Environment Secretary [1981] AC 75
Kioa v West (1985) 159 CLR 550
Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
MZYRD v Minister for Immigration and Citizenship [2012] FMCA 219
NIB Health Funds v PHIAC (2001) 115 FCR 561
Plaintiff M61/2010E v Commonwealth; Plaintiff M69 of 2010 v Commonwealth (2010) 243 CLR 319
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152Date of hearing: 30 July 2012 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 51 Counsel for the Appellant: Ms L De Ferrari Solicitor for the Appellant: Victoria Legal Aid Counsel for the First Respondent: Mr W Mosley Solicitor for the First Respondent: Sparke Helmore Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 303 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MZYRD
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentSUE ZELINKA IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGE:
MURPHY J
DATE OF ORDER:
8 AUGUST 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The appellant's application for refugee status be remitted for consideration by a differently constituted Independent Merits Review.
3.The first respondent to pay the appellant's costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 303 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MZYRD
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentSUE ZELINKA IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGE:
MURPHY J
DATE:
8 AUGUST 2012
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION
This proceeding is an appeal from the judgment of the Federal Magistrates Court (MZYRD v Minister for Immigration and Citizenship [2012] FMCA 219).
The appellant is a citizen of Sri Lanka of Tamil ethnicity from the north of Sri Lanka. He left Sri Lanka illegally, arriving in Australia by boat at Christmas Island on 7 February 2010. He is an “offshore entry person” and an “unlawful non-citizen” for the purposes of the Migration Act 1958 (Cth) (“the Act”) because he arrived at Christmas Island, which is an “excised offshore place”, without a visa or other legal right to enter Australia. Upon arrival he was put into detention pursuant to the Act.
The appellant claims refugee status - that is, he claims that he is a person that meets the definition of refugee in Article 1A of the United Nations 1951 Convention Relating to the Status of Refugees, and the 1967 Protocol Relating to the Status of Refugees (“the Refugees Convention”), to whom Australia owes protection obligations.
By operation of s 46A(1), as an unlawful non-citizen the appellant cannot make a valid application for a visa. However, the Minister for Immigration and Citizenship (“the Minister”) has a power under s 46A(2) to permit the appellant to apply for a visa. The Minister decided to consider exercising that power to lift the bar preventing the appellant from applying for a visa. To that end the appellant was invited by the Minister’s department - the Department of Immigration and Citizenship (“the Department”) - to make an application for refugee status through a Refugee Status Assessment (“RSA”). He was also offered a review of any negative RSA through what the Department calls an Independent Merits Review (“IMR”). Through the RSA or IMR a recommendation and report would be made to the Minister which he may, or may not, take account of in making a decision under s 46A(2). This administrative process is described in more detail in Plaintiff M61/2010E v Commonwealth; Plaintiff M69 of 2010 v Commonwealth (2010) 243 CLR 319 (“Plaintiff M61”).
The appellant lodged a request for a RSA with the Department on 18 April 2010. On 9 July 2010 he was assessed by an officer of the Department as not being a refugee under the Refugees Convention. The appellant applied for review of the decision of the Departmental officer through an IMR on 21 July 2010. On 1 November 2010 the IMR also recommended that the appellant should not be recognised as a refugee (“the first IMR”).
On 11 November 2010 the High Court handed down its judgement in Plaintiff M61, which was to the effect that aspects of the IMR process were legally flawed and that an IMR was subject to judicial review. In response to the decision the Department offered the appellant a fresh IMR.
In the fresh IMR the appellant was given a hearing by the Independent Merits Reviewer (“the Reviewer”), the second respondent Ms S. Zelinka, on 12 June 2011. On 25 July 2011 the Reviewer recommended that the appellant should not be recognised as a refugee under the Refugees Convention.
The appellant sought judicial review of this IMR in the Federal Magistrates Court. On 23 March 2012 the learned Federal Magistrate dismissed the application. The appellant now appeals to this Court against the decision of the Federal Magistrates Court. The first respondent, the Minister, opposes the appeal. The Reviewer has filed a submitting appearance.
The appellant complains that he was denied procedural fairness in the IMR. He argues, and I accept, that the Reviewer took into account information adverse to his claim which did not become available until after the hearing. As a result the appellant was denied the opportunity to consider and comment on material which bore on his case. For the reasons set out below, I order that the appeal be allowed, that the matter be remitted for consideration by a differently constituted Independent Merits Review, and that the first respondent pay the appellant's costs.
THE INDEPENDENT MERITS REVIEW
The recommendations and statement of reasons of the Reviewer are lengthy. Only a small part of the reasons are the subject of complaint by the appellant, and I will not deal with the other parts.
Before the Reviewer the appellant claimed an entitlement to refugee status on the basis that he had a well-founded fear of persecution at the hands of Sri Lankan authorities or pro-government paramilitary groups on account of, separately or cumulatively:
(a)imputed political opinion in support of the Liberation Tigers of Tamil Eelam (“LTTE”) and their aims and against the activities of the Sri Lankan authorities on account of his forced involvement with the LTTE in 2007, and the authorities’ suspicions of his involvement with the LTTE;
(b)his Tamil ethnicity;
(c)his identity as a young person of Tamil ethnicity from the north of Sri Lanka;
(d)his membership of the particular social group “young Tamil males from the north of Sri Lanka”;
(e)his imputed political opinion in support of the LTTE on account of his illegal departure from Sri Lanka and his claim for asylum in Australia; and
(f)his unlawful departure from Sri Lanka, where he fears he would face discriminatory treatment beyond the normal punishment for this crime, on account of his profile identified in paragraphs (a) to (e) above.
Some of the facts underlying the appellant's claim were accepted by the Reviewer. These included that the appellant was of Tamil ethnicity and lived with his family in the north of Sri Lanka, and that he and his family were forced to move during the civil strife in Sri Lanka to two different refugee camps in the north. The Reviewer accepted that the second refugee camp was controlled by the LTTE and that the appellant and his family were in that camp from 1996 to 2008. She accepted that in about 2007 the appellant was forced to do training in non-combatant duties by the LTTE, and then to do non-combatant work with the LTTE. During this period, while remaining in the refugee camp, the appellant assisted his brother with his grocery stall until his brother returned to Jaffna in 2001, and thereafter ran a small business buying vegetables from local farmers and selling them. The Reviewer also accepted that in May 2009, the appellant and his parents were placed in an army camp by the Sri Lankan Army where the appellant was separated from his parents and held for 24 hours, being questioned and struck by them, and then released.
The Reviewer rejected other facts argued by the appellant to underpin his claim, and found that:
(a)the appellant had not run another business between 2003 and 2006 running supplies to the LTTE;
(b)there were no adverse repercussions for the appellant or his family as a result of his volunteer training with the LTTE;
(c)the appellant did not go into hiding in the jungle and his father was not held hostage by the LTTE; and
(d)the appellant did not have a “clear LTTE profile”. The Reviewer found that he was interrogated by the authorities in a Sri Lankan army camp at the end of the war and then released, and that he passed checkpoints without difficulty after that.
The Reviewer then reached a number of conclusions significant to her recommendation that the appellant was not a person to whom Australia owed protection obligations. These included that:
(a)the appellant is not of adverse interest to the authorities by reason of any imputed connection to the LTTE;
(b)“Young Tamil males from the North” no longer constitute a particular social group which has an elevated risk of persecution;
(c)the appellant is not of adverse interest to the authorities by reason of his being a young Tamil male from the North;
(d)the chance that the appellant will face persecution as a failed asylum seeker returning to Sri Lanka is remote;
(e)the fact of being a failed asylum seeker from Australia is not an indication that harm will befall the returnee; and
(f)there is nothing in the country information which indicates that the claimant is at risk of persecution for having left Sri Lanka illegally.
It is in reaching these conclusions in partial reliance on information which was not made available to the appellant (because it was not published until after the hearing) that the appellant contends that the Reviewer fell into error.
Central to the Reviewer’s task was an assessment and recommendation as to the risks of persecution facing the appellant if he was returned to Sri Lanka. In part this task fell to be performed through a consideration of general information available as to the sorts of risks that might face people like him - that is, a young Tamil male from the north of Sri Lanka who had trained in non-combatant duties with the LTTE and performed non-combatant duties for it, who had left Sri Lanka illegally and who had been forcibly returned.
Apart from the appellant's statements and representations, the main method used by the Reviewer to assess this risk of persecution was by reference to various press reports, press releases, letters, country reports and reports by international groups about conditions in Sri Lanka and the risks of harm to people like the appellant which was grouped under the general heading “Country information”. In her reasons this general category was then broken down into relevant sub-categories with sub-headings such as “Post-war dealings with LTTE”, “Forced conscription to LTTE”, “Police”, “Conditions in the North”, “Freedom of movement”, “Treatment of returned of failed asylum seekers”, “Relevant history”, and “Discrimination against Tamils”, and “Update on failed asylum seekers returning to Sri Lanka”.
Four items of recent country information - which suggested a reduction in the risks facing returned asylum seekers like the appellant - were published in a report by the UK Border Agency dated July 2011 titled “Country of Origin Information Report: Sri Lanka” (“the July 2011 UK Report”). This was after the appellant's hearing by the Reviewer on 12 June 2011.
Under the sub-heading “Update on failed asylum seekers returning to Sri Lanka” on page 23 of her reasons the Reviewer stated:
Note: during the course of writing this decision, the UK Border Agency has issued a new Country of Origin Information Report: Sri Lanka, published in July 2011. The material above is still included, indicating it is still current, but further material has been included as follows:
In setting out the recent country information from the July 2011 UK Report the Reviewer first referred to a Danish report titled “Human Rights and Security Issues concerning Tamils in Sri Lanka, Report from the Danish Immigration Services fact-finding mission to Colombo, Sri Lanka 19 June to 3 July 2010” dated October 2010 (“the Danish Report”). No complaint is made about any reliance by the Reviewer on this report because the appellant's advisers had access to it and responded to it in February 2011.
The Reviewer then referred to further recent information from the July 2011 UK Report, namely two letters from the British High Commission in Sri Lanka dated 18 March 2011. At pages 23 to 24 of her reasons the Reviewer noted:
25.39 A letter from the British High Commission (BHC), Colombo, dated 18 March 2011, noted that “Presently, the Department of Immigration & Emigration (DIE) refers the returnee to the Criminal Investigations Department (CID) only if there are any allegation alerts on the Immigration & Emigration (DIE) border control system. If not, the returnee will not be referred to the Criminal Investigations Department (CID).
25.40 In a separate letter, also dated 18 March 2011 the BHC Colombo reported: “The British High Commission in Colombo routinely monitors the arrival of returnees at Bandaranaike International Airport in Colombo. All Sri Lankan returnees, regardless of which country they are returning from, go through a process that has previously been reported by this mission whereby they are spoken to by representatives from the Department of Immigration & Emigration (DIE), the State Intelligence Service (SIS) and the Criminal Investigations Department (CID).
Returnees are able to pass through the airport after routine checks are carried out on their identity and documentation.”The BHC letter of 18 March 2011 continued:
“BHC provides its contact details to returnees and they are encouraged to contact the Migration team if they encounter difficulties including any instances of harassments or assaults. This is not just limited to the entry procedures at the Airport, but also for post-arrival assistance.
“There have been no allegations that airport staff having mistreated returnees. However, during the research project which is underway presently on the situation of UK enforced returnees, one returnee (Sinhalese) claimed that he was asked to pay a sum of money for himself and his wife by an Immigrations Officer at the Airport. As the returnee refrained from providing further details to this claim, further investigations were not possible. However, this allegation has been passed on to the Controller General of Immigrations & Emigrations.
“Further, 25% of the UK enforced returnees stated that the Border Control process for entry along with the Criminal Investigation Service (CID) procedure is cumbersome and lengthy. But there were no allegations of harassment.
“During the period of 2008 – 2010, the Criminal Investigations Service (CID) has arrested 03 returnees from the UK on arrival, all due to forgery offences. They have been charged and [are] going through the court process.”
(UK Border Agency, Country of Origin Information Report: Sri Lanka, July 2011, paragraphs as marked).Later, at page 29 of her reasons, the Reviewer referred to another piece of recent country information from the July 2011 UK Report - a letter from the British High Commission in Sri Lanka dated January 2011. The Reviewer stated:
I also note recent information (January 2011) from the British High Commissioner in Sri Lanka that “the Sri Lankan authorities…do not appear to be actively looking for further LTTE suspects but there are still large areas of the north and east of the country where demining and the search for caches of weapons/ordinance are being undertaken. When finds occur, then anyone linked to that building or land immediately comes under the scrutiny of the military”. (Para. 4.12, UK Border Agency, July 2011, see citation on page 24 above).
I find that the claimant is not of adverse interest to the Sri Lankan authorities for reason of an imputed connection to the LTTE. I further find that the claimant is not of adverse interest to the authorities for reason of his being a young Tamil male from the north, a claim which seems to be inter-linked (but not always voiced) with a claim of having an imputed connection with the LTTE…
For ease of reference I will identify the three letters from the British High Commission which underpin the appellant's complaint of a lack of procedural fairness as follows:
(a)a letter from the British High Commission in Sri Lanka dated 19 January 2011 (“the first BHC letter”);
(b)a letter from the British High Commission in Sri Lanka dated 18 March 2011 (“the second BHC letter”); and
(c)a further letter from the British High Commission in Sri Lanka dated 18 March 2011 (“the third BHC letter”).
It is not a matter of controversy that neither the Department nor the Reviewer informed the appellant about any of these letters. The first respondent did not dispute the appellant's contention that the first the appellant knew of these letters was when the Reviewer’s negative recommendation and reasons were published.
On page 30 of her reasons the Reviewer stated:
As noted, I have looked carefully at the reliable independent evidence concerning the return of failed asylum seekers to Sri Lanka. During the process of writing this decision, the UK Border Agency published an updated Country Report and I have included further information from that source on pages 23-24 above. I left intact the material published seven months earlier as it also was included in the latest report, thereby indicating that the information was still current. I conclude from the latest information that the situation for failed asylum seekers has improved further…
Although the Reviewer then goes on to record an excerpt from the Danish Report, counsel for the first respondent concedes that this passage includes a reference to the second and third BHC letters. The appellant contends that the last sentence of this passage is a strong indication that the Reviewer relied, upon the BHC letters in support of a conclusion that the situation for failed asylum seekers had recently improved (which can be seen to support a conclusion that the appellant's fears of persecution if returned to Sri Lanka were not well founded).
THE APPLICATION TO THE FEDERAL MAGISTRATES COURT
The application for judicial review to the Federal Magistrates Court was based on three grounds, namely that the Reviewer had:
(a)failed to consider an integer of the appellant's claim - that the appellant was a young Tamil male with an accepted connection to the LTTE by reason of a forced period of volunteering within that organisation;
(b)failed to take into account the effect of delay on the appellant's testimony and made adverse findings of credit due to perceived inconsistencies between the appellant's first and subsequent accounts; and
(c)failed to accord procedural fairness to the appellant by relying on recent “country information” which was not put to the appellant for consideration or comment.
The learned Federal Magistrate found against the appellant on each of the three grounds, but it is unnecessary to recount much of the judgment because only the complaint of a lack of procedural fairness is the subject of appeal, and even that is now more narrowly based than it was when before that court. The appeal is limited only to the question of any lack of procedural fairness based on the three BHC letters. I will deal later with the approach taken to the information in the BHC letters by the learned Federal Magistrate, as it was only a small part of the judgment.
THE APPEAL TO THE FEDERAL COURT
The Notice of Appeal to this Court relevantly states:
The Federal Magistrate erred in finding that in recommending to the first respondent that the [appellant] not be recognised as a person to whom Australia owed protection obligations, the second respondent did not fail to observe the requirements of procedural fairness.
The ground is particularised as follows:
The Reviewer relied on recent country information in her recommendation, however failed to put this information to the applicant for comment. The [appellant] had no knowledge of this information, as at the time of the interview, it was not publicly available.
Although the issue was not raised in argument before me (and I did not have the benefit of transcript from the Federal Magistrates Court) it appears from the judgment of that Court that, whilst a failure to accord procedural fairness was one of the grounds advanced, only the first BHC letter was particularised in that application. I note though that in this appeal the first respondent was on notice of the appellant’s contention regarding the other two BHC letters, and did not argue that the appellant required leave to rely on them in the appeal. Had it been argued by the first respondent that the appellant required leave to do so I would have been inclined to grant it. I have considered each of the three BHC letters in determining the appeal.
THE REQUIREMENT FOR PROCEDURAL FAIRNESS
The fundamental principles that govern procedural fairness are well known and were not in dispute. The appeal proceeded on the basis that the appellant was entitled to procedural fairness in the IMR.
What is required by procedural fairness is a fair hearing, not a fair outcome: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. What is necessary to discharge this requirement will depend on the particular circumstances of each case: Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at [123] per McHugh J. The test is essentially practical as noted by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1 at [37], who held:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
In order that procedural fairness be observed the Reviewer was not required to give the appellant an opportunity to comment on every adverse piece of information. That opportunity need only be given in relation to information that, as described by Brennan J in Kioa v West (1985) 159 CLR 550 at 629, is “credible, relevant and significant”.
Importantly, the relevant question is not whether the decision-maker’s conclusions were correct, but rather whether the process was right. As observed by Allsop J in NIB Health Funds v PHIAC (2001) 115 FCR 561 at 583, [84] (in a passage approved by the High Court per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2005) 225 CLR 88 (“VEAL”) at 97, [19]):
…it is not sufficient to seek to shut out or disavow the relevance of material if it is “credible, relevant and significant” and if it is material of a kind that creates a real risk of prejudice, albeit subconscious. To a degree…the necessity to disclose such material in order to accord procedural fairness is not based on answering a causal question as to whether the material did in fact play a part in influencing the decision, but rather on the appearance of a fair hearing and the maintenance of confidence in the administrative process and judicial review of it.
The Court in VEAL held at [19] that the relevant inquiry is:
…what procedures should have been followed? The relevant inquiry is neither what decision should the decision-maker have made, nor what reasons did the decision-maker give for the conclusion reached.
That the failure to provide relevant “country information” to a person claiming refugee status through an IMR process can constitute a failure to accord procedural fairness is clear. While s 424A(3)(a) of the Act operates so that the Refugee Review Tribunal is not required to give a claimant clear particulars of country information, this provision is not engaged in respect of an IMR. In Plaintiff M61 the High Court found, per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, that a person claiming refugee status was denied procedural fairness in an IMR by the failure of the Reviewer to provide him with relevant country information. The Court held at [91] that:
… procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff's claims…The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made. He did not.
WAS THE APPELLANT ACCORDED PROCEDURAL FAIRNESS?
This involves a consideration as to whether the substance of the recent country information - which it is common ground was not provided to the appellant - was credible, relevant and significant to the Reviewer's decision. If it was, procedural fairness required that it be put before the appellant.
The first matter to be noted is that the first respondent accepted in written submissions that each of the three BHC letters were credible and relevant to the Reviewer's decision. The Minister submitted that:
The particular parts of the [July 2011 UK Report] relied on by the appellant pre-dated the hearing. It may be accepted that the Reviewer considered this material to be credible and relevant to her decision. However, that does not mean either that she relied on it or was otherwise obliged to disclose it.
This is an important concession, albeit almost unavoidable given the language of the Reviewer. In my view, it is also sufficiently clear that the Reviewer in fact relied on this recent country information in her decision. Procedural fairness required this material to be disclosed to the appellant as it was clearly adverse to his claim.
Second, the Reviewer’s reasons do not suggest that the recent country information in the three BHC letters was used any differently than other country information relied on by the Reviewer. For example, there is nothing to show that the country information which had been put before the appellant for his consideration was alone used by the Reviewer to reach her recommendation, and that the information in the three BHC letters was only used to confirm a recommendation already reached. In my view, to treat information that was unknown to the appellant in this way will likely operate to undermine confidence in the IMR process, if not corrected.
Third, and significantly, at page 30 of her reasons (which I have set out at [23] above) the Reviewer refers to recent country information including the second and third BHC letters and then states: “I conclude from the latest information that the situation for failed asylum seekers has improved further”. Contrary to the Minister’s submissions this conclusion strongly indicates that this recent information was of significance in the decision. The Reviewer’s conclusion, plainly adverse to the appellant’s claim that he faces persecution if forced to return to Sri Lanka, indicates that fairness required that the information underpinning that conclusion be put before him.
The first part of the relevant passage from the first BHC letter at page 29 of the reasons (set out at [21] above) noted that the Sri Lankan authorities did not appear to be actively looking for further LTTE suspects and were pursuing only people who could be linked to a building or land where caches of weapons or ordinance had been located by searches. The Minister argues that this passage is not significant to the Reviewer's decision. He says this is so because, for reasons unrelated to the first BHC letter, the Reviewer had already concluded that the appellant was not of any adverse interest to the authorities, or in other words was not an LTTE suspect. The Minister contends that the information in the first BHC letter was of a general background type that had little relevance and was of no significance to the decision.
This argument found favour with the learned Federal Magistrate who noted at [14] of her judgement:
The inclusion of the subsequent report which pre-dated the hearing (being January 2011) in the reasons of Ms Zelinka, and which is also referred to in paragraph 13 herein, was claimed by the applicant to have been relied upon by the IMR and not put to him to enable him to make a meaningful response. However, this country information was irrelevant to the findings and conclusions of Ms Zelinka. It concerned the authorities search for caches of weapons/ordinance being undertaken and noted “where finds occur, then anyone linked to that building or land immediately comes under the scrutiny of the military.” This information was not new or unforeseen in the circumstances and did not have any significance to the decision. The IMR had already determined, based on other country information and the totality of the evidence before her, that the applicant was not an LTTE suspect. The IMR relied upon the UK Board Agency report of November 2010 which she explained and put to the applicant and in her reference to the updated report she noted that the situation for failed asylum seekers had improved further. She had earlier determined that the applicant was of no interest to the authorities. I am satisfied that an opportunity was given to the applicant with respect to all country information adverse to his claims that was “credible, relevant and significant to the decision”.
(Citations omitted)It is of significance that, as the passage above indicates, the learned Federal Magistrate was only requested to consider the first BHC letter, and not the second and third BHC letters. I consider that, taken together, the information in the three letters was credible, relevant and significant to the decision.
However, even in considering the information in the first BHC letter by itself, I do not agree with the learned Federal Magistrate. This information could have been taken by the Reviewer to indicate a recent further general amelioration in the situation for failed asylum seeker returnees to Sri Lanka. This bore directly upon the appellant’s claim that he faced persecution because he had left Sri Lanka illegally and if returned would do so as a failed claimant for asylum. His fear of persecution in that regard did not turn on whether or not he was an LTTE suspect.
I reject the Minister’s contention that this information was of little relevance and of no significance. I read the Reviewer's reasons as recording this information because it was relevant and significant to her recommendation. In my view information regarding the further amelioration in the situation for failed asylum seeker returnees to Sri Lanka which the Reviewer pointed to, likely played some part in her decision-making.
The Minister points to other country information such as UNHCR reports referred to in the first IMR decision (including some relied upon by the appellant), the original RSA decision and the Danish Report. The Minister says that this other material all conveyed information indicating a relaxation of the security situation in Sri Lanka and an improved situation for Tamils. He argues that, given this other material, the information in the BHC letters did not represent something new or unforeseen in the circumstances prevalent in Sri Lanka.
I do not accept this. The passage at page 30 of the Reviewer’s reasons (set out at [23] above) shows the Reviewer's reliance on the BHC letters. She states “I conclude from the latest information that the situation for failed asylum seekers has improved further”.
The Minister’s submission that the BHC letters did not contain substantially new or different information ignores the fact that the situation faced by a failed Tamil asylum seeker in Sri Lanka is an evolving one. This is clear from the other country information recorded by the Reviewer. The BHC letters contained the most up to date information as to the risk of persecution facing a failed asylum seeker which was therefore significant. It is no answer for the Minister to point to the earlier country information recording improvements in the situation when it is clear that the situation is continuing to change.
Another reason for rejecting that Minister’s submission that the BHC letters do not contain substantially new or different information is that the third BHC letter indicates an enhanced level of monitoring of returned asylum seekers by the British High Commission. It records that not only are returnees monitored in the same way as also noted in earlier country information, but they are provided with the contact details of the British High Commission and encouraged to contact that Commission if they encounter difficulties including any instances of harassment or assault. It also indicates that the enhanced monitoring regime is not just limited to entry procedures at the airport but also to post-arrival assistance. Given this enhanced monitoring effort, the conclusion in the letter that there had been no allegations of harassment by UK enforced returnees and no relevant arrests by the Sri Lankan authorities during the period may well have had a persuasive effect on the Reviewer.
The appellant seeks to rely on the fact that the Reviewer’s finding at page 29 of her reasons that “the claimant is not of adverse interest to the Sri Lankan authorities for reason of an imputed connection to the LTTE” follows immediately after she refers to the information in the first BHC letter. He argues that this shows the significance of this information. I am not persuaded of this as the Reviewer's conclusion that the appellant is not of adverse concern to the authorities is also set out at several prior points in her reasons.
The Minister relies on the judgment of the Full Court in Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223, per Rares and Jagot JJ. In that case the majority rejected a contention that there had been an absence of procedural fairness in the failure of the Reviewer to provide a particular piece of country information to the claimant. The particular piece of country information was a Christian Science Monitor article which indicated an improvement since 2001 in the position for Hazaras in Afghanistan. The majority held at [33]:
There was nothing in…what the CSM article said about the changed position for the Hazaras since 2001, that was substantively new or different from what the applicant was aware had been said in the RSA, the information in the DFAT report or, for that matter, what the applicant's submissions and country information…had canvassed.
However, this judgment can be readily distinguished from the case before me. The improvement referred to in the article in question was not recent, having occurred in 2001 and the claimed breach of procedural fairness had occurred in an IMR in 2011. There was a wealth of country information covering the lengthy period from 2001. In those circumstances it was not difficult for the majority to conclude that there was nothing substantively new in the information. Here, the undisclosed information was very recent and in an evolving situation.
CONCLUSION
I consider that the appellant was not given the opportunity to respond to information which was credible, relevant and significant to the Reviewer's decision. As noted in VEAL the relevant inquiry is: what procedures should have been followed? I am satisfied that the procedure which should have been followed is either that the country information which came to light after the hearing should have been put before the appellant for his consideration and comment, or it should not have been considered by the Reviewer at all. The appellant was not accorded procedural fairness. While concerned to avoid “over judicialising” the inquiry (see Bushell v Environment Secretary [1981] AC 75 at 97 per Lord Diplock, as cited by Brennan J in Kioa at 629) the maintenance of confidence in the IMR process, and in the judicial review of that process, requires that the Reviewer's recommendation be set aside. It is unfair - or at best for the Minister - appears unfair for a Reviewer to take into account recent country information which indicates an improvement in the situation for failed asylum seekers, without the claimant having the opportunity of refuting it. The appearance of unfairness in this case is magnified by the fact that the information was not even available until after the hearing.
For these reasons I allow the appeal. I order that the appellant's application for refugee status be remitted for consideration by differently constituted Independent Merits Review. I order the first respondent to pay the appellant's costs.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy. Associate:
Dated: 8 August 2012
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