SZQFY v Minister for Immigration
[2011] FMCA 996
•14 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQFY v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 996 |
| MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations – allegation that the Reviewer denied the applicant procedural fairness by failing to put him on notice of matters material to the Reviewer’s decision and by failing to consider an integer of his claims – whether an applicant must adduce evidence of practical injustice before a finding of procedural unfairness will be made – extent of the Reviewer’s obligation to raise matters with an applicant – adverse information/ information relied on adversely. |
| Migration Act 1958, ss.5, 36, 46A, 195A |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Re Minister for Immigration & Multicultural Affairs; Ex parte “A” (2001) 185 ALR 489 Applicant M87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 214 ALR 310 Ayan vMinister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 139 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 559 Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069 Dagli v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 541 NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89 Applicants M1015/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1309 Stead v State Government Insurance Commission (1986) 161 CLR 141 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Repatriation Commission v Dunn (2006) 94 ALD 97 SZBEL vMinister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Kioa v West (1985) 159 CLR 550 Abebe v Commonwealth (1999) 197 CLR 510 Pancharatnam v Minister for Immigration, Local Government & Ethnic Affairs (1991) 26 ALD 217 Muin v Refugee Review Tribunal (2002) 190 ALR 601 Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 |
| Applicant: | SZQFY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 985 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 25 August 2011 |
| Date of Last Submission: | 25 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms R. Graycar |
| Solicitors for the Applicant: | Allens Arthur Robinson |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 985 of 2011
| SZQFY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is Sri Lankan and of Tamil ethnicity, arrived at Christmas Island by boat on 20 March 2010. On 6 June 2010 he lodged an application for a Refugee Status Assessment (“RSA”) alleging that he was a refugee and, as such, was a person to whom Australia had protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). At the time of the hearing in these proceedings, the applicant was in immigration detention and, it may be presumed, had been so since he landed at Christmas Island. On 8 July 2010 an officer of the department administered by the first respondent minister (“Minister”) assessed the applicant as not meeting the definition of “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 12 April 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
The applicant has made an application to this Court for judicial review of the Reviewer’s decision. He has sought a declaration that the Reviewer’s recommendation is affected by legal error and an injunction restraining the Minister from relying on that recommendation.
The evidence makes it clear that the applicant had no visa when he entered Australia. Because of this, and the fact that he entered Australia at Christmas Island which under s.5(1) of the Migration Act 1958 (“Act”) is an “excised offshore place”, the applicant is an “offshore entry person” as defined by s.5(1) who, in the circumstances and as provided by s.46A(1) of the Act, cannot make a valid application for a protection visa. However ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa. Relevantly, those sections 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.
195A Minister may grant detainee visa (whether or not on application)
Persons to whom section applies
(1)This section applies to a person who is in detention under section 189.
Minister may grant visa
(2)If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3)In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4)The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5)The power under subsection (2) may only be exercised by the Minister personally. …
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 at 143 [49]. In Plaintiff M61 it was held that an offshore entry person such as the applicant who seeks to engage Australia’s protection obligations under the Convention, and is detained by the Commonwealth pending the outcome of that process, must be afforded natural justice by the independent merits reviewer reviewing his case. That right requires the reviewer to conduct a review which is procedurally fair and which correctly addresses the relevant legal question or questions.
For the reasons which follow, I conclude that the applicant has failed to demonstrate that he was denied procedural fairness and, as a consequence, the application will be dismissed.
Background facts
The recommendation made by the Reviewer to the Minister was supported by written reasons. The facts alleged in support of the applicant’s claim for protection are set out on pages 1-5 of those reasons. Relevant factual allegations are summarised below.
Entry interview
In his entry interview the applicant claimed that he was a Tamil born in Sri Lanka. He claimed that he lived in Karanavai North, Jaffna District from the time he was born until 2006 when he moved to Colombo.
RSA Application
The applicant made the following claims in a statement dated 6 June 2010 which he submitted in support of his application for an RSA:
a)since his birth he and his mother had suffered serious victimisation at the hands of Sri Lankan authorities;
b)his mother and grandmother had told him that in 1987, when he was nine months old, the “SLA armed forces”, presumably a reference to the Sri Lankan Army, came to his home, separated the women and children from the men and locked the women and children in a room. His father, three uncles and two male cousins were shot by the SLA. His brother, who was three at the time, had been in his father’s arms and was tossed on some rocks and sustained severe injuries. He died six months later from those injuries;
c)in May 2006 whilst he was travelling with a friend on a motor bike to Jaffna town, they were stopped by some men in a white van and kidnapped. He managed to jump out of the van at a busy intersection but his friend’s body was discovered two days later. After this, the white van came to his house five to six times looking for him;
d)in July 2006 he moved to Colombo to continue his studies. In August 2006 he was arrested and, after his identification was checked, he was detained for three days at the police station and for a further one hundred and twenty-eight days in a gaol in Wellikadai on suspicion of terrorist activities because of his Tamil ethnicity. His mother lodged a court action and he was released;
e)in October 2008 he was taken into custody by the Special Task Force of the Army on suspicion of being involved in a suicide bomb explosion. He was detained for four days and tortured. He was released after his mother bribed a CID officer;
f)in August 2009 he was kidnapped by people in an unidentified white van and 500 lakhs (50 million rupees) was demanded from his mother for his release. He told his guard about his family and after four days he gave his ATM card to the guard who drew 1 lakh (100,000 rupees) from his account and released him. Before he reached home, some armed men went to his house in search of him. He went into hiding at a friend’s house. The armed men attended his house several times but he was not there; and
g)if he were forced to return to Sri Lanka, his life would be at serious risk of harm. He feared the SLA and the police and the authorities would not protect him.
Application for independent merits review
On 28 November 2010 the applicant was interviewed by the Reviewer when he made the following additional claims;
a)he had been kidnapped in 2006 by EDP or Karuna, groups that work with the Sri Lankan Army. In 2009 he had been abducted by the Karuna group. He had not reported these abductions because he was scared and had gone into hiding;
b)when he escaped from his abductors in 2006, although they had weapons they did not shoot him or chase him. After this, he had gone to Colombo mainly because he was afraid but he had also continued with his studies;
c)when he was arrested in Colombo in (August) 2006, his mother was able to secure his release by producing his student identification;
d)he was detained by the SDF in 2008 because the mobile phone used in the suicide bombing was one digit less than his. His mother bribed a SDF officer and he had told her this. After he was released, the CID attended his house on four or five occasions looking for him. He did not know why they had not looked for him at the college he was attending;
e)his 2009 abductors had searched him but did not find his ATM card which was in his back pocket. His guard had released him out of sympathy but withdrew some money using the ATM card. The guard in question also stopped a lorry and asked the driver to take the applicant to Colombo. After he was released, he did not stay at home or continue studying;
f)the Sri Lankan authorities would be interested in him because he is a young Tamil from the north and he would be “a LTTE suspect”; and
g)he had not been involved with the LTTE or in the fighting.
At the interview the applicant also produced several documents which, to the extent they were legible, were reports and complaints about the disappearances of his relatives and of people known to his mother. Earlier he had sent a number of emails identifying certain websites and asked that the documents found there be printed for the review.
The Reviewer’s findings and reasons
After discussing the claims made by the applicant and the evidence before him, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
The Reviewer was of the view that the applicant was not a credible witness and for the following reasons found his claims far-fetched and implausible:
a)in relation to the applicant’s first claimed abduction in 2006, the Reviewer considered it highly unlikely that kidnappers would leave a victim unrestrained in the back of a van with a sliding door. He also found it implausible that they would make no attempt to shoot or recapture the applicant but yet murder his friend. The Reviewer noted that the applicant’s move to Colombo coincided with the beginning of his studies there and he was satisfied that the move was entirely to do with the applicant’s education and that the claimed abduction was a fabrication;
b)in relation to the applicant’s arrest in 2006, the Reviewer found it implausible that a court would have ordered his release simply because it was satisfied of his status as a student. The Reviewer was prepared to accept that the applicant was detained in a general sweep of young Tamils during a period of heightened security and was released because he was not of particular interest to the authorities;
c)in relation to the applicant’s claim that he was taken into custody after a suicide bombing in Colombo, the Reviewer found it implausible that an important piece of intelligence about a whole series of numbers used by a terrorist would be released to a suspect’s mother. He found it even more implausible that the applicant was released from custody simply because his mother paid a bribe to one officer. The Reviewer did not accept that security measures around a suicide bombing suspect would be so lax. The Reviewer also noted that the police had searched for the applicant at his house four or five times but had not looked for him at his college. The Reviewer was satisfied that the claim was a fabrication; and
d)the Reviewer found fanciful the applicant’s claim to have been kidnapped by a gang and released after he bribed one of his captors who then arranged for a lorry to take him home. The Reviewer did not accept that kidnappers would not have thoroughly searched the applicant or, by implication, that they would not have found his ATM card. The Reviewer also did not accept that a kidnapper would take pity on a victim and release him as the applicant had described. The Reviewer was satisfied that this was another fabrication designed to enhance the applicant’s claims for protection. He also found that, in any event, this was clearly criminal activity unrelated to the applicant’s Tamil ethnicity or imputed political opinion.
The Reviewer found that it was beyond doubt that both the government and pro-government forces in Sri Lanka and the LTTE had an appalling record of human rights breaches during their civil war. He also found that it was apparent that some young Tamil males in the north and the east of the country were targeted and suffered serious harm and death in the aftermath of the conflict, in army detention camps and in the community, and that many LTTE suspects remained in detention awaiting trial. However, he found that it was also apparent that many thousands had left the camps and returned to their home areas and that some form of normality was returning in the post-conflict environment.
The Reviewer was satisfied that there was nothing about the applicant’s personal circumstances that would be of particular adverse interest to the Sri Lankan authorities or para-military groups.
The Reviewer found that it was possible that the applicant would come to the adverse attention of the authorities for departing Sri Lanka illegally but found that this would be pursuant to the application of the general law and not necessarily for a Convention reason. The Reviewer found that country information suggested that in the absence of a LTTE connection or a criminal record, a returnee was not likely to encounter significant problems. He was satisfied that the applicant did not have an LTTE connection or a criminal record and found that there was no real chance that the applicant would face harm as a returnee for reasons of race, ethnicity or imputed political opinion.
Proceedings in this Court
The grounds of the further amended application were pleaded as follows:
1.The second respondent failed to accord procedural fairness to the applicant by denying the applicant an opportunity to respond to material relied upon in making a decision adverse to him.
2.The second respondent failed to consider a key integer of the applicant’s claim.
Failure to put material to applicant
The allegation that the Reviewer had failed to put certain material to the applicant before relying on it in making a decision adverse to him was particularised as follows:
(a)The second respondent did not inform the applicant that he intended to rely upon, and failed to afford the applicant an opportunity to respond to, the following adverse country information contained in the reasons for decision:
(i)an extract from the 2009 US Department of State Country Report on Sri Lanka Human Rights Practices dated 11 March 2010;
(ii)an extract from a country advice given by the Refugee Review Tribunal dated 22 April 2010;
(iii)an article titled “Sri Lanka: Over 200,000 Lankan Tamil IDPs return home: UNHCR” dated 29 April 2010; and
(iv)an extract from the Department’s Country Guidance Note dated 28 October 2010.
(b)That country information was credible, relevant and significant to the finding by the second respondent that the applicant was not at risk if he were returned to Sri Lanka, and that Australia therefore did not owe to him a protection obligation.
Applicant’s submissions
In his written submissions, the applicant identified the information said not to have been provided, and the adverse findings which were based on it, as the following:
a)particular (a)(i)
by comparing the current situation in Sri Lanka with the situation during the conflict, as described by a United States State Department country report published in March 2010, the Reviewer concluded that the applicant did not have a real chance of harm because the environment in Sri Lanka was much better after, than it had been during, the conflict;
b)particulars (a)(ii) and (iv)
having satisfied himself that the applicant did not have an LTTE connection or a criminal record, the Reviewer concluded that the applicant was not at risk of harm upon his return to Sri Lanka as a “failed asylum seeker” because the Sri Lankan authorities screened returnees for LTTE links and outstanding warrants. The Reviewer relied on advice from the Refugee Review Tribunal (“RRT”) dated April 2010 and on the Department of Immigration and Citizenship’s (“DIAC”) country guidance note dated 28 October 2010 as the sources of the information concerning the relevant practices of the Sri Lankan authorities; and
c)particular (a)(iii)
by reference to information contained in a Global Tamil News report dated 29 April 2010 the Reviewer concluded that many internally displaced people had returned to their homes from refugee camps and that “some form of normality is returning in the post-conflict environment”.
The applicant submitted that the Reviewer had not raised with him any of those reports, nor their relevant substance, with the result that he was unable to comment on or consider that material before the Reviewer went on, in reliance on it, to recommend against the acceptance of his claim.
The applicant submitted that even though some of the information in question had been before the assessor, not all of it had been and the Reviewer had also relied on at least one document, the US State Department report, which did not appear to have been relied on by the assessor to reach an adverse view of the applicant’s claims.
The applicant submitted that a live issue before the Reviewer was the general situation in Sri Lanka for young Tamil men and, in particular, returnees who are young Tamil men. He submitted that he had anticipated that this would be an issue of concern for the Reviewer because it had been the subject of an adverse finding by the assessor and so collected and provided to the Reviewer country information which contradicted the views put to him at the RSA stage. He submitted that the country information which he had provided to the Reviewer had a clear theme that the situation in Sri Lanka was unstable and dangerous. However, he submitted, the interview with the Reviewer did not deal with such general matters but was only concerned with the matters peculiar to him, the applicant, and which he, the applicant, had raised.
The applicant submitted that the Reviewer had an obligation to put the information in question to him, even if it had formed part of the basis of the assessor’s findings because independent merits review was, in essence, a de novo hearing. He submitted that he was entitled to expect that all issues on the table, whether or not already considered by the assessor, would be explored by the Reviewer and that the matters which were going to lead to an adverse conclusion would be put to him.
The applicant also submitted that the issue was not whether the material itself was adverse to his claims but whether it was relied upon by the Reviewer to reach an adverse decision on those claims.
Minister’s submissions
The Minster submitted that there would only have been a denial of procedural fairness if it were found that there had been practical injustice in the conduct of the review: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [37] per Gleeson CJ, and that, before such a finding could be made, the applicant had to adduce evidence of this practical injustice. The Minister submitted that practical injustice would only be demonstrated in this case if the applicant had adduced evidence to show that the country information in question was wrong. He submitted that as the applicant had not done this, the allegation of procedural unfairness had not been made out. In this connection, the Minister relied on Re Minister for Immigration & Multicultural Affairs; Ex parte “A” (2001) 185 ALR 489 which involved an allegation that the applicant in that case had been denied procedural fairness because the RRT had not provided him with certain country information which it later relied on in its decision. In Ex parte “A” Kirby J said:
For three reasons, I am unconvinced in this particular case that any breach of the rules of natural justice has been demonstrated in the failure of the tribunal to provide a copy to, or to bring the substance of the country information on Burma to the notice of, the applicant. …
First, the country information provided to the tribunal was not (as had been the case in Miah) of recent origin that suggested a change in the political environment of Burma. On the contrary, the evidence and material, as described, presented a picture of a stable situation. There is therefore no element of novelty or surprise in this case that necessitated, or invited, a specific response.
Secondly, …
Thirdly, the applicant has not placed before this court a clear indication of the type of evidence or material that he would have placed before the tribunal if he had known of the country information made available to it. In default of some indication of the nature of the opportunity which the applicant says he was denied (and the presentation of evidence or material that would constitute an arguable case that might result in a different outcome) any omission by the tribunal to disclose the country information to the applicant (assuming such disclosure to be obligatory) was not shown to be material in this case. (at 500-501 [51]-[54])
The Minister submitted that the RSA assessor’s treatment of the applicant’s claims to fear harm because of his ethnicity and because he had sought asylum overseas were directly relevant to whether there had been practical injustice in this case.
In relation to the information which the applicant alleged should have been provided to him, the Minister submitted that:
a)the US State Department information was not adverse to the applicant in that all it said was that things were or had been bad in Sri Lanka which would, if anything, be supportive of the applicant’s claim;
b)the RRT advice essentially repeated what had been said in the assessor’s reasons with the result that there was nothing new in that document and nothing of which the applicant was not already on notice from the assessor’s decision;
c)similarly, DIAC’s country guidance note was not materially different from what was in the assessor’s reasons; and
d)what had been contained in the Global Tamil News was also similar to the information cited by the assessor.
The Minister conceded that at the Reviewer’s interview with the applicant there was no specific discussion of the country information in question but submitted that the applicant was accompanied by his advisers and that the obvious inference to be drawn was that all present understood what the issues were concerning the applicant’s personal account and the fact that he claimed to fear harm in Sri Lanka more generally. He submitted that the applicant’s claim generally to fear harm in Sri Lanka was not adverted to at the interview because it had already been dealt with by the applicant’s submission to the Reviewer and by the hundreds of pages of documents which the applicant had himself submitted to the Reviewer. The Minister submitted that it was not rational to suggest that anyone doubted that the applicant claimed that Sri Lanka was not a safe place for him because that is what he had said in his submission. The Minister observed that at the end of the interview the applicant’s adviser was asked if she wanted to add anything but she did not raise any issues touching on country information. He submitted that this implied that everything of relevance had been set out in writing.
Consideration
Proof of practical injustice
In Applicant M87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 214 ALR 310, Kenny J analysed relevant authorities and concluded that what procedural fairness requires of a decision-maker in a given case depends on the particular circumstances of the case. Her Honour summarised the position in the following terms:
The relevant questions is, therefore, whether the tribunal in the present case failed to give an opportunity to the applicant to deal with relevant matters adverse to his interests, which it proposed to take into account? Or, put another way, did the tribunal fail to give the applicant an opportunity to deal with adverse information that was credible, relevant and significant to the decision to be made? (at 321 [36])
In Ayan vMinister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 139 it was observed by the Full Court of the Federal Court that the assessment of whether a failure to provide an applicant with particular information amounted to practical injustice and thus procedural unfairness was
… not to be made by applying a priori logic, but by attendance to the particular circumstances of the case and the procedure adopted up to the point of decision making. (at [20])
The question presenting for decision is whether the applicant’s failure to adduce evidence of practical injustice flowing from the failure of the Reviewer to give him an opportunity to address the matters in question is fatal to this application. In the Federal Court there appear to be two approaches to this question.
The first line of authority is that an applicant wishing to demonstrate procedural unfairness by reason that a decision maker has not provided him or her with information which is later relied on in reaching the decision under review must adduce evidence of the practical injustice said to flow from that failure. The line of authority appears to commence with Kirby J’s reasons in Ex parte “A”, relevant passages from which were quoted earlier. In SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749, the Full Court of the Federal Court said, relying on Ex parte “A”, that what was required was, relevantly, the presentation of evidence or material which would disclose an arguable case that the result before the decision-maker would have been different if the decision-maker had informed the applicant of the information which was later relied on in making the decision under review. In that case no such information was adduced by the applicant with the result that the court was not persuaded that there had been a denial of procedural fairness.
In VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 559 it was held by Gyles and Conti JJ, Allsop J agreeing, that the reasoning of Kirby J in Ex parte “A” was directly in point and it was relevant that the applicant in that case had not presented evidence at the trial of what would have been done by her or on her behalf if the potential use of certain information by the RRT had been known in advance.
The second approach can be found expressed in Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069. There, Hely J said that if an applicant is not informed of the case which he has to meet, that is sufficient to establish practical injustice without the applicant having to prove what he would have done had he been informed of that case. His Honour said:
If a breach of the rules of natural justice is established an applicant would ordinarily be entitled to relief unless the Court was satisfied that the breach could have had no bearing on the outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Re Refugee Review Tribunal; Ex parte Aala (supra) at 116-117. Accordingly, I reject the submission put by the solicitor for the Minister that this application must fail because of the failure on the part of the applicant to demonstrate by evidence that some practical unfairness accrued to him as a result of the procedures which were adopted. If the applicant was not informed of the case which he had to meet, that is sufficient to establish ‘practical injustice’ without the applicant having to prove what he would have done had he been informed of that case. Re Minister for Immigration & Multicultural Affairs, Ex parte Lam (2003) 195 ALR 502 does not decide otherwise: NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52, at [31]; VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 at [25]: Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 497 at [61]. (at 34)
In Dagli v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 541 the Minister submitted that Hely J had been wrong in Tuncok to treat Ex parte Lam as not having altered the traditional position, namely that an applicant not informed of the case he must meet suffers practical injustice without having to prove what he would have done had he been informed of the case. The Full Court of the Federal Court described that submission as misconceived, saying:
It is one thing to say that an applicant who claims to have been denied a “legitimate expectation”, or asserts that the Tribunal misled him, must prove that he suffered “practical injustice”. In such cases, the applicant is required to demonstrate that what occurred actually affected the outcome. It is altogether another thing to suggest that an applicant, whose case has been considered by a Tribunal that has before it material of an adverse kind, without informing the applicant of that fact, is not entitled to relief unless he can show that there was something useful that he could have said to rebut that material. That is simply not our understanding of the law.
…
We are not persuaded by the submission of counsel for the respondent that the appellant’s failure to file any affidavit, or adduce any evidence to show that there was something positive that he could have said in response to the adverse material, that might have persuaded the Minister not to cancel his visa, means that he did not suffer any "practical injustice". Nor are we persuaded by the submission that, accordingly, notwithstanding the primary judge’s "provisional view", the appellant was not denied natural justice. We consider, in accordance with Stead and Aala, that the appellant, having established a breach of the rules of natural justice, was entitled to succeed unless the primary judge was satisfied that the breach could have had no bearing on the outcome. In accordance with the observations of the High Court in Aala, that is not an easy task. If the adverse material might realistically have affected the outcome, the decision-maker will have failed to discharge the onus that rests upon him. (at [95] and [97])
The preceding month, in NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89, a differently constituted Full Court of the Federal Court had dealt with a similar question in the following way:
It is not clear whether the Minister meant by this submission that in every case where the complaint is that there has been a denial of procedural fairness it is incumbent upon the complainant to lead evidence to explain in precisely what way he has been adversely affected by a particular omission. If this is what the Minister means it should be rejected outright. There is no principle which is to this effect. Indeed, it is a submission which is contrary to well established principle. In Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at 122 McHugh J said that: "once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because ‘[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome'", citing Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145.
On the other hand, there no doubt will be cases where it is not clear what, if anything, a complainant could have done with the information which had not been provided to him. Many examples come to mind. One example is where the information is of a type which is difficult to controvert. If, in such a case, a court is unable to see how the complainant has suffered "practical injustice", then the complainant may be required to adduce evidence to explain why he has been unfairly treated. Another example may be found in the case of Re Minister for Immigration and Multicultural Affairs; ex parte "A" (2001) 185 ALR 489 at 500-501. (at 100-101 [17]-[18])
In Applicants M1015/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1309, Weinberg J, amongst other things, discussed the extent to which, in order to establish a denial of procedural fairness, an applicant is required to identify the kind of information he would have placed before the RRT in response to the country information which was not notified and which would disclose an arguable case that the result would have been different had he been able to. After an examination of the authorities including Stead v State Government Insurance Commission (1986) 161 CLR 141, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, Tuncok and Ex parte “A,” his Honour concluded at [52] that there is no general rule that a denial of procedural fairness cannot be demonstrated if an applicant does not give evidence of what he or she would have done had they been told that the decision-maker intended to rely on particular information adverse to their case. Having found that there is no prerequisite that such evidence be given in all cases in which a denial of procedural fairness is alleged, his Honour observed that whether or not there has been a denial of procedural fairness in any given case is largely dependent upon the particular facts of that case. For example, failure to put incontrovertible facts or blindingly obvious matters to an applicant will be of little or no significance whereas the denial of an opportunity to comment on contentious information may give rise to procedural unfairness. In Applicants M1015/2003 the relevance of the information complained of by the applicants was so marginal that it was incumbent on them to demonstrate that it was inaccurate before a finding would be made that they had suffered practical injustice by not having had an opportunity to comment on it.
Weinberg J’s analysis of the authorities in Applicants M1015/2003 was relied on by Nicholson J in Repatriation Commission v Dunn (2006) 94 ALD 97 at 116 [75].
The second approach was referred to in VHAP of 2002 and its correctness impliedly doubted at 564 [16]. However, it was not the subject of detailed consideration or found to be plainly wrong. Moreover, the relevant comments of Gyles and Conti JJ were obiter as, the RRT having put to the applicant questions based on the information in its possession said not to have been disclosed to the applicant, it was found by Allsop J, Gyles and Conti JJ agreeing, that there had been no want of procedural fairness. In this regard, in a comment echoing what had been said in Ayan, where his Honour had also been a member of the Full Court, Allsop J said that:
Natural justice and the analysis of whether, in any case, it was afforded is not a process of syllogistic reasoning. One does not approach it thus: the person is entitled to adverse material, this material was relied on in reaching an adverse result, that makes it adverse material, it was not provided in terms, therefore there has been a failure to afford natural justice.
Natural justice is ultimately a question of fairness. … If, as here, subjects of concern are raised, I do not see how fairness requires provision of the specific text of country information seen to be of relevance. (at 566 [27]-[28], Gyles and Conti JJ agreeing)
I conclude from this discussion that I am bound by what was said in Dagli and NARV and that an applicant who has established procedural deficiency on the part of an independent merits reviewer is entitled to succeed unless the Court is satisfied that it could have had no bearing on the outcome. If, at the trial, there is doubt as to what an applicant could have done with the information which was not provided or how the outcome could have been different if the information had been provided, before the Court will find that a procedural deficiency amounted to practical injustice and thus a denial of procedural fairness, as a practical matter the applicant is likely to have to adduce evidence to explain why he or she has been unfairly treated.
In this case, it is necessary first to identify whether the Reviewer should have, but failed to, put any of the particularised matters to the applicant. In respect of any such matters, if it is not clear what the applicant could have done with that information or how the outcome of the review might have been different had the Reviewer put the relevant matter to the applicant, then the latter’s failure to adduce evidence of the practical injustice said to result from the Reviewer’s failure is likely to lead to a conclusion that there was no relevant denial of procedural fairness. However, if any of the matters could not be so described, the fact that the applicant has not adduced evidence of the practical injustice caused by the failure will not prevent the Court from finding that there was a denial of procedural fairness.
In this connection, the applicant submitted that the review was a hearing de novo and that all issues on the table, whether or not considered by the assessor, were to be explored by the Reviewer and matters which were going to lead to an adverse conclusion had to be put to him.
Hearing de novo?
It is not useful to tag the review with a label, such as a hearing de novo, and to extrapolate the content of the Reviewer’s duties from such labelling, presumably on the basis that those duties would be different if the review were considered to be an appeal or a review of the sort considered in SZBEL vMinister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152. To approach the issue in that fashion distracts attention from the real question relevant to the present allegation which is whether the applicant has been accorded procedural fairness in the review by being able to participate in it with an awareness of the matters in issue and the evidence relevant to those matters. As the Full Court of the Federal Court said in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. (at 590-591) (reference omitted)
and
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. (at 591-592)
If the applicant’s presentation at the review is such that he or she demonstrates an awareness and appreciation of the matter in question, perhaps because of the attention it was given before or by the RSA assessor, then the Reviewer has no obligation to raise it further. The procedural fairness required by the rules of natural justice involves “a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case”: Kioa v West (1985) 159 CLR 550 at 585 per Mason J. At 587 his Honour noted the importance which the law attaches to the need to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that he or she may have an opportunity of dealing with it but also suggested that such a step might not be required if the issue and relevant information had already been addressed in the applicant’s application. Later, in Abebe v Commonwealth (1999) 197 CLR 510, it was held by Gummow and Hayne JJ, Gaudron and Kirby JJ agreeing, that the RRT did not breach the rules of natural justice by not putting to Ms Abebe that her claims of detention and rape might not be accepted, given that the credibility of those claims had been expressly doubted by the primary decision-maker and had also been the subject of submissions by her advisers to the RRT itself. To the extent that an applicant raises the issue in question with the Reviewer, Pancharatnam v Minister for Immigration, Local Government & Ethnic Affairs (1991) 26 ALD 217 at 218-219 also supports that conclusion.
Further, the fact the assessor has made a finding on a particular matter in a fashion adverse to the applicant’s claims would make it obvious that the issue was an important one: Muin v Refugee Review Tribunal (2002) 190 ALR 601 per McHugh J at 632 [126] and 633-634 [133]. As Hayne J said in Muin’s case, Gummow J agreeing:
Once it is accepted, however, as the plaintiff did, that the statement in the practice direction suggested no greater obligation than an obligation to draw the claimant’s attention to the substance of the adverse material, it followed, in this case, that there was no breach of that obligation. The delegate’s decision had made abundantly plain that there was material from which it could be concluded that Indonesia could and would sufficiently protect its citizens of Chinese origin. There was, therefore, no point which emerged in the tribunal’s review which was in any sense a new point. Secondly, because of the centrality of the question of protection by the state of citizenship, and because that was the basis upon which the delegate had resolved to refuse the grant of a protection visa, there was no requirement for the tribunal to take any further step to draw attention to it. (at 663 [272])
In this case, unlike in Muin’s case, it has not been suggested that any of the factual circumstances upon which the assessor relied to reach the findings particularised by the applicant changed in the period between the assessor’s recommendation and the Reviewer’s such that the Reviewer was required to put new and relevant facts to the applicant so that he might address them.
Adverse information / information relied on adversely
The applicant submitted that the criterion for putting him on notice of information was whether it was relied on by the Reviewer to reach a decision adverse to his claims, not whether the information itself was adverse to his claims. Putting aside the difficulty in conceiving of information which is used adversely to an applicant’s case which is not information “adverse to his interests”: Kioa v West at 628 per Brennan J, this argument conflates two issues which are seen most clearly in the reasons in Alphaone. The first is the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. The decision-maker should disclose such material even if it is not taken into account in reaching the decision: Kioa v West at 628-629 per Brennan J. The second issue is the decision-maker’s obligation to advise of any adverse conclusion which has been arrived at, but which would not obviously be open on the known material.
In the first case, the obligation is to disclose information unknown to the applicant; in the second it is to disclose a conclusion which would be unexpected. As to the first case, a failure to disclose information will amount to a denial of procedural fairness vitiating the review unless the failure did not result in practical injustice or could have had no bearing on the review’s outcome. As to the second case, the fact that the Reviewer might reach a conclusion adverse to the applicant on known information which is not itself adverse, assuming that that process does not itself render the information adverse, does not require the information to be identified to the applicant for evidence or comment. A disclosure obligation will only arise in such circumstances if the adverse conclusion would not obviously be open on the known material.
Particular (a)(i)
The United States State Department country report referred to in particular (a)(i) discussed the history of human rights abuses in Sri Lanka associated with the civil war and the civil rights situation in Sri Lanka during the civil war and in the period immediately following it. Overall, it contained information supportive of the applicant’s claims concerning the situation in that country.
The applicant’s allegation is that the Reviewer should have raised this report with him because it was a factual basis for the former’s conclusion that the contemporary environment in Sri Lanka was much better than it had been during the conflict. However, a conclusion that the current situation in Sri Lanka does not justify the applicant having a fear of persecution for a Convention reason does not depend on a comparison of the pre-existing situation in that country. The previous situation tends to put the current one into relief and to emphasise its comparative safety but in this case the comparison was essentially irrelevant to the Reviewer’s consideration of whether, given the then-current circumstances, the applicant had a well-founded fear of persecution for a Convention reason in his country of nationality. While the past may be a guide to the future, that was not the use to which the information in question was put by the Reviewer. It was really no more than historical background material used to put the present situation in some context.
The substance of the United States State Department report did not need to be provided to the applicant as it raised no new issue, contained no adverse information which he needed to address in order to make out his claim for protection in contemporary Sri Lanka and was not relied upon by the Reviewer as the basis of his conclusion on that question.
Particulars (a)(ii) and (iv)
Particulars (a)(ii) and (iv) were concerned with the applicant’s claim that if he returned to Sri Lanka he would be persecuted as a failed asylum seeker. In connection with this issue, in his reasons the Reviewer quoted from an RRT advice which, in turn, drew on advice given to the United Kingdom Foreign and Commonwealth Office by the Australian High Commission in Colombo. In most respects the RRT advice quoted by the Reviewer was not relevant to his decision or was supportive of this aspect of the applicant’s claims. Procedural fairness does not require that information of the latter sort be put to an applicant: Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 97 [141] per McHugh J and there is no need to put irrelevant information: Kioa v West at 628 per Brennan J.
However, adverse to the applicant’s claims were the advice’s statements that:
… the Australian High Commission in Colombo advised the UK Foreign and Commonwealth Office (FCO) that “there were no procedures in place to identify failed asylum seekers”; and that: “The only way that the authorities were alerted to a failed asylum seeker returning was if the airlines or IOM notified them that a person was a deportee or was being escorted”. A Tamil returned to Colombo after seeking asylum in Australia would therefore be under no more scrutiny than any other Tamil returning to Colombo and would be subject to the same screening procedures with the same risk criteria for being perceived as having and LTTE association. …
… the UN High Commissioner for Refugees has expressed no concerns about the treatment of Tamil returnees at Colombo airport. …
… Sources agreed that all enforced returns (of whatever ethnicity) were referred to the Criminal Investigations Department (CID) at the airport for nationality and criminal record checks, which could take more than 24 hours. All enforced returns were wetfingerprinted. Depending on the case, the individual could also be referred to the State Intelligence Service (SIS) and/or Terrorist Investigation Department (TID) for questioning. Any one who was wanted for an offence would be arrested. Those with a criminal record or LTTE connections would face additional questioning and may be detained. In general, non-government and international sources agreed that Tamils from the north and east of the country were likely to receive greater scrutiny than others, and that the presence of the factors below would increase the risk that an individual could encounter difficulties with the authorities, including possible detention:
· outstanding arrest warrant
· criminal record
· connection with LTTE
· illegal departure from Sri Lanka
· involvement with media or NGOs
· lack of an ID card or other documentation …
(footnotes omitted)
The assessor expressly cited some of the information contained in the first and the third quoted paragraphs.
The information relied upon by the assessor in reaching his conclusion that the applicant would not be of interest to the authorities on his return was to the effect that Tamils returning to Sri Lanka as failed asylum seekers would not be identifiable unless the authorities were alerted to their identity; that a black list existed but it depended on an exact data match to be effective; that persons with criminal records or LTTE connections would face additional questioning and might be detained; that Tamils from the north and east of Sri Lanka were likely to receive greater scrutiny than others as would persons satisfying the following criteria
· outstanding arrest warrant
· criminal record
· connection with LTTE
· illegal departure from Sri Lanka
· involvement with media or NGOs
· lack of an ID card or other documentation.
The assessor also referred to information concerning Tamil returnees which indicated that a number were arrested, some for only a few hours, some for longer; that of nine forced returns from Switzerland in 2007 some were questioned but many were not; and that Sri Lankan Tamils resident abroad or returning to Sri Lanka after short periods were sometimes questioned by airport immigration and security authorities on the basis of possible LTTE diaspora activity.
He concluded:
In the circumstances of this case and on the basis of the findings made herein, I am not satisfied the present claimant would be of any interest to the Sri Lankan authorities on return. He does not appear to meet any of the criteria from the immediately abovementioned UK Home Office report. That said, and even if it is possible he may be questioned, without more, I am not satisfied he will be subject to harm amounting to persecution. The fact of the war ceasing over one year ago, the fact that neither he nor his family had any association with the LTTE (or any other group), the improving (if still fluid) security, and the lack of any real profile held by the claimant, have all satisfied me he does not have a real chance of being subject to harm amounting to persecution for any Convention reason on return.
In his findings and reasons, the Reviewer relevantly said that:
The country information suggests that in the absence of a LTTE connection or a criminal record, a returnee is not likely to encounter significant problems. I am satisfied that neither of those factors applies to the claimant.
That is to say, he reached the same conclusion as did the assessor, albeit expressed in fewer words.
In reaching this conclusion, the information relied upon by the Reviewer was essentially the same as that which was before the assessor. The only possibly different piece of information which was cited by him and not by the assessor was this statement in the RRT advice:
… the UN High Commissioner for Refugees has expressed no concerns about the treatment of Tamil returnees at Colombo airport. …
However, that information was supported by a footnote which stated:
Asked about this issue by the UK Foreign and Commonwealth Office in August 2009 an officer of the Colombo office of UNHCR replied that while UNHCR had “little involvement with this type of issue”, “they were aware that some returned failed asylum seekers were interviewed with CID. If there was any suspicion there would be a quick, and usually non-problematic, interview with CID who would ask things like why they left and how long they were away for. High profile cases, such as those suspected of having involvement with the LTTE, would be taken away for further questioning, usually by the police”, see: UK Foreign and Commonwealth Office 2009, Report of Information Gathering Visit to Colombo, Sri Lanka 23-29 August 2009, August, p.9 – Attachment 1.
Although different in detail, this information is not different in substance to the information which was cited by the assessor, that some returnees were questioned but real difficulties only arose if, amongst other things, an LTTE connection was suspected.
I conclude that the applicant’s advisers were aware of that information and of the assessor’s conclusion on it. Indeed, they addressed it in their submissions to the Reviewer dated 14 September 2010 when they stated:
Our concern is that, despite the evidence referred to by the Minister’s Delegate, a negative finding was made. We argue that the available information should, when viewed in total, lead to a conclusion that our client is in fact a valid claimant for treatment as a refugee …
Plainly, the applicant’s advisers had had regard to the entirety of the assessor’s reasons when presenting the applicant’s case to the Reviewer and although they did not deal with the question of the applicant’s likely treatment at the point of return in any detail, they did advert to it in para.29 of their written submissions of 14 September 2010.
Further, although the applicant’s advisers did not make particular submissions on the risks said to face the applicant at the point of arrival in Sri Lanka, the applicant addressed the issue himself in the materials he supplied to the Reviewer. He gave an internet link to an Amnesty International statement, reproduced at p.294 of the bundle of Relevant Documents (“RD”) which was exhibit A, and a Green Left Weekly article, reproduced at RD 482-484, both of which dealt with the detention upon return to Sri Lanka of repatriated asylum seekers, three of whom were Tamils. By doing so the applicant demonstrated an actual appreciation of the relevant issues raised by the RRT advice and, it must be assumed, an awareness of the information relied on by the assessor in reaching his decision.
For these reasons, the Reviewer was not required to provide the applicant with the information contained in the RRT advice.
The extract from the department’s guidance note which is quoted at para.24 of the Reviewer’s reasons was not referred to by the assessor in his reasons as it was published after he made his assessment. It stated that failed Sri Lankan asylum seekers:
a)faced interviews by Sri Lankan police and intelligence services, who would check for LTTE links;
b)were not treated differently from other deportees;
c)would be detained until clearances were obtained; and
d)would be taken into custody if subject to outstanding warrants, or would be likely to be detained if suspected or terrorism-related offences.
It will be observed that many of these matters are supportive of the applicant’s claim to fear persecution as a returning asylum seeker and thus procedural fairness did not require that they be put to him. Further, to the extent that the guidance note did not support the applicant’s claim, in that it stated that failed asylum seekers were not treated differently from other deportees, it merely reflected in a more explicit way information which had been before the assessor to the effect that a returnee had to have committed or be suspected of certain specified behaviour before the Sri Lankan authorities would treat the person in a differential manner and which formed the basis for his conclusion that the applicant did not have a well founded fear of persecution for a Convention reason as a returnee to Sri Lanka.
Consequently, the Reviewer was not obliged to put the contents of the department’s guidance note to the applicant in order to discharge his procedural fairness obligations.
Particular (a)(iii)
In his reasons, the Reviewer quoted the following passage from the Global Tamil News article:
Over 200,000 displaced Tamil civilians have left refugee camps in the North and East Sri Lanka since the resettlement process began in August last year following the defeat of the LTTE in the three-decades-long ethnic conflict, the UN refugee agency said on Tuesday.
Some 7,000 internally displaced people (IDPs) have returned to the districts of Kilinochchi and Mullaitivu following the resumption of government-led movements in northern Sri Lanka after a three-week temporary pause due to parliamentary elections and holidays.
“Some 207,000 IDPs have left camps in the North and East of the country since the organised return process began in August last year.
They have either returned to their homes or were staying with friends and relatives in Vavuniya, Mannar, Jaffna and other districts,” according to the United Nations Refugee Agency (UNHCR).
“People are returning to areas which suffered major destruction,” said UNHCR spokesperson Andrej Mahecic.
“To assist them to rebuild their lives, we are providing each returning family with a shelter cash grant of RS.25,000 (USD 220). More than 40,000 families had already received the cash grant by March, he added.
At the height of the conflict between the Lanka government and the Tamil Tigers, about 280,000 people had been displaced.
They were staying in more than 40 camps, mainly in the Menik Farm site in the Vavuniya region but also in Jaffna, Mannar and Trincomalee districts.
The conditions in the refugee camps led to strong international criticism for human rights violations on the part of Sri Lanka government.
“The camps, which used to be overcrowded, are now hosting less than one third of their initial population,” Mahecic said, adding “returns and the subsequent decongestion eased the pressure on the health, food and water services.” (at [23])
This was an expanded version of the same information cited by the assessor in his reasons when he said:
Be that as it may, over ‘200,000 displaced Tamil civilians have left refugee camps in the North and East Sri Lanka since the resettlement process began in August last year [2009] following the defeat of the LTTE in the three-decades-long ethnic conflict, the UN refugee agency said on Tuesday’. They are also being provided initial assistance by the UNHCR to facilitate their return home (CX242867, CX242277).
In his conclusion the assessor said:
At any rate, in the RSA process I am obliged to consider whether the claimant had a prospective real chance of persecution. I do not intend to again set out the country information discussed above. I believe though, that the situation in Sri Lanka has changed materially since the cessation of hostilities in May 2009. However, based on the UK Home Office Report Sri Lanka 2009 (set out below), persons of risk of harm on return include those with an outstanding arrest warrant, criminal record, connection with LTTE, those who had departed Sri Lanka illegally, those involved in media or with NGOs and those who lack an ID card or other documentation. Based on the evidence at the RSA interview and elsewhere, there is no real suggestion the claimant comes within any of these criteria.
Therefore, I am not satisfied there exists a real chance the claimant would be subject to harm amounting to persecution for any Convention reason should he return to Sri Lanka.
As is apparent from the above quotations, both the assessor and the Reviewer cited information from the Global Tamil News article which concerned persons leaving camps to return to their home areas and which indicated that there had been an improvement in the situation of displaced Tamils. Both of them relied on this information to conclude that the applicant would not face persecution in Sri Lanka were he to resume residence there.
For the reasons expressed earlier I am of the view that in making their written submissions of 14 September 2010, the applicant’s advisers had had regard to the entirety of the assessor’s reasons and thus to the information cited in them. Of specific relevance to the present question, in those submissions they disputed the assessor’s “choice of materials used in support of the argument that Sri Lanka is now a comparatively peaceful state to which Tamils can safely return”, saying that the assessor’s own quotations “make it evident that Sri Lanka is still a country in a state of rapid and often violent flux”. The advisers’ specific reference in paras.21 and 23 of their submissions to other portions of the particular paragraph in the assessor’s reasons where the Global Tamil News information was found supports the conclusion that their submissions were made with reference to that information and in response to the conclusion based upon it.
Further, again through the documents he submitted to the Reviewer the applicant displayed his own appreciation of the issues raised by the Global Tamil News article. For instance, he quoted from a Tamilnet article dated 17 August 2010, reproduced at RD 219 which stated:
4763 complaints have been received by the Human Rights Commission of Sri Lanka (HRCSL) from the districts of Jaffna, Mannaar and Vavuniyaa in Northern Province from May last year. Of these more than three thousand complaints are regarding the disappearances of persons from May 2009 till now, according to an official of the HRCSL.
The applicant’s submission to the Reviewer of the “Amnesty International Report 2010 - Sri Lanka”, reproduced at RD 310-313 also indicates an appreciation that one of the issues before the Reviewer was whether Tamils were still subject to harassment and discrimination in Sri Lanka. This was reinforced by the Amnesty International articles, reproduced at RD 353-357, to which the applicant referred the Reviewer and which referred to discriminatory mistreatment of Tamils including disappearance, death and detention. Specifically, in relation to the fate of returning internally displaced persons, he gave an internet link to an article from Green Left Weekly at RD 190-192 which, relevantly, said:
Australian Tamil community activist Saradha Nathan told Green Left Weekly: “Blind Freddy could see that compared to tens of thousands being killed in 2009 it has improved.
“That doesn’t mean it’s safe – there’s still hundreds of people being killed but not tens of thousands like before. So, there is improvement, but in comparative terms.
“It is not safe at all. Reports from friends and family [are that] people are getting abducted, people are getting beaten up, people are getting raped. The situation hasn’t returned to normal. There’s a heavy military presence and … there’s no Tamils in the military.
“On top of that, there are 12,000 suspected combatants who are being detained without any ICRC [Red Cross] access. There are certain parts of the country where independent media and NGOs are not allowed to go.
…
Moreover, ex-detainees, and other displaced Tamils, have been prevented from returning to their homes. Nathan described a pattern of ethnic cleansing.
“There are at least 60,000 civilians still in the camps, including children”, she told GLW. “There are certain parts of the country where people are not allowed to return to their homes. There has been colonisation. Singhalese civilians have moved into Tamil areas.
“The Tamils have been displaced, they have not been allowed to return to these areas but the Singhalese have been provided homes there at the cost of the government. There have been, for a long time in the north, areas marked as ‘high security zones’, where private residences have been taken without any compensation …Now this has spread to other parts of the country.
The fact that the applicant and his advisers addressed the relevant issue in the written submissions and country information documents they supplied to the Reviewer demonstrates that although the Reviewer did not put the information contained in the Global Tamil News article to the applicant for his comment, the applicant was not thereby denied procedural fairness. The applicant was aware of the matter and the information in question and the Reviewer had no obligation to raise them further with him.
In these circumstances, procedural fairness did not require the Reviewer to raise that information or those issues with the applicant so that he might address them further. For those reasons, the Reviewer did not err in the manner asserted in particular (a)(iii).
Failure to consider integer of claim
Applicant’s submissions
The second ground of the further amended application concerned the large volume of news articles and other information which the applicant had provided to the Reviewer in the form of internet links. The applicant said that the information had been submitted by him personally, and in stages, and reflected the evolving nature of the situation in Sri Lanka and the fact that he had wanted the Reviewer to have the most recent information.
The applicant alleged that the Reviewer had failed to consider this information and had, thereby, failed to consider an integer of his claim. However, the applicant’s submissions raised a different case. Notwithstanding the way the allegation was pleaded, the applicant submitted that the Reviewer erred by failing to consider the information which could be accessed through the internet links.
Minister’s submissions
The Minister submitted that the Reviewer needed only to note the information in question, which he did at paras.20 and 33 of his reasons. In the first of those paragraphs the Reviewer said:
The country information is detailed in the RSA Officer’s assessment, the submissions from the claimant/advisers and the following information.
In the second paragraph he said:
I have carefully considered the claims, evidence and independent country information. In all the circumstances, I find that there is not a real chance of harm to the claimant for a Convention related reason.
The Minister submitted that the Reviewer did not need to have undertaken an elaborate analysis of this information.
Consideration
No particular integer of the applicant’s claims was identified in his further amended application, or in his submissions, as having been overlooked. Further, although it was asserted in the applicant’s written submissions that the Reviewer had failed to consider all the claims advanced, no claim or claims meeting that description were identified there either.
Rather than being concerned with overlooked claims, the allegation, as it was addressed by the applicant in written and oral submissions, was really that the Reviewer had not considered the bulky information which the applicant had given the Reviewer or, more accurately, the documents which could be accessed from the internet links to which the applicant directed officers (one assumes) of the department and which he asked be printed for the Reviewer. That the real argument was that information had not been considered, rather than that aspects of the claim had not been considered, was exemplified by the fact that the applicant did not submit that the documents in question contained claims which had not been articulated elsewhere. Rather, he submitted that the information contained in these documents was elaborative of his case. The approach was made even clearer by the applicant’s complaint that the Reviewer had not translated the non-English language documents which had been amongst the documents accessible by using the identified internet links. In this connection, the applicant’s counsel did not suggest that integers of the applicant’s claims were set out in those documents, and therefore had not been considered, but said in response to a question from the Minister’s counsel that the issue in question was the Reviewer “not considering material”.
Ignoring relevant material in a way which affects the exercise of power is to make an error of law: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ. However, I do not conclude that the Reviewer did fail to consider the English language documents which the applicant asked be printed. The passages from the Reviewer’s decision to which the Minister drew attention support a conclusion that he did consider it. The Reviewer stated that, amongst other sources, country information was to be found in “the submissions from the claimant/advisers”. The only submissions made by the applicant himself which contained country information were the emails containing the internet links and it can be inferred from the Reviewer’s statement that those links were accessed and the documents printed for his consideration.
The Reviewer’s subsequent statement:
I have carefully considered the claims, evidence and independent country information.
should not be dismissed as hollow and formulaic without good reason. It is true that, in his reasoning, the Reviewer did not cite the information provided by the applicant personally but on the other hand the only country information which he did specifically cite was the United States State Department report which he had quoted at length in his summary of the evidence. The Reviewer’s reasoning is expressed in short form and because of this I do not infer that the absence of a specific mention of the information supplied personally by the applicant, or any other information for that matter, is of particular significance. The fact that the applicant’s information was not mentioned in detail is, in all probability, a reflection on its relative lack of significant content. In light of the express statements of the Reviewer referred to above I am not willing to conclude that he did not have regard to the information contained in the English language documents submitted by the applicant.
As to the material which was not in English and was not translated, the Reviewer was not obliged to have those documents translated into English. It was for the applicant to demonstrate that he met one of the criteria found in s.36 of the Act and, if he wished the Reviewer to understand what he had to say, it was important that the documents were submitted in English. In this regard, it was not suggested that the applicant had asked that the Reviewer have documents translated or that the applicant, who was at all times professionally represented, was unable to have that task performed himself. Moreover, it was not argued that the applicant had submitted to the Reviewer that those documents contained information of significance to the review. The evidence indicates that they were simply submitted as internet links with a request that they be printed and were submitted without any discussion or elaboration. In such circumstances no error was committed by the Reviewer in not arranging for the non-English language documents to be translated and for thus not reading what they contained.
For these reasons, the second ground pleaded in the further amended application is not made out.
Failure to raise safety in Sri Lanka
The applicant also asserted in passing in submissions at the hearing that the Reviewer had failed to raise with him the question whether it was safe for him to return to Sri Lanka. He submitted that at the interview the Reviewer was concerned only with very personal and specific matters he, the applicant, had raised and did not at any time engage in a discussion of what the situation was like in Sri Lanka. However, the issue had been raised in the assessor’s reasons; he said that he was not satisfied that the applicant faced a real chance of Convention harm. The issue was also addressed in the applicant’s agents’ written submissions to the Reviewer dated 14 September 2010. Given those facts and for the reasons given earlier, it was not necessary for the Reviewer to raise with the applicant what must in any event be concluded to have been the exceptionally obvious issue of whether it was safe for him to return to Sri Lanka.
Conclusion
The applicant has not demonstrated that the Reviewer denied him procedural fairness.
Consequently, the application will be dismissed.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 14 December 2011
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