SZQJP v Minister for Immigration
[2011] FMCA 759
•14 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQJP v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 759 |
| MIGRATION – Independent merits review of refugee claims of offshore entry person – obligation to afford procedural fairness – failure to invite comment on December 2009 guideline decision of the United Kingdom Asylum and Immigration Tribunal concerning Tamil refugee claimants – whether “credible, relevant and significant” information taken from decision – declaration of error made. |
| Migration Act 1958 (Cth), ss.46A, 476, 477 |
| Alami v Minister for Immigration & Citizenship [2011] FMCA 623 Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88, [2005] HCA 7 Dagli v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 541 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41 SZPAC v Minister for Immigration [2011] FMCA 517 SZPZI v Minister for Immigration & Anor [2011] FMCA 530 SZQEK v Minister for Immigration [2011] FMCA 628 |
| Applicant: | SZQJP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | PETER GACS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1306 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 30 September 2011 |
| Delivered at: | Sydney |
| Delivered on: | 14 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Nair |
| Solicitors for the Applicant: | Salvos Legal Humanitarian |
| Counsel for the Respondents: | Ms A Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The time for making the application provided by s.477(1) of the Migration Act 1958 (Cth) is extended up to and including 22 June 2011.
Declare that, in recommending to the first respondent that the applicant be not recognised as a person to whom Australia has protection obligations, the second respondent made an error of law, in that the second respondent failed to observe the requirements of procedural fairness in relation to the disclosure of country information.
Application otherwise dismissed.
The first respondent pay the applicant’s costs in the amount of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1306 of 2011
| SZQJP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| PETER GACS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant arrived in Australia on a boat which was intercepted and taken to Christmas Island in September 2009. On 1 November 2009 he requested an assessment by the Department of Immigration of his refugee status, under procedures designed to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether he would allow the applicant to make an application for a protection visa.
A negative assessment was made on 12 March 2010, and the applicant then applied for ‘independent merits review’ under those procedures.
On 11 June 2010 Mr Godfrey (“the First Reviewer”) recommended that the applicant should not be recognised as a person to whom Australia has protection obligations, but the Minister directed a second review following the judgment of the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41 (“Plaintiff M61”). Mr Gacs became the second Independent Merits Reviewer, and delivered a report making the same recommendation on 25 March 2011. Throughout the administrative proceedings, the applicant was assisted by migration agents. He is currently held in immigration detention at Villawood.
The applicant filed his present application to the Court on 22 June 2011, seeking a declaration that Mr Gacs’ report is affected by legal error, and injunctive relief to prevent the Minister and his Department from relying upon it. Throughout the administrative and judicial proceedings, the applicant has been held in immigration detention as an ‘offshore entry person’. The Minister concedes that Mr Gacs’ report attracts judicial review, and that the present application is within this Court’s jurisdiction under s.476 of the Migration Act, based on the High Court’s reliance on s.75(v) of the Constitution in Plaintiff M61 at [51].
I have held in another case that an IMR report and recommendation is itself a ‘migration decision’ which is subject to the 35 day time limit in relation to relief of the type sought in the present application (see Alami v Minister for Immigration & Citizenship [2011] FMCA 623 at [48]-[67]). In the present case, an extension of time of about six weeks is required. The applicant’s explanations for this delay are poorly detained in his application, and are not supported by sworn evidence. However, the Minister consents to an extension of time. In all the circumstances I consider it appropriate to accept that concession, particularly taking into account my conclusion on the merits of the matter.
Under the judicial review jurisdiction upheld in Plaintiff M61, it is the function of the Court to consider whether Mr Gacs’ report reveals any error of law, including denial of procedural fairness in its reasoning or the procedures followed before its making. The relief sought in the present application can only be contemplated, if I am satisfied that Mr Gacs made such an error. It is not the function of the Court to engage in merits review of Mr Gacs’ findings on the credibility of the applicant’s evidence and the risks he faces if he returns to Sri Lanka, nor to form its own opinions on whether the applicant should be permitted to reside in Australia.
When examining Mr Gacs’ reasons for legal error, I consider that the Minister’s instructions as to the contents of his report make it appropriate to examine the report on the same principles as would be a statement of reasons given by a migration tribunal (see SZPZI v Minister for Immigration & Anor [2011] FMCA 530 at [12]-[13]). These principles include the obligation not to read Mr Gacs’ statement of reasons “minutely and finely with an eye keenly attuned to the perception of error”, but to adopt a ‘benign approach’ when attempting to understand ambiguous or poorly explained reasoning (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291).
In the present matter, I have concluded that the applicant has established a breach of procedural fairness arising from Mr Gacs’ significant reliance upon information taken from a piece of ‘country information’ which was not raised with the applicant and his advisors, and that this error should be recorded in a declaration which should be sufficient to cause the Minister to direct a further review of the matter by a different reviewer. I do not consider it necessary for me to explain and address other grounds also contended by the applicant.
The applicant’s claim to be at risk of persecution as a young male Tamil from Jaffna.
The applicant claimed that he is an ethnic Tamil, who was born and worked in Jaffna in Northern Sri Lanka, until the LTTE insurgency forced him to leave that region and, ultimately, to settle in Colombo. He modified and amplified his account of his personal history considerably in the course of the RSA and IMR proceedings.
In particular, he retracted claims that he had never left Sri Lanka before coming to Australia, that he had lived and worked in LTTE controlled areas until “in 2000 the LTTE was forcing to conscript me and I fled to Colombo”, and that he had met and married his wife in 2004 in Jaffna.
Rather, he later told interviewers that he had resided and unsuccessfully sought refugee protection in France between 1989 and 2000, and had been a refugee in India between 2000 and 2003, and had married his wife in India, before returning to live and work in Colombo. He denied the reliability of information suggesting that he had visited India more recently, and had applied there for entry to the United Kingdom in 2009.
The changes to the applicant’s claimed history, as well as other difficulties with his evidence, provided grounds for decision-makers throughout the proceedings to have doubts about the credibility of his claims to have personally encountered persecution on the grounds of being a perceived associate of the LTTE. In particular, his claims that he had been beaten and detained as a suspected LTTE cadre in 2006, that he was detained and subjected to medically-aided interrogation in 2007, and that he had been arrested and detained for three days in 2009. All these claims, and other parts of his claimed personal history, ultimately were rejected by Mr Gacs, who found: “In sum, I do not accept that the claimant has ever been of any individual interest to the authorities as a suspected LTTE affiliate or for any other reason.”
It is unnecessary for me to examine how the applicant’s claims to have a personal ‘profile’ giving rise to a heightened risk of persecution were presented, and how they were examined and rejected by Mr Gacs and previous assessors, since these parts of his reasoning are not challenged before me, and do not bear upon the ground of review which I am upholding.
This concerns a claim, which it is common ground was properly perceived by Mr Gacs as being raised in the evidence of the applicant and submissions of his advisors, and as having some support in background ‘country information’. It was that the applicant should be assessed as facing a future real chance of persecution for Convention reasons if he returned to Sri Lanka, merely based upon his attributes as a male Tamil national of Sri Lanka who came originally from Jaffna.
I shall refer to this as the applicant’s ‘generic’ or ‘general’ refugee claim.
Mr Gacs accepted that he had these attributes, and examined his risk of persecution resulting from them alone, before examining ‘the applicant’s claims concerning his real and suspected LTTE connections’. This course of reasoning is not challenged before me. Rather, it is submitted that Mr Gacs’ reasoning concerning the ‘general’ refugee claim was affected by a failure of procedural fairness in relation to a piece of country information which Mr Gacs quoted at paragraph 83 of his reasons.
It is convenient to extract the full passage in Mr Gacs’ reasoning in which he referred to this information at paragraph 83:
74. I accept from the information on the Departmental file and enquiries made by the RSA Case Officer that the claimant is a Tamil and a national of Sri Lanka and of no other country. I accept that his claims are against Sri Lanka. I accept that he is originally from Jaffna.
75. I do not accept that since the end of the conflict, the mere fact of being a young Tamil male from Jaffna (or the East of Sri Lanka) would for that reason alone cause a person to be suspected of having been an LTTE supporter.
76. While the country information is divided on this question, I am guided by the fact that no such assertion is made in the following sources, despite the fact that all of them contain criticisms of the human rights situation in Sri Lanka: Amnesty International Report 2010, The State of the World’s Human Rights: Sri Lanka; International Crisis Group Report: Sri Lanka, A Bitter Peace, 11 January 2010; International Commission of Jurists: Beyond Lawful Constraints: Sri Lanka’s Mass Detention of LTTE Suspects, September 2010; US Department of State: 2009 Human Rights Report, Sri Lanka, 11 March 2010.
77. Further, I note the following, taken from the summary of country information in the first IMR recommendation:
78. “On Police Registration, a UK High Commission report of 1 October 2008 noted: ‘Sri Lankan authorities require households to register all residents, the emphasis being put on Tamils who take up temporary lodgings. These lists are then used in cordon and search operations to identify people who the police consider need a fuller explanation of why they are residing or travelling…Persons identified as having not registered, are normally detained by police for further questioning…There is currently a program of police registration specifically targeting persons who have temporarily migrated to Colombo from the north and east…it was also reported that police were taking a census of Tamils who had arrived from Jaffna, Mullaitivu, Kilinochchi, Mannar and Vavuniya.’ (emphasis added).
79. I note that the applicant stated that he had registered in Colombo.
80. The report continues:
81. “On checkpoints, the Foreign and Commonwealth Office report of 22 October 2009 said that: “In general, those most likely to be questioned were young Tamils from the north and east; those without ID; those not resident or employed in Colombo; and those recently returned from the West. However, most sources said that arrests at checkpoints were very rare and that none had been reported since June 2009…the UNHCR Protection Officer said that procedures were mainly about verification of identity documents and checking on personal belongings and cars…Tamils were more targeted for checking. Tamils from the north were also asked for their police registration certificate in addition to a National ID card…the Swiss embassy said that people who could not identify themselves or had ID cards from Jaffna or the north were likely to be detained briefly and then released once checks had been carried out…the formed Chief Justice of Sri Lanka said that the main problem was the absence of Tamil speakers at checkpoints.” (emphasis added).
82. The claimant’s advisers referred in their written submission of 21 April 2010 to the 2009 version of the UNHCR Guidelines. The 2010 version states: According to some reports young Tamil men, particularly those originating from the north and east of the country, may be disproportionately affected by the implementation of security and anti-terrorism measures on account of their suspected affiliation with the LTTE.
83. However, I note that in a footnote to this statement, among sources cited is the UK Asylum and Immigration Tribunal country guidance in TK (Tamils – LP Updated) Sri Lanka CG [2009] UKAIT 00049, 11 December 2009), which states that: “Having considered the further evidence before us, we are not persuaded that Tamils from the north and east constitute either a stand alone risk category or a separate risk factor”.
84. The applicant claimed in his arrival interview that he was detained “on countless occasions”, and was sometimes beaten. At the RSA interview he claimed that he began working as a security officer for Lloyds in Colombo in 2005, and that each time he was arrested, his employer would attend the police station and have him released. He claimed that this situation continued until he was given a Lloyd’s ID card, in 2009.
85. However, when I asked why he was detained on countless occasions, he said he couldn’t answer this question. He added that when he had worked as a security guard in Colombo, he was detained because he is Tamil and they filed false charges against him. But he did not understand why they detained him and asked him many questions. He once enquired, and was told it was because he is Tamil. I asked how many times he was detained. He said he couldn’t remember exactly, but it was very many. I asked whether he was saying that each time he was detained, it was because he is Tamil. He replied that he didn’t know.
86. That is, in my interview with him, the applicant did not actually claim that he was detained because he is a Tamil from the north.
87. I note that the applicant had earlier stated that he did register on arrival in Colombo, had ID (issued to him in Colombo after he lost his original ID) and was employed.
88. I note further, that he did not, in my interview with him, claim at any point that, during these claimed frequent detentions, anyone accused him of having LTTE connections or questioned him about the LTTE.
89. On the basis of this information, and of the inconsistencies in the applicant’s claims regarding his detentions, and the country information to which I have referred, I accept that as a newcomer to Colombo, the claimant was obliged to register with the police, like every other person moving to the capital irrespective of his or her ethnicity. I accept that the applicant may have been stopped and questioned, perhaps multiple times, in Colombo, and also in Vavuniya and Trincomalee, but I find that these would have been routine checks. I do not accept that he was detained sometimes for three or four days, including after the death of the LTTE’s leader, or that he was beaten by police, drunk or otherwise. I do not accept that such checks were serious enough to amount to Convention-based persecution. I further find that if he returns to Sri Lanka in the foreseeable future, he will probably have to undergo similar checks, and if so, these will likewise not amount to persecution.
90. I do not accept that for the sole reason of his being a young Tamil male from the north, the authorities would have in the past or would in the reasonably foreseeable future suspect him of having LTTE connections nor impute him with having pro-LTTE political opinions.
91. In making this finding I also rely on the country information reports by the UK Foreign and Commonwealth Office, DFAT and IRIN, cited above.
92. These state that the security situation has improved throughout Sri Lanka, including in the north and north east, that many of the initial restrictions on the freedom of movement of IDPs have been lifted, and that emergency legislation has been relaxed. The UK Foreign Office reports an improvement in the security situation of Tamils while also noting that Tamils originally from the north could face some problems in finding residence in Colombo as well as some inconvenience at checkpoints. The report also notes that Tamils felt they got worse treatment at checkpoints and feel discriminated against; however, they received brusque treatment but not necessarily harassment. With regard to cordon and search operations, the report states that though such operations were ‘easing off’, they still happened, but the evidence suggested that a lot of people were questioned during such operations but released on the same day or shortly thereafter.
93. I accept that as a young male Tamil from the north of Sri Lanka, the claimant may be subjected to inconvenience at checkpoints, including possibly brusque treatment. However, I do not find that such treatment would amount to serious or significant harm. As earlier stated, I do not accept that the fact alone of a person being a young Tamil male from the north of Sri Lanka would of itself, in the absence of other contributing factors, give rise to his having a real chance of being persecuted for a Convention reason.
(emphasis in original)
Ground 3 of the amended application
Ground 3 of the amended application is:
The second respondent did not accord the applicant natural justice and procedural fairness. The second respondent did not put to the applicant purportedly adverse information (being country information), ensure the applicant was aware why this information was relevant to consideration of the decision under review and invite the applicant to comment.
The particulars to the ground, and the submissions of counsel for the applicant, argued that the sentence quoted by Mr Gacs at paragraph 83 was the opening sentence to paragraph 132 of an important United Kingdom Asylum and Immigration Tribunal publication, with the citation given by Mr Gacs. As the name of the publication indicates, it was intended to provide ‘up-dated’ risk assessment guidelines for the United Kingdom refugee determining authorities in relation to Tamil claimants, of the most authoritative kind as at December 2009. The sentence quoted by Mr Gacs appears in the course of an examination of various categories of claims being considered in relation to refugee claimants from Sri Lanka. The potentially substantial evidentiary weight which it might carry outside the United Kingdom arose from the discussion supporting the opinions expressed in the publication, from the purpose of the publication as a generally relevant and up-to-date assessment of country information, and from the constitution of the UK Tribunal with Lord Justice Carnwath, ‘Senior President of Tribunals’, together with a Deputy President of the Asylum and Immigration Tribunal and a Senior Immigration Judge.
As Mr Gacs’ indicated, he appears to have located the UK Tribunal document, from footnote 35 to the “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka”, 5 July 2010, which cited, but did not quote from, the UK Tribunal publication. As Mr Gacs indicated in his paragraphs 82 and 83, this was a footnote to a proposition which had also appeared in the previous 2009 UNHCR guidelines, which had been strongly relied upon in the submissions of the applicant’s agent. It is common ground that the footnote did not appear (at least in the same terms) in the 2009 guidelines they had cited. Manifestly this must have been the case, since the citations in the 2010 UNHCR guidelines – including of the December 2009 UK Tribunal publication – had not been in existence when the 2009 guidelines were published and quoted by the applicant’s agent.
As I understand the submissions of both counsel, it is common ground that the written and oral submissions of the applicant and his agent in the course of the RSA and IMR proceedings made no reference to the July 2010 UNHCR Guidelines nor to the UK Tribunal decision quoted by Mr Gacs. Nor was there any reference to them in the previous RSA and IMR assessments.
There is no evidence that the agent was aware of the existence of either document prior to Mr Gacs’ interview with the applicant and his agent on 9 May 2010. The only evidence suggesting that the agent could or should have been aware of them, arises from Mr Gacs’ reference in his report to his drawing attention to the possible relevance of parts of the new 2010 UNHCR Guidelines in the course of the interview. In this respect, he said:
56. I asked whether he had read the country information cited in the DIAC case officer’s assessment and the first Reviewer’s recommendation. He said he had. I read out to him, in summary, those items of country information I have included below, under ‘Country Information’, which are not listed by the DIAC case officer or first Reviewer. They are: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 5 July 2010; The UK Foreign and Commonwealth Office, in its Report of Information-Gathering Visit to Colombo, Sri Lanka 23-29 August 2009, including comments by the Australian High Commission in Colombo; the report by IRIN, Sri Lanka: Refugees want to return, says UNHCR, 5 January 2011; and the report of 14 October 2009 by the Australian High Commission in Colombo.
57. I invited the claimant to comment. He now said he had not been acquainted with these reports. Regarding the reports about returnees to Colombo, he said that he has no passport, and if he returns he doesn’t know what the CID will do to him. He had many problems with the authorities and doesn’t want to go back. Normally they detain people, release them then detain them again. There are ongoing problems between the Singhalese and Tamil communities. He had heard of killings, for example of an education minister who had been critical of the army. He, the claimant, was concerned for the safety of his wife and 9-year-old daughter. All his siblings have left Sri Lanka. If he returns, he might be killed. When the country’s President was in the UK, there were demonstrations about the killing of Tamils.
58. The adviser noted that he had drafted a generic submission covering several of his firm’s clients, including the claimant, which he undertook to get to me. He said it contains country information, some of which is more recent than that which I had read out. Regarding the assertion that there are no procedures at Colombo airport to identify failed asylum seekers, he said Amnesty International have done a study of this which makes the point that this may have been so up to last year, but is no longer the case. He said he may be able to provide me with the report.
The Minister now submits that it is possible that this exchange drew attention to the existence of footnote 35 to the UNHCR 2010 report, and to the potentially relevant statement in the UK Tribunal publication which it cited. However, I would not draw that inference, and find that this is not probable. I draw that inference because in Mr Gacs’ report the “items of country information I have included below, under ‘country information’” clearly does not include the passage in the UNHCR 2010 report to which footnote 35 attached, nor footnote 35, nor reference to the UK Tribunal decision, nor a quotation of the statement from it which Mr Gacs reproduced in his paragraph 83.
On the evidence before me, I infer that he did not put that statement, nor the gist of the information which he took from it, to the applicant and his agent before he made his report and recommendation to the Minister.
I draw that inference notwithstanding that neither party has led evidence which could have clarified this factual issue. Nor is a transcript of what was said at the interview available. There is evidence that the respondents were unable to locate and provide the applicant’s present solicitor with the recording of these parts of the interview. Neither party has explained why direct evidence from any of the participants in the interview was not presented to the Court, including Mr Gacs or the applicant’s Melbourne agent. However, neither counsel sought to make any forensic point from the absence of witnesses or evidence, and, in the circumstances of the present proceedings I would not draw adverse inferences from the absence of better or additional evidence.
On the evidence which is before me as to what occurred at the interview, I find that neither the applicant nor the applicant’s agent had any reason to be aware of the December 2009 UK Tribunal publication, nor that the passage from it quoted by Mr Gacs might be relied upon by him in the manner subsequently shown in his paragraph 83. I find that the applicant and his agent probably did not anticipate that this might happen, and therefore had no opportunity to respond to the adverse implications which Mr Gacs drew from it. I do not consider that this is a case where it is essential for the applicant to lead better evidence to support an inference of ‘practical injustice’ from Mr Gacs’ omission to give him this opportunity (cf. Dagli v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 541 at [91] and [97], Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 at [34] and [74-75]).
The critical issue is, therefore, whether common law principles of procedural fairness required Mr Gacs to afford that opportunity.
I recently explained how these principles apply in relation to an obligation to invite IMR claimants to comment upon potentially significant country information in SZQEK v Minister for Immigration [2011] FMCA 628:
[27] The obligations of Mr Karas to disclose and invite submissions on pertinent undisclosed country information are undoubted in the light of Plaintiff M61. Their Honours found such an error in one of the matters before their Honours, which had been governed by the same IMR guidelines which I am asked to infer were being followed by Mr Karas.
[28] At paragraph [74] and following, the High Court referred to Annetts v McCann (1990) 170 CLR 596 and other authorities supporting the implication of obligations of procedural fairness in relation to statutory inquiries, and found that they applied to an independent merits review of an RSA determination of the present sort. They concluded at [77] that the consequence of the RSA and IMR claimants being held in custody and subject to removal after consideration of their refugee status was that “the assessment and review must be procedurally fair and must address the relevant legal question or questions”. They said:
[91] Third, 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 Migration Act makes special provision about how the Refugee Review Tribunal is to conduct its reviews. It provides [44] that the Tribunal must give an applicant "clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". But that obligation is subject to qualifications. In particular, it does not extend [45] to information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member". Hence country information is treated as a class of information which need not be drawn to the attention of applicants for review by the Refugee Review Tribunal. But those provisions were not engaged in respect of Independent Merits Reviews of the kind now under consideration or, we would add, in respect of the initial Refugee Status Assessments. 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.
…
[98] As for want of procedural fairness, it may well be that some of the facts said to be revealed by country information were sufficiently put to the plaintiff or his adviser for comment. It is plain, however, that the reviewer did not put to the plaintiff country information she had before her concerning the treatment of failed asylum seekers returning to Sri Lanka. Not putting the substance of the country information to the plaintiff for his consideration and comment denied him procedural fairness.
(emphasis added)
[29] In this reasoning, their Honours should be understood to be applying the well understood tests cited recently in Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252 at [19]:
Brennan J in Kioa v West said that, in the ordinary case, an opportunity should be given to a person affected by a decision to deal with any adverse information that is "credible, relevant and significant". That approach has more recently been confirmed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[26]. Mason J in Kioa v West went further. In his Honour's view the common law would require the decision-maker to bring the critical issue or factor on which the decision was likely to turn to the attention of the person. Brennan J's approach would not deny that this may be necessary in a particular case. (citations omitted)
[30] The obligation to disclose and invite comment was notably applied in relation to significant new country information relied upon in a refugee determination, by a majority in the High Court in Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2000) 206 CLR 57, where Gaudron J concluded:
98. In the present case, the delegate did not simply reject the claims made by Mr Miah. Indeed, he barely considered them. Rather, he had regard to the recent elections and change of government in Bangladesh and drew inferences from limited and, to some extent, equivocal information which he seemed to think rendered Mr Miah's claims virtually irrelevant. A question, thus, arose whether, as subdiv AB contemplates, he should have invited further information or submissions from Mr Miah to ensure procedural fairness.
99. The basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case that is put against him or her[42]. MrMiah was not given the opportunity to put a case by reference to the change in government in Bangladesh or to answer the case made against him by reference to that change. Procedural fairness required that he be given that opportunity.
McHugh J concluded:
The rules of natural justice are flexible and adaptable to the particular circumstances of each case. In the particular circumstances outlined above, they required the delegate, in exercising power under subdiv AB, to inform the prosecutor that he was contemplating using information about the election results and to offer the prosecutor an opportunity to comment. There was, accordingly, a breach of the rules of natural justice. The "code" argument fails.
Kirby J concluded:
[195] I do not agree that the prosecutor was obliged, speculating on the delegate's decision-making processes, to provide the delegate with a running commentary on events in Bangladesh that might influence the decision[161]. The fact that the political intelligence about the situation in Bangladesh, relied on by the delegate, was said to be powerful and convincing did not relieve the delegate of a duty to disclose it. In a sense, the greater the significance of the information, the more pressing became the necessity to disclose it to the prosecutor for his submission or comment [162].
[196] It follows that the prosecutor ought not to have been taken by surprise, as he was[163]. To conclude in this way does not imply that every delegate, receiving any update of political information, would be obliged, before deciding a refugee application, to call such information to the notice of the person affected for comment[164]. That requirement would add unacceptable inflexibilities to the efficient performance by delegates of their functions under the Act. But, in this case, the combination of circumstances which I have mentioned rendered it substantially unjust for the delegate, as the repository of statutory power, to proceed in the way that he did. The prosecutor has therefore established that, in reaching the decision to refuse him a visa, the delegate acted in breach of the rules of natural justice.
(citations omitted)
[31] As these extracts show, it is necessary to examine the particular circumstances, before concluding that there is an obligation to invite comment on country information identified as relevant by a refugee decision-maker. The factual issues arising in the review, the path of reasoning adopted by the decision-maker, and the novelty, credibility and materiality of the information to the decision, all need to be considered before concluding that there has been a failure of procedural fairness. Underlying the assessment is a basic concern for a fair procedure.
In SZQEK, I found that a breach of procedural fairness was established by the IMR reviewer giving reliance to recently published UNHCR eligibility guidelines on Afghanistan, when rejecting a ‘generic’ claim based on previously published country information, where the existence of the new guidelines and perceived adverse information drawn from them had not been put to the applicant’s migration agent for comment.
Federal Magistrate Raphael discussed the relevant principles and arrived at similar conclusions in relation to a failure by an IMR reviewer to invite comment on a passage from new UNHCR eligibility guidelines in relation to Sri Lanka, in SZPAC v Minister for Immigration [2011] FMCA 517 at [15]-[25].
As both judgments emphasise, not every passing new citation of country information by a reviewer gives rise to breach of procedural fairness, merely because the possibility of that citation was not foreshadowed to an applicant with an invitation to comment. In every case, it is necessary to consider the significance of the absence of an invitation to comment through the prism of fairness in the particular circumstances, in particular by considering whether the undisclosed source contained information which was "credible, relevant and significant" to the decision to be made by the refugee assessor. When considering that issue, the actual significance given to the information in the reasons for decision may provide decisive evidence, but it is the Court’s assessment of the significance of the adverse information to the decision which is determinative (see Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88, [2005] HCA 7 at [16-17]).
In the present case, I have above extracted the full context in which, at paragraph 83 of his report, Mr Gacs quoted a sentence from the UK Tribunal December 2009 publication. The significance of the quotation in Mr Gacs’ reasoning is somewhat opaque. However on a fair analysis of his reasoning extracted above, in my opinion information was taken from the UK decision, and was relied upon by Mr Gacs as evidence which was ‘credible, relevant and significant’ to his decision on the applicant’s ‘general claim’. Thus:
·The paragraph appeared in a passage in which Mr Gacs gave his reasons for rejecting the applicant’s claim that, regardless of whether he had in the past suffered harms amounting to persecution by reason of perceived association with the LTTE, he would face a real chance of persecution if he returned to Colombo, merely by reason of being identifiable as a young Tamil male originally from Jaffna and thereby incurring suspicion of an LTTE association.
·Mr Gacs’ report gave his negative conclusion in relation to this claim at the commencing and closing paragraphs: see paragraphs 75 and 93.
·The intervening paragraphs of the report do not follow a clearly defined single path of reasoning, but provide a series of supportive findings and considerations. These findings and considerations were, properly, directed at assessing the applicant’s likely individual circumstances as a Tamil male from the north if he returned to Colombo, in the light of relevant backgrounding ‘country’ information.
·The points Mr Gacs made to explain his adverse conclusion were:
i)Significant recent sources did not contain the assertion that these attributes would ‘alone cause a person to be suspected of having been an LTTE member or supporter’ (paragraphs 75-76).
ii)Country information suggested that the applicant’s risk of being subjected to harm was lessened because he had registered in Colombo after his return from India (paragraphs 77-81).
iii)The suggestion in some recent sources that ‘young Tamil men, particularly those originating from the north’ were more likely to be treated as having ‘suspected affiliation with the LTTE’ was weakened by another source: the 2009 UK Tribunal decision, which had concluded that ‘Tamils from the north’ did not ‘constitute either a stand alone risk category or a separate risk factor’ (paragraphs 81-83).
iv)Giving particular weight to the applicant’s responses to questions at interview with Mr Gacs, the applicant’s own claims did not show a history of serious harm when being ‘stopped and questioned, perhaps multiple times, in Colombo’ and other cities. (paragraphs 84-90).
v)Mr Gacs ‘also relied’ upon country information ‘cited above’ (see paragraphs 91-93). I take this to be a reference to specific extracts from three sources found at paragraphs 67, 68, and 69. These extracts contained suggestions that ‘the security situation has improved throughout Sri Lanka’.
·None of these points were in themselves conclusive or determinative of the applicant’s ‘generic’ refugee claim, and none of the specifically cited sources provided conclusive or overwhelming evidence against that claim.
·Mr Gacs’ reasons for rejecting that claim therefore show that his conclusion was a synthesis of particular points, which he distilled in an assessment of the evidence of the applicant and some particularly recent, relevant, and authoritative ‘country’ evidence, including the UK Tribunal decision.
In my opinion, this analysis of paragraph 83 of Mr Gacs’ report in its context shows undoubtedly that he regarded the quoted conclusion of the December 2009 UK Tribunal decision as being particularly relevant, recent and authoritative, and that he relied upon it in support of his adverse conclusion on the applicant’s ‘general’ refugee claim.
I consider that he regarded it as providing a highly material piece of information, and one which Mr Gacs regarded as undercutting or significantly qualifying the implications of the suggestion by the UNHCR relied upon the applicant’s agent, that the applicant was at risk of being ‘disproportionately affected’ due to ‘suspected affiliation with the LTTE’ as a result of being a male Tamil from Jaffna.
Looking at the sentence extracted from the December 2009 UK Tribunal decision, undoubtedly it was a recent and authoritative expert assessment of recent evidence bearing on the applicant’s refugee claim, and was, therefore, itself a significant piece of ‘country information’. It was properly treated by Mr Gacs as separate evidence which could be weighed with other ‘country’ evidence, against which the applicant’s refugee claims were assessed.
In my opinion, it was open to Mr Gacs to have treated the UK Tribunal opinion as diminishing the import of the UNHCR opinion relied upon by the applicant’s advisors. I also consider that he decided to treat it in that manner. Although the UK Tribunal opinion related to ‘Tamils from the north’ without qualification, and although other decision-makers might not have given it the significance and weight which Mr Gacs gave it, it was open to Mr Gacs to regard the opinion as bearing on the applicant’s claim to be at risk as such a person with the added attribute of being a relatively young male. It was, in my opinion, objectively ‘relevant’ and ‘material’ to the factual assessment which Mr Gacs was obliged to make, and did make.
I do not accept the submission of the Minister’s counsel that paragraph 83 provides only a “passing observation” to the UK decision, and “does not constitute reliance upon it, such as to have enlivened an obligation on the part of the reviewer to draw it to the applicant’s attention and allow him an opportunity to comment on it.”
Read fairly, in my opinion the opening words to paragraph 83 “However, I note that…”, do not introduce only a side comment or obiter observation, which was not intended to form part of Mr Gacs’ actual reasons for his adverse conclusion. Rather, they are references back to the preceding paragraph, showing that paragraph 83 makes a point in answer to the key submission noted in that paragraph, being a point which Mr Gacs’ regarded as significant to his adverse conclusion.
The preceding paragraph, properly, in my opinion, identified the key information cited by the applicant’s advisor favouring acceptance of the ‘general’ refugee claim, being an important and highly authoritative opinion of the UNHCR which was capable of providing solid evidentiary support for that claim. Mr Gacs has identified and focused upon the advisor’s reliance on the supportive UNHCR opinion found in the 2009 UNHCR eligibility guidelines, and discovered that it was repeated in the ‘2010 version’ of those guidelines with added citations in a footnote. He has then obtained and examined one important citation in the footnote, being the December 2009 UK Tribunal decision. He has found one sentence in it which he regarded as undercutting the advisor’s reliance on the UNHCR opinion. He has then concluded that he was free not to treat the UNHCR opinion as decisive in favour of the applicant’s refugee claim.
In my opinion, fairness required that Mr Gacs should not adopt this reasoning, and should not make his adverse report in reliance on the new evidence, without ensuring that the applicant and his advisor had the opportunity to be aware of the December 2009 UK Tribunal decision, and, in particular, of the sentence in it which Mr Gacs was contemplating treating as adverse information which would undercut the advisor’s submission based on the UNHCR opinion.
It is regrettable that Mr Gacs did not perceive that he was under this obligation, particularly since he showed at the interview an appreciation that he was under an obligation to afford procedural fairness in relation to country information which might lead him to report adversely to the applicant’s claims. As I have noted above, he did ‘read to (the applicant), in summary, those items of country information’ which he subsequently extracted in his report under the heading ‘Independent Evidence/Country Information’. However, I have found that this probably did not include any reference to footnote 35 of the UNHCR 2010 report, nor to the statements to which that footnote attached, nor – critically – to the December 2009 UK Tribunal decision. He made no reference to his possible adverse reliance on the sentence which formed a significant part of his adverse reasoning in his report. In my opinion, this failure constituted a failure of procedural fairness.
I do not accept the Minister’s submission that “the applicant was clearly on notice of the substance of the material from the Tribunal’s decision to which reviewer referred, namely that being Tamil and from the north of Sri Lanka was not enough to establish a well founded fear of persecution for a Convention reason.” Undoubtedly, the applicant and his advisor were aware that it was a critical issue whether his being a young Tamil male from Jaffna might itself allow refugee status to be found. Undoubtedly they were aware, before and at the interview, that there was a body of country information and authoritative opinion on it bearing on this issue. However, I find that they were not made aware of this particular piece of country information which Mr Gacs ultimately regarded as particularly undercutting the applicant’s case on this issue.
I therefore consider that ground 3 of the applicant’s amended application has been made out, and he is entitled to a declaration that Mr Gacs’ report is flawed by a material failure of procedural fairness.
I am not satisfied that the applicant needs any other relief so as to obtain a further review of his refugee status under the IMR procedures.
It is agreed that costs should follow the event.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 14 October 2011
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