SZRFF v Minister for Immigration and Citizenship
[2013] FCA 212
•15 March 2013
FEDERAL COURT OF AUSTRALIA
SZRFF v Minister for Immigration and Citizenship [2013] FCA 212
Citation: SZRFF v Minister for Immigration and Citizenship [2013] FCA 212 Appeal from: SZRFF v Minister for Immigration & Anor [2012] FMCA 877 Parties: SZRFF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and JILLIAN BARTLETT IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR File number: NSD 1879 of 2012 Judge: BUCHANAN J Date of judgment: 15 March 2013 Catchwords: MIGRATION – procedural fairness – failure to listen to tape of earlier interview Legislation: Migration Act 1958 (Cth) Cases cited: Condon v Pompano Pty Ltd [2013] HCA 7
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1Date of hearing: 21 February 2013 Date of last submissions: 14 February 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 39 Counsel for the Appellant: Mr P Knowles Solicitor for the Appellant: Clifford Chance Counsel for the First Respondent: Ms R Graycar Solicitor for the First Respondent: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1879 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZRFF
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentJILLIAN BARTLETT IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR
Second Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
15 MARCH 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is dismissed with costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1879 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZRFF
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentJILLIAN BARTLETT IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR
Second Respondent
JUDGE:
BUCHANAN J
DATE:
15 MARCH 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
This appeal turns on a fairly narrow point involving the contention that the appellant was denied procedural fairness by the second respondent and that the Federal Magistrates Court of Australia (“the FMCA”) made an error in not so finding. The second respondent assessed, but rejected, the appellant’s claims to be a refugee to whom Australia owed protection obligations. As these reasons will explain, there is no reason to think that the outcome of the assessment by the second respondent might possibly have been different if she had not made the procedural error which is alleged against her.
The appellant is a citizen of Sri Lanka. He arrived at Christmas Island by boat on 7 November 2010, having apparently departed Sri Lanka in about April 2010. He had an entry interview on 5 December 2010, during which some details were taken from him in response to questions he was asked. The appellant said he feared for his safety if he returned to Sri Lanka. To illustrate the reason for his apprehension, he described incidents in 1994 and 2008 when he was detained by Sri Lankan authorities and maltreated as a result of his perceived connection to the Liberation Tigers of Tamil Ellam (“LTTE”).
The appellant was later interviewed by an officer of the Department of Immigration and Citizenship (“the assessor”), whose task it was to decide whether a recommendation should be made that the appellant be granted a protection visa. If such a recommendation was not to be made, the practice was to refer the question (of whether a protection visa should be granted) to an Independent Protection Assessor, such as the second respondent. On 13 May 2011, the assessor concluded that she would not recommend a protection visa. The matter was then referred to the second respondent, who also recommended that the appellant not be recognised as a person to whom Australia owed protection obligations. An application to the FMCA for judicial review of the second respondent’s decision was subsequently dismissed (SZRFF v Minister for Immigration and Anor [2012] FMCA 877). It is against the decision of the FMCA that the present appeal has been brought.
It is not necessary, in the present case, to identify all the claims made by the appellant. Some of them were accepted, but were found insufficient to justify a protection visa. For example, in due course the second respondent accepted that the appellant had been detained and mistreated in 1994 and 2008. It is convenient to set out the relevant finding at this point. In her decision, the second respondent said:
88Having regard to the above information I accept [the appellant’s] oral evidence that in 1994 he and other people in his area were questioned by the authorities regarding a violent incident between the Army and LTTE, that he was detained for three days during which he was physically harmed and that he was subsequently released upon condition that he report to the Army camp each week for the following eighteen months. I also accept [the appellant’s] oral evidence that in June 2008 he was detained by the authorities (CID and police) for nine hours for questioning during which time he was beaten, and that he was released after pleading on his behalf by his wife and family. I accept that on those occasions in the context of counter-terrorism measures, he was subject to arbitrary arrest, detention without charge and ill-treatment whilst in custody, as were countless other Sri Lankan citizens during that period whom the authorities suspected were linked to or supportive of the LTTE.
It is, however, to claims about events after 2008 that particular attention must be directed on the appeal to understand the complaint now made. Some of the history of consideration of those claims must be outlined before I discuss the particular point on which the appeal turns.
The assessor’s decision
In the assessor’s decision, the following specific claims concerning 2008 or later were identified:
•In 2008 while the client was working as a taxi driver, there was a bomb blast near the taxi rank. As a taxi driver he was suspected of planting the bombs by the SLA, CID and police.
•In June 2008 the client was walking down the street and he was detained by the CID and taken to a checkpoint at an army camp. His sister and wife came to the checkpoint and asked for his release but they were told they did not detain anyone. He was then taken to the police station where he was beaten and interrogated and was released because his family begged the police.
•The client changed jobs after this incident, working as a labourer for 12 months.
•The client resumed driving a taxi in 2009 and he stated that he was harassed by the CID 4 or 5 times.
(Emphasis added)
The claim I have emphasised was made in an interview which the assessor conducted with the appellant. However, the information provided by the appellant was not completely uniform. The record of the interview which contains the exchanges between the assessor and the appellant about this matter is critical to the point which must be considered on the present appeal. It is convenient to set those exchanges out now. At one point, after a short break in the interview the following exchange occurred:
Assessor:Ok. So after you resumed being a taxi driver after being a labourer, so in 2009/2010, did you have any incidents happen to you?
Appellant:No.
A little later, the following exchange occurred:
Assessor:Ok so that happened in June 2008 but you didn’t leave Sri Lanka for another two years. Why did you wait two years and you went back to taxi driving as well, if you were in fear?
Appellant:Actually just after this incident even I could not leave my country immediately because I had a family and all, so I thought I could live in the country, so I thought I would wait two years time but during that two years time several incidents happened again and again they take the car they threaten us they were on me several times, so I had a very fear in my mind that they were going to do something for me after they totally I have decided to leave the country.
Assessor:You said before that nothing happened from June 2008 incident that nothing happened after that but now you are saying that you were threatened?
Appellant:Not that major incidents happened but day to day there was a lot of problems we faced there that we had threatenings and we could not live a peaceful life there even after this LTTE was defeated, now no one is there to speak on behalf of the Tamil people, so they take this as a chance and try to take a revenge of the people. So that’s what I am saying I could not live a peaceful life there and have decided to leave the country.
Assessor:Ok so when you say you were threatened tell me about that, who threatened you?
Appellant:The CID they are everywhere in that area, then even we could not go outside, if they see, they call and check ID card and they say – you have come back again, we will see you again. So these are the type of things that I had a fear that they are going to do something to me.
Assessor::Do you mean that they would check you at the check points?
Appellant:Not only at the check points, in the junction at everywhere, the CID are there so when they suspect you immediately they call us and check the ID, identification card.
Assessor::What were they suspecting you of?
Appellant:Because after that incident, I did not drive a taxi for some time, then again I return after some time, then they ask, why did you come, why did you come again.
Assessor::How often would this happen?
Appellant:About four to five times but I can’t say exactly how many times, because this regularly happened where they see us check the car and check and ask me these questions.
(Emphasis added)
The assessor was therefore presented with conflicting information by the appellant with which she was required to deal. The assessor observed initially:
The client has stated that he will be killed if he returns to Sri Lanka, particularly because he is a Tamil taxi driver. While I accept the client may have been detained in 2008 for 9 hours as he suggested, I am not satisfied that the client is of interest to the CID or SLA as he suggests. The client has continued working as a taxi driver since 2009 and stated that no further incidents have occurred to him. ...
Later, when dealing specifically with the last claim set out above, the assessor’s decision recorded:
•The client was then harassed 4 or 5 times by the CID after he returned to taxi driving a year later where they demanded to see his ID card and would threaten him
I asked the client if there had been any other incidents that happened to him since June 2008 and he said no. Later he stated that he was harassed by the CID. The client stated he was asked for his ID and threatened by the CID that they would be back. He did not mention this in his Entry Interview or his Statement of Claims. When asked about this he stated that it wasn’t a major incident and that it was just difficult to live there. I do not accept that the claimant was harassed by the CID as he suggests as he had not mentioned this previously.
The assessor formed the view, after taking this and all her other findings into account, that the appellant should not be recommended for the grant of a protection visa. The matter was then referred to the second respondent for a further assessment. The second respondent also conducted an interview, on 10 January 2012, at which the appellant’s migration representative was present.
Before the hearing conducted by the second respondent, the appellant’s migration representative made written submissions on 7 October 2011. In those written submissions, apart from referring to incidents up to and including 2008, the assertion was made that after the appellant had worked as a labourer for about 12 months:
The client resumed driving a taxi in 2009 and he stated that he was harassed by the CID 4 or 5 times.
The second respondent’s decision
In the interview conducted by the second respondent, the issue with which this appeal is now concerned arose as follows, after the appellant had begun talking about the incident in 2008:
Second Respondent: Mr [appellant] I don’t need you to go into this amount of detail because I’ve seen you’ve talked about this on earlier occasions. I asked you, since 2008, that occasion, have there been any other times the authorities have accused you of working for or supporting the LTTE.
Appellant:In 2010 they blackmailed me, they threatened me.
Second Respondent: Ok, stop there. Alright when in 2010?
Appellant:I don’t know exact date but around February 2010.
Second Respondent: Did you say February 2010?
Appellant:February yes.
and:
Second Respondent: Ok. So I want you to tell me about how the authorities were blackmailing you in 2010.
Appellant:So they carry the pistol. They used to came in [inaudible …]
Second Respondent: A gun?
Interpreter: Yes a gun.
Second Respondent: Yes.
Appellant:They took me behind the shop, and they say you are back here. You come back here to make trouble, they say we’re not going to let you do that and gave a push, they said I’ll see you later on. That’s what they said.
(Emphasis added)
Later in the interview the following exchange occurred:
Second Respondent: Ok. Alright, and today you spoke about in February 2010 that you were threatened.
Appellant:Yes.
Second Respondent: Have you spoken about that before in any of your interviews?
Appellant:Yes I mentioned it once.
Second Respondent: When did you mention it
Appellant:I did mention that yes, I got threatened in 2010. I didn’t mention the date or the month.
Second Respondent: What did you mention on previous occasions?
Appellant:I said that they threaten me. They said you come back here then more trouble.
Second Respondent: Can you remember when you mentioned it?
Interpreter: What do you mean, which interview?
Second Respondent: When, when, yes, when you mentioned that there were more threats.
Appellant:During the RSA interview [i.e. before the assessor] I mentioned that.
Second Respondent: Sorry which other interview?
Interpreter: RSA
Appellant:RSA
Second Respondent: Oh the RSA interview. And did you talk about it before that interview?
Appellant:No. So I did mention it, but I didn’t explain it like now, I explain it very well. But before, just I did mention it at previous interview.
Second Respondent: Ok, at the RSA interview?
Appellant:I did mention it in RSA interview but I didn’t explain deeply like here.
Second Respondent: Ok. When I consider your evidence about what you are saying happened in 2010, I’ll be considering the reliability of what you’re saying in that you said it was the CID that threatened you.
and:
Second Respondent: … I’m flagging that that could be a matter that I consider independent information and may not be satisfied as to the veracity of that claim, both of the substance of it, and I will also be listening to the RSA interview.
You see, Mr [appellant], there’s quite a few aspects of your claims when I look upon the progression of everything you’ve said at the various interviews since you’ve been in Australia. Ok, and I look at where there’s been consistency and I also look at where there’s been confusion or some things you’ve said later, no I didn’t say that or I did say that but I meant something else.
(Emphasis added)
After the hearing before the second respondent, the appellant’s migration representative, who had been present at the hearing, made further submissions in writing. In those submissions, the following representations were made:
I submit that it should not detract from [the appellant’s] credibility in any way that he may have spoken about different aspects of his life in Sri Lanka that he had not previously mentioned in other interviews. Interviews can be as much about opening up opportunities to speak about certain details as they can be about closing opportunities. Interviewers will differ in style; interviews will also differ in length. It is a distinct possibility that long interviews and detailed questioning may reveal more information and more details than previously provided. Different questions asked will open up different lines of inquiry and receive different responses. I submit this is especially true for someone with limited formal education and experience in interview settings taking place in a foreign country.
(Emphasis added)
In addition, the following further submissions were made:
The following incidents have occurred throughout [the appellant’s] life and are significant in that they identify to various Sri Lankan authorities (army, home office, CID, police) [the appellant] with an imputed political opinion as an LTTE supporter:
1994 – [The appellant] was taken to an army camp by the Sri Lankan Army (SLA), tortured and interrogated about the LTTE;
1994-1995/6 – [The appellant] had to report to the SLA every Sunday for 1.5 years;
2002 - [The appellant] worked as a taxi/auto driver on an [sic] off until 2010 during which time he could not refuse to transport members of the LTTE around the Trincomalee area;
2006 - [The appellant] was forced to take part in protests and poster distribution organised by the LTTE;
2008 - [The appellant] was arrested and detained by the CID and held for 9 hours during which time he was beaten. He was suspected of being involved in a bomb blast and was released after his family begged and pleaded;
2009 - [The appellant] was harassed by the CID four or five times;
2010 - [The appellant’s] wife was visited by police who were inquiring after him;
2010 - [The appellant] was threatened by police/CID
These incidents combine to highlight the persecution experienced by [the appellant] by Sri Lankan authorities dating back to 1994. …
(Emphasis added)In her decision, the second respondent dealt with this issue in the following way:
65. I asked [the appellant] if, prior to today, he had ever spoken during an interview or with his advisor about the incident he claims happened in February 2010. [The appellant] responded that he had mentioned it, but not the date. I asked [the appellant] what he had said and when, to which he responded he had said he had more threats, which he mentioned but did not explain like today, and it was at the RSA interview but not before. I noted to [the appellant] that it is open to me to form a view that his evidence of being directly threatened in February 2010 about a bombing in 2008 is implausible. …
(Emphasis added for later reference)…
84. Notwithstanding [the appellant’s] failure prior to the IMR interview to speak about his being asked to remove forehead paint associated with his Hindu religion when wishing to enter Sinhalese areas and his being verbally threatened in February 2010, his account of his past experiences is otherwise, overall internally consistent and plausible in light of contemporaneous country information.
In due course, the second respondent accepted that the first of the matters referred to in paragraph 84 of her decision did in fact occur (see paragraph 96 of her decision, extracted below at [34]). She did not, however, accept that the second matter had occurred. About the second matter, the second respondent said:
89. I am not required to accept uncritically all claims made by [the appellant], and I acknowledge he may be unfamiliar with the refugee application requirements and interview processes. I have considered his responses to my questioning about the raising, for the first time at the IPA interview, of his claim of being directly threatened by CID in February 2010 in relation to the 2008 bomb blast. I have also considered his advisor’s submission that different interviewing styles may elicit different responses. I note at the end of [the appellant’s] answers to questions 1 and 16 of Part C written by the Departmental Officer who conducted the entry interview, [the appellant] was asked Is there anything you wish to add [italics in original], to which he responded in the negative. I also note [the appellant] provided a full two page statutory declaration on 23 April 2011 containing detailed claims of his past experiences, without any mention of contact with the authorities since June 2008 generally, or more specifically an approach by them to him for any reason whatsoever in February 2010. I have also considered [the appellant’s] oral evidence of receiving weekly and fortnightly mental health counselling over the past three months at Scherger IDC for his feelings of worry and sadness. I do not accept [the appellant’s] failure to raise at any time prior the IPA interview the claim of being threatened by CID (or anybody else) in February 2010 in relation to the 2008 bomb blast is attributable to: interviewing styles; lack of clarity on [the appellant’s] part about the relevance of such an alleged incident, and/or; his use of vague term ‘more threats’ at the POE Referral interview. I find [the appellant’s] evidence of the event and circumstance claimed by him to have occurred in February 2010 is a fiction created by him in order to bolster his claim that the authorities continue to suspect, in relation to an event occurring twenty months earlier and for which he had previously been questioned and released, he supports, is linked to or has an association with the LTTE.
(Emphasis added for later reference)The FMCA’s decision
In the proceedings before the FMCA, it was submitted on behalf of the appellant that the second respondent had given an undertaking to listen to the tape of the earlier interview and that it was apparent from the terms of her decision in paragraph 89 (extracted above) that the second respondent had not in fact done so. I am far from sure that it is correct to characterise what the second respondent said as an undertaking rather than merely a statement that she would listen to the earlier interview, but that may be put aside from present consideration.
I shall refer shortly to the way in which this complaint was addressed by the FMCA. The circumstance chiefly relied upon to support the charge that the second respondent did not listen to the audio tape of the interview conducted by the assessor was that, if she had done so, she would not have attributed to the appellant the phrase “more threats” at that interview. There seems to be a good deal of force in that argument. The transcript of the interview with the assessor does not attribute such a term to the appellant, but it does attribute use of the phrase to the second respondent. The second respondent also attributed the term to the appellant in a more general way (not as a quote) at paragraph 65 of her decision (extracted above at [16]). It seems to be tolerably clear that it was the second respondent’s phrase in each case, and not the appellant’s.
As earlier indicated, after the decision of the second respondent dated 25 January 2012, in which she recommended that the appellant not be recognised as a refugee, the appellant made an application for judicial review to the FMCA.
A number of grounds were advanced before the FMCA, but only one of those grounds is pursued in the present appeal. In the application to the FMCA for judicial review of the decision of the second respondent, the ground of appeal (Ground 8) was expressed in the following way:
8. The Reviewer denied the applicant procedural fairness and thereby fell in jurisdictional error.
Particulars
a.The Reviewer put to the applicant that she would listen to the RSA interview in considering his claim that he had raised in the RSA interview being threatened in 2010.
b.The Reviewer found at paragraph 89 of the reasons that the applicant had raised for the first time at the IPA interview being threatened in 2010 and that this was a fiction created by him. This contributed to her finding that the applicant will not in the reasonably foreseeable future be perceived by the authorities as a LTTE member or collaborator.
c.In her reasons the Reviewer does not refer to having listened to the RSA interview.
d.Further to c. above, the finding of The [sic] Reviewer referred to in b. above is not consistent with the Reviewer having listened to the RSA interview.
e.The transcript of the RSA interview supports the applicant’s claim that he had earlier referred to being threatened by the CID after June 2008.
The FMCA dealt with that ground as follows:
Ground 8 – Did the Reviewer otherwise deny the applicant procedural fairness and thereby fall into reviewable legal error?
64.In considering the applicant’s claim regarding a specific incident in February 2010, the Reviewer advised him that she would listen to the sound recording of the 2011 departmental (POE) interview in considering the veracity of his claim.
65.I accept the Minister’s submission that a Reviewer is not bound to refer in her reasons for decision to every piece of evidence considered: see WAEE at [46]-[47]; and NAHI at [14]. A failure to refer to a matter that is not a critical element of the applicant’s claim cannot give rise to a claim that the applicant has experienced the “practical injustice” held by the High Court in its decision in Re Minister for Immigration; Ex parte Lam at [36]-[37] (per Gleeson CJ) to be central to any finding of breach of the rules of procedural fairness.
66.However, where the Reviewer specifically advised that she would do so, failing to consider the POE interview would be procedurally unfair. It may be that the applicant, being satisfied that the POE interview recording would be listened to consciously or subconsciously did not feel the need to provide further evidence about the 2010 incident. Had he not been given the assurance he may have provided a more comprehensive response to the Reviewer’s concerns regarding whether the incident did in fact occur. This is said to be particularly so when the transcript of the POE interview allegedly supported the applicant’s claim that he had earlier referred to being threatened by the CID after June 2008. The applicant contends that, not only was there an apparent departure from the Reviewer’s stated intention, but this departure resulted in unfairness to the applicant given the adverse credibility finding made by the Reviewer.
67.In my view, however, the Reviewer’s reasons do not support the inference that she failed to meet her undertaking to listen to the recording of the POE interview. On the contrary she specifically referred to what the applicant said at that interview at [89] of her reasons. Ground 8 fails.
Whether the second respondent in fact listened to the tape of the interview with the assessor is unknown. However, contrary to the findings of the FMCA, I think there is a reasonable inference available that the second respondent did not listen to that tape. The mis-description of the appellant’s statements at paragraph 89 of the second respondent’s decision is inconsistent with the second respondent having listened to the tape. The words in quotation marks (“more threats”) were in fact used by the second respondent herself in a question and in another part of her decision (paragraph 65 extracted above at [16]), but not by the appellant, either in the earlier interview or in the interview with the second respondent.
The result of the foregoing analysis is that I accept that there are adequate grounds to infer that the second respondent did not in fact listen to the tape of the earlier interview. In my respectful view, the FMCA made an error in apparently finding as a fact that the second respondent had done so.
Should the second respondent’s decision be set aside?
However, none of those matters, it seems to me, may be regarded as ones which ultimately affected the analysis by the second respondent of whether the appellant should be regarded as a refugee. Notwithstanding the error which may have been made by the FMCA, there are other reasons why it should not be concluded that the decision of the second respondent might have been different had she in fact listened to the earlier tape. In written submissions on the present appeal, counsel for the appellant anticipated this difficulty in the following terms:
31The representation that the Reviewer would listen to the tape of the interview left the Appellant in a position where he was entitled to expect that his claim to have mentioned the threats at an earlier stage would be vindicated. If the representation had not been made, the Appellant could have gone into more detail about the evidence he gave to the Delegate. However, there was no need to do so because of the undertaking given by the Reviewer.
32In the Court below the Respondent submitted that any failure by the Reviewer to listen to the tapes did not result in ‘practical injustice’: see Re: Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] per Gleeson CJ. However, practical injustice in this sense is demonstrated by the unfairness generated by the procedures adopted. This unfairness was not merely theoretical; it had a real impact on the manner in which the Reviewer reached her conclusions.
In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (“Lam”), Gleeson CJ said:
37A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629 at 638-639 was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 655 per Deane J, 665 per Toohey J, 684 per McHugh J. A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
38No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness. And, as I have already indicated, there is no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant's children.
(Emphasis added)
The statements by Gleeson J at [37], which I have emphasised, were recently adopted by Hayne, Crennan, Kiefel and Bell JJ and by Gageler J in Condon v Pompano Pty Ltd [2013] HCA 7 (see at [156] and [188]).
McHugh and Gummow JJ dealt with the issue in Lam, and the application of the requirement of procedural fairness to those issues, as follows:
103In the present case the ultimate issues are (a) whether, by failing, as the applicant puts it, to carry through something which an officer of the decision-maker said would be done before reaching a decision, there was a failure to observe an expectation reasonably attributable to the applicant and (b) if so, whether that failure gave rise to a decision flawed for denial of natural justice.
104The first issue should be answered in the applicant's favour. On one view of the facts the preferable answer may be that there could be no reasonable expectation because the decision-maker already had been supplied with the information concerning the care of the two children by the letter of 17 October 2000 which was attached to the applicant's submission of 30 October 2000. Yet the statement that the Department wished to contact the carers of the children followed in the letter of 7 November 2000. The better view is that this was a case of an expectation arising from the conduct of the person proposing to make recommendations to the Minister. It is a case stronger than Haoucher in this respect.
105But the failure to meet that expectation does not reasonably found a case of denial of natural justice. The notion of legitimate expectation serves only to focus attention on the content of the requirement of natural justice in this particular case. The ends sought to be attained by the requirement of natural justice may be variously identified. But at least in a case such as this the concern is with the fairness of the procedure adopted rather than the fairness of the outcome. It is with the decision-making process not the decision, as Lord Brightman put it: Chief Constable of the North Wales Police v Evans [1982] WLR 1155 at 1173; [1982] 3 All ER 141 at 154. What is delivered by the requirement of natural justice is the right to a hearing, a technical expression in law, before action is taken.
106The applicant by the statement in the letter to him of 7 November 2000 did not acquire any vested right to oblige the Department to act as it indicated, at peril of the ultimate decision by the Minister exceeding his jurisdiction under the Act. It was not suggested that in reliance upon that letter the applicant had failed to put to the Department any material he otherwise would have urged upon it. Nor was it suggested that, if contacted, the carers would have supplemented to any significant degree what had been put already in the letter of 17 October 2000. The submission that the applicant, before the making by the Minister of his decision, should have been told that the carers were not to be contacted, thus lacks any probative force for a conclusion that the procedures so miscarried as to occasion a denial of natural justice.
Hayne J said:
122… For present purposes, it is enough to say that even if the Department’s letter engendered some relevant legitimate expectation, departure from it, where it is accepted that neither the expectation nor departure from it affected the course which the applicant pursued, gives no ground for relief. He was afforded a full opportunity to be heard. The Department’s letter raised no new matter to be taken into account in making the impugned decision, and it did not divert attention in any way from the relevance of, or weight to be given to, the effect that cancellation of the applicant's visa would have on his children. Unlike Teoh, this was not a case where the course of decision-making could be said to have diverged from any announced policy to be taken to account in making the relevant decision.
Callinan J said:
149… In my opinion, what is fatal to the applicant’s claim here is that he was unable to demonstrate that there was any material that he could have put before the respondent which was either not already in the respondent’s hands, or which might have influenced the respondent to decide his case differently. That he might have liked to have had a further opportunity to repeat what he had already said, or to advance the same argument differently or more emphatically is not to the point and cannot avail him.
In my view, the submission by the appellant, by reference to Lam, should not be accepted. On the contrary, Lam is against the appellant’s argument. For the reasons which follow I do not accept that any practical injustice was visited upon the appellant in the present case.
Firstly, I do not accept that the evidence given to the assessor should have been regarded by the second respondent as referring to the same matters to which the appellant referred in his interview with the second respondent. The allegation about what happened in February 2010, with its explicit accusation of “blackmail”, was not an allegation in my view which was made either specifically or in general terms at the earlier interview.
The submissions on behalf of the appellant (extracted above at [15]), after the hearing before the second respondent, also made a clear distinction between the earlier complaints of harassment which had been made to the assessor as occurring during 2009, after the appellant resumed his occupation as a taxi driver, and the threat of which the appellant spoke in the interview as occurring in February 2010. In my view, this distinction was a clear and obvious one. The incidents of which the appellant spoke in the interview with the assessor concerned him being subjected to checks of his taxi and his ID card. These were said to be regular occurrences. The incident which the appellant claimed in February 2010 was an incident of a different character. He spoke of blackmail. He spoke of being taken behind a shop by men with guns and being pushed. He did not speak about an ID check. On the assumption that the second respondent did not in fact listen to the tape of the earlier interview, I do not accept that had she done so she would have concluded (or might possibly have concluded) that the event of which the appellant spoke in 2010 was a matter of which he spoke in the earlier interview, as he claimed. In any event, she would have been disabused of any such view upon receipt of the further written submissions advanced on behalf of the appellant where a clear distinction was made between the two.
By the time of the interview with the second respondent, the appellant had on many occasions made statements in one way or another about events in Sri Lanka. He had done so in his entry interview on 5 December 2010. He had done so in a written “statement of claims” on 23 April 2011. He had done so in his interview with the assessor on 24 April 2011. His migration representative had done so in written representations on his behalf on 7 October 2011. In none of those prior representations had the appellant, or his migration representative, referred to an incident in February 2010 of the character asserted by the appellant in his interview with the second respondent on 10 January 2012. What the appellant said in the earlier interview did not amount to verification of his claim to have, in substance, earlier complained about threats made to him in February 2010, not many months before he left Sri Lanka. The earlier assertions by the appellant do not sufficiently correspond with the specific allegation made of a direct threat in February 2010 that they can be regarded as providing support for his contention that he had relied upon the same matters at the earlier interview.
The second respondent made it clear in her decision that she did not accept that the February 2010 incident occurred, or that the failure to raise it was due to any difference in interviewing style or any lack of understanding on the appellant’s part about the relevance of it, or that it had been incorporated in anything the appellant said at the interview before the assessor. I do not accept that there is any respectable possibility that a different view might have been reached if the second respondent had listened to the tape of the first interview. It follows from that conclusion that no denial of procedural fairness has in fact occurred notwithstanding any procedural criticism available to the appellant.
Secondly, there is another reason why, in any event, a procedural shortcoming of the kind alleged could have made no difference to the overall outcome. It is apparent from the discussion in paragraph 89 (extracted above at [17]) of the second respondent’s decision that what was there being addressed by the second respondent was an additional factual circumstance asserted by the appellant. Although he was not believed on that issue, and it was therefore rejected as a consideration to take into account, it is not apparent from the decision that this had the consequence that his application for a protection visa was for that reason rejected. On the contrary, at paragraph 84 (extracted above at [16]) the second respondent recorded that other than for this and one other matter the appellant’s account was “internally consistent and plausible”. The second respondent went on, however, to discuss in some detail the various foundations for the appellant’s claim to be considered to be a refugee to whom Australia owed protection obligations. Those various considerations were each judged not to give rise to a valid claim. A discussion of some of those issues may be seen in the following paragraphs:
94. [The appellant] states as part of his Hindu religious practice he paints his forehead with a white line extending from one brow to the other, and a red dot between his eyes and above the bridge of his nose. During the interview he showed me a photograph of himself with such decoration, whilst he stood next to his wife and children in a brightly coloured and decorated scene indicative of some festivity. [The appellant] claims when he wears the white and red forehead paint he is precluded from passing through checkpoints into Sinhalese areas until he wipes off the forehead paint. …
…
96. On the evidence before me I accept [the appellant] has experienced discrimination in the form of harassment at checkpoints when his identity is being ascertained, including being asked to remove white and red forehead paint when wearing it if he wishes to proceed into Sinhalese areas. I accept his treatment at checkpoints has been unpleasant for him, that it has minimally curtailed his Hindu religious expression and has deterred him from undertaking work in Sinhalese areas after 6pm due to Army presence which he would prefer to avoid. I accept the reason for the authorities’ discriminatory treatment of [the appellant] at checkpoints is because of his Tamil race and his membership of the particular social group of young male Tamils from the East.
97. It has not been submitted, and nor do I accept, that the systemic discriminations that exist against ethnic Tamils and members of the particular social group of young male Tamils from the East, involve either generally or in [the appellant’s] circumstances, serious harm of such types as set out in the non-exhaustive examples contained in subsection 91R(2) of the Act. On the contrary, [the appellant’s] evidence of his own circumstances is that he has received an education, he has access to government health services, he has been gainfully employed throughout most of his adult life, he has lawfully exited and re-entered Sri Lanka on three and two occasions, he has always lived in stable accommodation in Trincomalee, he has married and has four children for whom he has been issued birth certificates, and he receives government assistance through his family card entitlement. I find the cumulative impact of the indirect (systemic) and direct (at checkpoints) discriminations [the appellant] is subject to because of his race and membership of the particular social group of male Tamils from the East, do not (either separately or cumulatively) involve serious harm as set out in subparagraph 91R(1)(b) of the Act.
98. I accept the advisor’s submission that there exists in Sri Lanka the particular social group of auto / taxi drivers from Trincomalee, and find it is identifiable by members’ common attributes of occupation as auto / taxi drivers and their place of business being Trincomalee, and the common attribute is not a shared fear of persecution. I find the members’ common attributes distinguish the group from society at large, and members of this particular social group are cognisable in Sri Lankan society by the method by which they earn their livelihoods, their business operation base being in Trincomalee and their occupational association with other auto / taxi drivers at the auto / taxi stand. I find [the appellant] is a member of this particular social group auto / taxi drivers from Trincomalee and that he is recognisable by others as belonging to this particular social group.
99. I have previously accepted in 1994 and 2008 [the appellant] was subject to arbitrary arrest, detention without charge and ill-treatment whilst in custody, as were countless other Sri Lankan citizens during that period whom the authorities suspected were linked to or supportive of the LTTE. [The appellant’s] evidence is that the June 2008 explosion occurred in the vicinity of his auto stand at the Junction in which numerous other businesses operated. I do not accept his membership of the particular social group auto / taxi drivers from Trincomalee, considered in addition to or separately from him being a Tamil and / or young male Tamil from the East, was relevant to the authorities’ treatment of him on that occasion. I find it was the physical location of [the appellant’s] business base, and not the nature of his business, that brought him to the attention of the authorities, and combined with his Tamil race and young male Tamil from the East particular social group membership, he was only for that short period of nine hours in June 2008 suspected of being linked to or supportive of the LTTE. On the evidence before me I find now and in the reasonably foreseeable future [the appellant] will not be adversely treated because of his membership of the particular social group auto / taxi drivers from Trincomalee (including any other permutation) or for any Convention reason associated with or based upon employment he has or will undertake as an auto / taxi driver in Trincomalee or elsewhere in Sri Lanka. From this it follows I find he has not in the past, nor will he now or in the reasonably foreseeable future be perceived by the authorities as a LTTE member or collaborator as a consequence of his membership of the particular social group auto / taxi drivers from Trincomalee, even if he has in the past or does in the future inadvertently provide services to fare paying passengers who have LTTE membership or involvement.
100. Based on the independent information at paragraphs 78 to 83 I find there exists in Sri Lanka the particular social group of failed asylum seekers from the West, identifiable by members’ common attributes of their having applied for protection under the Refugees Convention whilst in a Western country during their absence, and their return after removal from the Western country in which their asylum bid was not successful, and the common attribute is not a shared fear of persecution. I find the common attributes distinguish group members from other Sri Lankan citizens who have not travelled to the West and / or who return after an absence during which they did not unsuccessfully seek asylum, and thus the common attributes distinguish the particular social group of from [sic] Sri Lankan society at large. I find [the appellant] is a member of this particular social group of failed asylum seekers returning from the West.
101. I note the independent information at paragraphs 79 and 81 and accept all Sri Lankan citizens who arrive at Colombo airport after having unsuccessfully sought asylum are questions by the authorities (DIE, SIS and CID) and subject to routine identity checks. I also accept Tamils from the east (and by extension young male Tamils from the East) are likely to receive greater scrutiny than others, and particular past activities by individuals may place them at risk of “difficulties with the authorities including possible detention”. There is no evidence before me that [the appellant] has any of the risk factors set out in paragraph 79 – in fact his evidence is that he departed Sri Lanka on his own passport after two hours in the presence of airport officials who questioned him about his destination (Malaysia), and he currently has in his possession several forms of identity documentation.
102. I note the independent information at paragraphs 81 and 83 that in the first three months of 2011, UNHCR assisted in the return of 597 refugees to Trincomalee and Mannar, and total returns for 2011 were being estimated in the amount of up to 21,000. In September 2011 50 Sri Lankans, many of whom were failed asylum seekers and 27 of whom were Tamil, were forcibly returned and all personally provided the international aid agency IOM with their contact details. I note the opinions expressed by a refugee advocate and Tamil priest and limited information about the backgrounds of allegedly detained deportees in the May 2010 Catholic news article, and the more recent DIAC advice confirming the arrest of a returnee for a people smuggling offence under Sri Lankan law in 2009. I note the independent information at paragraph 82, and combined with my own research from which I was unable to find any information indicating Sri Lankan citizens claiming asylum in another country are viewed negatively by the Sri Lankan State, I find [the appellant’s] membership of the particular social group of failed asylum seekers returning from the West will not put him at any greater risk of adverse treatment from the authorities (at the airport or thereafter) as compared to other Sri Lankan citizens who are not members of this particular social group and who are also automatically questioned and subject to routine identity checks on arrival at Colombo airport. I find [the appellant] will not be persecuted now or in the reasonably foreseeable future because of his membership of the particular social group failed asylum seekers returning from the West.
103 Nor do I accept that either separate to or combined with his Tamil race, his membership of the particular social groups young male Tamils from the East and auto / taxi drivers from Trincomalee and his detainment by the Army and police for nine hours in June 2008 after a bomb explosion occurred near his auto / taxi service base, the fact of [the appellant’s] membership of the particular social group failed asylum seekers from the West provides any basis upon which the authorities will suspect him of LTTE membership or corroboration. I find there is not a real chance [the appellant] will encounter any difficulties with airport or other State authorities for any reason whatsoever now or in the reasonably foreseeable future, when he arrives at Colombo and / or returns to Trincomalee. If [the appellant] is subject to greater scrutiny at the airport (because of his membership of the particular social group young male Tamils from the East) or questioning because of his membership of the particular social group of failed asylum seekers returning from the West, I find his treatment will not involve serious harm as set out in subparagraph 91R(1)(b) of the Act. If [the appellant] is questioned about his absence from Trincomalee by the police in Trincomalee when returns, I find there will be no adverse consequence flowing from his membership of the particular social group of failed asylum seekers from the West.
104. In considering whether [the appellant] is at risk of harm due to authorities imputing to him, arising from his Tamil race and membership of the particular social groups young male Tamils from the East, auto / taxi drivers from Trincomalee and / or failed asylum seekers returning from the West a political opinion of membership or collaboration with the LTTE, I note the independent information at paragraph 73 and 74. I have considered [the appellant’s] response to this information, namely that he had fare paying passengers who were LTTE and that the government thinks all Tamils, especially those from Vanni, are LTTE. I note four vocal sources of criticisms of human rights practices in Sri Lanka – Amnesty International, International Crisis Group, Human Rights Watch and US Dept of State do not, in any of the current materials, make such an assertion that LTTE membership or association arises from or is linked to Tamil ethnicity and / or occupation and / or area of residence. I find on the evidence before me [the appellant] will not now or in the reasonably foreseeable future be imputed by the authorities (Army, CID, police, paramilitaries) as having any imputed political opinion (LTTE member or collaborator and / or opposition to the Sri Lankan government).
105. I note the independent information that since 2009 emergency legislation has been relaxed, restrictions on freedom of movement have been eased, there has been deliberate recruitment and training of Tamil civilians for the police force and current expenditure on infrastructure and economic development in Trincomalee is 1.936 million Sri Lankan rupees. I find there is not a real chance now or in the foreseeable future [the appellant] will be subject to discrimination for the Convention reasons of Tamil race, Hindu religion and membership of the particular social group young male Tamils from the east that individually or collectively involves serious harm as set out in subparagraph 91R(1)(b) of the Act.
106. If [the appellant] experiences delays in negotiating his passage through official processes, such a re-entry to Sri Lanka and movement into checkpoint controlled areas (for his work or any other journey) because as an ethnic Tamil and member of the particular social group young male Tamils from the East his identity is more closely scrutinised, I find the essential and significant motivation (as set out in subparagraph 91R(1)(a) of the Act) by the authorities in closely scrutinising [the appellant’s] identity is the thorough and rigorous application of security measures, which apply to all Sri Lankan citizens and foreign visitors, which have been enacted in furtherance of the national interest of preventing a recurrence of the recently concluded civil war.
107. I have found the cumulative impact of the indirect (systemic) and direct (at checkpoints) discriminations [the appellant] is subject to because of his Tamil race and membership of the particular social group make Tamils from the East do not involve serious harm as set out in subparagraph 91R(1)(b) of the Act.
108. I have found now and in the reasonably foreseeable future [the appellant] will not be adversely treated because of his membership of the particular social group auto / taxi driver from Trincomalee, and he will not be persecuted now or in the reasonably foreseeable future because of his membership of the particular social group failed asylum seekers returning from the West.
109. I have found the curtailment of [the appellant’s] religious freedom in not being able to pass through checkpoints into Sinhalese areas wearing white and red forehead paid does not involve serious harm as set out in subparagraph 91R(1)(b) of the Act.
110. I have found there is nothing in [the appellant’s] circumstances that will give rise to the authorities either now or in the reasonably foreseeable future imputing to him any political opinion (LTTE member or collaborator / opposition to the Sri Lankan government).
111. For the above reasons I find there is not a real chance now or in the reasonably foreseeable future [the appellant] will be persecuted for the Refugee Convention reasons, considered separately and cumulatively, of his Tamil race, Hindu religion and membership of the particular social groups young male Tamils from the east, auto / taxi driver from Trincomalee and / or failed asylum seeker returning from the West.
112. Accordingly, I find [the appellant’s] fear of returning to Sri Lanka is not well founded.
113. I find [the appellant] does not meet the criterion for a protection visa set out in s.36(2) of the Migration Act 1958. …
(Emphasis in original)
It is apparent that the assessment of the matters dealt with in these paragraphs does not depend on any adverse finding against the appellant concerning his credibility. On the contrary, at important points the appellant’s claims were accepted. Nevertheless, he did not qualify, as a refugee, for the issue of a protection visa. There is no basis to think that those findings, or the analysis which led to them, might have altered if the second respondent listened to the tape of the first interview (on the assumption that she did not in fact do so).
Conclusion
The conclusion of the second respondent that she should disregard the particular claim of the appellant about events in February 2010 did not represent the reason why his claim to be a refugee was not accepted. Despite the availability of the criticisms which have been made (which to some extent may be accepted), in my view no injustice has been demonstrated which would warrant a finding that the appellant was denied procedural fairness by the second respondent. Even though I accept that an error has been shown in the analysis by the FMCA of this particular issue, that does not justify the appeal being upheld or the matter be remitted for further attention for the merits of the appellant’s claim for a protection visa.
Accordingly, the appeal will be dismissed with costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 15 March 2013
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