SZRFY v Minister for Immigration - [2012] FMCA 1003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRFY v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1003

MIGRATION – Review of a report and recommendation of an Independent Merits Reviewer in respect of the claims of an offshore entry person – applicant claiming imputed political opinion and racial persecution in Sri Lanka – Reviewer asking herself the wrong question in relation to the risk of harm feared by the applicant should he return to Sri Lanka.

Migration Act 1958 (Cth), ss.36, 91R, 425

Abebe v Commonwealth [1999] HCA 14; 197 CLR 510
ApplicantWAEE v Minister for Immigration (2003) 75 ALD 630, [2003] FCAFC 184
Minister for Immigration v SZGUR [2011] HCA 1; (2011) 273 ALR 22
Minister for Immigration v SZJSS [2010] HCA 45
Minister for Immigration v SZQPA [2012] FCA 1025
MZYOI v Minister for Immigration [2012] FCA 868
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41
Re Minister for Immigration; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437
SZBEL v Minister for Immigration [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515
SZQMA v Minister for Immigration (2012) 127 ALD 305, [2012] FCA 433 SZRFF v Minister for Immigration & Anor [2012] FMCA 877
SZRFH v Minister for Immigration & Anor [2012] FMCA 1040

Applicant:

SZRFY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

J BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 546 of 2012

Judgment of:

Driver FM

Hearing date:

31 October 2012

Date of Last Submission:

30 November 2012

Delivered at:

Sydney

Delivered on:

21 December 2012

REPRESENTATION

Counsel for the Applicant:

Mr R Nair

Solicitors for the Applicant:

SBA Lawyers

Counsel for the Respondents:

Mr D Godwin

Solicitors for the Respondents:

Minter Ellison

ORDERS

The Court declares that the report and recommendation by the second respondent dated 13 February 2012 was not made in accordance with law.
The first respondent, by himself or his Department, officers, delegate or agents, is restrained from relying upon the report and recommendation of the second respondent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 546 of 2012

SZRFY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

J BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to restrain the first respondent (the Minister) from relying upon a report and recommendation by the second respondent (the Reviewer). The report is dated 13 February 2012. The Reviewer found that the applicant does not meet the criterion for a protection visa set out in s.36(2) of the Migration Act 1958 (Cth) (Migration Act) and recommended that he not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.
The following statement of background facts is derived from the Minister’s written submissions filed on 23 October 2012.
The applicant arrived in Australia on 7 November 2010. On 15 January 2011, the applicant applied to have a Refugee Status Assessment (RSA). He received a negative assessment on 29 April 2011. There was then an Independent Merits Review (IMR) which found adversely to the applicant on 13 February 2012 and which is the subject of this application.

Claims

The applicant is a Sri Lankan of Tamil ethnicity. He is a Roman Catholic. He claimed to fear persecution by reason of imputed political opinion and race. He claims that the Sri Lankan army are still pursuing him because in June 2008 he transported four LTTE operatives in his work van. The applicant claimed that when the army learned he had transported the LTTE operatives they sought out his co-worker who had been present in the vehicle. When they found the co-worker they shot him. The applicant claims he learned this had happened so he went into hiding with the assistance of the Catholic Church. He then escaped to India with the assistance of the Church. A month later the army came to his house and detained his mother, sister and brother. They were released a considerable time later. The sister was subsequently recognised as a refugee by Switzerland.

The Reviewer’s report

The Reviewer accepted that the applicant had transported four men at gunpoint and that he subsequently moved to India.[1]
[1] Court Book (CB) 258 [92]
The Reviewer did not consider it plausible that the applicant had been employed by the transport company for two years and yet the company did not know his address and for this reason had not been able to inform the authorities of his address. Nor did the Reviewer consider it plausible that the authorities could not find his address until a month after the incident. The Reviewer also considered it to be implausible that the co-worker would be shot by the army, but the LTTE operatives were not shot. For this reason the Reviewer did not accept that the co-worker had been shot. Nor did the Reviewer accept that the army were searching for the applicant or had ever done so. The Reviewer did not accept that the authorities had any interest in the applicant in June 2008 or at any time since then. It followed that the Reviewer did not accept that the applicant had ever been in hiding.[2]
[2] CB 258 [92]
The Reviewer accepted that the applicant's mother and brother and sister had been detained, but did not accept that this had anything to do with the incident in June 2008. On the basis of independent country information, the Reviewer found that the detention was because they were Tamils suspected of LTTE affiliation.[3]
[3] CB 259 [95]
The Reviewer found that the applicant's sister was recognised by the Swiss authorities as a refugee because of her Tamil race, her female gender, her origin from the North, and most likely her proof of detention between 13 August 2008 and 24 December 2008.[4]
[4] CB 261 [97]
The Reviewer accepted that as a Tamil the applicant would face discrimination in Sri Lanka, however the cumulative effect of this would not amount to serious harm within the meaning of s.91R(1)(b) of the Migration Act.[5]
[5] CB 262 [99]-[100]
The Reviewer did not consider that there was anything about the applicant's past or present circumstances which the authorities would view now, or in the reasonably foreseeable future as being suggestive that he held a pro LTTE opinion. This assessment took into account the applicant's Tamil ethnicity, the 2008 incident, his departure to India on a passport other than in his own name and his asylum claim in Australia.[6]
[6] CB 263 [102]
The Reviewer found that even if questioned on return to Sri Lanka in relation to his July 2008 departure on a non-genuine passport, he would be given the opportunity to explain himself and would not otherwise be harmed.[7]
[7] CB 263 [103]
The Reviewer observed that there was no information before her that suggested that the Sri Lankan State was unwilling to provide Tamils with adequate levels of protection against Convention motivated harm by private actors.[8]
[8] CB 263 [31]

The judicial review application

These proceedings began with a judicial review application filed on 12 March 2012. The applicant now relies upon an amended application filed on 14 September 2012. The grounds in that amended application are:
1. The second respondent (“the reviewer”) failed to consider the applicant’s claim in that the reviewer did not consider a claim clearly arising on the material before the reviewer.
Particulars
i) The reviewer accepted the evidence that the applicant’s mother and sister had been detained from 27 July 2008 to 16 January 2009 (6 months) and that his brother had been detained from 27 July 2008 to 25 January 2010 (18 months). This evidence was corroborated by evidence from the ICRC (Red Cross).
ii) Evidence before the reviewer clearly suggested that the detention of the applicant’s family members was for reason of suspicion or knowledge of their affiliation with the LTTE.
iii) The applicant claimed that at the time of their arrest, his family members were asked about his whereabouts. The reviewer did not reject this evidence, that at that time of his family’s arrest, the authorities were interested in the applicant’s whereabouts.
iv) This evidence before the reviewer clearly raised the very real probability that the authorities had an adverse interest in the applicant because of his family affiliation (suspected or otherwise) with the LTTE.
v) The materials before the reviewer clearly gave rise to a claim that the applicant has a well-founded fear of persecution by the Sri Lankan authorities for reason of membership of a particular social group (his family).
vi) The reviewer did not consider this claim.
2. The reviewer denied the applicant procedural fairness in that the reviewer did not put before the applicant the substance of matters the reviewer knew of and considered may bear upon whether to accept the plaintiff’s claims.
Particulars
1) The applicant gave the reviewer a letter from Rev Fr Peter Manohar dated 6 June 2011 (the “Manohar letter”) regarding which the reviewer said at [92] (CB 258):
In assessing the plausibility of (the applicant’s) claims I have considered the information in the letter from Rev Fr Peter Manohar and note that it states (the applicant) is from the address at Adampan, Mannar which is the same address (the applicant) has given evidence of living at until 2005/2006, and the writer’s parish is located in Mannar which is some 70 kms by road away from Vavuniya which is the area around which (the applicant) claims the events occurred. Thus, the writer’s knowledge of the information provided does not appear to have been acquired through first hand experience but rather as a result of information provided by (the applicant) himself. I find the letter of support is not independent information but merely reiterates much of (the applicant’s) oral evidence, and thus I give it no weight.
2) The reviewer did not put to the applicant that the Rev Fr Peter Manohar’s “knowledge of the information provided does not appear to have been acquired through first hand experience but rather as a result of information provided by (the applicant) himself” because the Rev Fr.’s “parish is some 70 kms by road away from Vavuniya”.
3. The reviewer’s recommendation was so unreasonable that no reasonable person in the position of the reviewer could have made it.
Particulars
1) The reviewer did not provide a rational basis of reasoning, or in the alternative, cogent reasons for deciding to give “no weight” to the Manohar letter;
2) The reviewer failed to have proper and meaningful regard to the Manohar letter;
3) The Manohar letter corroborated the Applicant’s claims;
4) If the reviewer had had proper and meaningful regard to the Manohar letter, she ought to have accepted the Applicant’s claims.
4. The reviewer’s recommendation was not supported by a rational basis of reasoning, or in the alternative, cogent reasons.
Particulars
The Applicant repeats the particulars to paragraph 3 above.
5. The reviewer did not consider whether Australia has protection obligations to the applicant by reason of there being substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm.
Ground 5 was not pressed.
I received as evidence the court book filed on 13 April 2012. I also received the affidavit of Susan Archer made on 20 August 2012, to which is annexed a transcript of the interview conducted by the Reviewer with the applicant at the Scherger Immigration Detention Centre on 12 January 2012.
The applicant contends that the Reviewer fell into error by not considering the risk facing the applicant by reason of the detention and interrogation of other members of his family. The applicant also contends that the process followed by the Reviewer was procedurally unfair by reason of the treatment of a supportive letter by a Catholic priest in Sri Lanka by the Reviewer. Further, the applicant asserts that the Reviewer’s report and recommendation was unreasonable and not supported by a rational basis of reasoning.
The Minister denies that the Reviewer committed any reviewable legal error. In the light of the oral argument at the trial of this matter, I invited further written submissions from the parties, which were provided.

Consideration

Ground 1 – Did the Reviewer fail to consider an element or integer of the applicant’s claims?

This ground alleges that the Reviewer failed to consider a claim clearly arising on the material before her. The submissions for the applicant identify this as being an imputed political opinion arising from membership of his family as well as whether he was a member of a particular social group constituted by his family. The ground was further explored during argument before me, which altered somewhat the relevant legal issue.
The Reviewer accepted that the applicant’s mother and sister had been detained from 27 July 2008 to 16 January 2009 (six months) and that his brother had been detained from 27 July 2008 to 25 January 2010 (18 months). This evidence was corroborated by evidence from the ICRC (Red Cross). Denial of liberty is serious harm amounting to persecution[9].
[9] Migration Act, s.91R
At [95][10] of her report, the Reviewer stated that she accepted that the applicant’s mother, sister and brother were likely to have been detained under the Emergency Regulations on suspicion of LTTE affiliation.
[10] CB 259-260
The applicant told the Reviewer that his mother, sister and brother had been detained because of him and because of an incident in June 2008 where he was forced at gunpoint to provide transport one evening to four LTTE cadres dressed in Sri Lankan military uniforms (the incident). The Reviewer did not accept that claim.
Although the Reviewer accepted that the applicant’s family were detained because of suspicion of LTTE affiliation, the Reviewer rejected the applicant’s claim that his family was detained because of suspicion of his LTTE affiliation. On the facts as found by the Reviewer there was nevertheless an issue as to whether the applicant has a well-founded fear of persecution because of the political opinion (imputed to or suspected of) his family.
At [101][11] of the Reviewer’s report, she stated:
I consider [the applicant’s] brother[‘s] … current employment with a State Department indicates that any past concern the authorities may have had with [the applicant’s] family members for any reason, has been dispelled.
[11] CB 262
The applicant contends that this statement does not indicate that the Reviewer turned her mind to whether the applicant was a member of a “particular social group” (his family) and whether he had a well-founded fear of persecution by reason of his membership of this group, when the evidence, and indeed, the facts as found by the Reviewer, clearly presented the potential for such a case.
Further at [102][12] of the Reviewer’s report, she stated:
On the information before me I do not accept that there is anything about [the applicant’s] past or present circumstances that the authorities will view now and in the reasonably foreseeable future, as suggestive of him ever having held a pro LTTE political opinion. By past and present circumstances I specifically refer to his Tamil race, his former employment as a van driver in Vavuniya, his being forced at gunpoint to provide transport one evening in June 2008 to four LTTE cadre dressed in Sri Lankan Army uniforms, his departure from Sri Lanka to India in July 2008 on a passport containing a name other than …, his ongoing absence and his presence in Australia since November 2010 during which he has made an asylum claim. I find [the applicant] has never, nor does he now nor will he in the reasonably foreseeable future, be imputed as holding a pro LTTE (or any other permutation) political opinion.
[12] CB 262-263
The applicant contends that it is clear from the above that the Reviewer did not turn her mind to whether the applicant was a member of a “particular social group” (his family) and whether he had a well‑founded fear of persecution by reason of his membership of this particular group.
The Minister contends that, whichever way the claim is put, there was no obligation for the Reviewer to specifically address it as it had been disposed of by the finding that any past concern that the authorities had with the applicant's family members has been dispelled.[13] This conclusion is said to have “subsumed” the component which Ground 1 now seeks to characterise as a claim not addressed.[14]
[13] CB 262 [101]
[14] ApplicantWAEE v Minister for Immigration (2003) 75 ALD 630, [2003] FCAFC 184 at [47], and SZQMA v Minister for Immigration (2012) 127 ALD 305, [2012] FCA 433 at [39]
In his further submissions, the applicant contends that the Reviewer also failed to consider his claim against the Convention ground of (imputed) political opinion in that the reviewer failed to consider the applicant’s “risk profile” and the “risk factor” of his family when considering what would happen to the applicant on arrival at the airport in Sri Lanka.
The applicant put this risk factor to the Reviewer, including in written submissions. For example in written submissions the applicant’s then advisor, prior to the hearing[15], under the heading “Persecution arising from a Political Opinion”, wrote:
Our client continues to fear for his safety should he be forced to return to Sri Lanka, which is why when his family was released he did not use that opportunity to return to Sri Lanka, knowing that if he had he would have been identified, located and subsequently arrested.
Our client instructs that he would not have been as fortunate as his family and eventually released, he believes that he would have faced the same fate as his friend either immediately or soon after being arrested.
[15] CB 130
It is clear that the Reviewer accepted[16] that the applicant “faces additional questioning at the airport (in Sri Lanka) in relation to his departure in July 2008 on a non-genuine passport …”
[16] CB 263 [103]
The Reviewer said[17]:
On the information before me, including that extracted at paragraph 82, I find there is not a real chance that any treatment [the applicant] experiences at the airport upon his return will involve serious harm as set out in subparagraph 91R(1)(b) of the Act.
[17] CB 263 [103]
The applicant contends that the Reviewer arrived at this purported finding without considering his claim, in particular, without considering his “risk profile”.
The Reviewer[18] discussing “risk factors” in country information stated:
Anyone who was wanted for an offence would be arrested. Those with a criminal record or LTTE connections would face additional questioning and may be detained. In general , non-government and international sources agreed that Tamils from the north and east of the country were likely to receive greater scrutiny than others, and that the presence of the factors below would increase the risk that an individual could encounter difficulties with the authorities including possible detention:
·    outstanding arrest warrant
·    criminal record
·    connection with LTTE
·    illegal departure from Sri Lanka
·    involvement with media or NGOs
·    lack of an ID card or other documentation[19] (emphasis added)
[18] CB 253 [80]
[19] UK Border Agency Country of Origin Information Report Sri Lanka 4 July 2011
At [95][20] of her report, the Reviewer stated that she accepted that the applicant’s mother, sister and brother were likely to have been detained under the Emergency Regulations on suspicion of LTTE affiliation.
[20] CB 259-260

The Reviewer said that she considered “any past concern the authorities may have had with the applicant’s family for any reason has been dispelled”.
The Reviewer also said that she “find(s) it inimical to logic and reason that if the authorities had any past or ongoing suspicion of (the applicant’s) past and/or his having any pro LTTE political opinion, that they would appoint or employ his brother with a government instrumentality”.
The Minister submits that the Reviewer did consider the “risk factor” posed by the applicant’s mother, sister, and brother having been likely to have been detained under the Emergency Regulations on suspicion of LTTE affiliation.
In response, the applicant refers to the country information the Reviewer relied on which refers to “internment” of LTTE cadres and suspected supporters in “rehabilitation camps”. “Some released cadres are given jobs”[21]. Clearly, the process of arrest and detention includes some attempt at rehabilitation and the release of detainees after a process of arrest, questioning, detention and rehabilitation. The Reviewer was clearly aware of, and relied on, this information.
[21] CB 248 [70]
Secondly, the applicant submits that [101] of the Reviewer’s report should be read with [102] and [103]. At [102], the Reviewer states that she:
does not accept there is anything about the applicant’s past or present circumstances that the authorities will view now and in the reasonably foreseeable future, as suggestive of him having held a pro LTTE political opinion.
The Reviewer then continues, “By past and present circumstances I specifically refer to” and then lists those circumstances. There is no mention of the imprisonment (and possible torture) of the applicant’s family members because of actual or suspicion of LTTE affiliation. The applicant submits that it is clear that in considering the applicant’s past or present circumstances (for the purpose to determining whether the applicant would be imputed with a pro LTTE opinion) the Reviewer did not consider the risk factor connected with his family’s detention.
The applicant contends that on a fair reading, in finding there is not a real chance that any treatment that (the applicant) experiences at the airport upon his return will involve serious harm, the Reviewer failed to consider the risk factor (LTTE connection) associated with the imprisonment of the applicant’s family on suspected LTTE affiliation.
At [103] the Reviewer said that she did not accept the applicant’s claims that at the airport he will not be given the opportunity to explain himself. The applicant contends the Reviewer focused on the outcome and not on the process. The finding against serious harm is said to be vitiated by the failure to ask the right question[22].
[22] see Minister of Immigration v SZQPA [2012] FCA 1025 (20 September 2012)
These submissions reflect the fact that two new issues arose at the hearing of this matter of 31 October 2012. The first new issue which arose at the hearing was whether the Reviewer had fallen into error identified in Minister for Immigration v SZQPA[23]. That error is to make a finding that the applicant faces detention for questioning at the airport without considering whether treatment during such detention might constitute persecution.
[23] [2012] FCA 1025
The Minister submits that this case is similar to SZRFF v Minister for Immigration & Anor[24] and SZRFH v Minister for Immigration & Anor[25] in that there was an express consideration of whether the treatment the applicant will receive at the airport is persecutory[26]. That finding is based upon country information to the effect that “there have been no allegations that airport staff have mistreated returnees”[27].
[24] [2012] FMCA 877
[25] [2012] FMCA 1040
[26] CB 263 [103]
[27] CB 254 [82]
In his supplementary submissions at [17] the applicant seeks to diffuse the finding that treatment at the airport will not be persecutory by alleging that the finding did not take into account the risk factor posed by the imprisonment of the applicant’s family on suspected LTTE affiliation. The Minister contends that this is the same issue that was argued in relation to Ground 1 of the application. The Minister submits that the Reviewer had already found at [101][28] that any concern that the authorities had with the applicant’s family, for any reason, had been dispelled. Accordingly, there would be no risk factor arising from the applicant’s family association at the time of his return.
[28] CB 262
With respect, the Minister’s submission (and the finding by the Reviewer that the Minister relies on) misses the point. The point is that it was known to the Reviewer that other members of the applicant’s family had been detained and interrogated by the Sri Lankan authorities for a considerable period because of suspected LTTE links. They had been released but that simply established that those other members of the applicant’s family no longer were a security risk. It could not be assumed that the Sri Lankan authorities would determine that, because other members of the applicant’s family have been cleared, the applicant also constituted no risk. The Reviewer needed to consider whether the applicant would have to undergo the same process of detention and interrogation as that to which other members of his family had been subjected. It was put to the Reviewer (including in the corroborative letter provided by Father Manohar) that other members of the applicant’s family who had been detained had been tortured. In my view, the Reviewer in this case fell into the same error as the Reviewer in SZQPA, by asking herself the wrong question. The question was not whether the Sri Lankan authorities would view the applicant adversely, in the light of the release of other members of his family but, rather, whether the applicant would be subjected to a similar process of detention and interrogation to that which other members of his family underwent, and if so, whether the applicant had a well-founded fear of persecution by reason of that process.
I find that Ground 1 has been established.

Ground 2 – Was the process followed by the Reviewer in relation to the letter from Father Manohar procedurally fair?

This ground alleges that there was a failure to afford procedural fairness as the Reviewer did not place the applicant on notice that an issue in the proceedings was whether Father Manohar's letter was based on first hand experience or alert him to the information that Mannar is 70 kilometres by road from Vavuniya. This ground was also explored and developed in argument before me.
The applicant gave the reviewer a letter from Father Peter Manohar (“the Manohar letter”) dated 6 June 2011[29].
[29] see CB 120
During the review before the Reviewer, the applicant and his then advisor emphasised the importance and relevance of the Manohar letter in support of the applicant’s claims. This included emphasis towards the end of the hearing[30].
[30] see transcript of hearing at pages 35-36
The letter from Father Manohar included the following statements:
a)the applicant was forced to give a lift to four LTTE persons;
b)“after some days Terrorist Investigation Department (TID) Police personnel came in search of [the applicant]” and that “[t]hen only we all came to know that those men who travelled in the van, from LTTE”;
c)Father Manohar “personally know(s) the sufferings [the applicant’s mother, sister and brother] underwent in the prison” following their detention after the applicant went to India;
d)he “personally knows [the applicant’s] family” and that following their release from detention, “still some TID personnel come to inquire [about] them from time to time”.
This was clearly information relevant to the determination required to be made by the Reviewer.
In regard to the Manohar letter the Reviewer said at [92][31]:
In assessing the plausibility of [the applicant’s] claims I have considered the information in the letter from Rev Fr Peter Manohar and note it states [the applicant] is from the address at Adampan, Mannar which is the same address [the applicant] has given evidence of living at until 2005/2006, and the writer’s parish is located in Mannar which is some 70 kms by road away from Vavuniya which is the area around which [the applicant] claims the events occurred. Thus, the writer’s knowledge of the information provided does not appear to have been acquired through first hand experience but rather as a result of information provided by [the applicant] himself. I find the letter of support is not independent information but merely reiterates much of [the applicant’s) oral evidence, and thus I give it no weight.
[31] CB 258
The Reviewer did not put to the applicant that Father Peter Manohar’s “knowledge of the information provided does not appear to have been acquired through first hand experience but rather as a result of information provided by (the applicant) himself” because Father Manohar’s “parish is some 70 kilometres by road away from Vavuniya”.
The applicant was not on notice that how Father Manohar came to know of the information he provided was a relevant issue. In fact the letter itself states or indicates that at least some if not all of the information contained may have come to Father Manohar’s knowledge independently of the applicant or have been independently confirmed.
Further, the applicant was not on notice that the distance between Father Manohar’s parish and Vavuniya (some 70 kilometres) was a relevant issue.
The applicant was not on notice as a result of the RSA that the issue of the independence of Father Manohar’s information was a relevant issue.
When, towards the end of the hearing, both the applicant and his advisor emphasised the relevance of this evidence, the Reviewer did not identify that the issue of how Father Manohar came to know the information contained in his letter was itself a relevant issue.
In SZBEL v Minister for Immigration[32] the High Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon at [32] said:
In Alphaone the Full Court rightly said:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. (emphasis added)
[32] [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515 (15 December 2006)
At [42] to [43] the High Court in SZBEL said:
But closer examination reveals that the appellant's complaint is more deep-seated than a complaint about the making of unstated cultural assumptions. It is that he was not on notice that his account of how his ship's captain came to know of his interest in Christianity, and his account of the captain's reaction to that knowledge, were issues arising in relation to the decision under review.
The delegate had not based his decision on either of these aspects of the matter. Nothing in the delegate's reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify these aspects of his account as important issues. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these were live issues. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said or did added to the issues that arose on the review.
In addition, the applicant contends that the information in regard to the distance between Father Manohar’s parish and Vavuniya (some 70 kilometres) was relevant “country information” about which the High Court[33] in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia[34], inter alia, at [91] said:
Procedural fairness required the reviewer to put before the plaintiff the substance of matters the reviewer knew of and considered may bear upon whether to accept the plaintiff’s claims. … The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made.
[33] French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ
[34] [2010] HCA 41 (11 November 2010)
The Minister submits that there was no obligation upon the Reviewer to expose for comment her reasoning for giving no weight to Father Manohar's letter. Procedural fairness does not require an applicant to be informed of the Reviewer’s subjective appraisals and thought processes.[35]
[35] In Minister for Immigration v SZGUR [2011] HCA 1; (2011) 273 ALR 22 at [8]- [9] by French CJ and Kiefel (with whom Heydon and Crennan JJ expressly agreed at [91] and [92] respectively) stated:
The second issue which arose at the hearing before me has been embraced in the applicant’s supplementary submissions relating to Ground 2 at [28]:
It is clear from the transcript the reviewer did not tell the applicant that his credibility and in particular the June/July 2008 incident was in issue. It is fair to accept that the applicant would have been led to accept that his credibility in this regard was not in issue. Accordingly there was nothing to suggest to the applicant that the weight of Rev Fr. Peter Manohar’s evidence was in issue because the letter of support (was) not independent evidence but merely reiterated much of the (applicant’s) oral evidence.”
The RSA dated 29 April 2011[36] did not challenge the applicant’s evidence in regard to this incident. Instead, the RSA officer stated[37]:
Furthermore, the applicant’s only link with the LTTE in 2008 has been under duress and unwitting and he left for India in July 2008.
[36] CB 90 to 100
[37] CB100
The RSA in this regard concluded[38]:
I do not consider that in the light of improvements in the overall security in Sri Lanka and lack of any political profile and/or involvement in the LTTE, his one time action in 2008 will bring the claimant to the adverse attention of the Sri Lankan authorities in the reasonably foreseeable future.
[38] CB 100
The applicant submits that he was, accordingly, not aware (and could not have been aware) that his credibility in relation to the 2008 incident was an issue in the IMR.
The transcript of the hearing before the Reviewer included the following exchange:
Reviewer:And if there are matters that are adverse to your claims I will also raise those matters. That’s so you have an opportunity to provide any comments or if there’s any other information you think I should also take into account.[39]
Reviewer:So I can accept that when you left in 2008 it was because you were fearful for your safety but I have to look at the situation in Sri Lanka now and in the reasonably foreseeable future. Okay?[40]
Reviewer:That’s why I explained to you that I can accept that you left in 2008 because you were fearful, but I also have to look at what is the situation now.[41]
[39] Page 2, line 35
[40] Page 34, line 33
[41] Page 35, line 8
I accept the Minister’s submissions concerning the additional issue in Ground 2. The central evidence that the applicant relied upon in support of his protection visa eligibility was the June/July 2008 incident (including as being the reason for the detention of his family). Procedural fairness did not require the Reviewer to alert the applicant that whether that event occurred was in issue.
The context of the requirements of procedural fairness are ascertained from the statutory context. The decision in SZBEL turned on a different statutory context. There is little relevant statutory context in relation to the circumstances in which a recommendation by a Reviewer must be made to the Minister other than in relation to the definition of refugee[42]. Dodds-Streeton J held in MZYOI v Minister for Immigration[43] at [74]-[95] that procedural fairness requirements applicable to the IMR are not those applicable to the Tribunal under s.425.
[42] See Plaintiff M61/2010E v Commonwealth; Plaintiff M69/2010 v Commonwealth at [88] and [91]
[43] [2012] FCA 868
Dodds-Streeton J explained at [92]-[93]:
SZBEL establishes that the statutory procedure prescribed for a review by the Tribunal would ordinarily require it to notify an applicant of an intended deviation from the delegate’s finding on a dispositive or important matter, so that, consistently with procedural fairness, the applicant has notice of the “live” issues in the review. The underlying rationale is that, as the Tribunal conducts a review of the primary decision, unless advised by some means that all findings are in doubt, the applicant may assume that, in the absence of a specific challenge or notice, the dispositive facts accepted by the primary decision maker would also be accepted on review.
In contrast, in the context of an entirely fresh determination, such as that conducted by an IMR, where it is made clear to the applicant that all claims are the subject of a fresh determination, there is no equivalent need to identify the crucial issues in contention by specifically notifying the applicant of any intended divergence from the delegate’s findings on dispositive facts or issues.
The IMR process was an inquisitorial rather than adversarial process. There is no general obligation in an inquisitorial context to directly put to an applicant that each element of their account is in question.
In Abebe v Commonwealth[44] the High Court considered the requirements of procedural fairness in relation to the Tribunal independently of s.425. Callinan J stated at [295][45]:
…the Tribunal in undertaking its essentially investigative function is not obliged to put, as an adversary in adversarial proceedings might be bound to do, in respect of each and every key matter, an assertion of apparent falsity or unreliability.
[44] [1999] HCA 14; 197 CLR 510
[45] Page 608
Gummow and Hayne JJ stated at [187][46]:
The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
[46] Gaudron J agreeing at 546 [90], Kirby J agreeing at 584 [212]
Subsequently, in Re Minister for Immigration; Ex parte Applicant S154/2002[47] Gummow and Heydon JJ explained at [57][48]:
Accordingly, the rule in Browne v Dunn has no application to proceedings in the Tribunal. Those proceedings are not adversarial, but inquisitorial; the Tribunal is not in the position of a contradictor of the case being advanced by the applicant. The Tribunal Member conducting the inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. The Tribunal Member has no "client", and has no "case" to put against the applicant. Cross-examiners must not only comply with Browne v Dunn by putting their client's cases to the witnesses; if they want to be as sure as possible of success, they have to damage the testimony of the witnesses by means which are sometimes confrontational and aggressive, namely means of a kind which an inquisitorial Tribunal Member could not employ without running a risk of bias being inferred. Here, on the other hand, it was for the prosecutrix to advance whatever evidence or argument she wished to advance, and for the Tribunal to decide whether her claim had been made out; it was not part of the function of the Tribunal to seek to damage the credibility of the prosecutrix's story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. (footnotes omitted)
[47] [2003] HCA 60; (2003) 201 ALR 437
[48] with the agreement of Gleeson CJ

In his submissions the applicant points to suggestions in the transcript that the Reviewer accepted that the June/July 2008 incident occurred.
However, that alleged acceptance did not result in the applicant being cut short in his evidence as to what occurred in 2008. The questioning of the applicant concerning the incident was completed at page 20 of the transcript, the indications of acceptance are at pages 34 and 35. The following observations of Gleeson CJ in Applicant S154 at [3] confirm that such indications of acceptance do not affect the content of procedural fairness unless they result in a change in the way the case is presented:
Secondly, the particulars in the order nisi complain of a denial of procedural fairness by the creation of a wrong and misleading impression and a false belief that the Tribunal had accepted part of the prosecutrix's evidence. I do not accept that contention. Additionally, however, it should be noted that what is alleged is materially different from a complaint that, apart from the creation of a misleading impression or a false belief, the Member in some way, by his conduct of the proceedings, prevented the prosecutrix, and the migration agent who was assisting her, from presenting her case as they wished, or from saying everything they wanted to say. Further, there is no complaint that the prosecutrix received insufficient assistance or encouragement from the Tribunal Member. If any such complaint were made, there would be a serious question to be considered as to the relationship between a complaint of that nature and the requirements of procedural fairness.
There remains, however, the original issue in this ground, concerning the manner in which Father Manohar’s letter was dealt with by the Reviewer. The letter from Father Manohar was one piece of evidence that the applicant placed before the Reviewer to support the occurrence of the June/July 2008 incident. The Minister contends that if there was no obligation upon the Reviewer to alert the applicant that the existence of that incident may not be accepted, then it is axiomatic that there would be no greater obligation to alert the applicant that evidence in support of that incident may not be accepted.
With respect, the Minister’s submission, while it has force in relation to the 2008 incident, misses the point in relation to the relevance of Father Manohar’s letter to the issue inadequately addressed by the Reviewer which I have dealt with under Ground 1. Father Manohar’s letter states on its face that he has first hand knowledge of the suffering experienced by the applicant’s family while they were detained. The Reviewer needed to consider whether the applicant might be subjected to a similar process. The Reviewer only addressed the letter in relation to its corroboration of the 2008 incident and its aftermath and dismissed its contents as based on second hand information. In my view, it was procedurally unfair for the Reviewer to fail to give the applicant the opportunity to comment on the proposition that the letter should be given no weight because it was an expression of second hand information when the letter said expressly that Father Manohar had first hand knowledge of what happened to the applicant’s family in detention. The applicant could have had no first hand knowledge to pass on to Father Manohar about that as he was in India.
I find that Ground 2 has been made out.

Ground 3 – Was the Reviewer’s report and recommendation unreasonable?

I accept the Minister’s submissions on this ground.
This ground alleges that the Reviewer's recommendation was so unreasonable that no reasonable person could have made it. In his submissions the applicant identifies the Reviewer's decision to afford no weight to Father Manohar's letter as being the critical unreasonable act. This ground must fail as it is indistinguishable from that rejected by the High Court in Minister for Immigration v SZJSS.[49]

Ground 4 – Was the Reviewer’s recommendation not supported by a rational basis of reasoning or cogent reasons?

[49] [2010] HCA 45 at [33] and [35]

I accept the Minister’s submissions on this ground.
This ground asserts that the recommendation was not supported by a rational basis of reasoning, or, in the alternative, cogent reasons. The submissions of the applicant again point to the treatment of Father Manohar's letter. This ground must fail for the same reasons as Ground 3.

Conclusion

The Reviewer fell into error by asking herself the wrong question in relation to the risk faced by the applicant in Sri Lanka. It follows that he should receive the relief he seeks in the amended application.
I will hear the parties as to costs.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 21 December 2012

[8] The “information” upon which the Tribunal invited comment, was the existence of “contradictions and inconsistencies” between what SZGUR had stated orally and in writing to the Tribunal, variously constituted, during the iterations of the review process. The contradictions and inconsistencies, which were elaborated at some length in the letter, related to SZGUR’s claimed involvement with the Communist Party of Nepal, whether he and his family had gone into hiding in Nepal, whether he had been helped to leave the country and his claim that two colleagues had been executed by the Nepalese Army.
[9] Despite the language of the Tribunal’s letter, the existence of “inconsistencies” and “contradictions” in an applicant’s testimony and written submissions to the Tribunal is not “information” of the kind to which s 424A is directed. As was explained by the plurality in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18], the term “information” in s 424A does not extend to the Tribunal’s “subjective appraisals, thought processes or determinations”. Their Honours said:

“However broadly ‘information’ be defined its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.”

The exclusion of this class of information from the obligation imposed by s 424A is consistent with limits on the procedural fairness hearing rule at common law. Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision. That is not to say that the Tribunal cannot or should not, in the exercise of its discretion, invite an applicant for review to make supplementary submissions in relation to apparent inconsistencies, contradictions or weaknesses in his or her case which have been identified by the Tribunal. Indeed it may be that such an invitation, once issued, amounts to a binding indication by the Tribunal that the review process will not be concluded until the applicant has had an opportunity to respond.

33.The Minister's submissions on the letters issue must be accepted as on a fair reading of the whole of the Tribunal's decision, when the Tribunal said that it gave the letters "no weight" it was referring to the fact that it did not accept the letters as evidencing that the first respondent was in some danger from the Maoists in Kathmandu. This was in large part because of social and political changes which had occurred since the letters were written. The evidence given by the first respondent, including his evidence about the effect of those changes, undermined his claim of political and social activism, thereby contradicting the support which the letters gave to his assertion that Maoists were continuing to pursue him in Kathmandu. The weighing of various pieces of evidence is a matter for the Tribunal.
34.It has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it. In referring to "any rational, reasonable approach to the evaluation" and the need for "a proper, genuine or realistic evaluation" of the letters, the Federal Court was registering emphatic disagreement with the Tribunal's assessment of the factual matters to which the letters were relevant. It appears the Federal Court would have weighed the letters differently which seems to suggest that, on the basis of the letters, the Federal Court would have been satisfied that Maoists were pursuing the first respondent in Kathmandu. When employing the formula "proper, genuine and realistic evaluation" in respect of the letters, the Federal Court did not appear to consider that one of the matters against which the Tribunal weighed the letters was the first respondent's evidence of the effects of social and political changes in Nepal.
35.Whether the letters were "highly supportive" or "powerfully corroborative" (as they appeared to the Federal Court) of the first respondent's claim that Maoists were pursuing him in Kathmandu was a question upon which reasonable minds might come to different conclusions. The Tribunal's preference for other evidence, including the first respondent's own evidence about numerous matters, including the effect of social and political changes from, and since, 2006, over the evidence of the letters written during the first half of 2006, could not be said to constitute a failure to take into account a relevant consideration as canvassed in Peko-Wallsend or Yusuf's case. Nor could it be said to be a failure to respond to a substantial argument thereby giving rise to the kind of error identified in Dranichnikov v Minister for Immigration and Multicultural Affairs.